ADR Slides - Merged

What is meant by ADR
➢ Alternative Dispute Resolution or ADR refers to an assortment

of dispute resolution procedures
➢ that primarily serve as alternatives to litigation and
➢ are generally conducted with the assistance of a neutral and
independent third party.
➢ Mediation, Conciliation, Arbitration, Lok Adalats, Med-Arb,
Early Neutral Evaluation and Mini Trial are some of the
examples of ADR procedures.
➢ ADR is essentially based on the philosophy that a dispute is a
problem to be solved together rather that a combat to be won
and
➢ it visualizes a participative and collaborative effort of the
disputant parties, facilitated by the ADR neutral, to arrive at an
acceptable resolution of the dispute outside the litigative
process.
Definition of ADR
1. “ADR is a procedure for settling a dispute by means other than litigation”
Black’s Law Dictionary 112-113, Bryan A. Garner (Ed.), (West Publishing Company, St.
Paul, Minnesota, 8th Edn., 2004);
2. “Alternative dispute resolution or “ADR” refers to a wide range of dispute

resolution mechanisms or techniques that share one essential characteristic: They
all differ from the dispute mechanism of litigation in a federal or a state court. “
Katherine V.W. Stone, “Alternative Dispute Resolution: Encyclopedia of Legal History”,
research paper, University of California, Los Angeles School of Law, available
at: http://papers.ssrn.com (last visited on 25.06.2020).
3. “Alternative Dispute Resolution or ADR is usually an umbrella term for processes,
other than judicial determination, in which an impartial person (an ADR practitioner)
assists those in a dispute to resolve the issues between them. ADR is commonly used as
an abbreviation for alternative dispute resolution, but can also mean assisted or
appropriate dispute resolution. The main types of ADR are mediation, arbitration and
conciliation. [summary is courtesy of the National Alternative Dispute Resolution Advisory
Council (NADRAC)]”
Law Council of Australia , Available at https://www.lawcouncil.asn.au (last visited
25.06.2020)
4. “..an alternative dispute resolution process includes any process or procedure, other
than an adjudication by a presiding judge, in which a neutral third party participates to
assist in the resolution of issues in controversy, through processes such as early neutral
evaluation, mediation, minitrial, and arbitration…”
United States of America, the Alternative Dispute Resolution Act, 1998 which has amended
s. 651 of title 28.- https://www.transportation.gov/civil-rights/pl-105-315-28-usc-651-
alternative-dispute-resolution-act-1998 (last visited 25.06.2020)
5. “Alternative Dispute Resolution System" means any process or procedure used
to resolve a dispute or controversy, other than by adjudication of a presiding judge
of a court or an officer of a government agency, as defined in this Act, in
which a neutral third party participates to assist in the resolution of issues, which
includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or
any combination thereof”
SEC. 3(a), Alternative Dispute Resolution Act, 2004 (Republic
of Philippines). https://lawphil.net/statutes/ (last visited 25.06.2020)
Evolution of ADR
❖Constitutional Provisions ❖Commercial Matters, Recovery Suits,
❖Article 14 Specific Performance, Suppliers and
❖Article 39A Consumers, Bankers, tenancy, insurance
❖Law Commission Report etc
❖Civil Procedure Code ❖Matrimonial Matters
❖Section 89 ❖Labour and Employer/Employee cases
❖Article 33 of United Nations Charter ❖Consumer matters
❖Legal Service Authority Act, 1987 ❖Compoundable Offences
❖Arbitration and Conciliation Act 1996 ❖Tortious liability cases – MACT etc
Alternative models of Dispute Settlement
ARBITRATION IN TERMS OF ARBITRATION AND CONCILIATION ACT.
OVERVIEW OF ITS PRACTICAL IMPLEMENTATION IN THE FIELD OF
ADR
Mr. Abhishek Kaushik

