This article was written by Asif Iqbal, from the Centre for Juridical Studies, Dibrugarh University, Assam. It deals with the characteristics of arbitration, procedure and rules for arbitration, the act passed in the parliament of India for New Delhi International Arbitration Centre, the position of Arbitration and Conciliation Act on digital streaming post-COVID-19 and practitioners in arbitration in India.
When a dispute is submitted after an agreement between parties to settle a dispute requires a procedure; then the dispute is resolved by an arbitrator or more arbitrators. The parties opt for a private dispute resolution over submitting a plea in the court for getting a decision. There are characteristics of arbitration which are:
- Arbitration requires the consent of both the parties in dispute.
- Parties have a right to choose the arbitrator.
- Procedure to settle the dispute amongst parties is private.
- The process of arbitration shall be neutral.
- The enforceability of an arbitration decision is easy and final.
Evolution of the Arbitration Act
The Indian Arbitration Act 1899, the first direct law on arbitration, was restricted within the presidential towns of Calcutta, Madras and Bombay. The second schedule of the Code of Civil Procedure 1908 described the procedure for arbitration. Further, it was the Arbitration Act 1940 which was the first major legislation brought by the imperialists in India and they based it on the (English) Arbitration Act 1934. This Act repealed the earlier Act of 1899 and the second schedule of 1908 from the Code of Civil Procedure 1908 but it never discussed the enforcement of foreign awards as it only dealt with domestic arbitration. The Supreme Court of India in 1989 observed in the Food Corporation of India (F.C. I) vs. Joginder Mohinderpal, 2 SCC 347, under in para 7; We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the cannons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties but by creating a sense that justice appears to have been done.
The problem in the Arbitration Act became pronounced and acute because of liberalization of the market by the government headed by P. V.Narasimha Rao and then the Finance Minister of India (1991); Manmohan Singh. The investors from foreign countries aimed for a balanced environment and commitment of the government towards rule of law; it is through this the arbitration was seen as a prerequisite to attract and sustain the interest of investors in the country.
Section 2(1)(a), the Arbitration and Conciliation Act 1996 defines ‘arbitration’ whether or not administered by a permanent institution for arbitral. The arbitral institution is a sole arbitrator or group of arbitrators which settles the dispute amongst parties as per Section 2(1) (d) of the Arbitration and Conciliation Act 1996.
Arbitration recognized in India
Arbitration which is recognized in India is based upon the procedure and rules. They classify it into three ways:
(i) Institutional arbitration;
(ii) Ad hoc arbitration; and
(iii) Fast-track arbitration.
- The institutional arbitration contains a permanent character who may intervene and a specialized institution which assumes the office of administration to settle the dispute amongst parties. Further, the responsibility of these institutions aren’t to settle the dispute but provide adequate facilities and infrastructure to arbitrators in arbitrating the dispute. They put forward certain rules which have to be used by arbitrators; it provides a specific timeline to settle the dispute through awarding. The institution arbitration has a list of arbitrators from which parties can select their qualified arbitrators to settle the dispute. The committee headed by Retired Justice B.N. Srikrishna recommended reviewing and amend the institution arbitration and it was through this that the New Delhi Arbitration Institutional Cell Bill introduced to promote the arbitration within the country. They passed the bill in both the Houses of Parliament and the President of India gave his assent on July 26, 2019, declaring it as the New Delhi Arbitration Centre Act.
- The comparison with the institutional arbitration, ad hoc arbitration is flexible; it allows the parties to frame the procedure for dispute resolution. This procedure requires an effort, co-operation from parties and expertise to determine the arbitration rules. It is less expensive as parties will have to pay the fees to arbitrators as the parties negotiate the fees directly with the arbitrator. They settled the issues which parties confronted during an ad hoc arbitration by the amendment in the year 2015 of the Arbitration and Conciliation Act 1996; it fixed the timeline for conducting arbitration along with regulating the fees of an arbitrator.
- A fast-track arbitration aim is to settle the dispute aroused between the parties with no delay and it is one of the effective dispute resolutions which coerces parties to settle the dispute within a time. It reduces the costs and delays associated with normal arbitration practices and resolves the proceeding along with the award to the required party within six months. The 246th Report of Law Commission of India; headed by Justice A.P. Shah recommended the reformation required in the Arbitration and Conciliation Act 1996. It recommended passing the award to a party within a time which would eliminate the court proceedings which shall be performed by the arbitration tribunal. This recommendation became the part of the amendment which came in 2015 under Section 29A and 29B of the Arbitration and Conciliation Act 1996; it mentions the time limit while giving an arbitral award and procedures along with requirements for fast-track arbitration, respectively.
