This article is written by Satyaki Deb, a B.A.LL.B.(Hons.) student from the Department of Law, Calcutta University. This article provides an exhaustive overview of what arbitration is and its related concepts from an analytical viewpoint.
It has been published by Rachit Garg.
Table of Contents
Disputes happen frequently between parties in the world of business and in today’s fast-paced commercial world, time is nothing less valuable than money. Both parties suffer losses if the dispute becomes the victim of a long-drawn, complex court battle. The solution to this comes in the form of Alternative Dispute Resolution (ADR) mechanisms that have eased and simplified the resolution of disputes between parties. Arbitration is a key ADR method that can be historically traced to the village panchayat days, when the elders used to resolve disputes between persons based on principles of natural justice. In simple words, arbitration is a method of resolving disputes between parties without going to court.
Alternative Dispute Resolution mechanism
The term ADR or Alternative Dispute Resolution signifies any out of court processes adopted to solve disputes. Arbitration, mediation, conciliation, and negotiation are usually the most common methods of ADR. When the courts are understaffed and overburdened with cases, ADR serves the purpose of providing faster and simpler means of dispute resolution. All ADR methods are mostly private in nature. The typical methods of ADR are briefly discussed as follows:
Arbitration is outside the court settlement of a dispute by one or more (odd number) persons who are appointed as arbitrators by both the parties. According to Section 2(1)(a) of the Arbitration and Conciliation Act, 1996 “Arbitration means any arbitration whether or not administered by permanent arbitral institution”. In other words, any form of arbitration irrespective of its nature has been recognised statutorily in India by bringing such arbitration under the ambit of the Arbitration and Conciliation Act, 1996. It consists of a simplified trial, with simplified rules of evidence and with no discovery. Arbitration hearings are usually not a matter of public record. The arbitral award is binding on the parties just like a court decree or order.
Mediation usually involves a neutral third party who tries to facilitate the issues between the parties and guides them through dialogue to a win-win situation. Mediation settlements are non-binding in nature.
Negotiation is a type of ADR where usually no third parties like lawyers, arbitrators, or mediators are involved. The two parties in dispute sit down and discuss terms that best serve their mutual interests. When both parties are willing to come to a compromise, usually the negotiation becomes successful. In case, the parties fail to reach an acceptable, common middle ground, the end result is a stand-off with either a promise of future negotiation or to resort to other methods of ADR like mediation. There are no hard and fast rules or technicalities in a negotiation.
Conciliation is a flexible and informal process of ADR where the disputing parties resolve their disputes with the aid of one or more conciliators who act in an impartial manner and aid the parties in reaching an amicable settlement. Compared to a mediator, a conciliator is more proactive in persuading the parties to reach a settlement by making proposals for settlement at any stage of the conciliation proceedings. It may be noted in this regard that neither the mediator nor the conciliator is bound by the Civil Procedure Code (CPC) or the Indian Evidence Act. They are bound by the principles of natural justice and can in no way impose their wills upon the parties.
Comparison table of various ADR methods
|Definition||Arbitration is outside the court settlement of a dispute by one or more (odd number) persons who are appointed as arbitrators by both the parties.||Mediation involves usually a neutral third party who tries to facilitate the issues between the parties and guides them through dialogues to a win-win situation.||Conciliation is a flexible and informal process of ADR where the disputing parties resolve their disputes by the aid of one or more conciliators who act in an impartial manner and aid the parties in reaching an amicable settlement.||Negotiation is a type of ADR where usually no third parties like lawyers, arbitrators or mediators are involved and the two parties at dispute sit down and discuss terms that best serve their mutual interests.|
|Governing law in India||Part I and II of the Arbitration and Conciliation Act, 1996.||Mediation Bill, 2021 after it is passed and comes into force.||Part III of the Arbitration and Conciliation Act, 1996.||Principles of natural justice.|
|Procedural rules followed||Mutually decided by the parties; in case of institutional arbitration the institutional rules are usually adopted; in case of ad hoc arbitration the parties mutually decide the arbitral rules to be followed i.e. the seat of arbitration is decided by the parties. E.g: the parties may agree to follow the UNCITRAL Arbitration Rules.||Mutually decided by the parties; usually CEDR Model Mediation Procedure or their equivalents are followed.||Subject to Part III of the Arbitration and Conciliation Act, 1996, the procedural rules are mutually decided by the parties.||Mutually decided by the parties based on the principles of natural justice.|
|Nature of outcome||Binding and thus mostly enforceable.||Usually non-binding, unless a court order directs to the contrary.||Usually non-binding, unless a court order directs to the contrary.||Becomes binding only after the negotiated deal is ratified by a competent court of law.|
|Role of third parties||Roughly speaking, the third party, i.e., the arbitrator(s) who constitute the arbitral tribunal act like a civil judge.||The third party, i.e., the mediator, engages in talks with both parties and helps both parties come to a win-win solution to the dispute.||The third party, i.e., the conciliator, is more proactive compared to a mediator. The conciliator proposes solutions that are acceptable to both parties.||No third party is involved.|
Types of arbitration
There are various types of arbitration depending upon the nationality of the parties, the arbitral award or the arbitrators involved. They are discussed as follows:
Ad Hoc Arbitration
Ad hoc arbitration is the type of arbitration where the parties mutually agree to resolve their disputes by arbitration proceedings conducted by mutually appointed arbitrators but not by an institution. This is one of the most common forms of arbitration in India where the parties themselves agree to and arrange for arbitration. Here, in this method of arbitration, both the parties and the arbitrators mutually and independently decide the procedures of arbitration, without the involvement of an arbitral institution. Example: When the parties decide to keep the arbitration seat in India, the dispute would be resolved as per the provisions of the Arbitration and Conciliation Act, 1996.