Co-Faculty
INTRODUCTION
ORIGIN OF THE LAW OF ARBITRATION IN INDIA

Arbitration law evolved with time from learning the experiences and difficulties
faced by Courts, litigants and lawyers to have disputes settled by domestic
tribunals.
Institutions evolve in natural manner in which the organic world evolves by which
they are generally transmuted.
Arbitration law in its present form gathered progressive vigour in transplantation

from English to Indian soil.
Arbitration law in ancient India found in researches of eminent jurists
• Mr. K.P. Jayaswal's “Hindu Polity”,

• Publications of Mr. K.R.R. Sastry of Allahabad University, e.g., “Guilds in
Ancient India”,
• Mahamahopadhyay Sir Ganganath Jha's “Hindu Law in its Sources”,
• Sir Frederick Pollock's “Expansion of the Common Law” and “Primitive
Law” in the ‘Evolution of Law Series’,
• Kautilya's Arthashastra, etc
4000 BC & 200 BC
• Descriptions in Sumerian inscriptions of about 4000 B.C. of settlement of

international disputes by arbitration, or of private disputes in Homer's Illiad.
• Peace Foundation Pamphlet, Vol. VI - innumerable cases of settlement of

international disputes, between periods going back to about 200 B.C. and
ending with the eighteenth century.
Basic idea of arbitration has been settlement of differences by tribunals chosen
by parties themselves.
In ancient India there were three grades of arbitrators, the PUGA, the SRENI and
the KULA, who, formed different degrees of the Panchayet.
According to Colebrooke these three assemblies were different degrees

of Panchayet, which was not in the nature of a jury or village tribunal, but
a system of arbitration, subordinate to and under control of the regular
Courts of Justice.
TIMELINE OF ARBITRATION LAWS
1784 British Parliament passed a statute, viz., 24 Geo. III, Ch. 25, (25th Act passed
during the session that started in the 24th year of the reign of George III)
establishing a Board of Commissioners for Indian affairs.
*** 24 Geo. III, Ch. 25, -The Pitt’s India Act, 1784 also called the East
India Company Act, 1784
1776 Lord Cornwallis sent to India 1786.
1787 Lord Cornwallis in 1787 proceeded to give effect to the directions he had
received in England, viz., to frame rules for administration of justice founded
on the ancient law and local usages prevailing in India.
Regulations before Cornwallis, instead of abolishing Panchayets,

recommended parties to submit their disputes in certain matters to arbitration.
1780-1781 Bengal Regulations of 1780 and 1781 - Distinct attempts to enlarge scope
of arbitration were made.
The common feature of all these Regulations was the recommendation for
arbitration.
The spirit in which these laws were enacted can best be illustrated by the
following quotations from the Regulation of 1781, viz.—
(1) “The Judge do recommend, and so far as he can without
compulsion prevail on the parties, to submit to the arbitration of one
person to be mutually agreed upon by the parties”, and
(2) “No award of any arbitrator or arbitrators be set aside, except
upon full proof, made by oath of two credible witnesses, that the
arbitrators had been guilty of gross corruption or partiality, in the
cause in which they had made their award.”
1793 Regulation XVI of 1793
• The 1987 regulation had problems hence Regulation XVI of 1793 was
brought.
• It was more comprehensive.
• It Provided that Courts could refer dispute to one arbitrator with
consent of parties in suits for accounts, partnership—debts, non-
performance of contracts, where valuation exceeded
200 sicca rupees.
• It Laid down specific provisions in matters ancillary thereto.
1795 & 1803 Regulation XVI of 1793 was extended by 1795 & 1803 Regulations.
1813 Regulation VI of 1813 laid down provision for arbitration in disputes about
land disputes for the first time.
1816 Madras Regulation IV of 1816 provided for Panchayets to settle disputes.
1816 Bengal Regulation XXII of 1816 provided for Panchayets to regulate

appointment and maintenance of Choukidars. It encouraged awards by
village Panchayets and provided machinery for working out the scheme
1822 Bengal Regulation VII of 1822 extended scheme of arbitration from Civil
Courts to Land Revenue Courts.
1827 Bombay and Madras also passed enactments encouraging arbitration by

