Arbitration presentation - Capt M. V. Naik

1. 1
General Introduction, Important
provisions, Supervisory powers of the
Court & Sections 2, 4, 5, 7, 8 and 9
Capt. Mohan Naik, ExC, MCIArb, FNI. FICS, LLB, LLM,
LMAA- (supporting member)

2. 2
•1996 Act- Tried to provide expeditious & effective
Dispute Resolution framework through arbitral
procedure which was fair, efficient & capable of
meeting the needs of the specific arbitration &
minimizing the supervisory roles of courts in the
process.
•2015- Tried to remove high costs & delays,
especially due to some judicial precedents. Aimed
at providing smooth & prompt settlement of
domestic & International Commercial disputes.

3.  Cover Domestic and International Arbitrations/
Conciliation;
 Make procedure fair, efficient & capable of needs;
 Give reasons for arbitral awards;
 Ensure limits of jurisdiction of the Tribunal;
 Minimize supervisory roles of courts;
 Permit tribunal to use other procedures for
settlement of disputes ( Mediation/ Conciliation
etc);
 Final Award enforced akin to a decree of Court;
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4.  Settlement agreements as a result of
Conciliation to have same status/ effect as
Arbitral awards;
 Enforcement of Foreign awards under the two
international conventions to which India is a
party;
 Based on UNCITRAL Model law.
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5.  1(a)- Arbitration- Any arbitration, not
necessarily administered by a permanent
arbitral institution;
 (b)-Arbitration agreement- As referred to in
Section 7;
 ©- Arbitral award- Includes an interim award;
 (d)- Arbitral tribunal- a sole arbitrator or a
panel of arbitrators;
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6.  S2/1(e)- Court- (i)- Domestic arbitration- in a
district- the principal civil court including the
HC, civil courts inferior to principal civil court
and small causes court are excluded
 (ii)- International Commercial arbitration
(ICA)- Only HC of Competent Jurisdiction,
District courts are excluded.- expect speedier /
efficacious determination of disputes. HC
better equipped in commercial disputes.
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7.  S 2/1(f)- Arbitration relating to disputes arising
out of legal relationships, whether contractual or
not, considered as commercial under Indian Laws
& where at least one of the parties is-
(i) an individual who is a national of, or habitually
resident in, any country other than India; or
(ii) a body corporate which is incorporated in any
country other than India; or
(iii) An association or a body of individuals whose
central management / control is exercised in any
country other than India; or
(iv) the Govt. of a foreign country.
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8.  1(g)- Legal representative- a person who by
law represents the estate of a deceased person,
including any person who intermeddles with
estate of the deceased, and, where a party acts
in a representative character, the person on
whom the estate devolves on the death of the
party so acting.
 Section 40- arbitration agreement doesn’t end
with the death of a party
 Section 35- Legal representatives of a deceased
party have aright to enforce the award
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9.  1(h)- Party- Means a party to an arbitration
agreement
 2- Part 1 applies when place of arbitration is in
India ( new proviso added in 2015 where
certain sections in part I apply for ICA award
out of India but enforceable in India under Part
II of the act ) Thus an Indian court can now
exercise jurisdiction in certain conditions when
seat of arbitration is outside India.
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10.  The New proviso to S/2(2) introduced in 2015-
that subject to an agreement to the contrary,
the provisions of Sections 9 ( interim
measures etc. by Court) , 27 ( Court assistance
in taking evidence), 37 /1(a) ( Appealable
orders) and 37/ 3 ( No second appeal except to
SC), shall also apply to ICA even if arbitration
is held outside India, and an arbitral award
made or to be made in such place is enforceable
and recognized under the Part II of the Act.
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11.  Extent of Judicial Intervention limited as per
Part I – Section 5
 To refer parties to arbitration where there is an
Arbitration Agreement– Section 8
 To take Interim measures etc – Section 9
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12.  Appoint arbitrators if required – Section 11
 Power to remove arbitrator- Section 14
 May assist in taking Evidence- Section 27
 Can extend time for concluding arbitration
proceedings- Section 29A & 29B
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13.  Regime for costs in Court proceedings- Section
31A
 Can correct/ set aside awards- Section 34
 Enforcement/ stay of awards – Section 36
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14.  Deal with Appeals- Section 37
 Only one court to maintain jurisdiction- Section 42
 Direct production of records & enforcement of NY
& Geneva convention awards- Sections 47 & 49/ 56
to 58
 Hear appeals from orders- Sections 50 & 59
 HC can make rules for all proceedings - Section 82
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15.  Court/ judicial authority obliged to refer parties to
arbitration where the dispute is a subject matter of
an arbitration agreement when a party applies;
 Application to be Not later than date of submitting
