By : Tejpal Sheth

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THE ARBITRATION AND CONCILIATION ACT, 1996&Environment Protection Act

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Objectives of Amendment

Minimise the supervisory role of the CourtsArbitral Tribunal to give reasons for AwardPermit Arb. Tribunal to use Mediation, Conciliation, other proceduresArbitral Award enforced as if it were a decree of the courtConciliation proceedings --same status and effect as an Arbitral AwardForeign Awards

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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; andAgree to facilitate enforcement of the award.

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ADVANTAGES OF ARBITRATION

Technical matter : appropriate special qualifications of the Arbitrator.Speedier than a court casesaving in the costsunwanted publicity can be avoidedConvenience of the parties as to time and placeArb. Can view subject at any reasonable time

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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 ArbitrationArbitration Institute of the Stockholm Chamber of Commerce;

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TERMS OF AN ARBITRATION AGREEMENT

Insert lawful terms as parties wishterms must be stated with certaintypowers of Arbitrator to be clearly stated questions to be determined by Arb . Any matters for exclusion of referenceAny technical or legal bar to the parties should be insertedComposition of Arbitral Tribunal

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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.

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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.

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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.

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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 arbitrationsto 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.

Appointment of an Arbitrator

person of any nationalityparties 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

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Procedure by Arbitrator

Delivery of points of claim and defence--similar to pleadingsparticulars of claim and counterclaimdiscovery and inspection of documentsinspection of property and things by (1) arbitrator (2) partiesfixing the time and place of hearing

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Procedure

Claimant (or advocate) opens his case ---also defence to counterclaimClaimant calls and examines his witness--who may be cross -examined by the respondentClaimant may re-examine himRespondent opens his caseRespondent calls and examines his witness-may be cross examined by the claimant

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1.incapacity of the parties.2.not valid under law.3.no proper notice.4. beyond the scope of the matter decided to be referred to Arb.5. Composition of the Arb. Tribunal defective.

When court can set aside arbitration award

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Content of Arb. Awardshall be made in writingsigned by the Arb. Tribunalshall state the reasonsstate date and placesigned copy delivered to each partypayment of money: include in the sum for which award is madeprovision 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

Environmental control legislation

United nation environmental Programee (UNIP)Ministry of environment & forestshttp://envfor.nic.inWater pollution ActAir Pollution ActEnvironment (Protection) Act

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Environmental control legislation

Factories Act Emission of air pollutants, improper

handling of hazardous wastesMotor vehicles Act Excessive emission of stock/Noise

beyond limitIndian Port Act Throwing rubbish in waterIPC Public nuisance, mischief etc.Indian Fisheries Act Putting noxious material in water

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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 in handling hazardous substances As per prescribed procedure & follow

safeguards of Central Government

Furnishing information of accident Person in charge must take immediate

action to mitigate and inform the authorities.

Expenses can be recovered from person18

Environmental clearance

Government has identified 29 highly polluting industriesEnvironment impact assessment of development projects compulsoryVarious 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.

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