Regulations IV and VII of 1827.
1833 Bengal Regulation IX of 1833 further amplified settlement of Land Revenue
etc provided by Regulation VII of 1822.
1833 British Parliament enacted statutes 3 & 4 Will. IV, Ch. 85 establishing a
Legislative Council for India. (* 85th Act passed during the session that
started in the 3rd and 4th year of the reign of William IV) . It did away with the
regime of Parliamentary Regulations
**1833 Act is also called The Saint Helena Act 1833 or the
Government of India Act 1833 (3 & 4 Will 4 c 85)
1859 Act VIII of 1859 codified Civil Procedure and provided for arbitration between
parties.
• Sections 312 to 325 dealt with arbitration between parties to a suit.
• Sections 326 and 327 dealt with arbitration without the intervention
of a Court.
1877 & 1882 Act VIII of 1859 was followed by later Codes relating to Civil
Procedure, viz.—Act X of 1877 and Act XIV of 1882. No material change
relating to the Law of Arbitration
1899 India Arbitration Act IX of 1899 was first substantive law on the subject. It
was mainly confined in operation to Presidency towns.
Up to 1899 arbitration was limited to disputes which had arisen, but Act IX of
1899 defined “submission” as meaning “a written agreement to submit present or
future differences to arbitration.”
1908 Civil Procedure Code 1908
• No substantial change in provisions relating to arbitration
• Only put relevant sections in separate schedule as Special Committee
thereon hoped to have comprehensive legislation on the subject in near
future
• Report of the Special Committee, namely.—“We have determined
therefore to leave the arbitration clauses much as they are in the
present Code: but we have placed them in a schedule in the hope that at
no distant date they may be transferred into a comprehensive
Arbitration Act”
1924 Representations made by various organisations, including the Associated

Chambers of Commerce of India to the Government of India and therefore
it started an investigation. But before the investigations were completed,
the Civil Justice Committee presided over by the Right Honourable Sir
George Rankin, made their suggestions for the modification of the Law of
Arbitration in 1924-1925.
1927 In 1927 the Mackinnon Committee on the Law of Arbitration made its
report.
1934 In 1934 the English Act was passed in England in May 1934.
1938 The Government of India took the matter up after that date, and in
1938 selected Mr. Ratan Mohan Chatterjee, Attorney-at-Law, as Special
Officer, in connection with the proposed change in the Law of
Arbitration.
1940 Thereafter the Arbitration Act of 1940, came into force on the 1st July
1940, saving from its operation references then pending. For the First
time Country wide legislation was enacted.
Just as the Indian Arbitration Act of 1899 was based on the English Act
of 1889, so the Indian Arbitration Act of 1940 was based on the English
Act of 1934.
1966 United Nations Commission on International Trade Law (UNCITRAL)
was established by the UN General Assembly (UNGA) in 1966 to
promote the progressive unification and harmonisation of
international trade law.
It is the core legal body of the UN system in the field of international
trade law. It specialises in reforms in commercial law worldwide for a
period.
India is a founding member of UNCITRAL. India is only one of eight
countries which have been a member of UNCITRAL since its inception
1985 On 11.12.1985, resolution was adopted by by the General Assembly

Recognizing the value of arbitration as a method of settling disputes
arising in international commercial relations.
1995 In 1995, the Minister for Law, Justice and Company Affairs introduced in
the Upper House of Parliament the Rajya Sabha, a Bill to implement the
UNCITRAL Model Law and also to provide statutory recognition to the
process of conciliation.
1996 The Arbitration and Conciliation Act, 1996 was enacted. It Received the
assent of the President on August 16, 1996 and published in the Gaz. of
India, Extra., Part II, Section 1, dated 19th August, 1996, No. 55, pp. 1-36. The
Preamble states:-
“An Act to consolidate and amend the law relating to domestic
arbitration, 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 ”
2015 & 2019 & 2021 Amendments

