Who are the persons and who can act as Arbitrators?

Who are the persons and who can act as Arbitrators?
Who are the persons and who can act as Arbitrators?

The Exchange provides a list of eligible persons. Persons who form part of the list of Arbitrators are the ones who possess an expertise in their respective fields including banking, finance, legal (judges) and capital market areas (brokers).

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Arbitration is a quasi judicial process of settlement of dispute between the trading members and clients, in respect of trades done on the Exchange. Arbitration aims at quicker legal resolution for the disputes. When one of the parties feels that the complaint has not been resolved satisfactory either by the other party or through the complaint resolution process of the Exchange, the parties may choose the route of arbitration.

One of the parties to the dispute who wants legal remedy for remedy for resolving dispute could apply for arbitration. On other words clients, trading member can apply for arbitration.

 

Who can apply for arbitration?

Who can apply for arbitration?
Who can apply for arbitration?

One of the parties to the dispute who wants legal remedy for remedy for resolving dispute could apply for arbitration. On other words clients, trading member can apply for arbitration.

Arbitration is a quasi judicial process of settlement of dispute between the trading members and clients, in respect of trades done on the Exchange.

Arbitration aims at quicker legal resolution for the disputes. When one of the parties feels that the complaint has not been resolved satisfactory either by the other party or through the complaint resolution process of the Exchange, the parties may choose the route of arbitration.

The Exchange provides a list of eligible persons. Persons who form part of the list of Arbitrators are the ones who possess an expertise in their respective fields including banking, finance, legal (judges) and capital market areas (brokers).

What is arbitration proceedings?

What is arbitration proceedings?
What is arbitration proceedings?

The arbitrators are masters of their own procedure and subject to parties agreement, may conduct the proceedings “in the manner they consider appropriate.” This power includes- “the power to determine the admissibility, relevance, materiality and weight of any evidence”.

The only restrain on them is that they shall treat the parties with equality and each party shall be given a full opportunity to present his case, which includes sufficient advance notice of any hearing or meeting. Neither the Code of Civil Procedure nor the Indian Evidence Act applies to arbitrations.

Unless the parties agree otherwise, the tribunal shall decide whether to hold oral hearings for the presentation of evidence or for arguments or whether the proceedings shall be conducted on the basis of documents or other material alone.

However the arbitral tribunal shall hold oral hearings if a party so requests (unless the parties have agreed that no oral hearing shall be held).

Arbitrators have power to proceed exparte where the respondent, without sufficient cause, fails to communicate his statement of defence or appear for an oral hearing or produce evidence.

However, in such situation the tribunal shall not treat the failure as an admission of the allegations by the respondent and shall decide the matter on the evidence, if any, before it. If the claimant fails to communicate his statement of the claim, the arbitral tribunal shall be entitled to terminate the proceedings.

What is Arbitration Proceedings in India under the Arbitration and Conciliation act 1996?

What is Arbitration Proceedings in India under the Arbitration and Conciliation act 1996?
What is Arbitration Proceedings in India under the Arbitration and Conciliation act 1996?

Arbitration is a quasi judicial process of settlement of dispute between the trading members and clients, in respect of trades done on the Exchange. Arbitration aims at quicker legal resolution for the disputes.

When one of the parties feels that the complaint has not been resolved satisfactory either by the other party or through the complaint resolution process of the Exchange, the parties may choose the route of arbitration.

Arbitration in a common context relates to anything done or acted without any prescribed or particular frame work on a dispute. Before the emergence of judicial systems in the formal form of the country, the decisions taken upon several disputes during early time in an informal way was arbitrary in nature.

Provincial State rules did not have uniform State rule strategy during pre independence era in India. During this time the arbitral proceedings were subjected to the Arbitration act of 1940. After independence the fundamental document of the land, The constitution of India was framed in 1950, that envisaged several articles ensuring proper functions of administrative systems.

Article 323-B confers the power to set up Tribunals for other matters without altering the basic structure of the power put forth by the Constitution.

