Arbitration: The Best Alternative Dispute Resolution Remedy

Published on 08 Jul 2017 by Team

Under the Arbitration and Conciliation Act, a party can commence arbitration by issuing a notice in writing to the other party of its intention to refer the dispute to arbitration. Unless otherwise agreed by the parties, arbitration proceedings are deemed to have commenced on the date on which the respondent receives such notice from the claimant.   

Procedure Of Arbitration

The parties can agree on the procedure for conducting the arbitration proceedings. If no such procedure is agreed by the parties, the tribunal is authorized to conduct the proceedings in such manner as it considers appropriate. The tribunal is expressly exempt from applying the provisions of the Civil Procedure Code 1908 and the Evidence Act 1872. If under the arbitration agreement, the arbitration is to be administered by an arbitration institution, the rules of that institution become a part of the arbitration clause by implication.

The Arbitration and Conciliation (Amendment) Act inserted amendments into the Arbitration Act that require the tribunal, as far as possible, hold oral hearings for the presentation of evidence or for oral argument on a day-to-day basis, and not grant adjournments unless sufficient cause is provided. The tribunal may impose exemplary costs on the party seeking frivolous adjournments. Talk to the best arbitration lawyers in India to know more.

Dissenting Opinions

Dissenting opinions are permitted under the Arbitration and Conciliation Act. The dissenting arbitrators have the option to prepare a separate award or to give their opinion in the same document which contains the award of the majority members of the tribunal. However, this dissenting opinion or award does not form part of the majority decision and is not enforceable.

Judicial Intervention

Local courts can intervene in domestic arbitration proceedings. This includes the power to issue interim orders and appoints arbitrators. Courts can also assist in selecting arbitrators if the parties are unable to agree on the appointment of a sole arbitrator or if the two party-appointed arbitrators fail to appoint a chairperson. 

Ex Parte Decisions

If a respondent fails to participate in arbitration without sufficient cause, the tribunal may proceed ex parte. While arbitrators cannot compel third parties to appear before them, the tribunal or a party, with the tribunal’s approval, may apply to the court for assistance in taking evidence. The court may make an order requiring third parties to provide evidence directly to the tribunal. If a person fails to attend in accordance with such order of the court, it is subject to the same penalties and punishments as it may have incurred during court proceedings. Top arbitration lawyers can be consulted to deal with arbitration matter in India.

Third parties

The Arbitration and Conciliation Act grants no powers to a tribunal to enjoin a third party to pending arbitration proceedings. Non-signatories to the arbitration agreement can be bound to the arbitration agreement under the ‘groups of companies’ doctrine where a clear intent to bind such non-signatories can be established. 

Rule of Evidence

The parties are free to agree on the rules of gathering and submitting evidence. If the parties do not agree on these matters, the tribunal has the discretion to determine how evidence may be gathered and submitted to it. The tribunal is required to observe the fundamental principles of natural justice when considering evidence. The tribunal may take both documentary and oral evidence on record. The courts can assist the tribunal in taking evidence if such assistance is sought either by the tribunal or by one of the parties with the prior approval of the tribunal. 

Confidentiality

The Arbitration and Conciliation Act does not include specific provisions on the confidentiality of arbitration proceedings. As a result, there is no express obligation to treat an arbitration agreement, any proceedings arising therefrom or the award as confidential. Parties can address the issue of confidentiality in the arbitration agreement or by separate agreement. You can get your arbitration agreement drafted by the best arbitration advocates in India.

Section 76 of the act provides for confidentiality in conciliation proceedings. The Supreme Court has found that the duty of confidentiality is implied in mediation proceedings.

Limitation Act, 1963

The Limitation Act, 1963 applies to all proceedings under the Arbitration and Conciliation Act, just as it applies to proceedings in the Indian courts, except to the extent expressly excluded by the Arbitration and Conciliation Act. Any arbitration proceedings commenced after the limitation period (three years from the date on which the cause of action arose) will be time-barred. 

Being a Stringent legal system, it was followed that the idea of Justice is all over Judiciary yet, the idea of getting Justice also can be achieved by the Idea of Arbitration. It is a different path then the ordinary Judicial System, yet it is one of the most effective means to achieve the ends of Justice. Parties can agree in writing to have their dispute resolved by fast-track procedures.There is no oral hearing and decisions are made on the basis of written pleadings, documents, and submissions filed by the parties, along with any further information called for from the tribunal. Oral hearings are made if all the parties agree and the tribunal finds it necessary. 

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