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UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
SUBMITTED TO: MR. VIKRAM
FACULTY OF A.D.R.
KUMAR SAURABH BHANU ROLL NO: 227; 6TH SEMESTER ,
CHANAKYA NATIONAL LAW
As a child, you acknowledged everything you accomplished, as you grow older and more sophisticated, you acknowledge only major accomplishments but an endeavour of this magnitude would not have been possible without the invaluable help and support of Mr. Vikram sir, I express a deep sense of gratitude to him. But I still fail to understand the scarcity of this page to put in the efforts of all those people who helped me and guided me through this small part of the paper that I have completed. Anything that I do in my life is incomplete without the blessings of my God who are my parents only.
KUMAR SAURABH BHANU
To understand the necessity of UNCITRAL MODEL LAW. FOOTNOTING STYLE: In whole of my project uniform footnoting style is adopted in conformity Chanakya National Law University. 2.R. TOPIC: UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION OBJECTIVES: 1.D. RESEARCH METHODOLOGY: Keeping the objectives in mind. RESEARCH TOOLS: The research of this project was carried with the help of the Internet and Library of Chanakya National Law University.” 3 . Recent and important case laws are analyzed. material was collected with the help of different books and then it was compiled to make the theoretical part of the project.METHODOLOGY OF RESEARCH SUBJECT: A. The methodology of my research is doctrinaire method. To analyze the UNCITRAL Model Law on International Commercial Arbitaration in solving dispute. Patna footnoting style along with “blue book.
.... CONCLUSION........ INDIAN LAW................................ BIBLIOGRAPHY....23 11............................ BASIC FEATURES OF INTERNATIONAL COMMERCIAL ARBITRATION ........5 2............................................................................................8 4....................................... INTRODUCTION.................................................................12 7....................24 4 .............................. HISTORICAL EVOLUTION OF UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ........... WHY INTERNATIONAL COMMERCIAL ARBITRATION?...............................17 10..........14 9.........7 3. UNCITRAL AND ITS WORKING METHODS........................ BACKGROUND TO THE MODEL LAW................................................................... WHAT IS UNCITRAL?..............9 5.........................................TABLE OF CONTENT 1........................................................................................................................................ SALIENT FEATURES OF THE MODEL LAW..................................................................13 8...............................11 6.........
3 See Thomas E. The Model Law is a comprehensive code for arbitration with a special focus on international commercial arbitration. J. 1059. and more recently has extended tradition by the statutory adoption of the UNCITRAL Model Law for international commercial arbitration and the UNCITRAL Rules of Arbitration.. Carbonneau.nsf/viewasattachmentPersonal/0417185A03AF31B7CA256C8A000251 87/$file/GrowthINtArb. cultural norms. The UNCITRAL Model Law on International Commercial Arbitration was first published in 1985 and amended in 1996. COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION 1 (2003) (identifying differing commercial and legal traditions. The Growth of International Arbitration . international commercial transactions have significantly increased in both number and complexity1. 28 BROOK.au/www/ rwpattach. Due to the rise of globalization and the expansion of trading frontiers. The goal is to have individual states adopt 1 See KATHERINE LYNCH. parties are more frequently turning to arbitration as a favourable alternative. REV. and at less cost. 2010) (analyzing available arbitration statistics from different Asian and Pacific regions and identifying an upward trend in the use of arbitration). making business strategies and practices increasingly complex). 586 (2000) 4 http://www. with relevant modifications to fit into its institutional framework. Tatyana V. 11 AM.m 5 . 56 U. M. it enables parties to decide where disputes shall be heard4. 778 (2002) (noting the emerging primacy of international commercial arbitration as the mechanism for resolving contractual disputes). LEW ET AL.gov. THE FORCES OF ECONOMIC GLOBALIZATION: CHALLENGES TO THE REGIME OF INTERNATIONAL COMMERCIAL ARBITRATION 1-2 (2003) (explaining that technological innovations and free trade agreements led to an increase in the number of cross-border transactions. businesses. the head offices of the disputants are different countries or the performance of the underlying contract is in a foreign state. arbitration is recognised as the most effective method of solving commercial disputes. International Arbitration: The Need for Uniform Interim Measures of Relief . Michael Pryles.ag. Note. INT‟L ARB. for example. acknowledging its value as a method of resolving disputes.3 Increasingly. 