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Arbitral Award
Arbitral Award
The Act of 1940 used the word difference but in the new Act in place of
difference the word dispute has been used. However, the word ‘Dispute’ has not
been defined in the new Act of 1996. The word dispute under ordinary
parameters implies an assertion of right by one party and repudiation by another
party. The word ‘difference’ has a wider meaning but the word ‘dispute’ is more
positive and the difference between the parties when assumed a definite and
concrete form they became dispute. The pre-existence of dispute and difference
between the parties is very essential at the time when the matter is referred to
arbitration. In the absence of dispute between the parties the award made by the
arbitrators or the umpire is a nullity in the eyes of law.
S.9 provides for the making of orders for interim measures to provide interim
relief to the parties in respect of arbitrations before it becomes a decree. The
power of the court include an order in respect of the following matters.
i. The preservation, interim custody or sale of any goods which are the
subject matter of the reference.
vi. Such other interim measure of protection as may appear to the court to be
just and convenient.
Under S.41(b) of the old Act, an application for interim relief could be moved only
if some arbitration proceeding was pending and not otherwise. But under S.9 of
the present Act such an application can be made -
The Supreme Court in Sundaram Finance Ltd. vs NEPC India Ltd. (1999)
has expressed the view that relief can be provided in such cases through arbitral
proceedings have not been commenced provided there is proof of the fact that
the party does not put at rest the rights of the parties.
An interim measure does not put to rest the rights of the parties. The rights
of th parties are required to be adjudicated finally when a reference is made. The
court has the authority and jurisdiction to pass interim orders for protection and
preservation of rights of the parties during the arbitration proceedings but that
does not necessarily mean that if a party has availed of a benefit under this
jurisdiction, the other party cannot put his claim in the main proceeding which is
before th arbitrator. The interim arrangement made by the court has to be given
the interim status.
Conciliation.
Part III of the Arbitration and Conciliation Act 1996 deals with conciliation.
Conciliation means “the settling of disputes without litigation. Conciliation is a
process by which discussion before parties is kept going through the participation
of a conciliator. The main difference before arbitration and conciliation is that in
arbitration proceedings the award is the decision of the Arbitral Tribunal while in
the case of conciliation the decision is that of the parties arrived at with the
assistance of the conciliator.
S.63 fixes the number of conciliators which may be one,two or three. Sub-
section (i) of S.64 provides three rules for the appointment of conciliators.
(i) If there is one conciliator in a conciliation proceeding, the
parties may agree on the name of a sole conciliator.
Principles of Procedure.
The following are the principles of the procedure which are to be abided in
a conciliation proceedings.
(iii) The conciliator and the parties are duty bound to keep
confidential all matters relating to the conciliation proceedings.
Similarly, when a party gives an information to the conciliator on the
condition that it be kept confidential, the conciliator should not
disclose that information to the other party.
(Ss75, 7D, Proviso).
(iv) When the conciliator receives any information about any fact
that relating to the dispute from a party, he should disclose
the substance of that information to the other party (S.70)
(v) The parties should in good faith cooperate with the
conciliator. (S.71)
(vii) The parties have freedom to fix by their agreement the place
where meetings with the conciliator are to be held (S.69(2)).
(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.
The conciliator may invite the parties to meet him. He may communicate
with the parties orally or in writing. He may meet or communicate with the parties
together or separately. The conciliator may conduct the proceedings in such a
manner as he may consider appropriate.
S.74 provides that the settlement agreement shall have the same status
and effect as an arbitral award on agreed terms under S.30. This means that it
shall be treated as a decree of the court and shall be enforceable as such.