Since arbitration is a cost effective and quick way of settling disputes and has become a preferred alternative to the courts, its understanding is necessary for all entrepreneurs, managers, students, academicians, in addition to judges and lawyers. This book meets this requirement and provides the necessary introduction to Arbitration law in a simple and concise way.
This primer on Arbitration Law discusses the Arbitration and Conciliation Act, 2006 and its predecessor legislation i.e. Arbitration Act, 1940 in the present day legal context. Its contents apart from the basic concepts include arbitration proceedings before the arbitral tribunal, judicial intervention in arbitral proceedings, international commercial arbitration and Arbitration and Conciliation (Amendment) Bill, 2003. Important cases on the topic have been given at the end of each chapter. It has been fully updated with the latest legislative and case law developments.
The book will prove to be immensely useful to entrepreneurs, managers, students, academicians, in addition to judges and lawyers.
Table Of Contents:
1. Concept of arbitration 2. Types of alternate dispute resolution methods Conciliation Mediation Lok Adalat 3. Statutory history of arbitration in India The 1940 Act The 1961 Act The UNCITRAL Model Law The 1996 Act Distinction between the 1940 Act and the 1996 Act 4. Alternate dispute resolution methods and the Code of Civil Procedure, 1908 The insertion of Section 89 in the CPC Recommended changes to Section 89 Interpretation of Section 89 Constitutional validity of Section 89 Justice M. Jagannadha Rao Committee Report Rule-making powers 5. The right to a speedy trial and arbitration
II. Basic Concepts
1. Derogable and non-derogable provisions Party autonomy Statutory safeguards Derogable provisions Non-derogable provisions Examples of derogable and non-derogable provisions Practical significance of the distinction 2. Restricting the scope of judicial intervention Balance between the judiciary and arbitral tribunals Arbitration proceedings without judicial intervention Permissible judicial intervention Supervisory role of the High Courts When the principle in Section 5 does not apply 3. Concept of an arbitrable dispute A dispute Dispute under the 1996 Act Disputes capable of settlement by arbitration Private disputes Civil disputes Disputes that are not under the jurisdiction of another special court Disputes with the government Scope of the term "dispute" 4. Types of arbitral proceedings Institutional arbitration Ad hoc arbitration Fast-track arbitration Statutory arbitration Online arbitration 5. Agreement to arbitrate Importance of arbitration agreements Definition of an arbitration agreement Doctrine of incorporation Form and content of an arbitration agreement Arbitration agreement to be certain A defined legal relationship The doctrine of severability Interpretation of arbitration agreements Multi-tiered arbitration clauses Arbitration agreements under the 1940 Act Standard arbitration clause
III. Arbitration Proceedings Before the Tribunal Alone
1. Commencement of arbitral proceedings When arbitration proceedings commence Relevance of the date of commencement Notice to arbitrate Importance of the notice to arbitrate "Request for reference" and "reference" 2. Appointment of arbitrators by the parties Number of arbitrators When a sole arbitrator is to be appointed Method for making appointments Advantages of appointing an arbitral tribunal 3. Challenge to the appointment of the arbitral tribunal Grounds for challenge Bias Lack of necessary qualifications Duty to disclose Challenge by the appointing party Procedure for challenge 4. Termination of an arbitrator’s mandate Grounds for termination Arbitrator is unable to perform his functions The arbitrator is unable to act without undue delay The arbitrator resigns Termination by the parties' agreement Successful challenge under Section 12 Arbitration proceedings come to an end How an arbitrator’s mandate terminates Substitution of an arbitrator Effect of substituting an arbitrator 5. Doctrine of competence-competence Position under the 1940 Act Importance of the doctrine of competence-competence Concept of "jurisdiction" An arbitral tribunal’s jurisdiction Scope of enquiry Operation of Section 16 with regard to Sections 8, 9 and 11 Time before which such a plea must be taken Who may make a plea under Section 16? Jurisdiction as a preliminary issue Constitutionality of Section 16 6. Interim measures from the arbitral tribunal When can interim relief be granted ? Section 17 is a derogable provision Enforcement of an order granting interim measures Scope of protection Observations 7. Conduct of proceedings Equal treatment of the parties Procedure and rules of evidence Place of arbitration Language Statements of claim and