14.htm visited on 27-03-2011 at 3. INT‟L L. see also JULIAN D. 773.19 p. 585. geography. Slipachuk & Per Runeland.com/htm/arbiinindia. The Indians have long been aware of the advantages of arbitration. it allows parties to adopt whatever procedure they choose for the resolution of differences. 1059 (2003) (noting that increased international trade fostered disputes between states. and individuals). Although national courts are the traditional venues for dispute resolution.ficci-arbitration. this resulted in an increasing number of disputes2.INTRODUCTION A commercial dispute subject to arbitration and in which a significant international elements exists such as.pdf (last visited Apr. 2 See William Wang. REV. It can achieve equitable solutions more quickly than litigation. especially those of an international dimension. Not surprisingly. AUSTRALIAN GOVERNMENT. The agency for future development and promotion of the Model Law is UNCITRAL. and politics as sources of disputes in international transactions). MIAMI L. The Ballad of Transborder Arbitration. ATTORNEYGENERAL‟S DEPARTMENT http://www. Kiev: From Zero to 800 Cases Per Year in Less than 10 Years.
many participants in international trade agreements agree in writing to be contractually bound to the provisions of the Model Law by an arbitration agreement or arbitration clause which refers to it. or (ii) A body corporate which is in corporate in any on n try other than India. 6 . 1996 deals “International commercial arbitration” means an arbitration relating to disputes arising out of legal relationships. the res judicata follows the parties anywhere in the world and it is enforceable in any state that has signed onto the Model Law . or habitually resident in. whether contractual or not. though they had been one of the last to sign onto the 1958 New York Convention . in 1986. has signed onto the Model Law. Section 2(f) of the Arbitration and Conciliation Act. The most important feature of the Model Law is the aspect of the reciprocal registration and enforcement of awards rendered pursuant to it. In this way. All major commercial and trading states have signed on to the first edition of the Model Law (1985) (Canada was one of the first to do so. once an arbitration award has been rendered in one country.the Model Law internally and the treaty is drafted accordingly.which they also signed in 1986). any country other than India. or (iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India. considered as commercial under the law in force in India and where at least one of the parties is(i) An individual who is a national of.thus hindering those who wish to frustrate an award against them. But regardless as to whether their state of citizenship Or which houses the corporation. or (iv) The Government of a foreign country.
The Law of International Trade. including international conventions. national and international6. 7 .WHY INTERNATIONAL COMMERCIAL ARBITRATION? The emergence of modern international commercial arbitration is attributable to Increasing growth in international trade. international commercial arbitration however operates within a framework of different laws. such as the New York Convention and the International Convention for the Settlement of Investment Disputes (ICSID) 5 6 See Redfern and Hunter supra note6 at page 14 Hans Van Houtte. commerce and investment among states and foreign companies. chapter 11. While national arbitration is governed by a single law. content and nature5. It thus transcends national frontiers in scope.
who are primarily foreign parties and their lawyers. The General Assembly. It is acceptable to States of all regions and the different legal or economic systems of the world. The form of a model law was chosen as the vehicle for harmonization and improvement in view of the flexibility it gives to States in preparing new arbitration laws. The Model Law constitutes a sound and promising basis for the desired harmonisation and improvement of national laws. at the close of the Commission's 18th annual session. It is advisable to follow the model as closely as possible since that would be the best contribution to the desired harmonisation and in the best interest of the users of international arbitration. It covers all stages of the arbitral process from the arbitration agreement to the recognition and enforcement of the arbitral award and reflects a worldwide consensus on the principles and important issues of international arbitration practice.HISTORICAL EVOLUTION OF UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION The UNCITRAL Model Law on International Commercial Arbitration was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985. recommended "that all States give due consideration to the Model Law on International Commercial Arbitration. in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice". 8 . in its resolution 40/72 of 11 December 1985.
