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DISPUTE RESOLUTION

• Genesis of Dispute
• Dispute ?
• Objectives of Dispute Resolution:
- Timely / Quicker resolution
- Understandable and simple process
- Equitable outcome
- Continuance of good relations
- Low handling cost
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Dispute Resolution Techniques
1. Litigation through courts
2. Alternative Dispute Resolution (ADR)
Methods
(i). Negotiation
(ii). Mediation
(iii). Conciliation
(iv). Dispute Redressal Committee (DRC)
(v). DRB / DAB / DRE
(vi). Arbitration

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THE ARBITRATION AND
CONCILIATION ACT, 1996
Background:
- Panch & Panchayat
- Arbitration Act,1899, Arbitration Act,1940
- The Arbitration And Conciliation Act,1996
- It repeals : Arbitration Act,1940,
: Arbn (Protocol & Convention Act)1937, &
: Foreign Awards (Recognition & Enf) Act1961
- Based on UNCITRAL Model Law
- Came into effect w.e.f. 25.1.1996 / 22.8.1996

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Act is divided into 4 parts.

- Part I: Provisions which govern all


arbitrations where place of arbitration is in
India (Domestic Awards)

- Part II: For enforcement of Foreign Awards

- Part III: For Conciliation


- Part IV: Supplementary Provisions
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S.4. Waiver of right to object
S.5. Extent of judicial intervention: No judicial
authority shall intervene except where so
provided in this Part.
S.6. Administrative assistance:
S.7.(1) Arbitration Agreement (AA): means an
Agmt to submit to Arbn the disputes
(2) AA may be in the form of an Arbn clause in a
contract or in the form of a separate Agmt
(3) AA shall be in writing. Contd.--

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(4) An Arbn Agmt is in writing if it is
contained in
(a) a doc signed by the Ps;
(b) an exchange of letters, telex, telegrams or
other means of telecommunication which
provide a record of the Agmt; or
© an exchange of SOC and SOD in which
existence of Agmt is alleged by one P and not
denied by the other.
(5). A ref. in a contract to a Doc containing an Arbn
Clause constitutes an Arbn Agmt if the ref is
such as to make that Arbn clause part of the
contract

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S.8.Court’s power to refer Ps to
Arbn where there is Arbn Agmt.

S.9. Interim measures etc by


Court during Arbn proceedings
or after the award but before it is
enforced.

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S.10. No. of Arbitrators:

(1) Parties free to determine, but


shall not be an even No.
(2) If Ps fail, then a sole Arbitrator

S.11. Appointment of Arbitrators

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S.11 APPOINTMENT OF ARBTR
1. Any nationality unless ----
2. Subject to Sub Sec (6) Ps free to agree on a
procedure for appointing Arbtr (s)
3. Failing any Agmt refd to bove, with 3 Arbtrs,
one by each P and third, Presiding,by the two
Arbtrs
4. If procedure applies and a P fails to appoint
within 30 Ds from receipt of request from other
P; or two Arbtrs fail to agree on 3rd Arbtr within
30 Ds from their appmt,

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Appmt of Arbtr contd.
--- the appmt shall be made, upon request of a P, by CJ or
any person or institution designated by him.

5. Failing any agmt refd to in sub-sec(2), in an arbn with a


sole arbtr, if Ps fail to agree on the Arbtr within 30 Ds,
then by CJ---.
6. Where, under an appointment procedure agreed upon by
Ps,-
a. A P fails to act as reqd. or
b. The Ps, or two Arbtrs fail to reach an agmt expected
of them under that procedure; or
c. A person , incl. an institution, fails to perform any
function entrusted to him,
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11(6) Contd----
--a P may request the CJ or any person or
institution designated by him to take the
necessary measures for securing the apptmt.
7. A decison on this matter by CJ --- shall be final
8. CJ---shall have due regard to—
a. any qualification reqd. of Arbtr by the agmt
and
b. other considerations as are likely to secure the
appmt of an independent and impartial Arbtr.

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S.12. Grounds for challenge to
an Arbtr:
(1) Abtr to disclose circumstances that are likely to give rise
to justiable doubts as to his independence or impartiality.
(2) Arbtr through out the arbitral proceedings to disclose
such circumstances from time to time.
(3) Appt may be challenged only if-
a. Circumstances exist that give rise to justifiable doubts
as to his independence or impartiality, or
b. Qualification not as agreed to by the Ps
(4). A P may challenge an Arbtr appointed by him, or in
whose appt he has participated, only for reasons of
which he becomes aware after the appt has been made.

