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Arbitration Law India

By: Bobby Hammond


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Arbitration Law India

The Indian arbitral system was governed by the Code of Civil Procedure 1908 until the Arbitration Act of 1940 came into force and it was later replaced by the Arbitration and Conciliation Act 1996. There was also the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act 1961. The Act is largely based on the model law of United Nations Commission for International Trade Law (UNCITRAL).

The Arbitration and Conciliation Act 1996 was passed by the Parliament. The Act is largely based on the model law of United Nations Commission for International Trade Law (UNCITRAL). The Arbitration and Conciliation Act of 1996 comprehensively covers domestic arbitration, international commercial arbitration and domestic conciliation.

The arbitration proceeding are governed by the agreement signed between the parties to the dispute and the Courts have a very limited role in the arbitration proceedings. Section 11 of the Arbitration and Conciliation Act 1996 deals with the appointment of arbitrator by the court when the other party fails to appoint the arbitrator.

Section 9 of the Arbitration and Conciliation Act 1996 deals with the interim relief where any party to the arbitration may approach the High Court for the seeking urgent and interim relief even though the arbitration proceeding has not started.

Section 34 of the Arbitration and Conciliation Act 1996 deals with application to the Court for setting aside an award. The grounds are very limited and generally courts in India do not interfere with the award passed by the arbitrator unless there is a gross error of facts and law.

Part-III of the Arbitration and Conciliation Act 1996 comprising sections 61 to 81 deals with conciliation. The Party initiating conciliation shall send to the other Party a written intimation to conciliate briefly identifying the subject of dispute. If the other Party accepts in writing the invitation to conciliate, the proceedings shall commence. If the other Party rejects the invitation there will be no conciliation proceedings. One or more conciliators can be decided upon by the Parties. The conciliator does not have any adjudicatory function. The function of the Conciliator is mainly to reduce or resolve differences between the Parties. Conciliator may request each Party to submit a brief written statement of the general nature of the dispute and the point at issue with copy to the other side.

This can be supplemented by further written statements and documents or other evidence. Conciliator is not bound by the Code of Civil Procedure or Evidence Act; but shall be guided by the principles of objectivity, fairness and justice. When it appears to the Conciliator that there exist elements of a settlement acceptable to the Parties he shall formulate the terms and submit them to the parties for their observation. After receiving the observations of the Parties the Conciliator may reformulate the terms of a possible settlement. If requested by the Parties the Conciliator may draw up or assist the Parties in drawing up the settlement agreement. The settlement agreement once signed shall become final and binding on the parties and persons claiming under them. The party shall not initiate during Conciliation Proceedings any arbitral or judicial Proceedings in respect of dispute.

The arbitration award passed by the arbitrator can be enforced through court like an order passed by the judgment of the court.

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