Post on 30-May-2018
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Dispute resolution-Arbitration
By
S.K.Rao
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Construction contract-mutualobligations A construction contract is between two parties-Employer
and contractor. The work is executed based on Contract provisions and
the rights and obligations of the parties are governed by
these documents Both parties have to fulfill their respective obligations
under the contract. Non fulfillment of any obligation by one party affects the
interests of the other party Long duration of contract-various issues arise during
construction Views of one party may not be acceptable to the other
resulting in disagreement
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Unresolved issues result in
disputes Most of the issues are resolved by mutual discussions
with the spirit of accommodating each others point ofview and in the overall interest of work.
The Engineer plays an important role in ascertaining theviews of both sides. The Engineer, with his professionalexperience and fairness, endeavours to convince bothparties to come to a common understanding andagreement. If there is a disagreement, the Engineergives his decision/ determination in accordance with the
contract. In case the issue can not be resolved, the dispute is
precipitated
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Sources of disputes
Sources of disputes could be: Inconsistencies/discrepancies in contract provisions
Delay in giving possession of site
Denial of extension, Liquidated damages Rejection of work, Cancellation of contract, Foreclosure
Variations, Fixing rates,
Delays and denial of payments, etc.
Delays in execution and failure of contractor Non adherence to contract conditions and specifications by
contractor
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Interpretation of contracts incase of discrepancies The following aspects are to be considered while
interpreting contract documents
a) Contract to be read as a whole
c) Local custom or usage
d) Reasonable meaning
e) Order of precedence among various documentsforming part of contract
f) Words versus figures
g) Written words versus printed words
h) General versus special provisions
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Inconsistencies in differentparts of Contract In order to resolve apparent inconsistencies or
contradictions, in cases where the subject matter iscovered several times in different parts of theContract, the order of precedence to be considered
is laid down in the General Conditions of Contractadopted by various organisations
There is a sub-clause in FIDIC contract form also(Federation Internationale des Ingenieurs-Conseils)
laying down the order of precedence forinterpretation
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Interpretation of contracts-Orderof precedence- FIDIC The contract agreement
The letter of acceptance
The letter of tender
The Particular Conditions
The General Conditions
The Specification The Drawings
The schedule or any other documents
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Engineers clarification
If an ambiguity or discrepancy is found in the
documents, the Engineer shall issue
necessary clarification or instruction
The work will be executed as per the
instruction of Engineer
Disagreement on any issue may result in
claim/dispute which will have to be resolvedby various procedures of dispute resolution
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Lodging claims-notice andsubstantiation
If contractor intends to claim any additional payment, heshall give notice to Engineer with copy to Employer,immediately on occurrence of an event leading to claim
Contractor shall keep contemporary record necessary tosupport his claim
Without necessarily admitting the Employers liability,Engineer may inspect the records
Contractor shall send detailed particulars and supportingdetails to substantiate his claim
Contractor shall also submit any further particulars,documents or clarifications as desired by the Engineer
Copies of the correspondence shall be endorsed to theEmployer
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Engineers response to theclaim If the Engineer agrees to the claim, he shall
issue a variation order admitting payment
If the Engineer does not agree, he shall state
reasons for his disagreement The Contractor may advance further
arguments in support of his claim The Engineer may reconsider and give his
decision/determination Copies of the correspondence shall be
endorsed to the Employer
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Various stages of resolution ofdisputes-Domestic/Government
contract form Mutual discussion Decision of Accepting officer Conciliation- provision in the Arbitration and
Conciliation Act, 1996 Arbitration as per the Arbitration and
Conciliation Act, 1996
Intervention by Court
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Various stages of resolution ofdisputes-FIDIC contract Mutual discussion
Decision of the Engineer
Dispute review board-or Dispute Resolution
Board-(Dispute Adjudication Board in FIDIC
99)
Arbitration
Intervention of Court
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Dispute Review Board-
appointment FIDIC contract provides for DRB to settledisputes during execution / completion ofproject
Normally formed by 3 Members experiencedwith the type of construction
A Member should have no financial interest inany party-no previous employment with anyparty
One Member nominated by each party-Third
Member nominated by two Members-acts asChairman Any disputes that cannot be settled may be
referred to the DRB
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DRB proceedings-proceduredecided in consultation with
parties DRB calls for Claims statement with details-copyto opposite party
On receipt ,calls for Defence statement from theparties
DRB visits site along with parties-conductshearing Full opportunity is given to both parties to
present their cases DRB Members have their internal meeting,
deliberate the issues among them and maketheir Recommendations If this is not acceptable to either party, the matter
may be referred to Arbitration
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Dispute Adjudication Board
DRB is replaced by DAB in FIDIC 99 DAB is formed in a similar way and conducts
proceedings in similar way While DRB gives Recommendations, DAB gives
its Decision which shall be binding on parties Within a specified period, any party may give notice
of dissatisfaction to the other party with copy toDAB.