Institutional Arbitration is the form of arbitration where an institute, which has been set up for the purpose of settling disputes by arbitration or other ADR methods, is employed to conduct arbitration. Such institutes may be national or international in character and they usually lay down their own rules of arbitration. But such rules cannot override the provisions of the Arbitration and Conciliation Act, 1996. These institutes maintain a panel of arbitrators from which arbitrators are recommended to the parties. Besides that, these institutes also offer administrative and consultancy services. So, with the proper infrastructure and experience that these institutes bring to an arbitral proceedings, some parties really find institutional arbitration beneficial. Some of the prominent institutes that offer institutional arbitration are as follows:
- Chartered Institute of Arbitrators,
- The London Court of International Arbitration,
- The National Arbitration Forum USA,
- Singapore International Arbitration Centre,
- The International Court of Arbitration,
- International Arbitration and Mediation Centre, Hyderabad
- Delhi International Arbitration Centre
- Permanent Court of Arbitration
When the arbitration takes place in one jurisdiction and both the parties come under that jurisdiction, then such an arbitration is called domestic arbitration. In other words, both the parties must be nationals of the same jurisdiction as that of the seat of arbitration or in case of body corporates, they must be incorporated under the same jurisdiction as that of the seat of arbitration. Eaxmple: when the seat of arbitration is in India to resolve a dispute between two Indian companies, then it is a domestic arbitration.
International arbitration is the type of arbitration where at least one of the parties at dispute is a foreign national or in the case of a body corporate, has been incorporated in a foreign country. In other words, at least one of the parties must be a foreign national or habitually resident in a foreign country. And in case of a body corporate or an association or body of individuals, the core control and central management must be operated from outside India. Also, one of the parties may be a foreign government too. Then such an arbitration is construed as international arbitration. Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 has defined international commercial arbitration in the light of international arbitration for commercial disputes.
Emergency arbitration is a form of arbitration where interim relief is given by the arbitral tribunal to a party who wants to protect their assets and/or evidence from being otherwise lost or altered. It can be roughly compared to the concept of interim injunctions granted by civil courts. In India, there is no mention of the term ‘emergency arbitration’ in the Arbitration and Conciliation Act, 1996 till date, and regarding the enforceability of the same, the picture is still unclear. But the concept of emergency arbitration has been adopted in India by various arbitral institutions like Delhi International Arbitration Centre, Court of Arbitration of the International Chambers of Commerce-India, International Commercial Arbitration (ICA), Madras High Court Arbitration Centre (MHCAC), Mumbai Centre for International Arbitration etc. within their rules.
Stages of arbitration in India
The stages of an arbitral process as per the provisions of the Arbitration and Conciliation Act, 1996 are described as follows:
Arbitration agreement (Section 7, Arbitration and Conciliation Act, 1996)
The arbitration agreement is the first step towards arbitration and it has been discussed in detail here.
Number of arbitrators (Section 10, Arbitration and Conciliation Act, 1996)
Section 10 of the Arbitration and Conciliation Act, 1996 lays down the number of arbitrators that will be adjudgung the arbitral proceedings. According to this Section-
- The parties are empowered to themselves determine the number of arbitrators they want provided that such number of arbitrators are odd in number.
- In cases where the parties are unable to come to a decision as to what shall be the number of arbitrators, the arbitral tribunal will be graced by a sole arbitrator.
Commencement of arbitral proceedings (Section 21, Arbitration and Conciliation Act, 1996)
Section 21 of the Arbitration and Conciliation Act, 1996 lays down the provision as to when shall an arbitral proceeding begin. According to this Section, in the event of no agreement to the contrary, the arbitration proceedings shall be deemed to commence from the date the respondents have received a request i.e., notice of referring the dispute to arbitration from the other party i.e., the petitioners / claimants.
Appointment of arbitrators (Section 11, Arbitration and Conciliation Act, 1996)
Section 11 of the Arbitration and Conciliation Act, 1996 deals with the provision of appointment of arbitrators. Just like the parties can mutually decide upon the number of arbitrators vide Section 10 of the Act, similarly they can also mutually decide upon the procedure of appointment of arbitrators and can appoint any person(s) of any nationality as arbitrator(s) based on mutual agreements. Also, in case of disputes regarding appointment of arbitrators, the parties can approach the Supreme Court or High Court (as the case may be depending on arbitration agreement) to appoint arbitrator(s) for them.
