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Arbitration & Conc. Act 1996
Arbitration & Conc. Act 1996
to provide that the Arbitral tribunal gives reasons for its arbitral award.
4.
to ensure that the Arbitral tribunal remains within the limits of its
jurisdiction.
5.
6.
to provide that every final arbitral award is enforced in the same manner
of conciliation proceedings will have the same status and effect as an arbitree
award on agreed terms on the substance of the dispute rendered by an Arbitral
Tribunal; and
9.
arbitration shuts out the jurisdiction of the courts, except as provided in the Act
and since criminal courts cannot be deprived of their jurisdiction to try criminals,
no criminal matter can be referred to arbitration.
The second important feature of arbitration is the agreement between the
parties to a dispute to refer the matter to arbitration. The word reference was
defined in Section (2) (e) of the now repeated Arbitration Act, 1940, this way:
reference means reference to Arbitration.
The Supreme Court has passed the following observation on why
arbitration should be preferred. Arbitration is considered to be an important
alternative dispute redressal process which is to be encouraged because of high
pendency of cases in the courts and cost of litigation. Arbitration has to be
looked up to with all earnestness so that the litigant has faith in the speedy
process of resolving their disputes.
Arbitration agreement
Section (7) (1) of the Arbitration and Conciliation Act, 1996, defines an
arbitration agreement as an agreement by 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. The section requires
that the dispute must be in respect of a defined legal relationship whether
contractual or not. It follows that the discipline must be of a legal nature. The
word defined would signify the known categories of legal relationships and also
the upcoming categories. If the matter or transaction is outside the known
categories of relations under which legal rights or liabilities are likely to be
created, it would not be an arbitrable matter. [ ICICI Ltd., v East Coast Boat
Builders and Engineers Ltd., (1998) 9 SCC 728].
Disputes which can be referred to arbitration are (a) present or future
disputes which are (b) in respect of a defined legal relationship, whether
contractual or not. All matters with a civil nature, with a few exceptions, whether
they relate to present or future disputes may form the subject of reference but
not the dispute arising from and
principle S.8(1) of the act provides that if any party to an arbitration agreement
brings before a judicial authority the matter covered by the agreement, the other
party may apply for stay of the suit and for order of reference to arbitration. A
judicial authority before which an action is sought shall refer the parties to
arbitration. The only condition is that the application shall be accompanied with
the original arbitration agreement or a duly certified copy thereof.
Under the 1940 Act, the court should stay such proceedings if it found
that there were no sufficient reason why the matter should not be referred in
accordance with the agreement. But now under the 1996 Act, S.8 is a mandatory
form under S.34 of the erstwhile 1940 Act the court has the discretion in the
matter either to stay the suit or bring about arbitration or to permit the suit to go
on. Under the 1996 Act (S.8) the word uses is shall. The effect is that the court
has no choice or discretion in the matter and is bound to refer the parties to
arbitration.
In Printers, Mysore Ltd., v Pathan Joseph the Supreme Court took the
opportunity to emphasize that the power to stay a legal proceeding under S.34 of
the 1940 Act was discretionary and the party making such an application could
not as of right claim of stay. The discretionary element in the power of the court
is not applicable in the 1996 Act. Under the new provisions (S.8) of the 1996 Act,
the requirements of stay application and of an order for reference to arbitration
were stated by the Supreme Court in P Anand Gajapati Raju v PVG Raju as
follows:
1.
2.
party,
3.
the subject matter of the action is the same as the subject matter of the
arbitration agreement.
4.
the other party moves the court for referring the parties to arbitration
The court continued to say that the last mentioned requirement creates a
right in the person bringing the action to have the dispute adjudicated by the
court once the other party has submitted his first statement of defence. But, if the
party, ever after making the statement of defence, prays that the matter be
referred to arbitration and the other party has no objection, there is no bar on the
court referring the parties to arbitration. The court was of the view that the
phrase which is the subject matter of an arbitration agreement does not
necessarily require that the agreement must already be in existence before the
action is brought in the court. The phrase would also cover the situation where
the arbitration agreement is brought into existence while the action is pending.
Comparison S.34 of the 1940 Act v S.8 of the 1996 Act
Both the provisions deal with a situation where there is an existing
arbitration agreement with respect to a dispute which is the subject matter of a
suit before the judicial authority. Though the two provisions are somewhat
similar, there are the following vital differences between them:
(i)
While S.34 of the old Act, provided for staying the judicial proceedings,
S.8 of the new Act provides for referring the parties to arbitration.
(ii)
(iii) The application of stay under S.34of the old Act was required to be
made before filing of the written statement or the taking of any other
step in the proceedings, the application under S.8 of the new Act is
required to made by a party not later than when submitting the first
statement on the substance of the dispute.
(iv) While S.34 of the old Act, required that the party making the
application
conduct of
the arbitration both the time when the judicial proceedings were
(i)
(i)
(ii)
(iii)
(iv)
(vi)
The conciliator is not bound by the rules contained in the
code of Civil Procedure, 1908, or the Indian Evidence Act, 1872 (S.66).
However, he should not ignore the principles of natural justice.
(vii)
(viii) The conciliator may invite the parties to meet him or may
communicate with them orally or in writing (S.69(1)).
Procedure of conciliation.
Commencement of Conciliation Proceedings : S.62.