arbitration and concilliation

Question 1

conciliation key points

Answer 1

1. non binding, cocilliator
2. sec 61- legal disputes, 63- 1, 64- appointed with the consent of both
3. independent, fairness-rts,liablities, usage of trade. ,, confidential, disclosure of info, cooperation of parties with concilliator
4. 30 days
5. individualized optimal solution , satisfactory

Question 2

Amendment 2021

Answer 2

1. Unconditional stay on enforcement of arbitral award if contract induced by fraud
2. norms for accreditors-

Challenge

1. Unconditional stay - not pro arbitrary
2. Loser - tool to harass
3. No proper def of fraud or corruption. Reputation of arbitrator
4. Arbitration cannot be strengthened alone.

Suggestions

1. Bn shrikrishna committee- third party funding
2. Law comm- emergency arbitrator

India still needs institutionalization of arbitration. Now only adhoc

Question 3

Arbitration and concilliation amendment 2019

Answer 3

1. Arbitration council of india- promotion, policy framing, accreditation of arbitrators, maintain uniform standards
2. Appt of arbitrators by SC and Hc designated arbitral inst
3. International arbitral proceedings NEED not be completed within 12 months. But as expeditiously as possible.
4. written submission within 6 months of appt of arbitrators. Earlier no such limitation
5. Conditions of confidentiality extended to arbitrators, arbitrary institutes and the parties to arbitration

Question 4

Appeal against arbitrary awards

Answer 4

Intro - purpose to reduce delay. Hence only under particular circumstance
Rationale - sometime arbitrators fail to deliver justice

1. Grounds on virtue of which the arbitral awards can be set aside by the court is mentioned in Section 34(2) (a) of the Arbitration and Conciliation Act, 1996.

The aggrieved Party has to prove either of the following points[i]:
- A party was under some incapacity
- The arbitration agreement is not valid in accordance with the Law to which the parties to the Agreement have subjected it
- the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings
- the award contains a decision beyond the scope of the submission to arbitration.
- The composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties.

Section 34(2) (b) mentions about two circumstances on the satisfaction of which the court may set aside the award granted by the arbitration tribunal:
- The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.
- The arbitral award is in conflict with the public policy of India.

2. But the term public policy was vague and dicey
3. Later 2015 amendment
   - the making of the award was induced or affected by fraud or corruption
   - it is in contravention with the fundamental policy of Indian law; or
   - it is in conflict with the most basic notions of morality or justice.

4, 2021 amendment
- 36(3)- parties can seek unconditional stay where the contract is induced by fraud

Question 5

Ask for setting aside arbitrary award

Answer 5

Venture Global Engineering LLC v Tech Mahindra Ltd.[vii], observed:
The Award of an arbitral Tribunal can be set aside only on the grounds specified in Section 34 of the Arbitration and Conciliation Act and on no other ground. The Court cannot act as an Appellate Court to examine the legality of Award, nor can it examine the merits of claim by entering in factual arena like an Appellate Court.

Question 6

Section 8 of arbitration and conciliation act

Answer 6

deals with the power of the judicial authority to refer the parties to arbitration.

1. There should be a valid arbitration agreement between the parties.
2. Action should be brought before the judicial authority and that action should be a subject matter of the arbitration
3. Either of the parties or any person related to the dispute should invoke the arbitration clause or agreement before the date of submitting their first statement
4. The application of the party to refer the case to arbitration should be filed with the original arbitration agreement or its duly certified copy.

The following conditions were given by the Hon’ble Supreme Court of India in the matter of

P. Anand Gajapathi Raju & Ors. vs. P.V.G. Raju (Died) & Ors (2000):
1. There must be an arbitration agreement or an arbitration clause between the parties;
2. A party to the arbitration agreement files a case against the other party before the judicial authority;
3. The subject matter of the case so filed must be the same as the subject matter of the arbitration agreement;
4. The defendant or any other party related to the case moves the Court seeking a reference of the parties to arbitration before the submission of first statement on the substance of the dispute.