whether emanating from mandatory or nonmandatory provisions or from a lack of pertinent provisions. Inadequacy of domestic laws A global survey of national laws on arbitration revealed considerable disparities not only as regards individual provisions and solutions but also in terms of development and refinement. Some laws may be regarded as outdated. Disparity between national laws Problems and undesired consequences. The differences are a frequent source of concern in international arbitration. Unexpected and undesired restrictions found in national laws relate. Even the absence of non-mandatory provisions may cause difficulties by not providing answers to the many procedural issues relevant in an arbitration and not always settled in the arbitration agreement. The expectations of the parties as expressed in a chosen set of arbitration rules or a "one-off" arbitration agreement may be frustrated. in mind.BACKGROUND TO THE MODEL LAW The Model Law is designed to meet concerns relating to the current state of national laws on arbitration. Frustrations may also ensue from non-mandatory provisions which may impose undesired requirements on unwary parties who did not provide otherwise. for example. The need for improvement and harmonisation is based on findings that domestic laws are often inappropriate for international cases and that considerable disparity exists between them. and often both parties 9 . Even most of those laws which appear to be up-to-date and comprehensive were drafted with domestic arbitration primarily. or to their interest in having the arbitral proceedings conducted according to the agreed rules of procedure and with no more court involvement than is appropriate. especially by a mandatory provision of the applicable law. to their power to select the arbitrator freely. where at least one of the parties is. if not exclusively. are aggravated by the fact that national laws on arbitral procedure differ widely. While this approach is understandable in view of the fact that even today the bulk of cases governed by a general arbitration law would be of a purely domestic nature. sometimes going back to the nineteenth century and often equating the arbitral process with court litigation. the unfortunate consequence is that traditional local concepts are imposed on international cases and the needs of modern practice are often not met. to the parties' ability effectively to submit future disputes to arbitration. Other laws may be said to be fragmentary in that they do not address all relevant issues.
The choice of places of arbitration would thus be widened and the smooth functioning of the arbitral proceedings would be enhanced if States were to adopt the Model Law which is easily recognisable. impractical or impossible to obtain a full and precise account of the law applicable to the arbitration. 10 . for practical reasons. meets the specific needs of international commercial arbitration and provides an international standard with solutions acceptable to parties from different States and legal systems.are. Uncertainty about the local law with the inherent risk of frustration may adversely affect not only the functioning of the arbitral process but already the selection of the place of arbitration. confronted with foreign and unfamiliar provisions and procedures. For such a party it may be expensive. would be appropriate in the case at hand. A party may well for those reasons hesitate or refuse to agree to a place which otherwise.
The UNCITRAL Model Law provides a pattern that law-makers in national governments can adopt as part of their domestic legislation on arbitration. the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award.uncitral.WHAT IS UNCITRAL? The United Nations Commission on International Trade Law (UNCITRAL) was established by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 "to promote the progressive harmonization and unification of international trade law”.m 11 .org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html visited on 27-032011 at 1. 7 http://www. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world7.11 p. It covers all stages of the arbitral process from the arbitration agreement. The Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration.
when disputes arise.The parties have the choice in appointing their own arbitrators. 8 See Redfern and Hunter supra note 1 at page78. c. who may be experts in international arbitration and or persons with requisite trade or industrial experience in the subject matter of dispute. The Choice of Arbitrators: . The Decision of the Arbitral Tribunal: . As compared to judgment of a court. By invoking the standing offer in a BIT. Where a losing party defaults in satisfying an award. b. The uniqueness about arbitral awards is that it can be enforced internationally under the New York Convention. The Agreement to Arbitrate:-International commercial arbitration is founded on the consent of the parties to the dispute. arbitral awards are not subject to formal appeals.BASIC FEATURES OF INTERNATIONAL COMMERCIAL ARBITRATION International commercial arbitration is held in place by four basic features as follows:- a. Generally. though such decisions could be challenged on stated grounds. the victorious party can enforce it in the court of the country. This makes international commercial arbitration attractive to the international business community. d. where the losing party has its assets located. 12 . private companies are able to initiate arbitral proceedings against sovereign states. unlike a judgment of a court. namely the arbitration clause which refers future disputes to an arbitration.Arbitral awards are enforceable like court judgments. an arbitral award may not be enforced under the New York Convention. trade usages and conventions are brought to bear on the final awards delivered by such arbitral tribunals. without a valid arbitration agreement. By this. The non conventional form is the „Standing Offer‟ in Bilateral Investment Treaties (BIT‟s) between states8.It takes the form of an award which is final and binding. The other is the submission agreement which is usually formulated after a dispute has arisen and the parties agree to arbitrate. There are two classical forms of arbitration agreements. for example that the tribunal was not established in accordance to the agreement of the parties. The Enforcement of the Award: .