Statements of claim and defence (Section 23, Arbitration and Conciliation Act, 1996)
Section 23 of the Arbitration and Conciliation Act, 1996 envisages the provision of statements of claim and defence made by both the parties before the arbitral tribunal. According to the section, subject to the mutual agreements between the parties or as per the order of the arbitral tribunal, the claimant shall submit his claims in details corroborated with facts, issues and relief or remedy sought. In response, the respondent is to submit defence i.e., counter-statements within the stipulated time. According to the recently added sub-section (4) of Section 23, the statements of claim and defence of both the parties should be finished within a maximum period of six months from the date of appointment of arbitrator(s).
Hearing and written proceedings (Section 24, Arbitration and Conciliation Act, 1996)
Section 24 of the Arbitration and Conciliation Act, 1996 deals with the provisions of hearing and written proceedings before an arbitral tribunal. According to the Section, subject to an agreement to the contrary between the parties, it is upto the arbitral tribunal to decide whether the arbitral proceedings will be held orally or on the basis of documents and other materials. Moreover, as far as practicable the Act encourages the arbitral tribunal in the holding of oral hearings on a regular basis and strongly discourages unnecessary adjournments without sufficient cause. The arbitral tribunal is also empowered to impose cost on the party seeking adjournment without sufficient cause. It may be noted in this regard that, although speedy disposal is of the essence in arbitration, it is only just that the parties be given sufficient notices at every stage of hearings and evidence submission, inspection etc.
The judgement or order of the arbitral tribunal is called the arbitral award and it has been discussed in detail here.
Challenging of arbitral award (Section 34, Arbitration and Conciliation Act, 1996)
Section 34 of the Arbitration and Conciliation Act, 1996 deals with the provision of applications for setting aside of arbitral awards and was pari materia to the Section 34 of the UNCITRAL Model Law on Arbitration. Just like the UNCITRAL Model Law on Arbitration is territorial in nature, India’s Arbitration and Conciliation Act, 1996 also follows the territoriality principle. In other words, just like the seat of arbitration governs the law related to the arbitral proceedings, similarly the challenge to the arbitral award will also depend upon the seat of arbitration. Thus, if the seat of arbitration is in India, any aggrieved party can seek redressal under the provision of Section 34 of the Act.
Section 34(2) and Section 34(2-A) of the Act lays down the ground for setting aside of the arbitral award and Section 34(3) lays down the time i.e. limitation period within which the aggrieved party needs to approach the Court for challenging an arbitral award. According to Section 34(3), the aggrieved party has 90 days or three months from the date of receipt of the arbitral award or from the date an application under Section 33 of the Act seeking correction and interpretation of arbitral award or additional award has been duly disposed off by the arbitral tribunal.
The grounds for setting aside of an arbitral award under Section 34 of the Act can be briefly stated as follows:
- A party was under some incapacity.
- The arbitration agreement between the parties is invalid under the applicable law or violates the law for the time being in force.
- Insufficient notice or lack of proper notice to a party regarding appointment of arbitrators or arbitral proceedings or where one party was otherwise unable to present his case.
- The arbitral award pertains to a subject beyond the scope of the terms of the arbitration agreement or the arbitral award is on a subject that is non arbitrable in nature as per the law of the land. In situations where, the arbitral tribunal has transgressed the subject submitted to arbitration and such transgression can be shredded off from the remaining award pertaining to the valid arbitrable subject as per the arbitration agreement, then the invalid portion is only set aside and the valid portion of the award becomes enforceable.
- The composition of the arbitral tribunal was in violation of agreement between the parties subject to the provisions of Part I of the Act. In other words, if the agreement does not violate the mandatory provisions of Part I of the Act and still the composition of the arbitral tribunal violated the agreement between the parties or in the absence of such an agreement, the composition of the tribunal violated the provisions of Part I of the Act, it is a ground for setting aside the arbitral award.
- The arbitral award cannot be in violation of public policy of India.
- Other than an arbitral award of an international commercial arbitration, any other arbitral award may be set aside in the event of prima facie vitiation of the award because of its patent illegality.
Initially, there has been a lot of dispute about the power of the Courts under Section 34 of the Act. The main unresolved question of law was whether the Courts are only empowered to set aside the arbitral award in case of violations of procedural safeguards and fairness or can modify or vary them for the ends of justice. It is now a settled position in law after the recent National Highways Authority of India v. M. Hakeem (2021) case that the Courts can only set aside the arbitral award if deemed fit but cannot vary or modify the arbitral award. This is a welcome interpretation of Section 34 because as stated before Section 34 of the Act is pari materia with Article 34 of the UNCITRAL Model Law on Arbitration. Article 34 of the UNCITRAL Model Law does not envisage any scope of varying or modifying the arbitral award. So, with this line of interpretation adopted by the Hon’ble Supreme Court, the international obligation of India with respect to arbitration has also been upheld. It is interesting and pertinent to note in this regard that the Courts under Section 34 of the Act can partially set aside an award subject to the doctrine of severability. In other words, the bad portion of the award, if separable from the just portion of the award, can be partially set aside by the Courts even if that amounts to modification or varying of the arbitral award.
