This article has been written by Mudit Gupta, currently pursuing BBA.LL.B (hons.) from the University of Mumbai Law Academy. This article discusses all the necessary details about the Arbitral Tribunal, its composition, its role, its powers, and other related topics.
It has been published by Rachit Garg.
“Justice delayed is justice denied.”
As per the strategy paper given by Niti Aayog in 2018, there were 29 million cases pending in Indian courts, and at that time it was said that it would take more than 324 years to clear that backlog with the number of judges that were appointed. Now the pendency has risen to 44 million cases and there are only 21.03 million judges over 1 million people in the country. These statistics are somewhat worrisome. Considering such a situation, people nowadays are considering alternate ways of dispute resolution and ‘arbitration’ is one such way.
Arbitration is an alternative method provided for dispute resolution in civil matters. It is a way in which a dispute is decided by private individuals appointed and not the judicial officers appointed to the courts and tribunals of the country directly. These private individuals are called arbitrators, and they are quasi-judicial officers. However, all the matters cannot be decided by way of arbitration. Such matters involve matters related to crimes, matrimony, insolvency and winding up, guardianship, tenancy, testamentary matters, trusts, etc. This bifurcation is made by keeping in mind the kind of right affected, i.e., ‘right in rem’ or ‘right in personam’ and also the jurisdiction of special courts and the analysis of public policy.
Whenever a dispute arises between two parties and they decide to resolve the dispute through arbitration, an arbitral tribunal is to be set up. An “arbitral tribunal” means a sole arbitrator or a panel of arbitrators. Their task is to adjudicate and resolve the dispute and to provide an arbitral award.
In this article, all the details and information about the arbitration tribunals are discussed.
Composition of Arbitral Tribunal
Chapter-III of the Arbitration and Conciliation Act, 1996 talks about the composition of the arbitral tribunal.
The provisions which are discussed in detail in Chapter-III are mentioned below-
- The number of arbitrators
- Their appointment
- Power of the Central Government to amend the schedule
- Grounds on which the appointment of the arbitrator can be challenged
- Procedure to challenge the appointment
- Failure or impossibility on the part of the arbitrator to act
- Termination of the mandate and substitution of the arbitrator
The number of arbitrators should be odd and not even. It helps in determining the clear majority of the tribunal and avoids any sort of discrepancy in that regard.
Also, the Arbitration and Conciliation (Amendment) Act, 2019 provided for the establishment of the Arbitration Council of India with the view of promoting the other alternative dispute redressal mechanisms such as arbitration, mediation and negotiation. Also, the composition as well as the functions of the council were provided in the same amendment Act.
Composition of the Arbitration Council of India
It consists of a Chairperson who is either:
- A judge of the Supreme Court
- A judge of a High Court
- Chief Justice of a High Court
- An eminent person with expert knowledge in the conduct of arbitration.
Other members will include an eminent arbitration practitioner, an academician with experience in arbitration, and government appointees.
Selection of arbitrators
In the same amendment Act, the provisions regarding the selection of arbitrators were also modified. A person of any nationality can be an arbitrator in a case unless specifically provided in the agreement. As per the new provisions, if the parties or the two arbitrators(in the case of three arbitrators tribunal) are not able to appoint the required arbitrator then the Supreme Court and High Courts have the responsibility to designate arbitral institutions as per their respective jurisdictions. Parties to the dispute approach the courts for the appointment of arbitrators to decide upon the dispute at hand. Appointments for international commercial arbitration are made by the institution designated by the Supreme Court. For domestic arbitration, appointments are made by the institution designated by the concerned High Court. If a situation arises in which no arbitral institutions are available, then the Chief Justice of the concerned High Court may maintain a panel of arbitrators to perform the functions of the arbitral institutions. An application for the appointment of an arbitrator is required to be disposed of within 30 days, and the appointment of the arbitrator should take place.