Doc. France’s Observations on UNCITRAL’s Working Methods.B. U. and its membership now includes sixty states. Y. monitors the work of the Working Groups. (Dec. international payments. and legalization of documents. reviews technical assistance efforts.N. international commercial arbitration. 48. bankruptcy. 16). 2007) [hereinafter UNCITRAL.N. 12 Id. transportation. UNCITRAL. 2205 (XXI). sales. Doc. Working Groups draft the substantive instruments for specific issue areas12. 78–81. 11 See the full list of original topics including international sale of goods. and finalizes texts prepared by working groups.N. sets the agenda including future work topics.It derives its authority from the United Nations. 1966). A/6396. agency. Its mandate is to harmonize and modernize the law of international trade10. at 1. 10 13 . A/CN.A. reprinted in [1968– 1970] 1 U.9/635 (May 24. U. France’s Observations]. supra note 1. intellectual property. Comm‟n on Int‟l Trade L. 77. 23 U. UNCITRAL has no official rules of procedure13. at 39–41 (listing Working Groups). formed in 1967 with twenty-nine Member States9. at 45–48 (listing UNCITRAL texts). ¶¶ 40. Report of the United Nations Commission on International Trade Law on the Work of its First Session . 17.UNCITRAL AND ITS WORKING METHODS UNCITRAL is an organ of the United Nations. Doc.UNCITRAL‟s Working Methods have evolved in part out of the flexible and adaptive approach that UNCITRAL has taken to its procedures. 13 UNCITRAL. U. insurance. at its annual plenary sessions. inter alia. elimination of discrimination in laws affecting international trade. (No.N. It pursues these goals by preparing both legislative and non-legislative instruments for use in commercial law including.N. GUIDE: BASIC FACTS. Res. 9 G. transport law. UNCITRAL conducts its work through: (i) The Commission (ii) Working Groups (iii) The Secretariat The Commission. ¶ 2. A/7216 (1968). GAOR Supp. id. and securitization11.
As a response to the inadequacies and disparities of national laws. their places of business in different States" (article 1(3)). Substantive and territorial scope of application The Model Law defines arbitration as international if "the parties to an arbitration agreement have. or if the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.e. Another aspect of applicability is what one may call the territorial scope of application. whether contractual or not". Article 1 contains a note calling for "a wide interpretation so as to cover matters arising from all relationships of a commercial nature. there is an important and reasonable exception. Articles 8(1) and 9 which deal with recognition of arbitration agreements. As regards the term "commercial". However. In addition. According to article 1(2). and articles 35 and 36 on recognition and enforcement of arbitral awards are given a global scope. thus emphasizing the width of the suggested interpretation and indicating that the determinative test is not based on what the national law may regard as "commercial". the Model Law as enacted in a given State would apply only if the place of arbitration is in the territory of that State.SALIENT FEATURES OF THE MODEL LAW SPECIAL PROCEDURAL REGIME FOR INTERNATIONAL COMMERCIAL ARBITRATION The principles and individual solutions adopted in the Model Law aim at reducing or eliminating the above concerns and difficulties. no hard and fast definition could be provided. While the need for uniformity exists only in respect of international cases. the desire of updating and improving the arbitration law may be felt by a State also in respect of non-international cases and could be met by enacting modern legislation based on the Model Law for both categories of cases. an arbitration is international if the place of arbitration. at the time of the conclusion of that agreement. including their compatibility with interim measures of protection. i. they 14 . the Model Law presents a special legal regime geared to international commercial arbitration. the place of contract performance. or the place of the subject-matter of the dispute is situated in a State other than where the parties have their place of business. without affecting any relevant treaty in force in the State adopting the Model Law. The footnote to article 1 then provides an illustrative list of relationships that are to be considered commercial. The vast majority of situations commonly regarded as international will fall under this criterion.