Enforcement of arbitral awards
Section 36 of the Arbitration and Conciliation Act, 1996 deals with the enforcement of domestic arbitral awards. According to the section, when the limitation period for approaching the Court under Section 34 of the Act is over, the arbitral award can be enforced just like a decree of court can be enforced as per the provisions of the Code of Civil Procedure, 1908.
Part II of the Act deals with enforcement of foreign arbitral awards and the same has been discussed in detail here.
Important concepts related to arbitration
Arbitration Agreement and its essentials
Arbitration agreement is a written agreement between the parties whereby both the parties resolve to submit themselves to arbitration in the event of a dispute. It has been defined in Section 2(1)(b) of the Arbitration and Conciliation Act, 1996. According to this provision, “Arbitration Agreement” means an agreement referred to in Section 7. And according to Section 7(1), “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
It may be noted in this regard that the form of arbitration agreement is not important. In other words, an arbitration agreement may be a separate written agreement or it may be inserted in the clauses of the contract between the parties or it may be present in any form of electronic communication between the parties.
Conditions to be fulfilled to enforce an arbitration clause
In the event there is a contract between the parties and that contract refers to another document which contains the arbitration clause, then for such arbitration clause to be construed as an arbitration agreement, certain essential conditions need to be fulfilled, which are as follows:
- The contract must be in writing.
- The reference to the arbitration clause in the separate document is made in a manner so as to signify that the arbitration clause is a part of the contract.
- The reference to the arbitration clause must be in clear and unambiguous terms.
- The arbitration clause should be well framed, clearly portraying the intention of the parties to resort to arbitration, so that in cases of disputes under the contract, such clause can be made applicable.
- The arbitration clause should not be repugnant to any other terms of the contract.
- Whether the arbitration agreement is an independent agreement or a composite agreement, it is important that the arbitration clause should be severable from the rest of the agreement or contract. This ensures that the arbitration agreement survives if the main agreement gets terminated or invalidated.
- In case the arbitration agreement is an independent agreement, it must fulfil the criteria of a valid contract.
Seat of arbitration
The place of arbitration is referred to as the seat of arbitration. Usually, both parties agree to a seat of arbitration within the terms of the arbitration clause or arbitration agreement itself. The importance of the seat of arbitration is paramount because it is the seat of arbitration that governs the arbitration rules and procedures to be followed in resolving the dispute in case the parties have not predetermined any procedure. In other words, the seat of arbitration determines the situs of arbitration. But in case the parties fail to agree on the place of arbitration as per Section 20(1) of the Arbitration and Conciliation Act, 2015, then the arbitral tribunal can fix the seat of arbitration for the parties depending on the circumstances of the case and as per the convenience of the parties vide Section 20(2) of the Act.
In the case of Bharat Aluminium Company Ltd v. Kaiser Aluminium Technical Service Inc (BALCO case) (2012), the Hon’ble Supreme Court held that if the disputing parties have agreed to a seat of arbitration in a different country, then it necessarily implies that the parties have accepted the law of that country governing the rules and procedures of arbitration. However, after the enactment of the Arbitration and Conciliation (Amendment) Act, 2015, Part I of the Act, such as Section 9 (interim relief), Section 27 (court assistance for evidence), Section 37(1)(a) (appealable orders) of the Act will apply even to an international commercial arbitration where the seat of arbitration is outside India subject to an agreement to the contrary vide Proviso to Section 2(2) of the Act.
In the recent case of PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India)(P) Ltd. (2021) the Hon’ble Supreme Court, stressing on party autonomy, held that two Indian parties have the liberty to choose a foreign seat of arbitration.
Venue of arbitration
Sometimes confusion arises when the words ‘venue’, ‘seat’, ‘place’ of arbitration get used interchangeably in the arbitration agreement or arbitration clause. Although the seat of arbitration and the place of arbitration mean the same thing, the venue of arbitration usually means the convenient geographical place where the arbitration proceedings are being conducted. So, the seat of arbitration refers to the place whose rules and procedures are to be applied to the arbitration proceedings and it also determines which courts will have supervisory jurisdiction over the arbitration proceedings. Thus, the venue of arbitration may not be the same as the seat of arbitration. When the seat of arbitration has been fixed, i.e., the governing rules and procedures have been fixed, the proceedings can go on at any geographical place or venue, even across countries. Hence, it can be said that the term ‘venue of arbitration’ carries less weightage than the term ‘seat of arbitration’.
Arbitrability of subject matter
All matters cannot be resolved outside the court by arbitration since arbitration is a private forum of resolution. This brings us to the crucial word ‘arbitrability’ which determines if a subject matter can be submitted to the process of arbitration or not. The legislature and judicial authority decide which matters cannot be subjected to arbitration.