Also, as per the Arbitration and Conciliation (Amendment) Act, 2021, the previously provided qualification criteria were removed and replaced with a provision that the qualifications, experience, and norms for accreditation of arbitrators were to be specified under the regulations.
Removal of arbitrators
The provisions for the removal of arbitrators are mentioned in Section 12(3). As per Section 12(3), if the circumstances suggest that a person is either related to the parties or has a self-vested interest in the dispute and will not be able to be impartial in the proceedings, then removal proceedings can be initiated against the arbitrator. Also, an arbitrator can leave the case in between in case of some special circumstances in which he is not able to act according to the needs of the case and in that case a new arbitrator is appointed. An arbitrator can also be removed if he/she misconducts in the proceedings in any manner.
Role of arbitrators in arbitration
Now, talking about the role of an arbitrator in an arbitral proceeding, it is the same as that of a judge in a judicial proceeding. An arbitrator plays the role of a private judge. They are appointed by the arbitral institutions and their main roles include the following:
- Interpreting and applying the rules and laws applicable to arbitration
- Managing the scope of investigation so that all the evidence and witnesses are verified extensively
- Conducting the arbitration hearing in which testimonials of both the parties are submitted
- Analysing the evidence and testimonials thoroughly
- Making a decision to resolve the dispute
- Declaring the arbitral award
While performing all the above functions within the capacity of an arbitrator, he/she has to be impartial and should disclose all the facts required to be known by the parties before the start of the proceedings.
Powers of an arbitrator in India
Now, let’s discuss the powers provided to the arbitrator. The Arbitration and Conciliation Act, 1996 provides some powers to the arbitrator to assist him/her in delivering the award. These measures can be taken by the tribunal to facilitate the delivery of arbitral awards in the concerned dispute. These powers include the following provisions-
Power to administer an oath to the parties and witnesses
The Arbitration and Conciliation Act, 1996 provides arbitrators with the power to administer an oath to the parties and all the witnesses. He can also issue interrogatories to the parties if he/she finds it necessary to do so. This function is available to the arbitrator because he/she acts as a quasi-judicial officer.
Power to take interim measures
Section 17 of the Arbitration and Conciliation Act, 1996 provides the power to the tribunal to take an interim measure when a party to the dispute approaches the tribunal for the same. The interim measures that can be taken by the arbitration tribunal include the following:
- Appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings
- Preservation, interim custody, or sale of any goods which is the subject-matter of the arbitration agreement
- Securing the amount in dispute in the arbitration
- Interim injunction or the appointment of a receiver
- Such other interim measures of protection as may appear to the arbitral tribunal to be just and convenient.
The power to grant interim relief by the arbitral tribunal and enforcing them as orders of the courts ensures that the relief granted by tribunals is not ambiguous and holds an impartial value. The parties no longer have to engage in the tedious process of approaching the courts for effective interim relief, which contributes to increasing the convenience for the parties opting for arbitration and strengthens the appeal of arbitration in India.
Power to proceed ex-parte
The arbitration tribunal has the power to proceed ex parte (an order which is given in absence of one of the parties caused on their own will) if any of the following conditions arise-
- In cases where the claimant fails to submit or communicate their statements as per Section 23 of the Arbitration and Conciliation Act, 1996;
- In cases where the respondent fails to submit or communicate their statements as per Section 23 of the Arbitration and Conciliation Act, 1996; and
- In cases where, any of the parties to the dispute fails to appear at an oral hearing or to produce the document or any sort of documentary evidence asked by the tribunal.
Although it is to be noted that an arbitration tribunal cannot pass an ex parte order on the mere filing of an interim application as the Arbitration and Conciliation Act, 1996 mandates sufficient advance notice for any hearing.
Power to appoint an expert
Section 26 of the Arbitration and Conciliation Act, 1996 authorises the arbitral tribunal to appoint one or more experts to assist him on a specific issue if he finds it necessary in any case.
