ADR Test

Explain the Historical Evolution of Abitration ?

The historical evolution of arbitration law in India is as follows :

The Ancient texts of Yajnavalka and Narada refers that three types of popular courts like

1) Puga,
2) Sreni,
3) Kula.

In villages, till date the disputes are settled by Panchayats as a form of alternative dispute
resolution.

Evolution of Arbitration Law in India

Before Arbitration was recognized by Code of Civil Procedure, it encourages a mode of

settlement of disputes by the Bengal Regulation of 1772, 1780, 1781 and the Cornwallis
Regulation of 1787. Thereafter, the Bengal Regulation of 1793, the Madras Regulation of
1816, the Bombay Regulation of 1827 for arbitration. Again in the years 1877 and 1882, the
concept of arbitration was found in Codes for Civil Procedure. However, there was no
notable change in the law relating to arbitration in these amendments.

In the year 1899, the Indian Arbitration Act came into force which particularly dealt
with laws relating to Arbitration, but, the Act did not apply to disputes which were a subject
matter of suits. The scope of this Act was only limited to arbitration agreements and that
too only in Presidency towns. In the year 1908, the Civil Procedure Code was amended and
pursuant to the amendment the limit of arbitration to only Presidency Towns was removed.

In the mid-1920s, the Civil Justice Committee was appointed to report on the
machinery of “civil justice in the country” which made suggestions for modification of
arbitration laws. However, owing to anticipation of taking cues from the British Arbitration
Laws, it was finally in 1938 that the Government of India appointed an officer to revise the
Arbitration Law. As a result, the first Arbitration Act of the country was enacted in 1940.

The scope of the 1940 Act remained silent on the execution of foreign awards. In fact
a separate law and Foreign Awards (Recognition and Enforcement) Act, 1961 was applied to
the enforcement of awards under the Geneva Convention, 1927 and New York Conventions
to which India was a signatory. Over time, the working of the 1940 Act was found to be
unsatisfactory due to too much court intervention.

In 1977, the functioning of the 1940 Act was questioned and examined by the Law
Commission of India on grounds of delay and hardship caused due to clogs that affect
smooth arbitral proceedings. The Commission instead of reworking the entire framework of
the Act recommended amendment of the provisions, consequent to it. The Arbitration and
Conciliation Act, 1996, was enacted by keeping in mind the 1985 United Nations
International Commission on International Trade Law (UNICTRAL) model law and rules.

Powers of the arbitrator in an arbitration proceeding

1) Power to administer an oath to the parties and witnesses

2) Power to take interim measures

3) Power to proceed to ex-parte

4) Power to appoint an expert

5) Power to make awards

POWER OF THE ARBITRAL TRIBUNAL

The power of Arbitral Tribunal was refered under Article 22 as
1. At any time in the proceedings, the Arbitral Tribunal may attempt to settle the dispute
between the parties, including by addressing them to the Mediation Service of the Chamber
of Arbitration of Milan.
2. The Arbitral Tribunal may issue all urgent and provisional measures of protection, also of
anticipatory nature, that are not barred by mandatory provisions applicable to
the proceedings.
3. Where multiple proceedings are pending before the Arbitral Tribunal, the Tribunal may
order their consolidation, if it deems them to be connected.
4. Where the same proceedings concern several disputes, the Arbitral Tribunal may order
their separation.
5. If a third party requests to join a pending arbitration or if one of the parties to the
arbitration seeks a third party’s intervention, the Arbitral Tribunal shall decide
the application after consulting the parties, taking into consideration all relevant
circumstances of the case.