The legislature has barred certain types of disputes from being subjected to arbitration by stating in Section 2(3) of the Arbitration and Conciliation Act, 1996 that if by any law in force some matters are barred from arbitration then such law will override any provisions of Part I of this Act. In other words, the non-obstante provision mentioned in Section 5 of the Act will not override any law in force that bars a subject matter from being submitted to arbitration. Also, Section 34(2)(b)(i) of the Act enables the courts to set aside an arbitral award if the subject matter of the arbitration was non-arbitrable in nature. Basically, no list has been provided by the legislature which dictates which subject is arbitrable and which is not arbitrable. Section 2(3) read with Section 34(2)(b)(i) of the Act empowers the judiciary to decide the principles for non-arbitrability of a subject matter within the parameters of law and this was held in the recent case of Vidya Drolia v. Durga Trading Corporation (2020).
To make the principles of arbitrability of a subject matter comprehensible, the Hon’ble Supreme Court, for the first time, in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011) laid down the following three conditions that need to be met for a subject matter to become arbitrable, viz:
- The disputes between the parties must be capable of being settled and adjudicated by the private forum of arbitration.
- The disputes must come under the ambit of the arbitration agreement or arbitration clause.
- The parties to the dispute must refer the same to arbitration.
In simple words, the judgement or order of the arbitral tribunal (consisting of the appointed or chosen arbitrators) is called the arbitral award. Section 2(1)(c) of the Arbitration and Conciliation Act, 1996 defines arbitral award. According to this provision, “arbitral award includes an interim award.” It is clear from this definition that the statutory definition is not exhaustive in nature and basically includes any order of the arbitral tribunal.
The arbitral award must be duly written, signed by the arbitrator(s) and dated with proper mention of the place of arbitration. The arbitral award must contain due reasons for the granting of such an order unless the parties have waived the necessity of a reasoned decision or speaking order. It may be noted in this regard, that an arbitral award is binding on the parties just like a judgement of the court. Also, any party within thirty days of the receipt of the award may request the tribunal to correct any errors in the award and if all the parties so wish, can even ask for interpretation of a specific part or portion of the arbitral award.
After the time has expired to make an application for setting aside of the arbitral award under Section 34 of the Act and no such dismissal or stay order has been granted by the court, then the arbitral award in a domestic arbitration shall become enforceable just like a decree of a Civil Court under the Code of Civil Procedure, 1908.
In general, when the seat of arbitration is in India, whether it is a domestic arbitration or an international commercial arbitration, the award granted is a domestic arbitral award. In other words, a domestic award is granted under Part I of the Act.
Foreign Arbitral Award
Foreign arbitral award or foreign award is the award granted by an arbitration tribunal recognised by the New York Convention (1958) (as defined in Section 44 of the Act) and under the Geneva Protocol and Geneva Convention (as defined in Section 53 of the Act). In a way, because of a lot of dissatisfaction, the New York Convention (1958) replaced the Geneva Protocol (1923) and Geneva Convention (1927).
Recognition and enforcement of foreign arbitral awards
A foreign arbitral award is enforceable under Part II of the Arbitration and Conciliation Act, 1996. But in order to be enforceable, certain conditions laid down under Section 48 of the Arbitration and Conciliation Act, 1996 (for awards granted under the New York Convention, 1958) and Section 57 of the Act (for awards granted under the Geneva Convention, 1927) need to be fulfilled. Some of these conditions are mentioned below:
- The arbitral award is granted in matters considered to be commercial matters by laws in force in India because India has adopted the commercial reservation under the New York Convention and the Geneva Convention.
- The arbitral award must be granted in pursuance of an arbitral agreement that comes under the ambit of the New York Convention and the Geneva Convention.
- The arbitral award should be granted in relation to parties where at least one person is subject to the jurisdiction of a territory duly notified in the Official Gazette by the Indian government and passed in one such notified territory.
- The award must be final in nature to become enforceable in India, and such award will be deemed to be final when no proceedings challenging the award are pending or ongoing in that foreign country.
- The foreign arbitral award must not be against the public policy in India.
- The foreign award must be an arbitrable subject matter in India.
- The foreign award must not have been set aside or suspended by competent authorities in the foreign country.
- The executing court for a foreign award may be a High Court which has jurisdiction over the territory in which the award debtor’s assets are situated or where a suit for the recovery of money can be filed.
- In order to enforce a foreign award, the enforcing party must duly submit before the executing court the following:
- The original or authenticated copy of the arbitral award.
- The original or certified copy of the arbitration agreement.
- Evidence demonstrating that the arbitral award is a foreign award.
UNCITRAL Arbitration Rules
UNCITRAL Arbitration Rules are a set of rule based procedural framework of arbitration rules that parties, either as a part of their contract or after a dispute occurs, can use to govern their arbitration proceedings. UNCITRAL Arbitration Rules are pretty flexible in nature as they allow the parties to mutually modify the rules to specifically suit their needs vide Art. 1(1), UNCITRAL Arbitration Rules (2013 Revision). The UNCITRAL Arbitration Rules were originally adopted way back in 1976 by the United Nations General Assembly but were last modified in 2013 and the latest Expedited Arbitration Rules were adopted recently on 21.07.2021 by the UNCITRAL w.e.f. 19.09.2021 by this press release. The UNCITRAL Arbitration Rules can be broken down into four parts, viz:
- Section 1: Introductory Rules (Articles 1-6)
- Section 2: Composition of the Arbitral Tribunal (Articles 7-16)
- Section 3: Arbitral proceedings (Articles 17-32)
- Section 4: Arbitral award (Articles 33-43).
