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Bus law arbitration


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Bus law arbitration

  1. 1. THE ARBITRATION AND CONCILIATION ACT, 1996 & Environment Protection Act By : Tejpal Sheth 1
  2. 2. Objectives of Amendment Minimise the supervisory role of the Courts Arbitral Tribunal to give reasons for Award Permit Arb. Tribunal to use Mediation, Conciliation, other procedures Arbitral Award enforced as if it were a decree of the court Conciliation proceedings --same status and effect as an Arbitral Award Foreign Awards 2
  3. 3. Benefits for the Parties Choose the arbitrator(s); Choose the issues to be arbitrated; Choose the place of arbitration; Choose the substantive law that will control the merits of the dispute; Choose the procedural rules; Choose the schedule; Choose exhibits, witnesses and other evidence to be adduced including arranging for tests and site visits; Choose the form of relief to be awarded; Choose the form of the award; and Agree to facilitate enforcement of the award. 3
  4. 4. ADVANTAGES OF ARBITRATION Technical matter : appropriate special qualifications of the Arbitrator. Speedier than a court case saving in the costs unwanted publicity can be avoided Convenience of the parties as to time and place Arb. Can view subject at any reasonable time 4
  5. 5. Conduct of arbitrations by permanent institutions the International Chamber of Commerce's International Court of Arbitration, World Intellectual Property Organization (WIPO) Arbitration Center, American Arbitration Association (AAA), China International Economic and Trade Arbitration Commission, Indian Council for Arbitration, or the International Center for Settlement of Investment Disputes (ICSD), International Chamber of Commerce (“ICC”), located in Paris. The American Arbitration Association (“AAA”) London Court of International Arbitration Arbitration Institute of the Stockholm Chamber of Commerce; 5
  6. 6. TERMS OF AN ARBITRATION AGREEMENT Insert lawful terms as parties wish terms must be stated with certainty powers of Arbitrator to be clearly stated questions to be determined by Arb . Any matters for exclusion of reference Any technical or legal bar to the parties should be inserted Composition of Arbitral Tribunal 6
  7. 7. Disputes inappropriate for resolution by arbitration Matrimonial matters, like divorce or restitution of conjugal rights; matters relating to guardianship of a minor or other person under disability; testamentary matters, for example, questions about the validity of a will; insolvency matters, such as adjudication of a person as an insolvent; criminal proceedings; questions relating to charities or charitable trusts; matters falling within the purview of the Monopolies and Restrictive Trade Practices Act; dissolution or winding up of a company. matters involving morality, status and public policy cannot be referred to arbitration. 7
  8. 8. THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003 to enable the judicial authority to decide jurisdictional issues, to empower the Courts to make reference to arbitration in case all the parties to a legal proceeding enter into an arbitration agreement to resolve their disputes during the pendency of such proceeding before it; to provide for the appointment of arbitrators by the Chief Justice of the Supreme Court or the High Court to prevent writ petitions being filed on the basis that it is an administrative order of the Chief Justice. 8
  9. 9. THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003-2 where the place of arbitration under Part I of is in India, between Indian parties or an international arbitration Indian law will apply. completion of arbitrations within one year; at the end of one year the Court will fix up a time schedule for completion of the proceedings until the award is passed. empower the arbitral tribunal to pass peremptory orders for implementation of interlocutory orders and in case they are not implemented, to enable the Court to order costs or pass other orders in default. 9
  10. 10. THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003-3 provide for the Arbitration Division in the High Courts, for the speedy enforcement of awards provide provisions for speeding up and completing all arbitrations to introduce a new Chapter XI relating to single member fast track arbitral tribunal and award will have to be pronounced within six months and to specify procedure therefore in a new Schedule. 10
  11. 11. Appointment of an Arbitrator person of any nationality parties to agree on a procedure for appointment of Arb. Failing agreement as in above -- the two Arb shall appoint a third Arb who shall act as the presiding Arb---Umpire. 30 days failing which CJ or any person or institution designated by him
  12. 12. Procedure by Arbitrator Delivery of points of claim and defence--similar to pleadings particulars of claim and counterclaim discovery and inspection of documents inspection of property and things by (1) arbitrator (2) parties fixing the time and place of hearing 12
  13. 13. Procedure Claimant (or advocate) opens his case ---also defence to counterclaim Claimant calls and examines his witness-who may be cross -examined by the respondent Claimant may re-examine him Respondent opens his case Respondent calls and examines his witnessmay be cross examined by the claimant 13
  14. 14. When court can set aside arbitration award 1.incapacity of the parties. 2.not valid under law. proper notice. 4. beyond the scope of the matter decided to be referred to Arb. 5. Composition of the Arb. Tribunal defective. 14
  15. 15. Content of Arb. Award shall be made in writing signed by the Arb. Tribunal shall state the reasons state date and place signed copy delivered to each party payment of money: include in the sum for which award is made provision of 18% interest from the date of award to the date of payment unless the award otherwise directs. Award does not transfer a property : parties are directed to execute conveyance or other wise make a transfer of the property in dispute 15
  16. 16. Environmental control legislation United nation environmental Programee (UNIP) Ministry of environment & forests Water pollution Act Air Pollution Act Environment (Protection) Act 16
  17. 17. Environmental control legislation Factories Act  Emission of air pollutants, improper handling of hazardous wastes Motor vehicles Act  Excessive emission of stock/Noise beyond limit Indian Port Act  Throwing rubbish in water IPC  Public nuisance, mischief etc. Indian Fisheries Act  Putting noxious material in water 17
  18. 18. Responsibilities of persons under the Environment Act Not to exceed standards of pollution  Industry or operation shall not discharge or emit any pollution in excess of limit Safeguards substances  in handling hazardous As per prescribed procedure & safeguards of Central Government follow Furnishing information of accident   Person in charge must take immediate action to mitigate and inform the authorities. Expenses can be recovered from person 18
  19. 19. Environmental clearance Government has identified 29 highly polluting industries Environment impact assessment of development projects compulsory Various areas declared as green belt or no industry zone. Public hearing made mandatory for projects which requires central government clearance    Application made to State pollution board Summary of project will be available for public inspection Clearance granted will be valid for 5 yrs. Green, orange & Red industries    Green means non-polluting industries Orange means – industry permitted with pollution control measure Red means – industry not permitted. They have to be closed or shifted. 19