Unit 7 Arbitration and Concil iation Act 1996 Structure: 7.1 Introduction Objectives 7.2 Scheme of the Act 7.3 Objectives of the Act 7.4 Power of J udicial Authority to Refer Parties to Arbitration 7.5 Composition of Arbitral Tribunal 7.6 J urisdiction of Arbitral Tribunals Self Assessment Questions I 7.7 Conduct of Arbitral Proceedings 7.8 Award 7.9 Conciliation 7.10 Mediation 7.11 Negotiation Self Assessment Questions II 7.12 Summary 7.13 Terminal Questions 7.14 Answers to SAQs and TQs 7.1 Introduction Purpose of Arbitration Act is to provide quick redressal to commercial disputes by private Arbitration. Quick decision of any commercial dispute is necessary for smooth functioning of business and industry. Internationally, it is accepted that normally commercial disputes should be solved through arbitration and not through normal judicial system. Hence, there is a need of Alternate Dispute Resolution (ADR). There are four methods of ADR - negotiation, mediation, conciliation and arbitration. 'Negotiation' is cheapest Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 152 and simplest method. If it does not work, mediation through a mediator can be tried. If it does not work, conciliation and arbitration will be useful. Arbitration Act makes provision for conciliation and arbitration as ADR mechanisms. An arbitrator is basically a private judge appointed with consent of both the parties. Object of arbitration is settlement of dispute in an expeditious, convenient, inexpensive and private manner so that they do not become the subject of future litigation between the parties. Objectives: After studying this unit, you will be able to: Explain the objectives of the Arbitration Act. Explain the composition of Arbitral Tribunal. Explain the conduct of Arbitral Proceedings. 7.2 Scheme of the Act: The Act is divided into the following parts: (a) Part I - Domestic arbitration (b) Part II - Enforcement of foreign awards (c) Part III - Conciliation procedures (d) Part IV - Supplementary provisions (e) First Schedule - Convention on recognition and enforcement of foreign arbitral award as per New York Convention (f) Second Schedule - Protocol on Arbitration Clauses (g) Third Schedule - Convention on the execution of foreign arbitral awards as per Geneva Convention. Law Based on UNCITRAL Model Law: The present Act is based on model law drafted by United Nations Commission on International Trade Laws (UNCITRAL), both on domestic arbitration as well as international commercial arbitration, to provide uniformity and certainty to both categories of cases. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 153 Matters not referable to arbitration: Certain matters which are not arbitrable are: Suits for divorce or restitution of conjugal rights Taxation Non-payment of admitted liability Criminal matters. Arbitration- (The Arbitrator decides): Arbitration is a dispute resolution process where the opposing parties select or appoint an individual called an Arbitrator. Upon appointment, the Arbitrator will arrange the process to hear and consider the evidence, review arguments and afterwards will publish an award in which the items of dispute are decided. In some cases the Arbitrator can conduct the arbitration on documents evidence only. When published the Arbitrator's decisions are final and binding on the parties. It is rare for an arbitration to be appealed to the courts. Arbitration may comprise a sole Arbitrator, or may be a panel of Arbitrators. Costs of the arbitration are disposed of in the Arbitrator's award, unless the parties have some agreement to the contrary. Arbitration is a settlement of dispute by the decision of one or more persons called arbitrators. It is an arrangement for investigation and settlement of a dispute between opposing parties by one or more unofficial persons chosen by the parties. In arbitration some dispute is referred by the parties for settlement to a tribunal of their own choosing. The dispute is not submitted for decision to the ordinary courts but a domestic tribunal. It is thus a method of settling the disputes in a quasi-judicial manner. The essence of arbitration is that the arbitrator decides the case and his award is in the Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 154 nature of a judgement. Arbitration is a speedy and inexpensive method of settling the disputes between the parties. In lines with the international trend, the Government of India has also enacted the Arbitration and Conciliation Act, 1996 and repealed the three earlier enactments namely, the Arbitration (Protocol and Convention) Act, 1937; the Arbitration Act, 1940; and the Foreign Award (Recognition and Enforcement) Act, 1961. 7.3 Objectives of the Act The main objectives of the Act are as under: i) To comprehensively cover international commercial arbitration and conciliation as also domestic arbitration and conciliation. ii) To make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration. iii) To provide that the arbitral tribunal gives reasons for its arbitral award. iv) To ensure that the arbitral tribunal remains with in the limit of jurisdiction. v) To minimize the supervisory role of courts in the arbitral process. vi) To permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes. vii) To provide that every final arbitral award is enforced in the same manner as if it were a decree of the court. viii) To provide that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 155 ix) To provide that, for purposes of enforcement of foreign awards, every arbitral award made in the country to which one of the two international Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award. Arbitration Agreement: The foundation of arbitration is the arbitration agreement between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them. Thus, the provision of arbitration can be made at the time of entering the contract itself, so that if any dispute arises in future, the dispute can be referred to arbitrator as per the agreement. It is also possible to refer a dispute to arbitration after the dispute has arisen. Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. The arbitration agreement can be by exchange of letters, document, telex, telegram etc [section 7]. Court must refer the matter to arbitration in some cases: If a party approaches court despite the arbitration agreement, the other party can raise objection. However, such objection must be raised before submitting his first statement on the substance of dispute. Such objection must be accompanied by the original arbitration agreement or its certified copy. On such application the judicial authority shall refer the parties to arbitration. Since the word used is shall, it is mandatory for judicial authority to refer the matter to arbitration [Section 8]. However, once first statement to court is already made by the opposite party, the matter has to continue in the court. Once an application is made by other party for referring the matter to arbitration, the arbitrator can continue with arbitration and even make an arbitral award. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 156 Essentials of Arbitration Agreement 1. It must be in writing [Section 7(3)]: Like the old law, the new law also requires the arbitration agreement to be in writing. It also provides in section 7(4) that an exchange of letters, telex, telegrams, or other means of telecommunications can also provide a record of such an agreement. Further, it is also provided that an exchange of claim and defence in which the existence of an arbitration agreement is alleged by one party and not denied by the other, will also amount to be an arbitration agreement. It is not necessary that such written agreement should be signed by the parties. All that is necessary is that the parties should accept the terms of an agreement reduced in writing. The naming of the arbitrator in the arbitration agreement is not necessary. No particular form or formal document is necessary. 2. It must have all the essential elements of a valid contract: An arbitration agreement stands on the same footing as any other agreement. Every person capable of entering into a contract may be a party to an arbitration agreement. The terms of the agreement must be definite and certain; if the terms are vague it is bad for indefiniteness. 3. The agreement must be to refer a dispute, present or future, between the parties to arbitration: If there is no dispute, there can be no right to demand arbitration. A dispute means an assertion of a right by one party and repudiation thereof by another. A point as to which there is no dispute cannot be referred to arbitration. The dispute may relate to an act of commission or omission, for example, with holding a certificate to which a person is entitled or refusal to register a transfer of shares. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 157 Under the present law, certain disputes such as matrimonial disputes, criminal prosecution, questions relating to guardianship, questions about validity of a will etc. or treated as not suitable for arbitration. Section 2(3) of the new Act maintains this position. Subject to this qualification Section 7(1) of the new Act makes it permissible to enter into an arbitration agreement in respect of a defined legal relationship whether contractual or not. 4. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement [Section 7(2)]. Appointment of Arbitrator: The parties can agree on a procedure for appointing the arbitrator or arbitrators. If they are unable to agree, each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator who will act as a presiding arbitrator [Section 11(3)]. If one of the parties does not appoint an arbitrator within 30 days, or if two appointed arbitrators do not appoint third arbitrator within 30 days, the party can request Chief J ustice to appoint an arbitrator [Section 11(4)]. The Chief J ustice can authorize any person or institution to appoint an arbitrator. [Some High Courts have authorized District J udge to appoint an arbitrator]. In case of international commercial dispute, the application for appointment of arbitrator has to be made to Chief J ustice of India. In case of other domestic disputes, application has to be made to Chief J ustice of High Court within whose jurisdiction the parties are situated [Section 11(12)] Challenge to Appointment of arbitrator: An arbitrator is expected to be independent and impartial. If there are some circumstances due to which his independence or impartiality can be challenged, he must disclose the circumstances before his appointment [Section 12(1)]. Appointment of Arbitrator can be challenged only if (a) Circumstances exist that give rise to Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 158 justifiable doubts as to his independence or impartiality (b) He does not possess the qualifications agreed to by the parties [Section 12(3)]. Appointment of arbitrator cannot be challenged on any other ground. The challenge to appointment has to be decided by the arbitrator himself. If he does not accept the challenge, the proceedings can continue and the arbitrator can make the arbitral award. However, in such case, application for setting aside arbitral award can be made to Court. If the court agrees to the challenge, the arbitral award can be set aside [Section 13(6)]. Thus, even if the arbitrator does not accept the challenge to his appointment, the other party cannot stall further arbitration proceedings by rushing to court. The arbitration can continue and challenge can be made in Court only after arbitral award is made. Conduct of Arbitral Proceedings: The Arbitral Tribunal should treat the parties equally and each party should be given full opportunity to present his case [Section 18]. The Arbitral Tribunal is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872 [Section 19(1)]. The parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal. If the parties do not agree to the procedure, the procedure will be as determined by the arbitral tribunal. Law of Limitation Applicable: Limitation Act, 1963 is applicable. For this purpose, date on which the aggrieved party requests other party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue [Section 43(2)]. If Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of Limitation Act. So that case in court or fresh arbitration can start. Flexibility in respect of procedure, place and language: Arbitral Tribunal has full powers to decide the procedure to be followed, unless parties agree Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 159 on the procedure to be followed [Section 19(3)]. The Tribunal also has powers to determine the admissibility, relevance, materiality and weight of any evidence [Section 19(4)]. Place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, the same will be decided by tribunal [Section 20]. Similarly, language to be used in arbitral proceedings can be mutually agreed. Otherwise, Arbitral Tribunal can decide [Section 22]. Submission of statement of claim and defence: The claimant should submit statement of claims, points of issue and relief or remedy sought. The respondent shall state his defense in respect of these particulars. All relevant documents must be submitted. Such claim or defense can be amended or supplemented any time [section 23]. Hearings and Written Proceedings: After submission of documents and defense, unless the parties agree otherwise, the Arbitral Tribunal can decide whether there will be oral hearing or proceedings can be conducted on the basis of documents and other materials. However, if one of the parties requests the hearing shall be oral. Sufficient advance notice of hearing should be given to both the parties [Section 24]. [Thus, unless one party requests, oral hearing is not compulsory]. Settlement during Arbitration: It is permissible for parties to arrive at mutual settlement even when arbitration is proceeding. In fact, even the Tribunal can make efforts to encourage mutual settlement. If parties settle the dispute by mutual agreement, the arbitration shall be terminated. However, if both parties and the Arbitral Tribunal agree, the settlement can be recorded in the form of an arbitral award on agreed terms. Such Arbitral Award shall have the same force as any other Arbitral Award [Section 30]. Arbitral Award: Decision of Arbitral Tribunal is termed as 'Arbitral Award'. Arbitrator can decide the dispute ex aequo et bono (In justice and in good Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 160 faith) if both the parties expressly authorize him to do so [Section 28(2)]. The decision of Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal [Section 29]. The award must be in writing and signed by the members of Arbitral Tribunal [Section 31(1)]. