Arbitration & Reconciliation Act-2

8/12/2019 Arbitration & Reconciliation Act-2

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ARBITRATION & CONCILIATION ACT



Introduction

Arbitration is an alternative means of settlement of

dispute , besides approaching the court,Every commercial contract has an arbitration clause.

Why Arbitration:

1. Court would take a long time to settle a disputeand award a remedy.

2. Court proceedings are always adversarial &hence parties prefer amicable settlement for the

dispute.3. The court proceedings are open to public, hence

the trade relations and terms of contract betweenparties also enters the public domain



Arbitrator : Arbitrator is any disinterested person, animpartial judge of the parties own choosing todispense equal justice to the parties concerned and to

decide the law and facts involves in the matterssubmitted to it with a view to determine and finallyend the controversy.

Any interest of the arbitrator is a disqualification of the

arbitrator, initially not interested but subsequentacquisition of interest would disqualify fromcontinuing with the proceedings. However if thearbitrator has an interest in the subject matter ofreference which is known to the parties before they

sign the submission then the award is goodnotwithstanding his own interest.

Authority of arbitrator is limited to the matterslawfully submitted to him.



Arbitration Agreement

This is a written agreement to submit present or

future differences to arbitration , whether anarbitrator is named therein or not. The followingare essential ingredients of an arbitrationagreement:

There must be an agreement in writing whichmust show the choice and determination to goto arbitration.

The agreement must indicate an intention ofparties to have the disputes and differencesreferred to and decided by arbitrator.



Award

This is defined as arbitration award. The decision of

the arbitrators is called an award.It is an instrument which contains the decision of anarbitrator or arbitrators as regards matter referredto him or them .

An award is a statement by which the arbitratorconvey their findings and decisions regarding thesubject matter of the submission after hearing theparties in quasi judicial manner.

An award in order to be valid must be final, certain,consistent and must decide the matters submittedand no other matter.



Court

Court is defined to mean “ a Civil Court including

appellate Court” having jurisdiction to decide thequestions forming the subject matter of the

reference if the same had been the subject matter

of the suite.References

References means a reference to arbitration i.e.

actual submission of a particular dispute under theprovisions of an arbitration agreement to the

arbitrator .



Interim measures by Court.-

A party may, before, or during arbitral proceedings or at any time after the making of

the arbitral award but before it is enforced, apply to a court-

• (i) for the appointment of a guardian for a minor or person of unsound mind for the

purposes of arbitral proceedings; or• (ii) for an interim measure or protection in respect of any of the following matters,

namely:-

• (a) the preservation, interim custody or sale of any goods which are the subject-matter

of the arbitration agreement;

•

(b) securing the amount in dispute in the arbitration;• (c) the detention, preservation or inspection of any property or thing which is the

subject-matter of the dispute in arbitration, or as to which any question may arise

therein and authorizing for any of the aforesaid purposes any person to enter upon

any land or building in the possession of any party or authorizing any samples to be

taken or any observation to be made, or experiment to be tried, which may be

necessary or expedient for the purpose of obtaining full information or evidence;

• (d) interim injunction or the appointment of a receiver;

• (e) such other interim measure of protection as may appear to the Court to be just and

convenient, and the Court shall have the same power for making orders as it has for

the purpose of, and in relation to, any proceedings before it.



• Composition of arbitral tribunal

Number of arbitrators.-

(1) The parties are free to determine the number of

arbitrators, provided that such number shall not be an evennumber.

• (2) Failing the determination referred to in sub-section (1),the arbitral tribunal shall consist of a sole arbitrator.

Appointment of arbitrators.-

(1) A person of any nationality may be an arbitrator, unlessotherwise agreed by the parties.

• (2) Subject to sub-section (6), the parties are free to agreeon a procedure for appointing the arbitrator or arbitrators.

• (3) Failing any agreement referred to in sub-section (2), inan arbitration with three arbitrators, each party shallappoint one arbitrator, and the two appointed arbitratorsshall appoint the third arbitrator who shall act as thepresiding arbitrator.



Arbitration Procedure

The parties can set the procedure to be followed ifthe same is not set forth the arbitral tribunal canset its own procedure subject to the provisions ofthe act , which are as follows:

•Equal treatment of parties

•

Determination of rule of procedure•Place of arbitration

•Language

•Statements of claim and defence

•Hearing and written proceedings•Default of parties

•Expert appointed by arbitral tribunal

•

Court assistance in taking evidence

Arbitration & Reconciliation Act-2

Documents

Transcript of Arbitration & Reconciliation Act-2