The arbitrator also has the power to give any relevant information, documents, or property to the experts for the purpose of inspection. If necessary, then the arbitrator also has the power to appoint the expert as a participant in a hearing.
There is only one condition to be satisfied to exercise this power, which is that the expert must have to show the parties that he has expertise in matters related to this case.
Power to make awards
An arbitral award is similar to a judgement of the court. It is based on the interpretation of the facts and evidence by the arbitral tribunal. The decision of the tribunal is what resembles an arbitral award.
The main motive of the arbitral proceeding is the determination of the arbitral award and the power to declare it lies with the arbitral tribunal. However, the rules applicable in an arbitration proceeding are to be verified on the basis of the below-mentioned provisions:
- In matters related to international commercial arbitration, the dispute shall be decided according to the rules of proceedings which are decided by the parties, but if they fail to decide upon the rules, then the arbitrator himself decides them and they become applicable.
- In other matters, the arbitral tribunal shall have the right to decide the rules which are in accordance with the substantive law.
Declaring an arbitral award is not only a power conferred on the arbitral tribunals but also a duty on their part to assess all the information related to the dispute and then decide upon the same.
Expenses of arbitral tribunals
As the Arbitration and Conciliation (Amendment) Act, 2019 provided that the appointment of the arbitrators is to be made by the arbitral institutions assigned by the Supreme Court or the High Court and all the decisions regarding the matters of expenses is to be made by the assigned institution as per Section 31A of the Act.
The expenses are to be borne by the unsuccessful party as per the award. This rule can be changed in certain cases where the court or arbitral tribunal may make a different order for which they have to record the reasons in writing.
Expenses for the matter of arbitration proceedings as per the Indian Council of Arbitration, which is one of the institutions, include the following-
- The fees and expenses of the arbitrators and witnesses
- Administrative and secretarial expenses
- Expenses on the travel of the arbitrator and others concerned
- Stenographic, translation, and interpretation charges
- Stamp duty on an award
- Expenses of witnesses
- The cost of legal or technical advice
- Other incidental expenses arising out of or in connection with the arbitration proceeding or award.
Jurisdiction of arbitral tribunals
Arbitral tribunals don’t exercise statutory jurisdiction. They define their jurisdiction as per the needs of the parties involved in the dispute.
Section 16 of Chapter-4 of the Arbitration and Conciliation Act, 1986 talks about the provisions regarding the jurisdiction of the arbitral tribunal. It basically says that an arbitration clause will be valid even if the contract is held void. It is to be read as another agreement. It also provides for the provisions of interim orders and the power of the arbitral tribunal to make them as per Section 17 of the statute.
Functions of arbitral tribunals
As per Section 2(1)(d) of the Arbitration and Conciliation Act, 2019, an arbitration tribunal refers to a sole arbitrator or a panel of arbitrators. These people have quasi-judicial authority because they act as private judges in civil matters. So, under this capacity, they also have some functions to perform, which are as follows:
To fix time and place for the arbitration proceedings
It is the duty of the tribunal so assigned to finalise the place and time for the proceedings as per the convenience and consent of the parties to the dispute. But after the finalisation of the time and place, it is the duty of the parties to produce themselves for the proceedings, otherwise the tribunal can give an ex parte order.
To decide upon the liability of arbitration-related expenses
It is the duty of the tribunal to decide upon the liability of the expenses of the arbitration proceedings and then give the verdict on the issue with valid reasoning on their part.
To manage the scope of investigation
It is one of the most critical functions of the arbitration tribunal. An arbitration tribunal should analyse all the evidence and witnesses to be sure of the circumstances and then take a stand on the basis of which the arbitral award is given by the tribunal.
To maintain the secrecy of the case
There is an obligation for the arbitrators in the tribunal to maintain the secrecy of all the facts in order to maintain the trust values defined, intact.
But at the same time, as per Section 12 of the Arbitration and Conciliation Act, 1996, they have to disclose some facts to the parties so that no sense of partiality is found in the delivery of the award.