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given [Section 31(3)]. The award should be dated and place where it is made should be mentioned. Copy of award should be given to each party. Tribunal can make interim award also [Section 31(6)]. Cost of Arbitration: Cost of arbitration means reasonable cost relating to fees and expenses of arbitrators and witnesses, legal fees and expenses, administration fees of the institution supervising the arbitration and other expenses in connection with arbitral proceedings. The tribunal can decide the cost and share of each party [Section 31(8)]. If the parties refuse to pay the costs, the Arbitral Tribunal may refuse to deliver its award. In such case, any party can approach Court. The Court will ask for deposit from the parties and on such deposit, the award will be delivered by the Tribunal. Then Court will decide the costs of arbitration and shall pay the same to Arbitrators. Balance, if any, will be refunded to the party [Section 39]. Intervention by Court - One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration - right from appointment of arbitrator to implementation of final award. Thus, the defending party could approach court at various stages and stall the proceedings. Now, approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made. Appeal to court is now only on restricted Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 161 grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts cannot be totally eliminated. Arbitration Act has Over-Riding Effect: Section 5 of Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act. Modes of Arbitration (a) Arbitration without the intervention of the court. [Sec.3 to 19] (b) Arbitration with the intervention of the court when there is no suit pending [Sec.20] (c) Arbitration with the intervention of the court where a suit is pending. [Sec.21 to 25] 7.4 Power of Judicial Authority to Refer Parties to Arbitration A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall refer the parties to arbitration if a party so applies. The party must, however, apply before submitting his first statement on the substance of the dispute [Sec.8(1)1]. Further, the application shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy there of. [Sec. 8(2)] Notwithstanding that an application has been made and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and in arbitral award made, [Sec.8(3)]. In order that the judicial authority may refer the parties to arbitration under section 8(1), the following conditions must be satisfied. 1. There must be a valid and subsisting agreement between the parties. 2. The matter about which a suit has been filed should be within the scope of the arbitration agreement. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 162 3. The party asking for the stay must have applied at the earliest opportunity, i.e., before submitting his first statement on the substance of the dispute. 4. The application must be made to the judicial authority before which the proceedings are pending. 5. The application must be accompanied by the original arbitration agreement or by a duly certified copy thereof. 6. The judicial authority must be satisfied that there is no sufficient reason why the matter should not be referred. This is a very important provision inasmuch as if any party to the Arbitration Agreement brings an action before the Court ignoring the Arbitration Agreement, the other party can move an application before the court along with original arbitration Agreement or a duly certified copy of agreement but before submitting his first statement on the substance of the dispute otherwise the party will lost its right of objecting the matter to be tried before the Court. Above all, the most important provision is that the arbitration proceedings can continue or proceed further despite the fact that one of the parties has moved a petition before the court. Under the previous old Act, there was no such specific provision and consequently, in the past, the arbitration proceedings remained in abeyance. Who may refer to Arbitration? Capacity to make reference is co-extensive with capacity to contract. Every person capable of entering into the contract may be a party to a submission. Therefore, he who cannot contract cannot make a submission. In the case of a person whose capacity to contract is restricted, his power of making submission is in the same manner also limited. The capacity of various persons to submit disputes to arbitration is discussed below: Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 163 1. Minor: As a minor is not competent to enter into a contract there cannot be a valid submission to arbitration by him. Where a minor joins a reference to arbitration the award is not void, it is voidable at the option of the minor but the major parties are bound by it. A guardian can refer a dispute to arbitration only with the permission of the court for the benefit of a minor in good faith. 2. Manager of a Joint Hindu Family: The manager of a J oint Hindu Family can refer disputes to arbitration and the award, in the absence of a fraud, will bind the other members of the family including the minors. Thus, a manager in a J oint Hindu Family has power to refer to arbitration disputes relating to family property provided the reference is for the benefit of the family. 3. Agent: An agent who is duly authorized may enter into an arbitration agreement. Such an agent on reference may bind his principal. 4. Official assignee (in case of bankrupts estate): The Official Assignee or Receiver is given the power to refer any dispute to arbitration and compromise all debts, claims and liabilities on such terms as may be agreed upon. 5. Partner: A partner cannot bind his co-partners by a reference to arbitration. The implied authority of a partner does not, in the absence of any usage or custom of trade, empower him to submit dispute relating to the business of the firm to arbitration. Subject-matter of Reference All matters which form the subject of civil litigation affecting private rights may be referred to arbitration. In other words, all disputes between the parties relating to private rights of which the civil court may take cognizance of, may be referred to arbitration. Thus, matters which are purely criminal Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 164 and give rise to no civil remedy cannot be referred to arbitration. Similarly, matters of public right cannot be decided by arbitration. What can be referred? 1) Disputes concerning movable property; 2) Disputes arising out of breaches of contract; 3) Disputes relating to breach of promise of marriage; 4) Questions of title to immovable property; 5) Questions of law or fact; 6) Disputes regarding, compliment, dignity, trespass, etc. 7) Time barred claims; 8) Questions as to whether judgement has been properly obtained or not. 9) Questions relating to the past or future maintenance of a widow. What cannot be referred? 