UNCITRAL Model Law on International Commercial Arbitration
The UNCITRAL Model Law on International Commercial Arbitration acts as a set of guidelines so that the national governments can make proper arbitration laws in their countries. In other words, it is designed to act as a lighthouse while guiding states to frame their own domestic legislation on arbitration in a proper way. It was first adopted in 1985 and was modified later by amendments in 2006. In cases where countries already have legislation on arbitration, the UNCITRAL Model Law is meant to assist the States in the modernisation and reformation of their domestic legislation on arbitration at par with international standards. It covers all stages of arbitration, starting from the arbitration agreement to enforcement of the arbitral award.
Laws dealing with Arbitration in India
Arbitration and Conciliation Act, 1996
In India, the main law which governs arbitration is the Arbitration and Conciliation Act, 1996 which came into force on 22nd August, 1996 and extends to the whole of India. In the 246th Report of the Law Commission, it was noted that “The 1996 Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980.” After the enactment of the Arbitration and Conciliation (Amendment) Act, 2015 and 2019, recently the Arbitration and Conciliation (Amendment) Act, 2021 was passed into law on 10th March, 2021 and retrospectively came into force on and from 4th November, 2020 except as otherwise stated.
The Act can be structured into four parts and seven schedules, viz:
- Part I- Arbitration (Sections 2 to 43)
- Part II- Enforcement of certain foreign awards (Sections 44 to 60)
- Part III- Conciliation (Sections 61 to 81)
- Part IV- Supplementary Provisions (Sections 82 to 86)
- First Schedule– “CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS” read with Section 44.
- Second Schedule– “PROTOCOL ON ARBITRATION CLAUSES” read with Section 53.
- Third Schedule– “CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS” read with Section 53.
- Fourth Schedule– “FEES OF ARBITRAL TRIBUNAL” read with Section 11(14).
- Fifth Schedule– “GROUNDS THAT GIVE RISE TO JUSTIFIABLE DOUBTS AS TO THE INDEPENDENCE OR IMPARTIALITY OF ARBITRATORS” read with Section 12(1)(b).
- Sixth Schedule– “ARBITRATOR DISCLOSURE FORM” read with Section 12(1)(b).
- Seventh Schedule– “CATEGORIES SPECIFYING AS TO WHAT WILL MAKE A PERSON INELIGIBLE FOR APPOINTMENT AS ARBITRATOR” read with Section 12(1)(5).
New Delhi International Arbitration Centre Act of 2019 (NDIAC Act, 2019)
The New Delhi International Arbitration Centre Act, 2019 was enacted to establish the New Delhi International Arbitration Centre. This centre is meant to act as an independent and autonomous institutionalised arbitration centre and for acquisition and transfer of the undertakings of the International Centre for Alternative Dispute Resolution for the more efficient and better management of arbitration. The New Delhi International Arbitration Centre has also been declared as an institute of national importance and the Indian government is actively working to make it a major arbitration hub which can provide quick and efficient dispute resolution. This centre was necessary to overcome the failures of the International Centre for Alternative Dispute Resolution which was established in 1995.
Arbitration Council of India (ACI)
The Arbitration and Conciliation (Amendment) Act, 2019 under its Clause (10) introduced Part IA in the Arbitration and Conciliation Act, 1996. This part consists of Sections 43A to 43M and inter alia, speaks about the setting up of the Arbitration Council of India as a body corporate with headquarters in Delhi. The Council will be entrusted to perform functions and discharge duties as per the provisions of this Act. Part 1A is yet to come into force as the same has not yet been notified by the central government in the Official Gazette. One of the major functions of the Arbitration Council will be to boost institutionalised arbitration by grading institutes of arbitration and accrediting arbitrators as per the provisions of the Eighth Schedule, which has yet to come into force.
Advantages of arbitration
The advantages of arbitration are discussed as follows:
- Fair process: In arbitration, both parties usually decide or appoint the arbitrators. This ensures dispute resolution by a fair and impartial third party, unlike in litigation where the parties do not have much control over the judge or jury selection.
- Timely procedure: Arbitration proceedings mainly work on arbitration rules that have been framed based on the principles of natural justice. They are not complex like procedural laws necessary in traditional court battles where the legal dispute gets dragged on for years. The more flexible and less formal arbitration rules ensure a quick dispute resolution between the parties.
- Cost effective process: In most cases, both the parties bear the cost of arbitrators equally as per the pre set terms of the arbitration agreement. Since, arbitration is a smoother and faster process, the disputes end quickly with less legal representation and saves tons of money for both parties.
- Private proceedings: Mostly, the parties at dispute are unwilling to air their dirty laundry in front of the whole world if the dispute reaches trial stage in front of a jury or judge. This problem is solved by outside the court resolution by arbitration in private meetings where confidentiality is ensured.