The case may be referred to arbitration there after If no such notice is given with the specified period,
then the DABs decision shall be final and bindingon both parties
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The Arbitration and ConciliationAct, 1996 This is a very recent act formulated and enacted to
make it more responsive to contemporary requirements. The old act, The Arbitration Act, 1940 was considered
outdated. The new act replaces the old act
It was recognized that our economic reforms may notbecome fully effective if the law dealing with settlementof both domestic and international commercial disputesremains out of tune with such reforms
Conciliation, which is getting worldwide recognition asan instrument for settlement of disputes , is included inthe act
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Objectives of the Act
To comprehensively cover international and commercialarbitration and conciliation taking into account theModel Law adopted by United Nations Commission onInternational Trade Law (UNCITRAL)
Also domestic arbitration and conciliation To make provision for an arbitral procedure which is
fair, efficient and capable of meeting the needs ofspecific arbitration
To provide that the arbitral tribunal gives reasons for itsaward
To ensure that the tribunal remains within the limits ofits jurisdiction
To minimise the supervisory role of courts
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Other objectives of the Act
To provide that every final award is enforced in thesame manner as if it were a decree of the court
To provide that a settlement agreement reached by theparties as a result of conciliation proceedings will have
the same status and effect as an arbitral award onagreed terms on the substance of the dispute renderedby an arbitral tribunal
To permit an arbitral tribunal to use mediation,conciliation or other procedures during the arbitral
proceedings to encourage settlement of disputes
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Conciliation
Conciliation is the process by which the parties are facilitated to reachan amicable settlement of their disputes (part III of Arbitration andConciliation Act,1996)
This is adopted prior to Arbitration like DRB for settlement of disputeswithout resorting to Arbitration
Conciliation takes place only if the parties agree to it. Conciliator is appointed as per contract provision He shall be guided by the principles of objectivity, fairness and justice.
He facilitates the parties to come together for an agreed settlement When the parties sign settlement agreement ,it shall be final and
binding on the parties Conciliator authenticates settlement agreement The settlement agreement shall have the status of arbitral award
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Arbitration agreement
Arbitration agreement means An agreement by the parties to submit to arbitration
All or certain disputes
Which have arisen or which may arise between them In respect of a defined legal relationship
Whether contractual or not
An arbitration agreement shall be in writing
May be a clause in a contract agreement
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Matters that cannot be referredto arbitration Broadly the matters involving morality, status and public policy
cannot be referred to arbitration, such as
b) Matrimonial matters like divorce, restitution of conjugal rights
c) Matters relating to guardianship of a minor
d) Testamentary matters, like, questions about validity of a will
e) Insolvency mattersf) Criminal proceedings
g) Questions relating to charitable trusts
h) Matters coming within the purview of the Monopolies andrestrictive trade practices act
i) Dissolution or winding up of a companyj) And such other matters
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Arbitral TribunalNumber of arbitrators There may be a single arbitrator (sole arbitrator) Tribunal may have more than one arbitrator, not even number, as
determined by the parties. This may be stipulated in thearbitration agreement
Arbitrator may be of any nationality unless otherwise agreed bythe parties
Arbitration agreement may stipulate certain qualifications for thearbitrators
There may be designated appointing authority for appointment ofarbitrator as may be provided in the arbitration agreement
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Appointment of arbitrators byparties-three arbitrators The parties are free to agree on a procedure for
appointing an arbitrator or arbitrators Failing any such agreement, in an arbitration
with three arbitrators, each party shall appointone arbitrator, and the two appointed arbitratorsshall appoint the third arbitrator, who shall act aspresiding arbitrator.,
In Government contract form, provision may bemade for appointment of arbitrator by adesignated authority specified in the arbitrationclause/agreement
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Failure to appoint arbitrator
If a party fails to appoint an arbitrator within 30
days from the receipt of request from the other
party; or
If the two appointed arbitrators fail to agree onthe third arbitrator within thirty days from the
date of their appointment;
the appointment shall be made, upon request of
a party, by the Chief Justice of High Court or
any person or institution designated by him.