The New Delhi International Arbitration Centre Act 2019
The purpose of this Act was to establish an institutional arbitration which will look upon the acquisition along with transfer of the undertaking at the International Centre for Alternative Dispute Resolution. The dispute resolution can impact the economy of a country and perception for doing business can change at the global level which makes it necessary to inspire litigants for commercial dispute. Section 5 of the New Delhi International Arbitration Centre Act 2019; a member will be a retired judge of the Supreme Court of India or High Court of any State or any other eminent person carrying knowledge and experience in arbitration. The Chief Justice of India shall be a Chairperson along with two eminent people; who will know in the field of institutional arbitration; domestic and international.
These members will be appointed by the Central Government and their appointment will be permanent or temporary. Another member will be appointed by the Central Government on a rotational basis representing the commerce and industry. Further, the Ministry of Law and Justice will be represented by Secretary or representative, not below the post of Joint Secretary and one Financial Advisor will be represented by the Ministry of Finance as a member. These members along with Chairperson will hold this position for not more than three years and they will be eligible for re-appointment as the chairperson should not have reached the age of seventy years and members have attained the age of sixty-seven years.
The function of the Centre will be to facilitate the conduct of arbitration of both, international and national services in a cost-effective and timely manner to conduct the process of arbitration. They will have to promote the studies in the field of arbitration dispute resolution and matters related to it along with reformation in the system of dispute resolution. Impart the training in alternative dispute resolution and necessary matters concerning reconciliation, mediation and arbitration.
Digital age post-COVID-19 in arbitration
Arbitration and Conciliation Act, 1996 is hushed toward this treatment of negotiation processes by video conferencing; Section 19 allows the Arbitral Tribunal to perform the same. The Arbitral Tribunal rump guides these bodies before these arbitration processes to enroll pleadings by programmed communication; deportment operations in the midpoints of video conversations supporting social distancing with an insignificant decline in the productivity.
Arbitral Tribunals in consonance including some altering expertise, this severe congressional timelines specified in the Arbitration and Conciliation Act, 1996 still resort through video conferencing while routine elements for help as well as cost-effectiveness equivalent in domestic arbitration proceedings.
Practitioners in arbitration
Advocate Ashok Kumar Agarwal
Membership No.: IL/ICA/0731
He has practised for more than fifteen years in the particulars of Civil, Commercial, Labour in arbitration.
Dr Meera Agarwal
Membership No.: IL/ICA/0739
She has the specialization in Contract and Arbitration Law.
Membership No.: IL/ICA/0761
He is practising Advocate and specialized in State contracts, Telecommunication, Corporate Law, Taxation, etc. Experience is more than seventeen years in the field.
Mohan Babu Agarwal
Membership No: IL/ICA/0765
He practices in the Supreme Court of India and specializes in the field of Intellectual property, Real Estate, Corporate Law, Taxation, Finance Banking. As an arbitrator, he has meditated in more than ten cases and carries an experience of more than twenty years in legal matters.
Sudhir Chandra Agarwala
Membership No.: IL/ICA/0777
He is a senior advocate and started practising from the year 1986 during which arbitration cases were handled by him. His area of specialization is in Revenue, Labour, Construction, Administration and Civil Laws.
Membership No.: IL/ICA/0789
He has an experience of more than 37 years in the legal matters and performed the role of arbitrator in several cases. Specialized in the field of income tax.
Gopinath M. Amin
Membership No.: IL/ICA/6243
He practices in the High Court of Gujarat with an experience of forty years. Specialization in the field of Railways and NHI Contracts within which dealt with three hundred cases as counsel.
Nilay Ananda Dutta
Membership No.: IL/ICA/1613
Practising in the High Court of Guwahati, Assam. Senior Advocate and started practising from 1983 onwards. Appointed as the Standing Counsel for Assam Public Service Commission and appeared as Counsel for Indian Railway in the matter concerning arbitration.