THE ARBITRATION AND CONCILIATION ACT, 1996
ACT No. 26 OF 1996 Notified on 16th August, 1996.
PREAMBLE.
—WHEREAS the United Nations Commission on International Trade Law (UNCITRAL)
has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985;
AND WHEREAS the General Assembly of the United Nations has recommended that all countries give
due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral
procedures and the specific needs of international commercial arbitration practice;
AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980;
AND WHEREAS the General Assembly of the United Nations has recommended the use of the said
Rules in cases where a dispute arises in the context of international commercial relations and the parties
seek an amicable settlement of that dispute by recourse to conciliation;
AND WHEREAS the said Model Law and Rules make significant contribution to the establishment of a
unified legal framework for the fair and efficient settlement of disputes arising in international
commercial relations;
AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account
the aforesaid Model Law and Rules;
PART I ARBITRATION PART II
CHAPTER I General provisions (Section 2-6) ENFORCEMENT OF CERTAIN FOREIGN
CHAPTER II Arbitration agreement (Section 7-9) AWARDS
CHAPTER III Composition of arbitral tribunal CHAPTER I New York Convention Awards
(Section 10-15) (Section 43 -52)
CHAPTER IV Jurisdiction of arbitral tribunals CHAPTER II Geneva Convention Awards
(Section 16-17) (Section 53-60)
CHAPTER V Conduct of arbitral proceedings
(Section 18-27) PART III
CHAPTER VI Making of arbitral award and CONCILIATION (Section 61- 81)
termination of proceedings (section 28-33)
CHAPTER VII Recourse against arbitral award
Section34. Application for setting aside arbitral PART IV
awards. SUPPLEMENTARY PROVISIONS (Sec 82-
CHAPTER VIII Finality and enforcement of arbitral 86)
awards
Section 35. Finality of arbitral awards. THE SEVEN SCHEDULES
Section 36. Enforcement.
CHAPTER IX Appeals- Section 37. Appealable
orders.
CHAPTER X
Miscellaneous ( Section 38- 43)
READING MATERIAL
1-“Tagore Law Lectures, 1942 - Law Arbitration in British India by Nripendra Nath
Sircar, Lecture 1 — Introductory” SCC online
Link of the Article- SCC online- My Library- Browse Articles -Tagore Law Lectures-
Arbitration- introduction :- https://www.scconline.com/Members/BrowseResult.aspx
Preamble of Arbitration and Conciliation Act, 1996

Assignment for
attendance (only after
reading the materials
provided)(Not
exceeding 150 words)
Arbitration Tribunal
And
Composition Etc
(Section 11 to 29 A)
Co-Faculty
WHAT IS AN ARBITRATION TRIBUNAL
- Arbitration Agreement to adjudicate dispute
between two or more parties
- Outside Court adjudication
- Consists of one or more arbitrators
- Results in final Decision called an Arbitral Award.
- Section 2(d) of the Arbitration and Conciliation Act,
1996 defines an arbitral tribunal
BEFORE 1996 ACT

• In 1940 Act –
• Unless otherwise expressly provided, the reference
shall be to a sole arbitrator.
• If the reference is to an even number of arbitrators,
the arbitrators shall appoint an umpire…
NUMBER OF ARBITRATORS IN AN ARBITRATION
TRIBUNAL
1. Section 10 of the Act mentions the number of
arbitrators
2. The parties to the dispute are free to mutually
decide the number
3. But the number of arbitrators appointed shall be
an odd number and not an even one
4. If the parties unable to decide the number of
arbitrators- only one arbitrator shall be appointed
PROCEDURE FOR APPOINTMENT OF ARBITRATORS
Specified under Section 11
1. Nationality- The parties to the dispute may, on agreement,
appoint an arbitrator belonging to any nationality.
2. Appointment by Parties- The procedure to appoint one or
more arbitrators can be decided by the parties. If the parties fail to
do so, they may individually appoint an arbitrator each, and the two
arbitrators, mutually decide the third one.
3. Appointment by Court- if the parties do not appoint an
arbitrator within 30 days from the receipt of the request, the
Supreme Court, the High Court, or any other official designated by
the Court may appoint an arbitrator.
4. 30 day time limit - Supreme Court held that a party to the
dispute can file an application for the appointment of an arbitrator
by the Court only after the expiry of 30 days (Read Case laws).
4. Payment of fees- Schedule Four
GROUNDS FOR CHALLENGING THE APPOINTMENT OF ARBITRATORS AND ITS
PROCEDURE
1. Independent and Unbiased- When a person is nominated as an arbitrator, he is