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Appointment of arbitrator byparties- sole arbitrator In arbitration by sole arbitrator, if the parties fail to
agree on the arbitrator within 30 days from receipt of
request by one party from the other party, upon
request by a party, the appointment shall be made
by Chief Justice or any person or institution
designated by him.
In Government contract form, provision may be
made for appointment of arbitrator by a designatedauthority specified in the arbitration
clause/agreement
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Interest of both parties
The delays and disagreements can be minimized if
sole arbitrator is to be appointed instead of three or
more arbitrators
If both parties feel that their interest is served byproceeding with the arbitration, the things will move
fast.
They some how find a commonly acceptable
arbitrator, cooperate in early finalisation of the case Otherwise the party who feels that proceeding with
the arbitration is detrimental to his interest, finds all
excuses to delay the matter
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Arbitrator to disclose- groundsfor challenge When a person is approached in connection with his
possible appointment as arbitrator, he shall disclose
in writing any circumstances likely to give rise to
justifiable doubts as to his independence or
impartiality
If not already done, the arbitrator shall disclose such
circumstances during the proceedings at the earliest
If the arbitrator fails to disclose such circumstances,his appointment may be challenged
He may also be challenged if he does not possess
requisite qualifications as per arbitration agreement
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Decision on challenge
The challenged arbitrator may withdraw from his
office
The other party may also agree to the challenge
If none of the above happens, the arbitral tribunalshall decide on the challenge
If the challenge is not successful, the tribunal shall
continue the proceedings and make the award
The party challenging the arbitrator may make anapplication for setting aside such an award, as and
when made, in accordance with section 34
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Failure or impossibility to act-termination of mandate of
arbitrator The mandate of an arbitrator shall terminate if He becomes de jure or de facto unable to perform
his functions or
for other reasons fails to act without undue delay He withdraws from office for any reason or
the parties agree to the termination of his
mandate
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Substitution of arbitrator
Where the mandate of an arbitratorterminates, a substitute arbitrator shall beappointed according to the rules that were
applicable to the appointment of arbitratorbeing replaced Where an arbitrator is replaced, any hearings
previously held may be repeated
The rulings earlier made by the tribunal priorto replacement of the arbitrator shall not beinvalid solely because there has been achange in the composition of tribunal
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The arbitration clause isindependent of rest of the
contract An arbitration clause which forms part of a contractshall be treated as an agreement independent ofother terms of the contract
For example, even if a contract is cancelled for
contractors default, the arbitration clause survivesbased on which arbitrator can be appointed
If arbitral tribunal rules that a contract is null andvoid, this shall not entail ipso jure the invalidity of
arbitration agreement
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Ruling on the jurisdiction ofarbitral tribunal Parties may question the jurisdiction of
arbitral tribunal
Arbitral tribunal is competent to rule on its own jurisdiction
To rule on the validity of arbitration clause or
arbitration agreement
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Objections on jurisdiction orexceeding the scope of authority Objection not later than submission of statement of
defence
If any matter raised by a party is considered to be
beyond the scope of the arbitrators authority by theopposite party, the opposite party may raise
objection but this shall be raised immediately without
delay
The arbitral tribunal may admit if it considers delayjustified
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Decision of arbitral tribunal
If the arbitral tribunal considers that the
objections are not valid and rejects the plea,
the tribunal shall continue with the
proceedings and publish the award The party aggrieved by such an award may
make an application to the court for setting
aside the award under section 34
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Conduct of arbitral proceedings-Equal treatment of parties The parties shall be treated with equality
Each party shall be given a full opportunity to
present his case
All the correspondence is addressed to both
parties
All the discussions are held only during
presence of both parties
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Parties are free to agree
Many sections (clauses) start with the
provision parties are free to agree
Failing an agreement the arbitral tribunal
takes decision Many sections start with the provision unless
otherwise agreed by the parties. That means
that the rest of the provision in the sectionshall be operative only if the parties have not
agreed otherwise
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Agreement between the partiesis given the highest importance The whole purpose of arbitration is resolve
disputes between the parties If both parties agree on an issue, that means
there is no dispute as far as that issue isconcerned When the issue is not disputed, where is the
need for an arbitrator or any body to
interfere? Arbitrator comes in picture only in respect of
the issues which continue to be under dispute