the strict territorital criterion is of considerable practical benefit in respect of articles 11. governing the bulk of the provisions of the Model Law. 13 and 14). provided there is no conflict with the few mandatory provisions of the Model Law. even if the place of arbitration is not yet determined.g. further reduces the need for such choice of a "foreign" law in lieu of the (Model) Law of the place of arbitration. 14. This seems justified in view of the fact that the parties to an arbitration agreement make a conscious decision to exclude court jurisdiction and. possibly to another authority (e. which entrust the courts of the respective State with functions of arbitration assistance and supervision. there exists a trend in favour of limiting court involvement in international commercial arbitration. prefer expediency and finality to protracted battles in court. 13 and 14. jurisdiction of the arbitral tribunal (article 16) and setting aside of the arbitral award (article 34). arbitral institution. 27 and 34. challenge and termination of the mandate of an arbitrator (articles 11. as regards articles 8 and 9. A second group comprises court assistance in taking evidence (article 27). chamber of commerce). recognition of the arbitration agreement. 16. by its liberal contents. where national laws allow parties to choose the procedural law of a State other than that where the arbitration takes place. Delimitation of court assistance and supervision As evidenced by recent amendments to arbitration laws. 15 . including its compatibility with court-ordered interim measures of protection (articles 8 and 9). In this spirit. as regards articles 11. the Model Law envisages court involvement in the following instances. in particular in commercial cases. Furthermore. The Model Law. and recognition and enforcement of arbitral awards (articles 35 and 36).apply irrespective of whether the place of arbitration is in that State or in another State and. These instances are listed in article 6 as functions which should be entrusted. not the least because it grants parties wide freedom in shaping the rules of the arbitral proceedings. A first group comprises appointment. This includes the possibility of incorporating into the arbitration agreement procedural provisions of a "foreign" law. to a specially designated court or. specialization and acceleration. was adopted for the sake of certainty and in view of the following facts. 13. The place of arbitration is used as the exclusive criterion by the great majority of national laws and. The strict territorial criterion. for the sake of centralization. experience shows that parties in practice rarely make use of that facility.
which by itself does not take a stand on what is the appropriate role of the courts but guarantees the reader and user that he will find all instances of possible court intervention in this Law. will appreciate that they do not have to search outside this Law. 16 . "no court shall intervene. or fixing of costs and fees. contractual relationship between arbitrators and parties or arbitral institutions. except for matters not regulated by it (e. Especially foreign readers and users. who constitute the majority of potential users and may be viewed as the primary addressees of any special law on international commercial arbitration. in matters governed by this Law".g. including deposits).Beyond the instances in these two groups. consolidation of arbitral proceedings. This is stated in the innovative article 5..
or (ii) A body corporate which is in corporate in any on n try other than India. In Black‟s Law Dictionary. s.2 (1)(f) has two elements. The physical element is that one party 14 http://legalservicesindia. „commercial is defined as: is occupied with business commerce. 17 .2 (1)(f) of the Act. The Indian Arbitration and Conciliation Act. or (iv). The term „commercial‟ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature. The word “commercial” as such has not been defined anywhere in the Arbitration and Conciliation. 1996 is an Act to consolidate and amend the law relating to domestic arbitration. 1996 is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 198514. whether contractual or not. whether contractual or not. any country other than India. The definition of international commercial arbitration in s. or (iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India. or habitually resident in. s. 1996 deals with international commercial arbitration.2(1)(f) of Indian Arbitration and Conciliation Act. considered as commercial under the law in force in India and where at least one of the parties is(i) An individual who is a national of. The Government of a foreign country.INDIAN LAW Arbitration and Conciliation Act.m.com/article/article/commercial-matter-under-indian-arbitration-&-conciliation-act1996-376-1.html visited on 27-03-2011 at 2. one physical and the other conceptual. References have been made to “international commercial arbitration” and has been dealt specifically under s.2 (1) (f) runs as follows: “International commercial arbitration” means an arbitration relating to disputes arising out of legal relationships. international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.44 p.
