Introduction

Arbitration is one of the various methods that are referred as alternative dispute resolution or
ADR. The main purpose behind methods of ADR is to provide an alternative to filing a lawsuit
and going to the court, which is the traditional method for resolving legal disputes. Arbitration
was primarily designed to provide for a streamlined and cost-conscious option to deal with a
legal issue. Arbitration is essentially a private method of adjudication and a consensual process.
When parties agreed to resolve their disputes by arbitration, they have to decide the venue and
without recourse to court of law.

Then there is third party which is neutral who adjudicate the dispute called the ‘arbitrator’, is
also selected by the parties themselves. The procedure of arbitration is usually private and
confidential and the decision of the arbitrator is final and binding. And the decision of the
arbitration is internationally enforceable by virtue of international law.

An arbitrator is generally under a legal and moral obligation to perform his function in the
careful manner, failure to do so may mean that his award will be deemed ineffective, every
potential arbitrator must be informed of the duties he is expected to perform with respect to any
arbitral proceeding. These duties may be imposed by the parties or by law. Regardless of their
source, the arbitrator must strive to perform his function within the scope of his duties. It will be
an incomplete analysis to elucidate on either the duties or the powers of the arbitrator is isolation:
both ought to be treated together. The powers to act as an arbitrator in arbitral proceeding may
either be conferred on an arbitrator by the parties or by operation of law. The absence of a
unified code governing international commercial arbitration mean that the question of what
power can be exercisable by any arbitrator can only be effectively answered by a comparative
analysis of the arbitration rules conferring powers on arbitration as they exist under different
jurisdictions.

Now coming to the question difference between the mandatory powers of the arbitrator and the
powers available to the arbitrator unless agreed otherwise by the parties.

Mandatory powers are those powers which are provided by the act, for which the arbitrator
doesn’t need the contract, the arbitrator has to follow that and work under it. Whereas the power
available to the arbitrator unless agreed otherwise by the parties are those powers which are
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mention in the act but it is up to the parties that they can use that powers or not if that powers are
mention in the contract then arbitrator has to follow that he has no choice in that but if it is not
mention in the contract then doesn’t need to follow that. So if we see in a sense both these are
important because these powers are mention in the act the difference is that one has to follow
some powers even if it is not mention in the contract because that power is important and basic
whereas there are some powers which are also mention in the but the legislation has left the
decision to the parties that they can follow that also to get more and proper justice it is not
important them to follow it. To explain it more clearly the differences between the mandatory
power of the arbitrator and the power available to the arbitrator unless agreed otherwise by the
parties, let’s look over some sections and understand it properly.

Section 16 of the arbitration and conciliation act 1996 talks about the Competence of arbitration
tribunal to rule on its jurisdiction. This provision gives the power to the arbitral tribunal to rules
on its own jurisdiction including rule on any objection with respect to the existence or validity of
the arbitration agreement. A plea that the arbitral tribunal does not have jurisdiction shall be
raised not later than the submission of the statement of defence. Reading of this clearly state that
arbitration tribunal has the power to rule on its own jurisdiction even when any objection with
respect to existence or validity of the arbitration agreement is raised1. This section is the
mandatory section which irrespective of anything the arbitrator has to follow it, they doesn’t
need the contract over this section.

Another example related to the mandatory rule is section 29 A of the act which talks about the
time-limit for arbitral awards. According to this section the award shell be made within the
period of the 12 months form the date of the arbitral tribunal enters upon the reference. So this is
the mandatory for the arbitrator they do not need contract under this section. Further this section
also explains that if the award is made within the period of six months for the date of the arbitral
tribunal enters upon, the arbitral tribunal shall be entitle to receive such amount of additional fees
as the parties.2 It also tell about the time exceeds then what can the tribunal can do.

1
Alternate dispute resolution in India by Anirban Chakraborty,2016(137)
2
The arbitration and conciliation act, 1996

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These are the examples of the two section which are the mandatory power of the arbitrator, for
that the arbitrator doesn’t need the contract the arbitral tribunal has to follow that there are some
more section like this.

Now let’s talk about some examples of the powers available to the arbitrator unless otherwise
agreed by the parties. Under this there are some sections.

Section 17 of the act talk about the interim measures. This section is design to protect the parties
or properties during the pendency of international arbitral proceeding. An interim measures are
the temporary measure whether in the form of an award or in any other form, by which in any
other time prior to the issuances of the award. So that’s why it is considered the major advantage
to the parties that they can use this section in the arbitration. Arbitration and conciliation act
empowers both the court and arbitrators to grant such measures under section 9 and section 17 of
the act.

The act expressly confirms the powers of arbitrators to issue provisional relief provided that this
is consistent with the parties’ agreement. This power of the is not mandatory it is up to the
parties to agree on this power or not if they agree on this power then under their agreement they
mention this section so that the arbitrator has follow this. This is the example of the unless
otherwise agreed by the parties, that it is up to the parties they can use this section as power or
not.

Another example of this is section 25 of the act which talks about the default of a party. It says
that unless otherwise agreed by the parties where, without showing sufficient cause, if the
claimant fails to communicate his statement of claims in accordance with sub-section 23 of
arbitration and conciliation act, the arbitral tribunal has power to terminate it.3

Section 22 also come this power which talk about the language. This section says that failing any
designation of language by parties the tribunal shall determine language or languages to be used
in the arbitral proceeding. Other section is section 27 of the act which is court assistance in
taking evidence. Which says that parties with the approval of the arbitral tribunal, may apply to

3
Alternate dispute resolution in India by Anirban Chakraborty,2016(139-140)

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the court for assistance in taking evidence. This section is also tells about the time of making an
application it requires to be specified inter alia.

These are the section which shows the power of the arbitrator unless otherwise agreed by the
parties.

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 Conclusion
By the above discussion the researcher has find out that the both the powers, the mandatory
powers of the arbitrator and the power of the arbitrator unless otherwise agreed by the parties are
important to the arbitration. In the researchers point view the more important powers are
mandatory powers of the arbitrator because these are the powers which are important and parties
cannot control it. The powers which are mandatory are important as we can the section 16,
section 29 A, section 32, section 38 and section 30 these section show that the parties has not
control over it they can get justice properly according to the law and the parties cannot says or
argue that the law was is one party favor these section show that law has to be follow by way it is
they have agree upon the powers which are provided to the arbitrator nor they can agreed upon
some powers. To answer the second part of the question, mandatory powers are more important
because these powers set by the tribunal and parties has no control over it, if the parties are gone
to the court so they should go by the rule of a court not by the rule they have agreed upon.

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 Bibliography

1. Alternate dispute resolution in India by Anirban Chakraborty, 2016

2. The arbitration and conciliation act, 1996

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