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Determination of rules ofprocedure The parties are free to agree on a procedure to be
followed by the arbitral tribunal in conducting itsproceedings
If the parties fail to agree, the arbitral tribunal
decides the procedure The tribunal has also got power to determine the
admissibility, relevance, materiality, and weight ofany evidence
The arbitral tribunal shall not be bound by The Code of civil procedure, 1908(5 of 1908) The Indian evidence act ,1872(1 of 1872)
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Place of arbitration
The parties are free to agree on the place ofarbitration
If they fail to agree, the arbitral tribunal shalldetermine the venue having regard to the
circumstances and convenience of the parties The arbitral tribunal may meet at any place itconsiders appropriate, for consultation among itsmembers, for hearing witnesses, experts or theparties, or for inspection of documents, goods or
other property Normally, venue is fixed after consulting all
concerned
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Commencement of arbitralproceedings The arbitral proceedings in respect of a
particular dispute commence on the date on
which a request for that dispute to be referred
to arbitration is received by the respondent Time for making award is counted from this
date
Language: as agreed by the parties. If notarbitral tribunal shall determine
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Statement of claim anddefence Within the time agreed upon by the parties, or Determined by the arbitral tribunal, The claimant shall state the facts supporting his
claim, The points at issue and the relief or remedy sought The respondent shall state his defence in respect of
these particulars
Parties may also submit all documents theyconsider relevant with their statements Either party may amend or supplement his claim or
defence as may be allowed by the arbitrator
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Hearing or writtenproceedings Arbitral tribunal shall decide whether to hold oral hearings for the
presentation of evidence or oral argument or whether theproceedings shall be conducted on the basis of documents orother materials
In practice, in most of the cases oral hearings will be conducted
The parties shall be given sufficient advance notice Copies of all communications made by one party to the arbitrator
shall be sent to the other party. Similarly, the communications made by the presiding arbitrator
shall be sent to both parties as well as other arbitrators Any expert report or evidentiary document on which the arbitral
tribunal may rely in making its decision shall be communicated tothe parties
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Default of a party
Unless otherwise agreed by the parties; If claimant fails to submit his statement within the
stipulated time with out showing sufficient cause, thearbitral tribunal shall terminate the proceedings
If the respondent fails to submit his defence withinstipulated time without showing sufficient cause, thearbitral tribunal shall continue the proceedings,without treating that the failure in itself as anadmission of the allegations by the claimant
If a party fails to appear at an oral hearing or toproduce documentary evidence, the tribunal maycontinue the proceedings and make the award onthe evidence before it
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Expert appointed by arbitraltribunal Unless otherwise agreed by the parties,
The arbitral tribunal may appoint one or more
experts to report to it on specific issues to be
determined by the arbitral tribunal, and Require a party to give the expert any
relevant information or to produce access to,
Any relevant documents, goods or
any other property for his inspection
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Participation of expert in thehearing The expert shall submit his report to the tribunal
copies of which will be made available to the parties There after he shall participate in the hearing where
the parties have the opportunity to put questions to
him and to present expert witnesses in order totestify on the points at issue
If requested by a party, the expert shall makeavailable for examination of the party, the
documents, goods or other property in hispossession (which were provided to him for makinghis report)
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Making arbitral award by panelof arbitrators Any decision by arbitral tribunal shall be
made by majority of all its members
Questions of procedure may be decided by
presiding arbitrator if authorised by parties orall arbitrators
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Form and contents of arbitralaward- signature, date and place Shall be made in writing Shall be signed by the members of the
tribunal
Signatures of majority of members issufficient if the reason for omitted signature isstated
Shall state the date and place of award Signed copy shall be delivered to each party
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Form and contents of award-reasons upon which it is based Shall state the reasons upon which it is
based
This is obligatory unless The parties have agreed that no reasons are to be
given
The award is on agreed terms where settlement is
reached by parties
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Form and contents of award-interim award Arbitral tribunal may make interim award
Any time during proceedings
This is subject to final award
Normally this may be needed to give interim
relief to the affected party
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Form and contents of award-interest up to the date of award Where the award is for payment of money
The tribunal may award interest
At the rate considered reasonable by tribunal
On the whole or part of the money awarded For the whole or any part of the period
Between the date on which the cause of action
