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Akshay Raj PRN: 16010323006 Div - A Batch 2016-2021
Akshay Raj PRN: 16010323006 Div - A Batch 2016-2021
PRN: 16010323006
Div - A
Batch 2016-2021
The provisions which are non-mandatory, the parties may derogate and one of the
parties has right to object but only within reasonable time without undue delay.
● Thus u/s 4 if the parties know such derogable deviation does not raise objection
within reasonable time or within the time limit for making such objection, then it is
Principles of waiver
1. Sec 4 is based on the principle of estoppel, through which a party with knowledge
of written pleadings.
3. Narayan Prasad labia v Nikunj Kumar Lohia section 10 stated that the parties can
appoint any no. of arbitrators but not an even number. The SC declared that s 10 is
a derogable provision & any deviation must be questioned within reasonable time.
u/s sec 4 when it is not objected within reasonable time the right of object is
waived.
4. ONGC Vs Saw pipes. if the tribunals fail to follow mandatory provisions U/s
section 24, 28, 31(3) etc. are patently illegal and award may set aside under section
34.
know after the award has been made then section 4 does not apply and challenge
can be made under section 34. This is because without knowledge of non-
6. The object must be raised without delay for non-applicability of section 4 the object
must be within reasonable time limit, which is calculated from the time from which
condition. The waiver under section 4 does not apply if party gets the knowledge
Q1.What are the various Alternative Dispute Resolution methods available? Explain the
limitations of each of the ADR’S which are legally recognized in India.
Answer:
The ADR mechanism has proven to be one of the most efficacious mechanisms to resolve
commercial disputes of an international nature.
Negotiation:
A non-binding procedure in which discussions between the parties are initiated without the
intervention of any third party, with the object of arriving at a negotiated settlement of the
dispute.
Mediation:
Mediation is more formal but still leaves control of the outcome to the parties. An impartial
mediator helps the parties try to reach a mutually acceptable resolution to the dispute. The
parties control the substance of the discussions and any agreement reached. A typical session
starts with each party telling their story. The mediator listens and helps them identify the
issues in the dispute, offering options for resolution and assisting them in crafting a
settlement.
Arbitration:
Arbitration is the most formal of the ADR procedures and takes the decision making away
from the parties. The arbitrator hears the arguments and evidence from each side and then
decides the outcome of the dispute. Arbitration is less formal than a trial and the rules of
evidence are usually relaxed. Each party can present proofs and arguments at the hearing.
There isn’t, however, any facilitative discussion between the parties. Unlike other forms of
ADR, the award is often supported by a reasoned opinion.
Limitation:
It means it is possible that you could invest the time and money in trying to resolve the
dispute out-of-court and still end up having to proceed with litigation and trial before a judge
or jury.
With very few exceptions, the decision of a neutral arbitrator cannot be appealed, with fraud
being an obvious exception. Additionally, some states will not enforce decisions of arbitrators
that are patently unfair, a high standard to meet. Decisions of a court, on the other hand,
usually can be appealed to an appellate court for a variety of legal grounds and for numerous
Limitations of Negotiation:
Parties May Have Unequal Power. Not All Issues Are Negotiable. Negotiations are a Stalling
Tactic.
Limits on Arbitration Awards.
Arbitrators can only resolve disputes that involve money. They cannot issue orders
Warning.
The parties pursuing ADR must be careful not to let a Statute of Limitation run while a
dispute is in any ADR process. Once the statute expires, judicial remedies may no longer be
available.
Question- 4. Define Arbitration Agreement. What are the forms and formalities of
arbitration agreement?
Answer:
It is known to us that section 2(l)(b) of the Act of 1996 provides that the word "Arbitration
Agreement" is to be interpreted and understood with reference to 7 of the A&C Act, 1996.
Section 7 of the Arbitration and Conciliation Act of 1996 defines arbitration agreement as an
agreement by the parties to refer to arbitration all or some disputes which have arisen or will
arise on a future date between them with reference to a defined legal relationship, whether
contractual or not.
An Arbitration agreement is made by any two parties entering into a contract by which any
disputes arising between them with regard to the contract agreement is to be resolved,
without going to the Courts and with the help of an Arbitrator. The agreement should mention
who should select the arbitrator, regarding what kind of dispute the Arbitrator should give
1. Written Agreement
2. Under section 7(5) arbitration agreement by incorporation deals with the situation
where the requirements of the arbitration process are mentioned but arbitration is not
arbitration agreement. But where the word is not expressly used, the contract thus
The reference to other documents in the main contract must expressly include
Question-6. What are the matters which are outside of preview of arbitration?
Answer:
There are some matters which are outside the jurisdiction of arbitration proceedings.
Following are some of those-
1. Criminal cases- since they are public offences. The only exception is the Legal
Services Authority Act which lists compoundable criminal offences for ADR.
2. Matrimonial Disputes which results in judgement in rem or declaratory judgement
are not arbitrable. However, where the dispute gives a judgment in personam, then
it may be resolved through arbitration since it only binds the parties and not a third
party.
3. Guardianship matters are dealt by a public forum only.
4. Testamentary proceedings, i.e. probate matters since it is judgement in rem and
non-arbitrable
5. Insolvency proceedings also are judgement in rem and non-arbitrable.
6. Winding up proceedings under Company law- Haryana telecom Ltd vs Sterlite
Industries Ltd. Claim inn a petition for winding up is not only for money and
should be dealt with by the body prescribed by special enactment i.e. NCLT only.
7. Labour Disputes- Industrial Disputes Act U/s 10 gives only specific cases where it
may be by ADR but no other dispute may be referred.
8. Consumer Disputes- They are governed by Consumer Protection Act.
9. Disputes under Trusts Act- The Supreme Court held that the Trusts Act provides for
specific mechanisms for beneficial ownership and admin ownership with trustees.
The disputes between trust/trustee and third parties are not under ADR and Act
provides for jurisdiction of court for disputes under the act.
3.Explain the salient features of the Arbitration and Conciliation Act , 1956 and factors
influenced the legislature in bringing Arbitration and Conciliation Act, 1996.
Answer:
Part I of the Act lays down rules for domestic arbitration which can only be applied if the
seat or place of arbitration is within the territorial limits of India, Part II relates to
enforcement of certain foreign awards, Part III provides for the rules regarding conciliation
and Part IV contains certain supplemental provisions.
● The Act emphasises the importance of the Arbitration agreement without which
arbitration proceedings cannot be instituted. The arbitration agreement is a clause in a
contract or an agreement between parties stating that any dispute will be referred to
arbitration proceedings.
● The Act mentions that the arbitration agreement or arbitration clause must contain the
following information – subject matter of dispute, timing of dispute
(past/present/future), number of arbitrators, qualifications of arbitrators, jurisdiction
and composition of tribunal.
● The Act empowers parties to choose the seat of the arbitral tribunal or place of
arbitration, and the venue of the arbitration proceedings to be conducted by the
tribunal.
● The parties can choose the rules relating to conduct od the arbitral tribunal and if so,
must be specified in the arbitration agreement or arbitration clause
● True to the spirit of arbitration, the Act allows parties to choose the substantive law to
be applied by the arbitration tribunal and this must also be mentioned in the
arbitration agreement.
● The Act also specifies that the arbitration agreement must contain provisions
regarding the mandate of the arbitration and the termination of this mandate
The Act also specifies the power and functions of the Tribunals, abolishes the umpire system
allows new forms of conciliation, provides for finality of awards by the arbitrators, states
rules for international applicability and enhances powers of the arbitrators.