To determine the rule of procedure
According to Section 19 of the Arbitration and Conciliation Act, 1996, the arbitration procedure is not bound by any code of procedure. The arbitration organisation assigned the task of setting up the tribunal for a particular arbitration case defines the rules for conducting the arbitration proceedings. Most of these rules are pre-defined by the organisation, and some rules are interpreted during the course of the proceedings. These have to comply with the other laws of the country.
Duty to interpret or correct the award
According to Section 33 of the Arbitration and Conciliation Act, 1996, it is the duty of the arbitral tribunal to correct or interpret the award passed by the tribunal assigned, within 30 days from the date of receipt of the application for the same. It can be done in the following two cases:
- A party with the notice to the other party may request arbitration tribunal to correct any error of the sort of typographical, computation, clerical, or any other error of similar nature;
- A party may, with a notice to the other party, request the tribunal to interpret any specific part or parts of the award again.
As per this section, the tribunal may correct any error of the award on its own initiative within thirty days from the date of the arbitration award.
Laws governing arbitral tribunals in India
In case of domestic arbitration in India, the Arbitration and Conciliation Act, 1996 is the main law regulating the arbitration proceedings in India. Also, along with the Act, all the proceedings must be in lieu of the procedural and substantive law of India.
The arbitral tribunal, while deciding a dispute, has to comply with these provisions in order to pronounce an arbitral award that is maintainable.
In India, the Code of Civil Procedure, 1908 along with the Arbitration and Conciliation Act, 1996, which is based on UNCITRAL model text, provide for the basic rules and regulations to be followed by the arbitration tribunal during the proceedings to grant an arbitral award.
Laws governing arbitral tribunals in the international sphere
In case of international commercial disputes which are to be settled by way of arbitration, there are at least five systems of law that are relevant to be considered during the process and for deciding the outcome of the arbitration. These systems are as follows:
Governing law of the agreement
The law governing the other provisions of the agreement, which the parties have agreed upon and subsequent breach of which results in the initiation of the proceedings.
Governing law of the Arbitration Agreement
The law governing the arbitration clause or arbitration agreement determines various other provisions for the proceedings of the arbitration.
Governing law for the arbitration proceedings
Any specific law to be considered as per the agreement for the purpose of proceedings and deciding the dispute is to be taken into account beforehand.
The UN Working Group, which also drafted the UNCITRAL Model Law on International Commercial Arbitration, started with the assertion that when the parties have not expressly provided for any law to determine the substantive validity of the arbitration agreement itself, then the law of the seat of the Arbitral Tribunal must apply for the same.
Governing law for defining the capacity of parties to sign and get into an arbitration agreement
Laws defining the capacity of the parties under which they have contracted with each other are to be considered as these provisions can have a very important role to play in deciding the dispute.
Governing law for the land of enforcement of arbitral award
The laws of the territorial area in which the arbitral award will be enforced have to be taken into consideration by the tribunal to primarily decide the kind of compensation to be provided as per the arbitral award.
Major arbitration centres in the world
There are many centres in the world that assist in the delivery of justice in arbitration cases. Some of the most prominent arbitration centres are mentioned below with a brief account of their details. All of these centres have some predefined rules and are responsible for assigning the tribunal for arbitration proceedings.
The High Court assigns the institution to the parties to the dispute in cases of domestic arbitration, whereas in the case of international commercial arbitration, the institution is assigned by the Supreme Court of India.
International Chamber of Commerce International Court of Arbitration
The International Chamber of Commerce’s International Court of Arbitration was established in Paris in 1923. It is generally described as the world’s leading international commercial arbitration institution.
The ICC’s International Court of Arbitration is not a tribunal or a court and does not itself decide disputes or act as an arbitrator. It is rather an administrative body that acts in a supervisory and appointing capacity under the rules of the International Chamber of Commerce.
ICC India is one of the most active chapters of the ICC, the world’s apex business organisation. In its fold, it has a large membership of corporations, chambers of commerce, trade and industry associations, consultancy organisations, law firms, etc.