should be foreigner. No second appeal shall lie before any court except the Supreme Court. from an order passed in appeal under Sec 37. Mere technical objections based on irregularities and defects in form and procedure are not encouraged. or a foreign body corporate. But this does not mean that commercial men are entitled to ignore the fundamental principles of justice and fair play. an association or body of individuals whose central management or control is in foreign hands or a government of some foreign country. The arbitrators are also competent to decide questions of law. limitation and other defences. In commercial arbitrations the arbitrators are bound to decide the questions if raised under the arbitration clause as to frustration. must be such as is considered “commercial” under Indian laws. contractual or otherwise. namely either a foreign national or resident. As far as our Indian practice is concerned. Commercial arbitration The position and duties of an arbitrator in commercial arbitration have undergone significant changes. an appeal shall lie firstly before the same Arbitral Tribunal as per Code of Arbitral Practice and Procedures of the Disputes Settlement Trust and after that only an appeal shall lie before any court for (a) Granting or refusing to grant any interim measure under Sec 9 and Sec 17 (b) setting aside or refusing to set aside an arbitral award under Sec 34. 18 . The conceptual element is that the legal relationship between parties. Courts have gone very far in ignoring the technicalities and irregularities on the part of such arbitrators unless there is some substantial error behind them. or a company. existence of customs or usage in particular trade which is not contrary to public policy or contrary to the terms of the contract. In such cases the award of the Appeal Board is final award according to the agreement of the parties which incorporates the rules of the trade associations. In commercial arbitrations which are conducted under the rules of the tribunal or arbitration framed by various trade associations-a two-tier system of arbitration is usually provided under which an appeal lies from the award of the arbitrator or the umpire to an Appeal Board constituted to the rules of the associations.
(i) The arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substances of the dispute. 19 . S. 1996. since the Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration. the arbitrat tribunal shall apply the rules of law it considers to be appropriate. Ltd(1989). given all the circumstances surrounding the dispute. (b) In international commercial arbitration.. must be consistent with its literal and grammatical sense. as directly referring to the substantive law of that country and not to its conflict of laws rules. liberal construction is to be given to any expression or phrase used in the Act which. unless otherwise expressed. (ii) Any designation by the parties of the law or legal system of a given country shall be construed. v.Commercial under Indian Law: There is no definition as such for the term “commercial” under the Arbitration and Conciliation Act. Hindustan Petroleum Co. As pointed out by the Supreme Court in Koch Navigation Inc. Moreover the Preamble itself shows that the entire Act 1996 is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.28 of the Act deals with the rules applicable to substance of disputes and it reads as follows: “(1) Where the place of arbitration is situate in India.” The expression „commercial‟ should be construed broadly having regard to the manifold activities which are integral part of international trade to-day. (iii) Failing any designation of the law under clause (a) by the parties. the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India. (a) In an arbitration other than an international commercial arbitration. however.
The division bench of the Bombay High Court in European Crain and Shipping Ltd. commercial representation or agency. leasing.M. The division bench held that it was not necessary that there should be a statutory provision enumerating such legal relationship for determining whether the relationship is commercial or not. carriage of goods or passengers by air. Relationships of commercial nature include.Ltd v. rail or road”. The Supreme Court in Sudaram Finance Ltd. widest meaning must be given to the word “commercial”. The intent of the Legislature while using the above phrase was that in matters of commercial contracts foreign arbitrations and awards should be recognised and enforced. where it was held that mere use of the word „under‟ preceding the words „ the law in force in India‟ would not necessarily mean that one has to find a statutory provision or a provision of law which specifically deals with the subject of particular legal relationship being commercial in nature. Having regard to the purpose of the Act. joint venture and other forms of industrial or business co-operation.In Fatechand Himmatlal v. In Kamani Engg. guidance can also be taken from UNCITRAL Model law: “the term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature. whether contractual or not. banking. licensing. D’Electricity Sociate Anonyme. financing. The Supreme Court in R. State of Maharashtra(1977). but are not limited to the following transactions: any trade transaction for the supply or exchange of goods or services. sea. Ltd v. Boeing C15 observed that while construing the expression of „commercial relationship‟. has observed that the provisions of the 1996 Act have to be interpreted being uninfluenced by the principles 15 16 AIR 1994 SCN 1136 [(1999) 2 SCC 479 20 . construction of works. Neither side has been able to point out any particular law wherein the phrases “commercial” or “matters commercial” have been defined. distribution agreement. it was observed: “it is difficult to find the exact meaning of the phrase “matters considered as commercial under the law in force in India”. factoring. investment. Vs.16. Societe De Traction Et. Bombay extractions(P) Ltd. insurance. engineering. NEPC India Ltd. consulting.Investments & trading Co.P. v. Supreme Court observed that any service or activity which in the modern complexities of business would be considered to be a lubricant for the wheels of commerce is „commercial‟. exploitation agreement or concession.. Corp.