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S.13. Challenge procedure:
a. The P within 15 Ds after becoming aware of the
constitution of AT or becoming aware or any aforesaid
circumstances, send a written statement for the
challenge to the AT.
b. Unless Arbtr withdraws or the other P agrees to the
challenge, AT shall decide on the challenge.
c. If challenge not successful, AT shall continue and
make an arbitral award.
d. P challenging Abtr, may challenge award under Sec 34
e. If set aside, court may decide whether Arbtr is entitled
to any fees

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S.14. Failure or impossibility to
act.
(1). The mandate of an Arbtr shall
terminate if –
• de jure or de facto unable to perform
• he withdraws from his office or Ps agree
to the termination of his mandate
• If a controversy remains, Court to decide
on the termination

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S.15. Termination of mandate
and substitution of Arr.
(a) where he withdraws from office for any
reason; or
(b) by or pursuant to agmt of the Ps

• Substitute Arbtr shall be appointed


according to the rules that were
applicable to the appointment of the Arbtr
being replaced.
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S.16. Competence of AT to rule
on its jurisdiction.
(I) AT may rule on its own jurisdiction incl validity of
Arbn agmt
a. Arbn clause independent of other Terms of
the contract
b. If contract null & void, it shall not entail
invalidity of Arbtn Clause
(2). A plea of no jurisdiction of the AT to be raised
not later than submission of SOD
(3). A plea that the AT is exceeding the scope of
its authority shall be raised as soon as such a
matter is raised during arbitral proceedings.

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Sec 16 Contd.
(4) AT may admit a later plea if considers
delay justified.
(5) AT shall decide on these pleas, and
where it rejects the plea, it shall continue
with the arbitral proceedings and make an
award.
(6) A P aggrieved by such award may make
an appln for setting it aside under S.34

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S.17. Interim measures ordered by AT:

S.18. Equal treatment of Ps: The Ps shall be


treated with equality and each P shall be given a
full opportunity to present his case.

S.19. Determination of rules of procedure:


AT not bound by Code of Civil Procedure,1908 or
the Indian Evidence Act,1872
AT’s power to determine admissibility,relevance,
materiality and weight of any evidence.

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• S.20. Place of arbitration:
• S.21. Commencement of arbitral
proceedings:
• Unless otherwise agreed by the Ps,
commencement on the date on which a
request for that dispute to be referred to
arbitration is received by the respondent.
• S.22. Language:
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S.23. Statement of claim and
defence:
1. Within the period agreed/determined,Ps to
submit SOC and SOD.
2. Ps may submit with their statements all Doc
they consider relevant or may add a ref. to the
Doc or other evidence they will submit
3. Either P may amend or supplement his claim
or defence during the course of the arbitral
proceedings, unless AT considers it
inappropriate to allow the amendment or
supplement having regard to the delay in
making it.
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S.24. Hearings and written
proceedings:
• AT to decide oral hearings for presentation
of evidence or oral argument, or whether
the proceedings shall be conducted on the
basis of documents and other materials,
• Sufficient notice to Ps :
• Correspondence made by any P with AT,
to be endorsed simultaneously to other P.

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S.25. Default of a party:
(a). Ct fails to communicate his SOC, AT shall
terminate proceedings.
(b). Rt fails to communicate his SOD, AT shall
continue the proceedings without treating that
failure in itself as an admission of the allegations
by the Ct.
©. A P fails to appear at oral hearing or to
produce documentary evidence, AT may
continue the proceedings and make the award
on the evidence before it.

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S.26. Expert appointment by AT:

a. AT may appoint one or more experts to report to it


on specific issues to be determined by AT and
b. Require a P to give the expert any relevant
information or to provide access to Doc, goods,
property for his inspection
c. If requested by any P or if AT considers it necessary,
Expert shall, after delivery of his written or oral
report, participate in in oral hearing where Ps may
put questions to him and may present expert
witnesses in order to testify on the points at issue.
• S.27. Court assistance in taking
evidence
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S.28. Rules applicable to
substance of dispute:
(1) In an arbn other than an Int. Comm Arbtn, AT
shall decide the dispute in accordance with the
substantive law for the time being in force in
India
(2) AT shall decide ex aequo et bono or as amiable
compositeur only if the Ps have expressly
authorized it to do so.
(3) In all cases AT shall decide in accordance with
the terms of the contract and shall take into
account the usages of the trade applicable to
the transaction.
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S.29. Decision making by panel
of Arbtrs
(1). If more than one Arbtr, any decision of the AT
shall be made by a majority of all its members.
(2). If authorized by Ps or all members of AT,
questions of procedure may be decided by the
presiding Arbtr.
S.30. Settlement: It is not incompatible with an
Arbn Agmt for an AT to encourage settlement of
the dispute &, with the agmt of the Ps, AT may
use mediation, conciliation or other procedure at
any time during arbitral proceedings to
encourage settlement. Settlement into Award.
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S.31. Form and contents of
arbitral award:
1. In writing and signed by the members of the AT.
2. Signatures of majority of all the members
sufficient so long as reason for any omitted
signature is stated.
3. Award shall state reasons upon which it is
based, unless –
(a). Ps agreed that no reasons to be given, or
(b). award is on agreed terms under S.30.
Contd---
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----Contd.
4. Award shall state its date and place of Arbn.
5. A signed copy shall be given to each P.

6. AT may, at any time during arbitral


proceedings, make an interim arbitral award on
any matter with respect to which it may make a
final arbitral award
7. Interest, pre suit, pendent elite and post award
8. Costs
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S.32. Termination of proceedings:
S.33. Correction and interpretation of
award, additional award
(Computation,clerical or typographical
errors)
S.34. Recourse against arbitral Award
S.35. Finality of arbitral awards:
S.36. Enforcement:
S.37. Appealable orders:

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