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12/4/2013
Arb/MS
12/4/2013
Arb/MS
Advantages of Arbitration
Arbitration affords the parties a choice of the law & a choice of the judges that they do want & more important to reject the law which and to reject the particular judge whom they do not want. Binding dispute settlement mechanism
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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
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In a country signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) the Award may be enforced relatively ( more than 120 signatory countries) No such all-encompassing Convention or Treaty or legal regime applies to judgments rendered in national courts.
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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
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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 12/4/2013 Arb/MS 12 order of the Chief Justice.
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 12/4/2013 13 costs or pass other Arb/MS orders in default.
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.
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Arbitration Agreement-Section -7
(1) an agreement ---to submit all or certain disputes which have arisen or which may arise---in respect of a defined legal relationship, whether contractual or not. (2) may be a part of a contract or in the form of a separate agreement (3) shall be in writing
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Appointment of an Arbitrator
Section -11: (1) person of any nationality (2) 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 Sec. 16--may rule on its own jurisdiction
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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
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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
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If witness is cross examined the Respondent may re-examine him Respondent addresses the Arbitrator The claimant replies Sec.19 ---not bound by CPC.1908 or the IEA 1872---Freedom to agree on the procedure to be followed Sec.20 ----place of arb Evidence--Oral , Documentary, Heresay,Primary Evidence, Secondary Evidence
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JUDICIAL INTERVENTION
Sec.8--shall refer the matter to Arb. In a matter which is the subject of an Arb. Sec. 35 --finality of Arb. Awards Sec. 34--court can set aside 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.
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No second appeal will lie from an order passsed in an appeal:: right to appeal to the S.C. is not affected Sec.--37 Mandatory for judicial authority to refer to Arb. Sec.---45 Limitation act 1963 shall apply to proceedings in Arb. Sec.---43 Time commenced --on the date on which the request for the dispute to be referred to arb is received by the respondent Sec ---21
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Sec. 31--- (1) shall be made in writing& signed by the Arb. Tribunal (3) shall state the reasons , unless (a) parties have agreed no reasons be given (b) award under agreed terms under Sec. 30 (4) state date and place (5) signed copy delivered to each party (6) interim award
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(7)(a) payment of money: include in the sum for which award is made ---interest to paid from date on which cause of action arose & the date on which award is made (b) 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
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