com/2233076 21 . or (c) An exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (4) An arbitration agreement is in writing if it is contained in(a) A document signed by the parties. whether contractual or not. 1996 deals Arbitration agreement. The arbitration proceeding are governed by the agreement signed between the parties to the agreement and the Indian Courts have a very limited role in the arbitration proceedings. (5) There reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. telex. 17 Article Source: http://EzineArticles. “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. Section 11 of the Arbitration and Conciliation Act 1996 deals with the appointment of arbitrator by the court when the other party fails to appoint the arbitrator in terms of the arbitration agreement. (b) An exchange of letters. Section 7 of the Arbitration and Conciliation Act. it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The Arbitration and Conciliation Act 1996 is largely based on the model law of United Nations Commission for International Trade Law (UNCITRAL). telegrams or other means of telecommunication which provide a record of the agreement. It means(1) In this Part. international commercial arbitration and enforcement of foreign arbitral award as also to define the law relating to conciliation17. The Indian arbitral system was governed by the Code of Civil Procedure 1908 until the Arbitration Act of 1940 came into force and it was later replaced by the Arbitration and Conciliation Act 1996 to consolidate and amend the law relating to domestic arbitration.underlying the 1940 Act and in order to get help in construing the provisions of the said Act. (3) An arbitration agreement shall be in writing.
Section 34 of the Arbitration and Conciliation Act 1996 deals with application to the Court for setting aside an award.Section 9 of the Arbitration and Conciliation Act 1996 deals with the interim relief where any party to the arbitration may approach the High Court for the seeking urgent and interim relief even though the arbitration proceeding has not started. The grounds are very limited and generally courts in India do not interfere with the award passed by the arbitrator unless there is a gross error of facts and law18. 18 Ibid. 22 .
1996. The Indian Arbitration and Conciliation Act.26 of 1996) provides: “An Act to consolidate and amend the law relating to domestic arbitration. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985. which provides for maximum judicial support of arbitration and minimal intervention. contemporary and progressive legal framework to support international arbitration that is on a par with that of the world's leading arbitration institutions. 1996 (No. international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto”. 23 .CONCLUSION The preamble of Indian Arbitration and Conciliation Act. India has a comprehensive. Party autonomy and maximum judicial support with minimum judicial intervention are the abiding features of the New Arbitration and Conciliation Act. 1996 the governing arbitration statute in India.
Lucknow. www. Law relating to Arbitration and Conciliation in India.com 24 . 4th edition.V.. N.com 4. Eastern Book Company. www. International Trade Law. Dr. Lexis. Alternative Disputes Resolution.com 3. www. www. 6th edition.com SEARCH ENGINE: 1.Nexis Butterworth‟s. Allahabad Law Agency 4. Myneni.legalserviceindia. Central Law Agency. New Delhi. Allahabad.yahoo. www.lexis-nexis.. Singh Avatar.. www. Negotiation and Mediation. 1st edition. S. Sridhar. 2009 2.BIBLIOGRAPHY: BOOKS: 1. Law of Arbitration and Conciliation.org 2.ebc-india.com 2.com 3. 2006 3.google.R.manupatra. 1st edition. www.2008.uncitral. Paranjape. 2002 WEBSITES: 1. M.
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