1. A claim for custody of wife, petition for restitution of conjugal rights, divorce, etc; 2. Insolvency proceedings; 3. Claims arising out of illegal transactions; 4. Questions relating to public charities and charitable trusts; 5. Cases relating to public nuisance; 6. Execution proceedings; 7. Proceedings relating to the appointment of a guardian to a minor; 8. Questions relating to offences affecting public at large; 9. Lunacy proceedings; 10. Questions relating to the genuineness of a will; 11. Matters of a criminal nature. 7.5 Composition of Arbitral Tribunal An arbitrator is a person selected by mutual consent of the parties to settle the matters in controversy between them. A person appointed to adjudicate Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 165 the difference between two or more parties is called an arbitrator. An arbitrator is a tribunal chosen by the consent of the parties. The person who is so appointed must also give his consent to act as an arbitrator. Number of Arbitrators (Section 10) The parties are free to determine the number of arbitrators provided that such number shall not be an even number. If the parties fail to make the determination the arbitral tribunal shall consist of a sole arbitrator. Under the old and new law, the mode of appointment of arbitrators and their number is left to the agreement by the parties. But unlike old law, the new law envisages only odd number of arbitrators. This will do away with the system of having two arbitrators and one umpire prevalent under the old law. Section 10 of the new Act provides that there shall be only a sole arbitrator, where the parties do not specify the number of arbitrators. Appointment of Arbitrators (Section 11) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. The parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Presiding arbitrator. Failing any agreement on a procedure, in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator [Sec: 11(3)]. If the appointment procedure agreed on by the parties applies and:- (a) A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief J ustice or any person or institution designated by him. [Sec.11(4)]. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 166 Failure of Parties to agree on procedure: It may so happen that the parties may fail to agree on the procedure for the appointment of the arbitrator or arbitrators. In such a case, a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief J ustice or any person or institution designated by him [Sec.11(5)]. Sometimes, under an appointment procedure agreed upon by the parties:- a) A party fails to act as required under that procedure; or b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or c) A person, including an institution, fails to perform any function entrusted to him or it under that procedure. In such a case, a party may request the Chief J ustice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. [Sec. 11(6)]. A decision on a matter entrusted to the Chief J ustice or the person or institution designated by him is final. [Sec.11(7)]. Qualification for the appointment of arbitrator The Chief J ustice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to a) Any qualifications required of the arbitrator by the agreement of the parties; and b) Other considerations as the likely to secure the appointment of an independent and impartial arbitrator. [Sec. 11(8)] In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief J ustice of India or Inc. person or institution Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 167 designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. [Sec. 11(9)] The Chief J ustice may make such scheme as he may deem appropriate for dealing with above matters [Sec. 11(10)]. 7.6 Jurisdiction of Arbitral Tribunals Competence of arbitral tribunal to rule on its jurisdiction (Section 16) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement for this purpose:- a) An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure by the law it self the invalidity of the arbitration clause [Sec. 16(1)]. Thus, the New Act confers competence on the arbitral tribunal to decide on its own jurisdiction and to consider objections 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 defense. However, a party shall not be precluded from raising such a pica merely because that he has appointed, or participated in the appointment of, an arbitrator [Sec. 16(2)]. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings [Sec, 16(3)]. The arbitral tribunal may, in these cases admit a later plea if it considers the delay justified [Sec16(4)]. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 168 The arbitral tribunal shall decide on a plea referred to above and, where the arbitral tribunal takes a decision rejection the plea, continue with the arbitral proceedings and make an arbitral award [Sec. 16(5)]. A party aggrieved by such an arbitral award my make an application for setting aside such an arbitral award in accordance with Section 34 [Sec. 16(6)]. Interim measures ordered by arbitral tribunal (Section 17) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a 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. Further, the arbitral tribunal may require a party to provide appropriate security in connection with a measure so ordered. Section 17 provides for the taking of interim measures in respect of the subject-matter of the dispute by the arbitral tribunal. However, the parties may by agreement exclude the exercise of such a power by the arbitral tribunal. The Arbitration Act, 1940, did not confer any specific powers on arbitrators to take interim measures. It was, however, open on the parties to confer such powers on the arbitrator. Self Assessment Questions I 1. Arbitration is a process where the opposing parties select or appoint an individual called an . 2. Costs of the arbitration are disposed of in the .. 3. Arbitration is a speedy and inexpensive method of settling.. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 169 4. The foundation of arbitration is the ..between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them. 5. A .means an assertion of a right by one party and repudiation thereof by another. 7.7 Conduct of Arbitral Proceedings Equal treatment of Parties (Section 18) The parties shall be treated with equality and each party shall be given a full opportunity to present his case. Thus, section 18 laws down two obligations on the arbitral tribunal i.e. to treat the party with equality and to give full opportunity to each party to present his case. It constitutes a fundamental principle which is applicable to entire proceedings. The principle of equality and full opportunity to present the case should be observed by the parties also, when laying down any rules of procedure. An agreed procedure which violates the fundamental principle of equality and grant of opportunity to be heard, is null and void and an award passed in violation of this principle can be set aside. Determination of rules of Procedure (Section 19) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. The arbitral tribunal is not bound to follow the procedure as followed by a Court. However, the arbitral tribunal is to observe fundamental principles underlying the Code of Civil Procedure and the Evidence Act. The procedure adopted by arbitral tribunal should be according to the principles of natural justice. Section 19(2) provides that subject to