defence Evidence may be given under oath Default in submitting statement of claim or defence Oral hearing and written proceedings Expert evidence Court's assistance in taking evidence 8. Making of an arbitral award Types of arbitral awards Decision to be based on Indian law Decision to be reached by majority Awards passed in terms of a settlement Procedural formalities Reasoned decision Remedies that an arbitral tribunal may provide Specific relief Grant of interest Costs Errors and interpretation 9. Termination of arbitral proceedings Automatic termination of proceedings Termination by an order of the arbitral tribunal Withdrawal of the claim Agreement to terminate Where the proceedings are unnecessary or impossible Effect of termination of proceedings Other ways in which proceedings may be terminated 10. Finality and enforcement of an arbitral award An award must be final and binding "Final award" and "finality of an award" Enforcement of an award Which court can execute a decree? Powers of the court granting an order of execution An award must be capable of being enforced Grace period before enforcement Powers of a court to ensure execution Severability of an award
IV. Judicial Intervention
1. Duty of the court to refer parties to arbitration Antecedents to Section 8 Circumstances in which there is no duty to refer Preconditions for reference Bifurcation of a suit is not permissible The duty is mandatory but not automatic A party must apply to the court under Section 8 Fate of a suit once reference is made "Arbitration" and "arbitral tribunal" Conversion to an application for interim relief When arbitration proceedings may commence? 2. Interim measures from the court Prerequisites for the grant of interim relief Prima facie case Balance of convenience Irreparable damage Interim relief granted at the court’s discretion Ex parte interim relief The need for Section 9 There must be a manifest intention to commence arbitration proceedings Principle of compatibility Conflict between Section 9 and Section 17 3. Appointment of arbitrators by the court Statutory procedure for appointment of an arbitral tribunal Extent of scrutiny of the arbitration agreement Distinction between judicial and administrative functions Argument to show why the function is an administrative one Argument to show why the function is a judicial one Clarification of the "S.B.P. case" "Live claim" No conditional appointments Expiry of the right to appoint The Chief Justice of India’s scheme under Section 11 4. Challenge to an arbitral award Grounds for challenge "Challenge" and not "appeal" Constitutionality of Section 34 Challenge because of incorrect procedure adopted Challenge on the grounds of public policy Criticism of the "ONGC case" "Error of law apparent on the face of the award" 5. Appealable orders Right to appeal. Appealable orders under the 1996 Act Order granting or refusing to grant any measure under Section 9 Order setting aside or refusing to set aside an arbitral award under Section 34 Order of the arbitral tribunal accepting a plea referred to in Section 16 Order granting or refusing to grant interim measures under Section 17 Orders under the 1996 Act which are not appealable No appeal against a consent decree No second appeal Which courts are authorised to hear such appeals? Revision
V. International Commercial Arbitration
1. Concept of international commercial arbitration "International" "Commercial" Power to refer parties to international commercial arbitration Interpretation of Section 45 2. Concept of applicable law Contractual obligations to be given due regard Private international law Laws applicable in four stages Law governing the recognition and enforcement of the arbitration agreement Law governing the procedure to be adopted before the arbitral tribunal Law governing the substance of the dispute Law governing the recognition and enforcement of the arbitral award 3. Recognition of a foreign award Requirements for a foreign award "Convention country" 4. Enforcement of a foreign award Conditions for the enforcement of a New York Convention award Conditions for the enforcement of a Geneva Convention award 5. Applicability of Part I in international commercial arbitration proceedings Position before 2002 Arguments against the application of Part I to international commercial arbitration Part I is applicable to international commercial arbitration Explanation of the "Bhatia case" Application of Section 34 to international commercial arbitration
VI. Arbitration and Conciliation (Amendment) Bill, 2003
1. The need for amendment to the 1996 Act 2. Salient features. Types of arbitration Arbitration division Fast-track arbitration Applicability of Part I to international commercial arbitration Some other salient features of the proposed amendment 3. In conclusion