The Arbitration Act of 1940 was exercised till the new enactment in 1996. The emergence of the Arbitration and Conciliation Act 1996, was the result of the sluggish arbitrary proceedings followed in accordance with the Act of 1940, that didn’t give any fruit in the commercial disputes and resulted only in the ineffective and worthless adjudication where court had to intervene in adjudication on several arbitrary disputes.

Though the arbitration Act seems to be liberal and independent, the disputes regarding agreements are not conclusively subject to act as the Judicial authority of India always have an indisputable upper hand in determining the final adjudication.

What is Arbitration ?

People have various conceptions about Arbitration. The very old concept about Arbitration was Panchaiti. It was a sort of undefined conception of people to settle their disputes, by referring to a person of their choice who would contact the parties and try to settle their disputes. This was an attempt to settle civil disputes by and through a private party or parties of their choice.

What is the modern concept of Arbitration ?

The modern concept about Arbitration has greatly changed. On the one hand the parties are given the liberty to enter into an Arbitration agreement of their choice, they also have the liberty to agree to an arbitrator or arbitrators of their choice mutually acceptable to them and also have the liberty to agree to the procedure as to how the arbitrator or arbitrator are to be selected or appointed in case of any existing or any future disputes, but once they agree to go to an Arbitration, the said agreement becomes binding on both the parties and the arbitrators get the Jurisdiction to decide finally all the disputes which the parties have agreed to refer to them for settlement. Thus where as ordinarily the disputes between the parties are decided by a court of law, whose Jurisdiction and power to decide is governed by the law of the land and not by the volition of the parties, the parties by the law of Arbitration have been given the choice to get their disputes and or particular disputes, the nature whereof is defined within the mutual agreement, to be decided by the person or persons or a body of their own choice.The whole intent behind accepting Arbitration as a mode of settlement of disputes is to make it easy, convenient and expeditious remedy to be available to the parties instead of going to a court of law and the long drawn procedures and formalities applicable in case of settlement of disputes which apply to the courts.In India we had our own Arbitration Act 1940, which was mostly following the British Law on the subject. Similarly most of the countries had their own laws of Arbitration, which varied largely and created lots of problems with the increase of international trade and commerce and the agreements relating there to usually provided for Arbitration to solve the Disputes.The United Nations commission on International Trade Law (UNCITRAL) had adopted the UNCITRAL model law on International commercial Arbitration in 1985. The general assembly of United Nation also recommended that all countries should give due consideration to the said model Law in view of the desirability of uniformity of the law of Arbitral procedures and the specific needs of the international commercial Arbitration practice. India was a signatory party to the said UNCITRAL. Furthermore we in India did not have any legislation with regard to conciliation proceedings and there was a recommendation by the general assembly of the United Nations for use of the rules as recommended by them in context of international commercial disputes and where the parties sought amicable settlement of the disputes by recourse to conciliation proceedings.

 

 

 

In the context aforesaid a bill was introduced in the parliament to consolidate and amend the law relating to domestic Arbitration, International commercial Arbitration and enforcement of foreign arbitral award; as also to define the law relating to conciliation and for matters connected there with or incidental there to.

 

 

 

At first an ordinance was issued, since the parliament was not in session and thereafter the act was passed.

 

How to enter into an Arbitration agreement ?

An Arbitration agreement may be in the form of Arbitration clause in a contract or in the form of a separate agreement.

An Arbitration agreement has to be in writing.

 

The requirement as to Arbitration agreement being in writing is fulfilled ;-

 

a) If the document is signed by the parties

 

b) If the Arbitration is entered into by exchange of letters, telex, telegrams or other means of communication which provide as a record of the agreement; or

 

c) An exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other.