provisions of the Part-I, the parties are free to agree on a procedure to be followed by the arbitral tribunal in Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 170 conducting its proceedings. Parties generally incorporate arbitration rules of a particular institution by reference to the same in the agreement. The arbitral tribunal does not have any discretion where any such rule has been provided for in the agreement. The arbitral tribunal may conduct the proceeding in the manner it considers appropriate, but such power is subject to two exceptions mentioned below:- 1) The arbitral tribunal cannot conduct the proceedings in a manner which is in violation of a mandatory provision of the law. 2) The arbitral-tribunal cannot conduct proceedings in a manner which is in violation of the procedure agreed by the parties if any. However, if there were no agreed rules by the parties, the arbitral tribunal has power to determine the admissibility, relevance, materiality and weight of any evidence and make decision in the manner it considers appropriate [Sec. 19(4)]. Place of Arbitration (Section 20) Section 20(1) provides that parties are free to agree on the place of arbitration. Where parties have not agreed on the place of arbitration the arbitral tribunal has to determine the place of arbitration having regard to the circumstances of the case, including the convenience of the parties. Section 31(4) provides, A mandatory requirement and obligation on the arbitral tribunal to state the place of arbitration as determined in accordance with section 20 in the award and award is then deemed to have been made at that place. The arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. [Sec.20(1)]. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 171 Place of arbitration in arbitration other than international commercial arbitration i.e., in domestic arbitration does not pose any problem. Parties may agree on the place of arbitration anywhere in India. But in international commercial arbitrations, place of arbitration has legal implications in terms of law applicable to arbitration. Commencement of Arbitral Proceedings (Section 21) Section 21 gives freedom to the parties to agree on the date of commencement of arbitral proceedings. The arbitral proceedings, subject to agreement of party, in respect of a particular dispute, commence on the date, on which a request for the dispute to be referred to arbitration is received by the respondent. A request for reference of disputes to arbitration is different from request for the appointment of arbitrator of constitution or arbitral tribunal. Language (Section 22) Section 22 gives freedom to parties to agree upon the language or languages to be used in the arbitral proceedings. The arbitral tribunal, subject to an agreement of parties, has power to determine the language or languages to be used in the arbitral proceedings. The arbitral tribunal may ask for translation of documentary evidence into the agreed language. Statement of claim and defence (Section 23) Section 23 is a mandatory provision. The claimant should state the facts supporting his claim, the points at issue and the relief or remedies sought and the respondent should state his defence in respect of these particulars. However, the parties have been given freedom to agree on required elements of those statements. The parties have also been given freedom to agree upon the period of time for submission of those statements. The arbitral tribunal has power to determine the period of time for submission of Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 172 these statements where parties have not agreed on the same [Section 23(1)]. The statement Contemplated by section 23 need not be in writing. The parties may submit with their statements all documents they consider to be relevant or may add a reference to documents or other evidence they will submit [Sec. 23(2)]. The parties may agree to amend or supplement their statements during the course of arbitral proceedings. The arbitral tribunal has exclusive discretion to restrict supplementary claim and defences having regard to the delay in making it [Sec. 23(3)]. Hearings and written proceedings (Section 24) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. [Sec. 24(1)]. Notice. The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property. [Sec. 24(2)]. Communication. All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party and any expert report or evidentiary document, on which the arbitral tribunal may rely in making its decision shall be communicated to the parties [Sec. 24(3)]. Receipt of written Communications (Section 3). Unless otherwise agreed by the parties:- Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 173 (a) Any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address; and (b) If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addresses last known place of the business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it. [Sec.3(1)]. The communication is deemed to have been received on the day it is so delivered [Sec.3(2)]. Default of a party (Section 25) Section 25 of the Act provides that subject to an agreement between the parties, where, without showing sufficient cause, the claimant falls to communicate his statement of claim within the agreed period, the arbitration proceedings shall be terminated by the arbitrator. Similarly where the respondent falls to communicate his statement of defence within the predetermined period, the arbitrator shall continue the proceedings without treating such failure, in itself, as an admission of the claimants allegations. Further, when a party fails to appear at an oral hearing or to produce documentary evidence the arbitrator can proceed and pronounce the award on the basis of evidence otherwise available. Expert appointed by arbitral tribunal (Section 26) Section 26(1) of the Act provides for appointment of experts subject to agreement between parties. It also provides for submission of relevant information to experts by the parties. The expert should also make himself available for cross-examination by parties, if necessary. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 174 Court assistance in taking evidence (Section 27) Application: The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence. [Sec. 27(1)]. Particulars of application: The application shall specify a) The names and addresses of the parties and the arbitrators; b) The general nature of the claim and the relief sought; c) The evidence to be obtained, in particular i) The name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required; ii) The description of any document to be produced or property to be inspected. [Sec.27(2)]. Order of Court. The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. Further, the Court may, while making an order issue the same processes to witnesses as it may issue in suits tried before it. Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court. In this Section the expression Processes includes summonses and commissions for the examination of witnesses and summonses to produce documents. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 175 It may be noted that the arbitral tribunal does not have coercive power to issue processes to witnesses and other production of documents in the possession of a third party. Rules applicable to substance of dispute (Section 28) In an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India. Further, the arbitral tribunal shall decide exaeguo et bono (according to equity and conscience) or as amiable compositeur) (authorized to abate something of the strictness of the law in favour of natural equity) only if the parties have expressed authorized it to do so. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transactions. Decisions making by Panel of Arbitrators (Section 29) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral natural shall be made by a majority of all its members. However, if authorisd by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by the presiding arbitrator. Settlement (Section 30) An arbitral tribunal may encourage settlement of the dispute, in spite of an arbitration agreement. It may also, with the agreement of the parties, use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. [Sec.30(1)]. If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 176 not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. [Sec.30(2)]. An arbitral award on agreed terms shall be made in accordance with Section 31 and shall state that it is an arbitral award. [Sec. 30(3)]. An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute. [Sec. 30(4)]. Section 30 of the Act allows arbitral tribunal to resort to mediation, conciliation or other procedures for settlement of the disputes, during the arbitration proceedings. The conciliation as envisaged in this section is different from the conciliation that has been provided under sections 61-81 of the Act. The conciliation under Part III (Sections 61-81) is separate and independent proceedings as against informed and flexible proceedings under this section. Termination of Proceedings (Section 32) The arbitral proceedings shall be terminated by the final arbitral award. [Sec. 32(1)]. It shall also be terminated by an order of the arbitral tribunal where a) The claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute. b) The parties agree on the termination of the proceedings, or c) The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. [Sec. 32(2)] The mandate of the arbitral tribunal shall terminate the termination of the arbitral proceedings [Sec.32(3)]. 7.8 Award Award means an arbitral award. It is a final decision or judgement of the arbitral tribunal on all matters referred to it. An award in order to be valid Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 177 must be final, certain and must decide all the matters referred to. An award by the arbitrator is as binding in its nature as the judgement of a court. Arbitral award includes an interim award There are two types of decisions to be made by the arbitral tribunal i.e. decision on the merits of the dispute and decision on questions of procedure. Decision on merits of dispute is to be made by the, majority of members of the arbitral tribunal but question of procedure can be decided by the presiding arbitrator, if authorised by the parties or all members of the arbitral tribunal. In the absence of such authorisation by the parties or other members of the tribunal, the decision on question of procedure is also to be made by majority of members of the arbitral tribunal. In the absence of such authorisation by the parties or other members of the tribunal, the decision on question of procedure is also to be made by majority of members of the arbitral tribunal. The presiding arbitrator has not been given any special power and he acts like any other arbitrator. All arbitrators have been given equal power irrespective of mode of appointment. Essentials of an Arbitral Award Section 31 deals with the form and contents of the arbitral award. The provisions of Section 31 are discussed in the form of essentials which are as under: 1. An arbitration agreement is required to be in writing. Similarly, a reference to arbitration and award is also required to be made in writing. The arbitral award is required to be made on stamp paper of prescribed value. An oral decision is not an award under the law. 2. The award is to be signed by the members of the arbitral tribunal. However, the signatures of majority of all the members of the tribunal are sufficient if the reason for any omitted signature is stated. 3. Unless the agreement provides otherwise, the arbitrator must give reasons for the award. Thus, the making of an award is a rational Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 178 process which is accentuated by recording the reasons. However, there are two exceptions where award without reasons is valid i.e. (a) Where the arbitration agreement expressly provides that no reasons are to be given, or (b) Where the award has been under section 30 of the new Act i.e. where the parties settled the dispute and the arbitral tribunal has recorded the settlement in the form of an arbitral award on agreed terms. 4. The award should be dated i.e. the date of the making of the award should be mentioned in the award. 5. The arbitral tribunal shall state the place of arbitration in the award. 6. The arbitral tribunal may include in the sum for which award is made, interest up to the date of award and also a direction regarding future interest. The rate of interest shall be eighteen per cent. 7. The award may also include decisions and directions of the arbitrator regarding the cost of the arbitration. 8. After the award is made, a signed copy should be delivered to each party for appropriate action. 9. The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award. Finality of Arbitral Awards (Section 35) An arbitral award shall be final and binding on the parties and persons claiming under them respectively. Now, under the new Act, by virtue of section 35 of the Act, the award made by the Arbitrator shall be final and binding on the parties itself and shall be decree without being made a decree by the court. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 179 7.9 Conciliation (Section 61 to 81) In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement. After such agreement they may draw and sign a written settlement agreement. It will be signed by the conciliator. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator. Conciliation is a less frequently used form of ADR, and can be described as similar to mediation. The Conciliator's role is to guide the parties to a settlement. The parties must decide in advance whether they will be bound by the Conciliator's recommendations for settlement. The parties generally share equally in the cost of the conciliation. Offer for Conciliation: The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected [Section 62]. All matters of a civil nature or breach of contract or disputes of movable or immovable property can be referred to conciliation. However, matters of criminal nature, illegal transactions, matrimonial matters like divorce suit etc. cannot be referred to conciliation. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 180 The new Act has added new Chapter containing sections from 61 to 81 which deal with Conciliation proceedings to resolve the disputes. The New Act provides a detailed statutory framework for the conduct of independent conciliation proceedings outside the court. It also encourages the arbitral tribunals to use mediation, conciliation or other Alternative Dispute Resolution (ADR) procedure during the arbitral proceedings to encourage settlement of disputes. It is based on the Conciliation Rules adopted by the UNCITRAL in 1980, which were conceived primarily in the context of dispute resolution in international commercial relations. Conciliation is an informal process in which the conciliator (the third party) tries to bring the disputants to agreement. He does this by lowering tensions, improving communications, exploring potential solutions and bringing about a negotiated settlement. Conciliation is a philanthropic concept of resolving disputes through mediation and cannot be reduced to any specific definition. The dispute should arise within legal relationship whether contractual or not and to all proceedings relating thereto, but excludes all those disputes which are not required to be submitted to conciliation by virtue of any other law for the time being in enforce. The difference between conciliation and arbitration is that in conciliation the attitude is win-win as against the attitude of win-lose in case of arbitration. Conciliator tries to bring the parties together so that they can discuss their disputes and resolve and hence there is no award as such from the conciliator, whereas in the case of arbitrator, parties are required to give their own logic and arguments and after hearing both the parties the arbitrator gives the award. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 181 Role of the conciliator is difficult than that of arbitrators and hence the conciliator should be a man of integrity, trust, confidence and above board so that parties should have total confidence in his impartiality. Conciliation is optional at present in the Act. But incase parties have agreed to resolve the disputes through Conciliation, they have to follow the mandatory provisions contained in sections 61 to 81. These sections provide application and scope, commencement of conciliation proceedings, number of conciliators and their appointment, procedures for conducting the conciliation proceedings, roles of the conciliators, etc. Commencement of Conciliation proceedings (Section 62) The party initiating conciliation shall send to the other party a written invitation to conciliate under this Part, briefly identifying the subject of the dispute. [Sec. 62(1)]. Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate. [Sec. 62(2)]. If the other party rejects the invitation, there will be no conciliation proceedings. [Sec. 62(3)] Where the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate and if he so elects, he shall inform in writing the other party accordingly. [Sec. 62(4)]. Number of Conciliators (Section 63) There shall be one conciliator unless the parties agree that there shall be two or three conciliators. Where there is more than one conciliator, they ought, as a general rule, to act jointly. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 182 Appointment of Conciliators (Section 64) In conciliation proceedings with one conciliators, the parties may agree on the name of a sole conciliator. In conciliation proceedings with two conciliators, each party may appoint one conciliator. In conciliation proceedings with three conciliators, each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator. [Sec.64(1)]. (2) Parties may enlist the assistance of a suitable institution or person in connection with the appointment of conciliators, and in particular :- (a) A party may request such an institution or person to recommend the names of suitable individuals to act as conciliators; or (b) The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person. However, in recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an Independent and impartial conciliator and, with respect to a sole or third conciliator, shall take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties. [Sec. 64(2)]. The conciliator is not bound by the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872. (Section 66). Submission of statement to Conciliator (Section 65) The conciliator, upon his appointment, may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party. [Sec.65(1)]. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 183 The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party shall send a copy of such statement, documents and other evidence to the other party. [Sec. 65(2)]. At any stage of the conciliation proceedings the conciliator may request a party to submit to him such additional information as he deems appropriate. [Sec. 65(3)]. Role of Conciliator (Section 67) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. [Sec. 67(1)]. The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration, to among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties. [Sec. 67(2)]. The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and, the need for a speedy statement of the dispute. [Sec. 67(3)]. The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in Writing and need not be accompanied by a statement of the reasons therefore. [Sec. 67(4)]. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 184 Administrative assistance: In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person. (Section 68) Communication between Conciliator and parties (Section 69) The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately. Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place shall be determined by the conciliator, after consultation with the parties, having regard to the circumstances of the conciliation proceedings. Disclosure of information (Section 70) When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that to present any explanation which he considers appropriate. However, when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party. Co-operation of the Parties with Conciliator (Section 71) The parties shall in good faith co-operate with the conciliator, and in particular, shall endeavour to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings. Suggestion by parties for settlement of dispute (Section 72) Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 185 Confidentiality (Section 75) The confidentiality principle applies to all persons who have access to matters relating to the conciliation proceedings. The conciliator and the parties are under obligation to keep all matters relating to conciliation proceedings confidential, whether it has resulted in a settlement agreement or not. The law provides that notwithstanding anything contained in any other law, the principle of confidentiality shall be maintained by the parties as well as the conciliator except where its disclosure is necessary for parties for the implementation and enforcement of the settlement agreement. Settlement Agreement (Section 73) When it appears to the conciliator that there exists an element of a settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observation of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations [Sec. 73(1)]. If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement [Sec. 73(2)]. When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively [Sec. 73(3)]. The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties [Sec. 73(4)]. Status and effect of settlement agreement (Section 74) A settlement agreement will have the same status and effect as if it is an arbitral award on agreed terms. A settlement reached after the conclusion of the conciliation proceedings will also be enforceable like a decree of court. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 186 Termination of Conciliation Proceedings: The conciliation proceedings shall be terminated (a) By the signing of the settlement agreement by the parties, on the date of the agreement; or (b) By a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or (c) By a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or (d) By a written declaration of a party to the other party and the conciliator; if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration. Since conciliation is a consensual proceeding, it is entirely dependent on the continued goodwill of the parties and could be terminated by the parties at any time before the signing of the settlement agreement. However, parties cannot initiate any arbitral or judicial proceedings, pending conciliation proceedings, unless it is necessary to protect the rights of the parties. (Section 77) Costs (Section 78) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties. Costs means reasonable costs relating to (a) The fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties; (b) Any expert advice requested by the conciliator with the consent of the parties; Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 187 (c) Any assistance provided pursuant to clause (b) of sub-section (2) of Section 64 and Section 68; (d) Any other expenses incurred in connection with the conciliation proceedings and the settlement agreement. The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party. Deposits (Section 79) According to Section 79, before initiating the proceedings the conciliator may ask the parties to deposit a particular amount as he think fit as cost of proceeding. He may, during the proceedings also ask the parties to deposit supplement amount. This section empowers the conciliator to suspend proceedings, if the amount is not deposited by the parties within 30 days. Similarly, conciliator is under obligation to render accounts at the termination of proceedings and return unspent amount to the parties. Role of Conciliator in Other Proceedings (Section 80) Unless otherwise agreed by the parties: (a) The conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings; (b) The conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings. However, the parties by agreement can do so. Admissibility or evidence in other proceedings (Section 81) The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings:- Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 188 (a) View expressed or suggestions made by the other party in respect of a possible settlement of the dispute. (b) Admissions made by the other party in the course of the conciliation proceedings; (c) Proposals made by the conciliator; (d) The fact that other party had indicated his willingness to accept a proposal for settlement made by the conciliator. 7.10 Mediation - (The Parties decide): A dispute resolution process in which the parties freely choose to participate and any agreements reached to settle disputes is done solely by the parties, without interference. The Mediator is selected by the parties and once selected, the Mediator will arrange the mediation process. The Mediator makes no decisions, instead he/she acts as a facilitator only to assist the parties to understand the dispute, provide structured discussion and to help the parties reach a dispute settlement agreement. If the parties can't reach a settlement agreement, they are free to pursue other options. The parties generally decide in advance how they will contribute to the cost of the mediation. Mediation is a very important form of ADR, particularly if the parties wish to preserve their relationship. 7.11 Negotiation Negotiation is a less structured form of ADR. The facilitator's role is to keep the parties talking and bargaining. The parties may be individuals or teams. The facilitator keeps record of party positions, and points of agreement they reach as discussions proceed. The process can be lengthy, as in labour or sports negotiation. The facilitator will prepare a memorandum of agreement containing all of the points agreed. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 189 The parties can formalize the memorandum of agreement by inserting a condition that will be binding. The parties generally share equally in the cost. On any matters unresolved, the parties are free to pursue other options. Self Assessment Questions II State whether the following statements are True or False: 1. The arbitral tribunal is bound to follow the procedure as followed by a Court. 2. The arbitral tribunal has coercive power to issue processes to witnesses and other production of documents in the possession of a third party. 3. An arbitral tribunal may encourage settlement of the dispute, in spite of an arbitration agreement. 4. The arbitral proceedings shall be terminated by the final arbitral award. 5. An arbitration agreement is required to be in writing. 6. Conciliation cannot be done if there is arbitration agreement. 7.12 Summary Arbitration is a dispute resolution process where the opposing parties select or appoint an individual called an Arbitrator. Arbitration is a settlement of dispute by the decision of one or more persons called arbitrators. Arbitration may comprise a sole Arbitrator, or may be a panel of Arbitrators. In lines with the international trend, the Government of India has also enacted the Arbitration and Conciliation Act, 1996. The foundation of arbitration is the arbitration agreement between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them. The arbitration agreement must be in writing. Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 190 A point as to which there is no dispute cannot be referred to arbitration. Decision of Arbitral Tribunal is termed as 'Arbitral Award'. The arbitral award shall be in writing and signed by the members of the tribunal. An arbitrator is a person selected by mutual consent of the parties to settle the matters in controversy between them. An arbitral tribunal may encourage settlement of the dispute, in spite of an arbitration agreement. 7.13 Terminal Questions 1. What are the objectives of the Arbitration and Conciliation Act, 1996? 2. Explain the essentials of an arbitration agreement. 3. What matters can and cannot be referred to arbitration? 4. Describe the procedure for the appointment of arbitrators. 5. What are the essentials of an Arbitral Award? 6. Who is a conciliator? What can be the number of conciliators? 7. What is a settlement agreement? Discuss the status and effect of such an agreement. 7.14 Answers to SAQs and TQs SAQs I 1. Dispute resolution; Arbitrator 2. Arbitrator's award 3. Disputes between the parties. 4. Arbitration agreement 5. Dispute SAQs II 1- False Legal Aspects of Business Unit 7 Sikkim Manipal University Page No. 191 2- False 3- True 4- True 5- True 6- False Answers to TQs: 1. Refer to 7.3 2. Refer to 7.3 3. Refer to 7.4 4. Refer to 7.5 5. Refer to 7.8 6. Refer to 7.9 7. Refer to 7.9
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