Partner, Khaitan Associates
Membership No.: IL/ICA/2328
He practices in the district of Tinsukia, Assam. Specialization in Financial and Commercial matters; worked as the Director in the Delhi Stock Exchange Association Limited in the year 1994. The practice in legal matters started in 1978; experience is more than 15 year in this field.
Kalyan Prasad Pathak
Membership No.: IL/ICA/3263
Former Senior Advocate and Advocate-General in the Government of Mizoram. He practised as the counsel representing the Government of Mizoram & Nagaland in cases related to arbitration.
Vijay M. Phadke
Membership No.: IL/ICA/3298
Advocate in the Supreme Court of India experienced in Taxation, Arbitration and Consultancy in problems concerning Contracts.
Membership No.: IL/ICA/3300
Advocate in the Bombay High Court and specialized in Central Excise Custo Act, Salt Act.
Senior Attorney, Nishith Desai Associates
Head, the International Dispute Resolution and trained in mediation with experience in commercial arbitration. His experience comes under the legislation of complex cases which includes investment treaty arbitrations, commercial disputes which are related to shareholders agreements, international trade and others. He co-authored a book, titled as Enforcing Arbitral Awards in India published by Lexis-Nexis 2017.
Dr Sona Khan
Membership No.: IL/ICA/2336
Advocate, Supreme Court of India
Specialization in the legal matters of Civil law, Contract Law, Arbitration Law, International Arbitration, etc.
Membership No.: IL/ICA/4945
Advocate-on-Record, Supreme Court of India
Counsel in several cases concerning Arbitration, Real Estate, Corporate Law, Joint Ventures, Construction, State Contracts, Commercial Contracts is subject of specialization in practice in the apex court.
Partner, Shardul Amarchand Mangaldas
The primary focus is in commercial disputes, international and domestic arbitration and crimes related to white-collar. He was awarded ‘Disputes Star Award of the Year 2018’ which was held in Hong Kong and represented Tata Sons in a 6.5 billion USD class action case before the Bombay High Court along with a share-holder dispute oppression case in front of National Company Law Tribunal, Mumbai. Mr Jain is representing Punjab National Bank’s fraud case in various forums in India and globally and performs the duty of counsel in ad-hoc as well as institutional arbitrations.
Appears before various High Courts in India and the Supreme Court. He specializes in the legal field of commercial dispute resolution and practice focuses on construction and engineering, energy, insurance and reinsurance, media and aviation law. In several jurisdictions, he represents counsel and ad-hoc in Institutional along with International commercial arbitrations. He contributed to a book which was published by LexisNexis, titled as Enforcing Arbitral Awards in India.
Managing Partner, Link Legal Law Services
Experience of over forty years in arbitration and conciliation in India. Admitted to the Bar in the year 1978 and advises clients in the field of International Commercial Arbitration, aviation, infrastructure projects, real estate, commercial transactions and hospitality projects. He completed his graduation in Economics and Bachelors of Law from the University of Delhi.
Managing Partner, Shardul Amarchand Mangaldas
Associated to the matters of Arbitration, Dispute Resolution and Competition Law.
She has represented various entities belonging to public and private corporations before various courts, tribunals and legal institutions. The Government of India made up the committee which dealt with reviewing the laws for competition law in which Pallavi Shroff is a member and they made up it with an aim that legislation is tuned with the business environment of the country. The legal era conferred her with the title of Lifetime Achievement Award in the year 2017-18 and acknowledged as a stalwart in competition law due to her involvement in cases related to a cartel, abuse of dominance and other contentious issues.
Heads, Disputes practice and member in the board of Trilegal. He appears before various courts in India and practices moves from energy contracts to corporate dispute resolution and claim construction. Mr Mukerjee was elected as a member to ICC commission in Arbitration and ADR and recognized by Chambers and Partners, Legal 500 and Asian Law Profiles.
The outbreak of coronavirus brought the opportunity to settle the cases of arbitration through virtual hearing. The issue concerning the privacy and confidentiality of clients came into the limelight led to the amendment in the Act, the sole objective was to secure the confidentiality of arbitral proceedings within Section 42, impart the training in alternative dispute resolution and necessary matters concerning reconciliation, mediation and arbitration. The amendment brought in the Arbitration and Conciliation Act 1996 has brought a proposition, which is required to be implemented in its true spirit to make India a country which is institutionally competent in the jurisdiction of arbitration.
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