The reference in a contract to a document containing an Arbitration clause constitutes an Arbitration agreement if the contract is in writing and the reference is such as to make that Arbitration clause part of the contract. The example of such an Arbitration agreement may be given when the parties simply agree “Arbitration; Bengal Chamber of Commerce and Industry”. Similarly “Arbitration; London Chamber of Commerce and Industries”. This agreement will import the entire rules of the concerned chambers which are in writing in the contract itself and the requirement of Law that the Arbitration agreement has to be in writing will be fulfilled by incorporation of the concerned rules of the concerned chambers. Of course an Arbitration agreement should specify the nature of disputes which are intended to be referred to Arbitration. It should be noted that an oral Arbitration agreement is not permissible in Law.

 

How to get Interim Reliefs in a case where there is an Arbitration agreement ?

Under the 1940 Act an interim relief could be sought for after commencement of the Arbitration reference. This situation has been basically altered and now as provided in section 9 of The Arbitration and Conciliation Act, 1996. Interim relief may be sought by a party before or during arbitral proceeding or anytime after the making of the award.

The nature of the Interim Relief that may be asked for are enumerated as hereunder.

 

For the appointment of a guardian for a minor or a person of unsound mind for the purposes of Arbitral proceedings; or

 

For an Interim measure of protection in respect of any of the following matters, namely:-

 

the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement ;

 

Securing the amount in dispute in the Arbitration;

 

The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

 

 

 

interim injunction or the appointment of a receiver;

 

such other interim measure of protection as may appear to the court to be just and convenient.

 

This interim relief has to be asked from the court, which has the same power for making interim orders as it has for the purpose of and in relation to any proceedings before it. The “court” means the principal civil court of original Jurisdiction in a district and includes the High Court in exercise of its ordinary original civil Jurisdiction, having Jurisdiction to decide the questions forming the subject matter of the Arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal civil court of or any court of small causes.

Under section 17 of the present Act the arbitral tribunal may also at the request of the party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The Arbitral tribunal may also require a party to provide appropriate security in connection with a measure ordered under sub-section 1 of Section 17 of the present Act. This is a change in Law as under the old Act “ that is the 1940 Act “ the arbitrator could make an interim award but there was no provision equivalent to Section 17 of the present Act.

 

What can a party to an Arbitration agreement do if the other party to the Arbitration agreement institutes a suit in a Court of Law praying for decision on matters, which are covered by the Arbitration agreement ?

This situation very often used to arise and the other party had no option but to make an application for the stay of the suit under Section 34 of the old Act. If a party commenced a suit and gave notice there of to the other side all further proceedings in Arbitration would become void and ineffective and the award made after such notice would have been void.The 1996 Act has ameliorated the situation to a great extent. It has been provided under Section 8(3) that not with his tending the issue is pending before the Judicial Authority, an Arbitration may be commenced or continue an Arbitral award made.The further step that is required is to make an application before the Judicial Authority before which an action is brought in a matter which is the subject of an Arbitration agreement and the court shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the party to a Arbitration. This application as aforesaid shall not be entertained unless it is accompanied by the original Arbitration agreement or a duly certified copy thereof. Notwithstanding that an application has been made under sub-section 8(1) before the Judicial Authority and that the issue is pending before the Judicial Authority, an arbitration may be commenced or continue and an arbitral award made

How and what number of Arbitrators are to be appointed ?

The parties are free to determine the number of arbitrators, provided that such numbers shall not be an even number. Feeling the determination referred to by the parties, the Arbitral Tribunal shall consist of a sole Arbitrator. If the procedure for appointment of Arbitrator or Arbitrators is not agreed, in an Arbitration with three arbitrators each party shall appoint an arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding Arbitrator.

In case a party fails to appoint his Arbitrator within 30 days from the receipt of the request to do so from the other party or the two appointed Arbitrators fail to agree on the third Arbitrator within 30 days from the date of their appointment, the appointment shall be made upon request of a party, by the Chief Justice or any person or institution designated by him.

In an Arbitration with a sole Arbitrator if the party fail to agree on the Arbitrator within 30 days from receipt of request by one party from the other party to so agree, the appointment shall be made upon request of the party by the Chief Justice or any person or institution designated by him. This applies in cases where the agreement on the appointment procedure does not provide other means for securing their appointments. The appointment made by the Chief Justice is final.