- Final and binding nature: The arbitral awards granted by the arbitral tribunal are binding on both parties and they are enforceable in nature, just like a decree of a civil court. Only in very limited circumstances, as prescribed in the domestic legislation, can arbitral awards be challenged in court.
- Ease of proceedings: The simple procedural nature of arbitration encourages the disputing parties to come to an agreeable solution easily.
- Reduces burden of courts: Most courts in most countries are overburdened with cases. Arbitration is one of the key solutions to reducing the burden of the courts and leaving the courts free for more pressing issues that absolutely warrant court proceedings.
Disadvantages of arbitration
The disadvantages of arbitration are discussed as follows:
- No appeals: Arbitral award is binding on both the parties. So, even if one party feels that the award was unjustified or biased, they mostly cannot appeal against it. Only in very limited circumstances, the arbitral awards are set aside.
- Evidence Rules: In a traditional court, usually there are rules that strictly govern as to what evidence is admissible and what is not. But in case of arbitration, the arbitrators admit whatever is brought in front of them most of the time. Illegally obtained evidence admission is a major problem in most arbitrations in the absence of proper arbitration rules for evidence.
- Lack of cross-examination: Most arbitrations lack the necessary rules for cross-examination of documents and witnesses that are possible in courts. This jeopardises the credibility of the documents and witnesses presented.
- Lack of consistency: Arbitration rules governing arbitrations vary from country to country and convention to convection. This creates the problem of lack of consistency and sometimes leads to unjust or biased arbitral awards.
- Lack of Transparency: Public perception of public bodies at disputes is very important and when these public entities get to work behind closed doors by arbitration, there are chances of sweeping the dust beneath the carpets privately and the public miss the chance of holding these public bodies accountable for their faults committed.
Why is arbitration preferred more in modern days
Indian laws related to arbitration and other alternative dispute resolution (ADR) mechanisms have been amended many times to adapt the country’s legal scenery to the evolving international commercial law jurisdictions in the interest of integrating India with the world’s business community. Concerted efforts are being made by both the government and various private players to promote ADR mechanisms like arbitration, conciliation, mediation and negotiation because of the many advantages of arbitration as stated before. Because of the many advantages that arbitration brings to the table, it is preferred in modern times and the journey ahead for India in this regard can be stated as follows:
The way forward for arbitration in India
The way forward for arbitration in India can be envisaged under the following points as mentioned below:
- Necessity of a virtual or platform inbuilt Online Dispute Resolution (ODR) System in India:
If a dedicated platform based Online Dispute Resolution (ODR) mechanism is introduced in India, then the whole Indian consumer complaint redressal scenario stands to be revolutionised. Such ODR platforms are available for various European Union (EU) countries like Norway, Liechtenstein, Iceland, etc. and even countries like Mexico have adopted similar procedures. In this process, consumers may file their complaints against goods and services online and the consumer protection agencies or other responsible authorities of the concerned countries resolve these complaints quickly and efficiently via telephone or over the internet.
- Necessity to address and accept emergency arbitration in India:
In the famous Amazon, Future Group and Reliance case, Amazon obtained an emergency injunction from a Singapore International Arbitration Centre (SIAC) tribunal and blocked the Future Group from Rs 24,700 crores retail business monetization agreement. But since there is considerable controversy regarding emergency arbitration in India, the enforceability of this emergency award became doubtful. Singapore, Hong Kong, London Court of International Arbitration (LCIA), the American Arbitration Association (AAA), and the International Chamber of Commerce (ICC) have officially accepted emergency arbitrator’s temporary orders but India is still lagging behind. This novel concept of emergency arbitration saves time and money and expedites the process. It is high time that India introduces proper legislative provisions for the enforceability of emergency awards.
- Need for proper laws to address novel technologies like blockchain, NFTs, smart contracts in arbitration and ADR:
The newly introduced Digital Dispute Resolution Rules in the UK (UK Rules) have pioneered the way digital disputes are resolved, especially using novel technologies like blockchain. A novel concept called ‘on-chain’ dispute resolution or ‘automatic dispute resolution’ has been introduced where the arbitrator is directly empowered to enforce the arbitral award on a blockchain using a private key. E.g: it can be decided by the arbitral tribunal that the losing party deposit compensation amount immediately in the victorious party’s blockchain based digital wallet. Moreover, by the use of ‘digital signature, cryptographic key, password, or other digital access grant’ the arbitral tribunal is enabled to operate, modify, sign or cancel any relevant digital asset. It is highly recommended that India adopts new laws and amends existing laws to embrace this new future where smart contracts, NFTs, blockchain technologies etc are becoming an integral part of arbitration and other ADR methods.
Permanent Court of Arbitration (PCA)
The Permanent Court of Arbitration (PCA) was established way back in 1899. It serves as an intergovernmental organisation with over 122 contracting parties. It is situated at the Peace Palace, Hague. Its main aim is to adopt arbitration and other alternate dispute resolution mechanisms to settle disputes between the governments of countries. Today, even after more than a century, the Permanent Court of Arbitration acts as a modern, multi-faceted arbitral institution to meet the ever evolving needs of the international community. The organisational structure of the PCA can be said to be made of three bodies viz-
- The Administrative Council– looks after the policies and budgets of the PCA.