London Court of International Arbitration
The London Court of International Arbitration was founded in the year 1892. It is one of the world’s leading international institutions for commercial dispute resolution.
It provides efficient, flexible, and impartial administration of arbitration and other ADR proceedings such as negotiation,mediation etc., regardless of location, and under any system of law.
This centre levies administrative expenses on an hourly basis for the services of the arbitrators.
The London Court of International Arbitration, India started its operations in 2009. Its purpose was to promote the use of arbitration and other ways of dispute resolution through an Indian arbitral institution which would offer institutionally administered arbitration based on India-specific rules.
Permanent Court of Arbitration
This institution was established by the Hague Conventions of 1899 and 1907 for the Pacific Settlement of International Disputes and is focused particularly on international arbitration involving states and similar entities.
The Permanent Court of Arbitration has a three-part organisational structure consisting of an Administrative Council that looks after its policies and budgets, a panel of independent potential arbitrators known as the Members of the Court, and its Secretariat, known as the International Bureau, headed by the Secretary-General.
Singapore International Arbitration Centre
It is one of the most trusted arbitration institutions and was established in 1991. Since its inception, it has provided third party dispute settlement services to its clients, and now they have a panel of more than 500 arbitrators hailing from over 40 jurisdictions all round the world.
The Singapore International Arbitration Centre Rules provide a state-of-the-art procedural framework for efficient, expert, and enforceable resolution of international disputes of all sizes and complexities involving parties from diverse legal systems and cultures.
The largest number of non-Singaporean clients for the institute hail from India and China. Its rules are based largely on the UNCITRAL Rules.
Indian Council of Arbitration
This institution was established in 1965 as a specialised arbitral body at the national level under the initiatives of the Government of India and apex business organisations like Federation of Indian Chambers of Commerce and Industry (FICCI), etc.
This institution is based in New Delhi, and the main objective of the Indian Council of Arbitration is to promote amicable, quick, and inexpensive settlement of commercial disputes by means of arbitration and conciliation, regardless of location.
The dispute resolving system of arbitration is proving to be very handy in the domestic as well as international arenas as the delay caused by the conventional court procedure for the relief delivery system is a big problem and the third party justice delivery system is proving to be handy. Most of the matters of civil nature are now being dealt by the way of arbitration with the consent and the will of the parties, and this is helping to resolve the matters in a much more feasible manner.
The provisions regarding the alternative ways of dispute resolution are evolving with time, especially in India. With the growth of arbitration proceedings in India, which might help in solving the unwanted condition of court burden in the coming few years, new institutions are providing their services to India.
Let’s hope that the problem gets solved, and that the situation gets better with time and the justice delivery system becomes much more efficient and effective with these alternative ways of doing the same.
Frequently Asked Questions
Till what time can a plea against the jurisdiction of the arbitral tribunal be filed?
It can be filed before the submission of a statement of defence.
Can the arbitration procedure be fast tracked in India?
Yes. Section 29B of the Arbitration and Conciliation Act, 1996, provides provisions for the same.
What is the time period provided for fast track arbitration?
Time limit provided for the same is 6 months.
Is the Arbitration and Conciliation Act, 1996 based on UNCITRAL Model Law?
Yes, the statute is based on the UNCITRAL Model Law.
What is the time limit as per the Arbitration and Conciliation Act, 1996 for giving the award for International commercial arbitration?
There is no stringent time limit, but tribunals are asked to dispose off the matters within 12 months.
What is the time limit for the completion of written submissions?
The time limit for the completion of written submissions is 6 months.
Can an arbitration institution be selected by the parties at the time of making the contract?
No. It is to be assigned by the High Court and Supreme Court.
Can an arbitral award be appealed?
Yes. Provisions regarding the situations under which the same can be done are provided in Section 37 of the Arbitration and Conciliation Act, 1996.
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