his first statement with original arbitration
agreement or duly certified copy;
 If original agreement with other party then the
applying party may petition court to obtain the
original from the other party;
 Meanwhile arbitration proceedings can commence.
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16.  Interim measure available before, during or after
arbitration proceedings but before enforcement;
 2015- amendment- Arbitration proceedings to be
commenced within 90 days or as defined by court,
by party securing such order prior to
commencement of arbitration,
 No application will be entertained by the court
where the arbitration proceedings have already
commenced unless an order u/s 17 i.e. ordering of
interim measure by the Tribunal cannot be made
efficacious.
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17.  Appointment of guardian
 Preservation/ custody/ sale of goods which
are part of the subject matter
 Securing amount in dispute in the subject
matter
 Detention/ preservation/ inspection/ of any
property or thing, which is the subject matter
of dispute, including authorizing any person to
enter any land/ building, samples to be taken/
observations/ experiments / purpose of full
info/ evidence;
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18.  Interim injunction or appointment of a receiver
 Any other interim measure of protection which
may appear to the court as just and convenient;
 Court has same powers under this section as it
has in a similar matter before it;
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19.  2015 amendment has given the Tribunal same
powers as the court to enforce interim
measures ordered by it;
 Under this section the Tribunal has the powers
to grant the same interim measures to a party
as the court u/s 9;
 Subject to s/37 ( appealable orders) orders
under this section shall be enforceable under
the CPC 1908, in the same manner as if it were
an order by the court.
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20.  The Tribunal or a party, with the approval of
the Tribunal may apply to the Court for
assistance in taking evidence;
 The application should specify the details
clearly as per the section;
 The Court may order the evidence to be
supplied directly to the Tribunal;
 Court may issue same processes to witnesses as
in suits tried before it;
 Persons failing to attend under such order
would be liable for contempt of Court.
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21.  Appeal would lie against orders passed by the judicial
authority under section 8 ( power to refer parties to
arbitration where there is an arbitration agreement);
 Appeals will be entertained by court authorized to hear
appeals;
 Appeal can be against orders refusing to refer parties
to arbitration;
 Can be against interim measures;
 Can be against setting aside or refusing to set aside
award;
 Appeal can also be against orders of the Tribunal
under s/ 16 ( jurisdiction of Tribunal and/or
exceeding its authority) or S/ 17 ( Interim measures) ;
 No second appeal except right to appeal to SC
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22.  Sec 5- Enercon (India) Ltd v Enercon GMBH,
AIR 2014 SC 3152 – Courts to be conscious of
the overreaching policy of least intervention by
courts and judicial authorities.
 Swiss timing Ltd. v CWG Organizing
Committee, (2014) 6 SCC 677 –No risk of
prejudice to any party in permitting arbitration
to proceed simultaneously to the criminal
proceedings, in an underlying contract.
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23.  Section 17- M.D. Army Welfare Housing
Organization v. Sumangal Services Pvt. Ltd.,
(2004) 9 SCC 619 ; the SC stated,
… This would reduce the burden on courts. The
amendment now no longer leaves the arbitral
tribunal as a toothless tiger.
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24.  This controls the conduct of the parties during
the arbitration
 Purpose to discourage unnecessary technical
objections with regard to the continuation or
otherwise of the arbitration proceedings and
challenge to the award on that ground.
 Not to unnecessarily prolong the proceedings
on such objection which may be waived;
 Objection to be raised as soon as possible
otherwise the right to object is waived.
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25.  No Judicial authority shall intervene except
where so provided in the Act
 All other statutes have been excluded from
operation insofar as they relate to intervention
by any judicial authority in matters covered by
sections 1 to 43 ( Part I),
 However, the courts shall have power to
intervene if so permitted specifically by any of
the provisions contained in Part I of the Act.
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26.  For facilitation of conduct of the proceedings,
the parties, or the tribunal with the consent of
the parties, may arrange for administrative
assistance by a suitable institutions or person;
 Example – ministerial acts
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27. Essentials-
 There must be a present or future difference in
connection with some contemplated affairs’
 There must be the intention of the parties to
settle such disputes,
 The parties must agree in writing to be bound
by the decision of such tribunal ( email
included ),
 The parties must be ad idem ( to the same
things)
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28. Thank you for your
Attention.
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