arose and the date on which the award is made
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Form and contents of award-interest from the date of award
to the date of payment Unless the award otherwise directs,
The sum directed to be paid by the award
shall carry interest at the rate of 18% per
annum
From the date of award to the date of
payment
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Form and contents of award-Costs of an arbitration costs means reasonable costs relating to
The fees and expenses of the arbitrators and the
witnesses,
Legal fees and expenses, Any administration fees of the institution
supervising the arbitration and
Any other expenses incurred in connection with
the proceedings and the award
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Form and contents of award-award of costs Unless otherwise agreed by the parties The costs of an arbitration shall be fixed by
the arbitral tribunal
The tribunal shall specify The party entitled to costs The party who shall pay the costs The amount of costs or method of determining the
amount and The manner in which the costs shall be paid
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Termination of proceedings
The arbitral proceedings shall be terminated
by the final arbitral award or
By an order for termination by arbitral tribunal
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Application to court under Sec.34 contesting the award After receipt of award, if a party is not
satisfied with the award, recourse to a court
against the award may be made only by an
application for setting aside such award The new Act, with the objective of minimising
the supervisory role of courts in arbitral
process, provided for limited grounds forsetting aside the award
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Grounds for setting asideaward An arbitral award may be set aside by the
court only if
(b) The party making application must furnish
proof of certain procedural irregularities.(The court does not interfere with the arbitraltribunals analysis of a claim and theassessment of the awarded amount out of
the claimed amount)(c) The court finds some other legal grounds
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Grounds for setting aside award (a) proof to be
furnished by party-(I) The award may be set aside by the court onlyif
(a) The party making application furnishes
proof that(i) A party was under some incapacity, or
(ii) The arbitration agreement is not valid under thelaw to which the parties have subjected it or,
failing any indication there on, under the law forthe time being in force; or
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Grounds for setting aside award
(a) proof to be furnished by aparty-(II)
Only if the party furnishes proof that
(iii) The party making application was not
given proper notice of the appointment of
arbitrator or of the arbitral proceedings orwas otherwise unable to present his case;
or
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Grounds for setting aside award- (a) proof to be furnished by
a party-IIIOnly if the party furnishes proof that(iv) The arbitral award deals with a dispute not
contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration.Provided that, if the
decisions on matters submitted to arbitration can be
separated from those not submitted, only that part of the
award which contains decisions on matters beyond not
submitted to arbitration may be set aside; or
d f i id d
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Grounds for setting aside award-
(a) proof to be furnished by aparty-(IV)
Only if the party furnishes proof that
(v) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement
was in conflict with a provision of this Part from
which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Part
G d f i id
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Grounds for setting asideaward-
(b) if the court finds thatThe award may be set aside by the court only if(b) The court finds that
(i) the subject-matter of the dispute is not
capable of settlement by arbitration under thelaw for the time being in force, or
(ii) the arbitral award is in conflict with the
public policy of India
Ti f ki li i f
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Time for making application forsetting aside award An application for setting aside award may not be
made
After 3 months from the date on which the party
making that application had received the arbitral
award or,
If a request had been made under section 33
(correction and interpretation of award, additional
award), from the date on which that request hadbeen disposed of by the tribunal
id i
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court may consider extension
If the court is satisfied that an applicant was
prevented by sufficient cause from making
the application within the said period of
THREE months, it may entertain theapplication within a further period of THIRTY
days
And not there after
Th t i t it
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The court may give opportunityto the arbitral tribunal On receipt of application from the party for setting
aside the award, the court may, Where it is considered appropriate and it is so
requested by a party,
Adjourn the proceedings for a period of time asdetermined by it In order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the
tribunal will eliminate the grounds for setting asidethe arbitral award
E f t f d A d
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Enforcement of award-Awardfinal and binding The arbitration award shall be final and binding on
the parties and persons claiming under themrespectively
If both parties are satisfied with the award, it can be
implemented. However, if any party is not satisfied with the award
and they find that there are grounds for getting theaward set aside as per section 34, the party may file
application in the court.