- The Members of the Court– that consists of a panel of independent potential arbitrators.
- The International Bureau– this is the Secretariat which is headed by the Secretary General.
One of the famous cases of the Permanent Court of Arbitration (PCA) where India had been a party is discussed as follows:
The Enrica Lexie case (Italy v. India)
This was the famous ‘Italian Marines case’ where inter-state arbitration took place between the Republic of India and the Italian Republic following ad hoc rules of procedure under Annex VII, Article 1 of the United Nations Convention on the Law of the Sea (UNCLOS). It all started on 15th February 2012, when two Italian marines aboard the Italian oil tanker Enrica Lexie, approximately 20.5 nautical miles off the coast of India, shot two Indian fishermen aboard the Indian vessel St. Antony. The five member arbitral tribunal of the PCA granted the arbitral award wherein it was found inter alia that the Italian marines would enjoy immunity from criminal proceedings in India just like state officials, and Italy was to give compensation to India for the “connection with the loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony.” The compensation amount was to be mutually decided between India and Italy, and the agreed upon sum received as due compensation was INR 100 million (10 crores).
Today, it is indeed true that India has come a long way in the journey of accepting, promoting and implementing arbitration and other alternative dispute resolution (ADR) mechanisms. Multiple amendments to the Arbitration and Conciliation Act, 1996 to cater to the needs of the ever evolving global business community, show the commitment of the Indian government in making India a global hub for arbitration and other ADR mechanisms. But India still has miles to go in becoming the first choice of the international commercial bodies in the ease of resolving disputes in business by arbitration and other ADR methods. Constant adaptations based on the learnings of the relevant commercial jurisdictions of the world and proper implementations of the same with regard to arbitration can only leverage India as the world leader in quick and efficient dispute resolution.
Frequently Asked Questions (FAQs) related to arbitration
What is the difference between UNCITRAL arbitration rules and UNCITRAL model law on arbitration?
Simply put, the UNCITRAL arbitration rules are a set of arbitration rules that disputing parties may apply to govern their ad hoc arbitration proceedings, whereas UNCITRAL model laws on arbitration are meant for States so that the countries can be guided to make proper domestic legislation pertaining to arbitration.
What is the importance of arbitration rules?
Arbitration rules are the procedural rules that govern the proceedings and all stages of arbitration. The parties are usually free to accept the rules in full or accept them in part or modify them mutually to suit their specific needs.
What to do if originally there was no arbitration clause or agreement and the parties are willing to resort to arbitration later?
In that case, the parties should form a new arbitration agreement in clear terms and resort to arbitration thereafter. It is pertinent to mention in this regard that the subject matter of the dispute must be arbitrable in nature for this recourse.
The dispute is already in court and the parties want to resort to arbitration. Is this possible? If yes, how?
Yes, this is possible if the subject matter of the dispute is arbitrable in nature. If there was no arbitration clause or agreement before, a new arbitration agreement must be entered into first. But most importantly, leave of the court where the dispute is ongoing, is mandatory and domestic laws, if any, must be upheld.
What are some of the examples of disputes that can be resolved by arbitration?
Generally, any civil, commercial, contractual or business disputes between parties can be resolved by arbitration depending on the domestic legislation on arbitration and other laws in force for the time being. Some examples of disputes that can be resolved by arbitration are: matrimonial matters like divorce, maintenance; insolvency matters like winding up of a company, declaring a person insolvent; damages for breach of contract, employer-employee disputes, neighbour disputes, IPR disputes etc. It must be mentioned here that most matrimonial disputes and insolvency disputes are not arbitrable in India.
Can criminal matters be referred to arbitration?
Arbitrations are mostly for private disputes and since criminal matters are committed against State, criminal matters are generally not arbitrable in nature. Only in very exceptional cases where the criminal matter prima facie appears to be false in the bigger picture of a private dispute, with the leave of the court, such criminal matters may be referred to arbitration, subject to domestic legislations.
Are arbitration proceedings confidential?
Yes, the arbitration proceedings are completely private and confidential in nature and if one party leaks such confidential information related to proceedings, damages can be sought from the accused party.
How much does arbitration cost?
Arbitration proceedings are very cost effective in nature compared to litigation. Mostly, both the parties bear the cost equally. If the seat of arbitration is India, Section 11(14) of the Arbitration and Conciliation Act, 1996 read with the Fourth Schedule of the Act, determines the fees of the arbitral tribunal mostly depending on the sum in dispute.
Can two Indian parties have a foreign seat of arbitration?
Yes, in the recent case of PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India)(P) Ltd. (2021) the Hon’ble Supreme Court, stressing on party autonomy, held that two Indian parties have the liberty to choose a foreign seat of arbitration.
Can the Supreme Court of India refuse to enforce a foreign arbitral award?
Yes, the Supreme Court can refuse to enforce a foreign arbitral award if the subject matter of the award is not arbitrable in India or if the award is against the public policy of India or the conditions mentioned in Section 48 of the Arbitration and Conciliation Act, 1996 for the enforcement of foreign awards are not met.
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