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CONDUCT OF ARBITRAL PROCEEDINGS

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CONDUCT OF ARBITRAL PROCEEDINGS
By: Mr.M. GOVINDARAJAN
January 5, 2011
All Articles by: Mr.M. GOVINDARAJAN       View Profile
  • Contents

                        The Arbitration and Conciliation Act, 1996 provides for settlement of disputes by means of arbitration.   Unless otherwise agreed to by the parties to the dispute the arbitral proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.  

JURISDICTION OF ARBITRAL TRIBUNAL:

      The Arbitral Tribunal is empowered to rule its own jurisdiction including any objections in relation to existence and validity of the arbitration agreement;

      A plea can be raised not later than the submission of the statement of defence where the arbitral tribunal does not have jurisdiction;

      A plea that the arbitral tribunal is exceeding the scope of its authority, could be raised by the party aggrieved during the arbitral proceedings, if the matter is alleged beyond the scope of authority;

      Where the arbitral tribunal takes a decision rejecting any plea, continue with the arbitral proceedings and make an arbitral award.   In such case the aggrieved party may make an application for setting aside such an award in accordance with Sec. 34.

CONDUCT OF ARBITRAL PROCEEDINGS:

  • The parties to the dispute should be treated with quality and each party shall be given a full opportunity to present his case;
  • In the absence of any agreement on the procedure to be followed the Arbitral Tribunal may, subject to the provisions contained in Chapter V of the Act, conduct the proceedings in the manner it considers appropriate;
  • In the absence of any agreement the place of arbitration shall be determined by the Tribunal considering the circumstances of the case and convenience of the parties;
  • In the absence of any agreement between the parties the Tribunal shall determine the language or languages to be used in the arbitral proceedings;
  • The claimant shall state the facts supporting of his claim, the points of issue and the relief of remedy sought along with the documents within the period agreed upon by the parties or by the order of the Arbitral Tribunal;
  • The respondent shall state the defence in respect of those particulars with documents within the period stipulated;
  • Amendments in the statements may also be carried out with the approval of the Tribunal;
  • The copy of the statements may also be carried out with the approval of the tribunal;
  • Regarding oral hearing, the Arbitral Tribunal, in the absence of any agreement, shall decide the place of hearing for presentation of evidence and for oral arguments or conducting the proceedings on the basis of documents;
  • The parties shall be given sufficient advance notice of any hearing;
  • The Arbitral Tribunal is neither bound by Code of Civil Procedure, 1908 not by Indian Evidence Act, 1872;
  • The proceedings cannot be conducted in a manner which is in violation of the mandatory provision of law and in violation of the procedures agreed to by the parties.   The Arbitrator is bound to follow the procedures agreed to by the parties;
  • The Arbitral Tribunal may appoint experts subject to agreement between parties.   The parties have the opportunities to question the experts;
  • The Arbitral Tribunal or a party with the approval of the Arbitral Tribunal may seek the court assistance in taking evidence;
  • In the absence of any agreement, the Tribunal may order a party for taking interim measure of protection as the Tribunal may consider necessary in respect of the subject matter of the dispute for which the party may be asked to provide appropriate security;
  • In the absence of any agreement, if the claimant fails to submit his claim the proceedings shall be terminated;
  • If the respondent fails to submit his defence the Tribunal shall continue the proceedings considering the merit of the case and pass award on the basis of evidence before it;
  • The arbitral tribunal can make any interim arbitral award on any matter with respect to which it may make a final award;
  • No time limit to conduct the Arbitration proceedings is fixed in the Act.   But the Arbitral Tribunal is expected to complete the proceedings at the earliest possible;
  • The award shall be final and binding on the parties and persons claiming under it, unless application for setting aside the award is filed in the Court;
  • The Limitation Act, 1963 shall apply to arbitration as it applies to the proceedings in court.
  • The Arbitral Tribunal shall have alien to the arbitral award for any unpaid costs of the arbitration
  • DEPOSIT:

          The Arbitral Tribunal may fix the amount of the deposit or supplementary deposit as the case may be as an advance for the cost which it expects will be incurred in respect of claim submitted to it;

          If a counter claim has been submitted, it may fix separate amount of deposit for the claim and counter claim;

          The deposit shall be in equal shares by the parties;

          If one party fails to pay his share of the deposit, to other party may pay that share;

          Where the other party also does not pay the aforesaid share in respect of the claims or the counterclaim the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claims or counter claim as the case may be;

          Upon the termination of the arbitral proceedings, the Arbitral Tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties as the case may be;

  • (i) If in any case an arbitral tribunal refuses to deliver the award except on payment of costs demanded by it, the court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment in to court by the applicant of the costs demanded;

    (ii) The Court, after inquiry if any required, may order that out of money so paid into court there shall be paid to the arbitral tribunal by way of costs such sum as the court may consider reasonable and that the balance of money, if any, shall be refunded to the applicant;

    (iii) In such cases, the Arbitral Tribunal is entitled of being heard before the Court, unless the fees demanded have been fixed by written agreement;

    (iv) The Court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting of such costs and the arbitral award contains no sufficient provisions concerning them.

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    By: Mr.M. GOVINDARAJAN - January 5, 2011

     

     

     
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