Enforcement of award
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Enforcement of award-Courts decision on application The section 34 provides very limited grounds
for setting aside the award
The court may find that there are no valid
grounds to set aside the award and pass adecree in terms of award
With the decree, the award can be enforced
as per law
Enforcement of award Courts
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Enforcement of award-Courtsdecision to give opportunity to
tribunal The court may give opportunity to the arbitraltribunal under section 34(4) and tribunal may take
action to eliminate the grounds for setting aside the
award
The court may, there after, be satisfied that no
grounds exist for setting aside the award and pass
decree which can be enforced as per law
Enforcement of a ard
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Enforcement of award-award as if it were a decree Time for making application to the court for setting
aside an award is 3 months from the date of receiptof receipt of arbitral award (or within the period asmay be extended by the court-not exceeding thirty
days) Once the period expires, the arbitral award shall be
enforced under the Code of Civil Procedure, 1908(5of 1908) in the same manner as if it were a decreeof a court
Enforcement of award
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Enforcement of award-Improvement in new act As per old act, separate application was to be filed
in a court and decree obtained for enforcing theaward even if the award was not contested.
This involved prolonged litigation and delay inenforcement of award
In the new act, once the period for contesting theaward expires, the award shall be enforced as if itwere a decree and there is no need to go to thecourt for a decree
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Settlement of disputes in
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Settlement of disputes inArbitration Sole arbitrator/Arbitral tribunal is appointed as stipulated in the
Arbitration agreement An arbitrator shall be independent, impartial and shall possess the
qualification stipulated in the agreement The arbitrator shall not be bound by Code of Civil Procedure or the
Indian Evidence Act.
The parties shall be treated with equality and each party shall be givenfull opportunity to present his case Claimant submits claims statement; respondent submits counter claims
with copies to the opposite party On receipt, Arbitrator asks both parties to submit their pleadings in
defense with copy to the opposite party
On receipt, the Arbitrator fixes hearing in consultation with both parties Claims and counter claims are heard in the hearing; both parties given
full opportunity Award published with in the stipulated time
Statement of claims
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Statement of claims
Description of claim
Amount
Relevant contract provisions
Facts supporting the claim
The points at issue
Remedy sought
Detailed calculations
Relevant documents/other evidence
Pleadings in Defence
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Pleadings in Defence
Description of claim Relevant contract provisions against the claim Facts against the claim The points at issue- Respondent's point of view
Refuting the claim Scrutiny of detailed calculations and amount as
corrected (without prejudice to disagreement to theclaimants arguments)
Comments on documents/ evidence submitted bythe claimant Corresponding documents refuting claimants
documents to disprove the claim
Counter to Pleadings
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Counter to Pleadings
This may be submitted as reply to the
Pleadings in Defence
Counter arguments given in the Pleadings in
Defence Any further clarifications on calculations
Any further documents relevant to documents
submitted by Respondent
Engagement of advocate or
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Engagement of advocate orconsultant by either party If either party intends to present their claims/
defence through an advocate or a consultant,the party has to intimate the details to theArbitral Tribunal well in advance with copy tothe other party
This will give ample time for the oppositeparty who may also decide to engage an
advocate or a consultant and intimate thedetails to the Arbitral Tribunal with copy to theother party
Hearing
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Hearing
Place of hearing, date and time will be fixed by theArbitrator in consultation with the parties
Sufficient advance notice will be given to the parties
All documents submitted to the Arbitrator by eitherparty shall be endorsed to the other party
Similarly, all communications made by the Arbitrator
shall be addressed to both parties
All inspections and discussions shall be made bythe Arbitrator in presence of both parties
Application to Court for setting
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Application to Court for settingaside an Arbitral Award Time limit is THREE months from the date of receipt
of the Award by the party This may be extended by maximum of thirty days by
the Court considering the justification
Where the time for making an application to setaside an award has expired, or where suchapplication has been refused by the Court, theaward shall be enforced as if it were a decree of aCourt. This is a great improvement from old act
As per old Arbitration Act, obtaining a court decreewas compulsory for enforcement of award. Thisresulted in prolonged litigation and delay inenforcement
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