AN OVERVIEW OF ARBITRATION AND CONCILIATION ACT

INTRODUCTION

Arbitration is a medium which provides an effective and expeditious dispute resolution framework unlike the Court proceedings which takes a number of years in resolving disputes between the parties. Parties submit themselves to Arbitration, as it enables a faster resolution and disposal of the disputes between the parties and leaves very little scope for prolongation of disputes. For this reason it inspires the confidence of Foreign Investors to invest in India and reassure international investors in the reliability of the Indian legal system to provide an expeditious, cheaper and flexible dispute resolution mechanism.

Section 89 of the code of civil procedure also gives importance to arbitration. It states that the parties can opt for the arbitration proceedings to settle a dispute, provided that both the parties must agree to it. The award given by the arbitrator must be considered as a decree given by the court and the parties must abide by the award given by the arbitrator. Besides this, the Arbitration and Conciliation Act of 1996 has divided itself into two parts. The First part deals with Arbitration that is conducted in India and its enforcement. The Second part provides for arbitration conducted in a Foreign Country and enforcement of such foreign awards. The resolution of disputes through Arbitration is the most expeditious, cheap and flexible means of dispute resolution. The Indian judiciary has made considerable and much required action in establishing India as an (international) arbitration-friendly judicial system. Thus, the arbitration and conciliation act, 1966 will bring a revolutionary change in curtailing the pendency of cases in Indian judiciary. 

PROVISIONS REGARDING ARBITRATION AND CONCILIATION

The 1996 Act allowed a party to file an application to set aside an arbitral award (i.e., the order given in an arbitration proceeding).  Courts had interpreted this provision to mean that an automatic stay on an arbitral award was granted the moment an application for setting aside an arbitral award was made before a court. The Amendment Act inter-alia seeks to insert a new Part 1A to the Act of 1996 for the establishment and incorporation of an independent body namely, the Arbitration Council of India (ACI) for the purpose of grading of arbitral institutions and accreditation of arbitrators, etc.

As per section 43C of the Act, ACI will be will be headed by a Chairperson, who has been a Judge of the Supreme Court or a Chief Justice or Judge of a High Court or an eminent person, having special knowledge and experience in the conduct or administration of arbitration, to be appointed by the Central Government in consultation with the Chief Justice of India. Besides, it will also have two Full-time Members from amongst eminent arbitration practitioners and academicians. In addition, one representative of a recognized body of commerce and industry shall be nominated on rotational basis as a Part-time Member. 

Section 43M of the Act provides for the Secretariat to the Council consisting of such number of officers and employees as may be prescribed by the Central Government. Earlier, if an application was filed for setting aside of an arbitral award under section 34 of the Arbitration and Conciliation Act, then it would amount to an automatic stay. This provision was criticized by the hon’ble supreme court in the case of National Aluminum Company Ltd. v. Pressteel & Fabrications Ltd. and Another., where they remarked that “this automatic suspension of the execution of the award  leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs. Some sections of Arbitration and Conciliation Act are : 

Section 9. Interim measures etc. by Court

A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court

Section 80. Role of conciliator in other proceedings.

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 panics as a witness in any arbitral or judicial proceedings.

JUDGEMENT OF SUPREME COURT ON ARBITRATION AND CONCILIATION

9. What is the time limit for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996?

Bharat Sanchar Nigam Ltd & Anr v. M/S Nortel Networks India Pvt Ltd (Judgment dated March 10)

The Supreme Court held that the time limit for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of Limitation Act i.e., three years from the date when the right to apply accrues.

CONCLUSION

In recent times, there has been an exponential growth in international dealing and contracts and thus increase in disputes pertaining to international arbitration. India is no longer a closed economy and is picking up pace with the changing times and is now showing the world that the parties can easily enter into arbitration without worrying about facing any inconvenient orthodox procedures. We can confidently proclaim that  our highly praised Indian judiciary is thus, now leaving no stones unturned to simplify the procedures in the cases of International Commercial Arbitration. 

REFERENCES

  1. http://www.advocatekhoj.com
  2. http://www.barandbench.com

Aishwarya Says:

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