What is Arbitration?

“Arbitration is a mechanism for the resolution of disputes which takes place, usually in private ,
pursuant to an agreement between two or more parties, under which parties agree to be bound by
the decision to be given by the arbitrator according to law and being enforceable at law”.

Section 17 Interim measures ordered by arbitral tribunal.—

1. A party may, during the arbitral proceedings apply to the arbitral tribunal—
i. for the appointment of a guardian for a minor or person of unsound mind for the
purposes of arbitral proceedings; or
ii. for an interim measure of protection in respect of any of the following matters,
namely:—
a. the preservation, interim custody or sale of any goods which are the subject-
matter of the arbitration agreement;
b. securing the amount in dispute in the arbitration;
c. the detention, preservation or inspection of any property or thing which is the
subject matter of the dispute in arbitration, or as to which any question may
arise therein and authorising for any of the aforesaid purposes any person to
enter upon any land or building in the possession of any party, or authorising
any samples to be taken, or any observation to be made, or experiment to be
tried, which may be necessary or expedient for the purpose of obtaining full
information or evidence;
d. interim injunction or the appointment of a receiver;
e. such other interim measure of protection as may appear to the arbitral tribunal
to be just and convenient, and

the arbitral tribunal shall have the same power for making orders, as the court has for the purpose
of, and in relation to, any proceedings before it.
Setting aside of arbitral award:

In accordance with Section 34 of the Arbitration and Conciliation Act, 1996 that states that the
Court can set aside the arbitral award if:

 The party was under some type of incapacity.

 The arbitration contract is not valid under the law to which parties have been
subjected to.

 The party making the application for invoking the arbitration has not given proper
request to the other party for the appointment of the arbitrator.

 The award deals with the disputes not falling or comes under the submission of the
arbitration or contains matter beyond the scope of arbitration.
(b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with
the public policy of India

What is Ad Hoc Arbitration?

An ad hoc arbitration is any arbitration in which the parties have not selected an institution
to administer the arbitration. This offers parties flexibility as to the conduct of the arbitration,
but less external support for the process.

Fast Track Arbitration: 29B. Fast track procedure.—

Fast Track Arbitration provides for completion of Arbitration proceeding in 6 months, relying
purely on documents

The parties to an arbitration agreement, may, at any stage either before or at the time of
appointment of the arbitral tribunal, agree in writing to have their dispute resolved by fast track
procedure.
The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track
procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be
chosen by the parties.

The arbitral tribunal shall follow the following procedure while conducting arbitration
proceedings under sub-section (1):—

a. The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents
and submissions filed by the parties without any oral hearing;
b. The arbitral tribunal shall have power to call for any further information or clarification
from the parties in addition to the pleadings and documents filed by them;
c. An oral hearing may be held only, if, all the parties make a request or if the arbitral
tribunal considers it necessary to have oral hearing for clarifying certain issues;
d. The arbitral tribunal may dispense with any technical formalities, if an oral hearing is
held, and adopt such procedure as deemed appropriate for expeditious disposal of the
case.
4. The award under this section shall be made within a period of six months from the date
the arbitral tribunal enters upon the reference.

The case of A. Ayyasamy v. A. Paramasivam  (“Ayyasamy”) further clarified this rule by

carving out the following two categories of disputes which may not be subject to arbitral
proceedings:

1. Disputes falling within the exclusive jurisdiction of a special court under a special statute;
and,
2. Disputes which are generally considered by the courts as appropriate for decision by
public fora, for instance, disputes pertaining to rights in rem (the 6 categories of disputes
specified in Booz Allen).

The Supreme Court’s 2011 judgment in Booz Allen and Hamilton Inc v. SBI Home Finance
Ltd. & Others (“Booz-Allen”) forms the foundation for any discussion on the question of
arbitrability in India as it laid down a test for determining whether a subject-matter of a dispute is
capable of arbitration in India or not (the “Booz-Allen Test”). In Booz-Allen, the Supreme Court
observed that the question of arbitrability is to be decided on the basis of the ‘nature of rights’
involved in the dispute. If the dispute involves a right in rem, i.e., a person’s right against the
world at large, the dispute is not arbitrable. On the other hand, if a dispute involves a right in
personam, i.e., rights against specific individuals, such as in a contract, the dispute is arbitrable.
The Supreme Court applied the test and carved out a list of six categories of disputes that are not
arbitrable: (1) disputes which give rise to or arise out of criminal offences; (2) matrimonial
disputes, (3) guardianship matters; (4) insolvency and winding up matters; (5) testamentary
matters; and (6) eviction or tenancy matters.  

Mediation

“A facilitative process in which disputing parties engage the assistance of a third party, the
mediator, who helps them to try to arrive at an agreed resolution of their dispute.

Advantages of Mediation

I. Expeditious, inexpensive and procedurally simple than adversarial problem solving.

II. It helps the parties re-adjust their conflicting perspectives and view their concerns in a
much broader framework than simple legal issues.
III. Parties have more autonomy in mediation than they would in an adjudication process.
IV. Parties control the outcome of the process and this usually results in a high degree of
compliance with mediated agreements.
V. Studies show that parties have greater commitment to abide by a mediated greement
than with a court judgment.

Disadvantages of Mediation

I. Mediation as a process is independent of the judicial system and therefore lacks the
procedural protections of justice.
II. Mediation is neither a ‘truth’ nor a ‘fault’ inquiry.

What is ZOPA?
A zone of possible agreement (ZOPA) is a bargaining range in an area where two or more
negotiating parties may find common ground.

BATNA

In negotiation theory, the best alternative to a negotiated agreement or BATNA refers to the most
advantageous alternative course of action a party can take if negotiations fail and an agreement
cannot be reached. The exact opposite of this option is the WATNA.