required to disclose his past or present connection to either party or parties, whether
direct or indirect. Also, he shall disclose if he has a financial, business, professional or
any other interest in any of the parties or in the subject matter of the dispute, which
may prevent him from adjudicating in an impartial manner.
2. Section12 - Either party to the dispute may challenge the appointment of an
arbitrator on the following grounds:
1. If there is a sufficient doubt that the arbitrator may act in a partial or biased
manner.
2. If the nominated arbitrator does not possess the qualifications required by the
parties to the dispute. (To read the provision and the Schedule mentioned there)
3. Section 13- Either party can challenge the appointment within 15 days after
receiving the knowledge of the constitution of the arbitral tribunal or after the
knowledge of circumstances mentioned above. The authority to decide on the
challenge is vested in the hands of the arbitral tribunal.
TERMINATION OF MANDATE OF ARBITRATOR
Not only the appointment of the arbitrator can be
challenged but also his mandate can be terminated under
Section 14 and 15 of the Act in the following cases:
1. If the arbitrator is unable to carry out his functions
in an effective manner or there is an undue delay in the
performance of his duties.
2. If the arbitrator himself withdraws from his office
or the parties agree to his termination.
SUBSTITUTION OF AN ARBITRATOR
Section 15 and 29 A - If an arbitrator is terminated from
his mandate, another arbitrator may be appointed as a
substitute by following the appointment procedure. In
such a case, the arbitral hearings can be repeated at the
discretion of the arbitral tribunal.
JURISDICTION OF ARBITRAL TRIBUNAL, KOMPETENZE
KOMPETENZE RULE- Section 16.
APPLICABILITY OF CPC AND EVIDENCE IN TRIBUNAL ETC.

AND FAST TRACK ARBITRATION – Section 19.
SECTIONS 11 TO 29A OF THE ACT OF 1996
Chapter III- COMPOSITION OF ARBITRAL TRIBUNAL

Sections 10. Number of arbitrators, 11. Appointment of arbitrators, 11-A. Power of Central
Government to amend Fourth Schedule, 12. Grounds for challenge, 13. Challenge procedure, 14.
Failure or impossibility to act, 15. Termination of mandate and substitution of arbitrator
Chapter IV - JURISDICTION OF ARBITRAL TRIBUNALS
Sections 16. Competence of arbitral tribunal to rule on its jurisdiction, 17. Interim measures ordered
by arbitral tribunal,
Chapter V - CONDUCT OF ARBITRAL PROCEEDINGS
Sections 18. Equal treatment of parties, 19. Determination of rules of procedure, 20. Place of
arbitration, 21. Commencement of arbitral proceedings, 22. Language, 23. Statements of claim and
defence, 24. Hearings and written proceedings, 25. Default of a party, 26. Expert appointed by
arbitral tribunal, 27. Court assistance in taking evidence
Chapter VI- MAKING OF ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS
Sections 28. Rules applicable to substance of dispute, 29. Decision-making by panel of arbitrators,
29-A. Time limit for arbitral award, 29-B. Fast track procedure, 30. Settlement, 31. Form and
contents of arbitral award, 31-A. Regime for costs, 32. Termination of proceedings, 33. Correction
and interpretation of award; additional award
Reading Material
1. Article (11)paragraph(1)of(UNCITRAL) model law on international commercialarbitration

1985 (with amendments adopted in 2006)
2. Research on the Cases laws mentioned in the Lecture and read them
3. https://indianlawlab.blogspot.com/2019/02/appointment-of-arbitrator-section-11-arbitration-
act.html
4. http://arbitrationblog.kluwerarbitration.com/2018/12/27/proposed-repeal-of-section-11-6a-
of-the-arbitration-and-conciliation-act-1996-who-decides-the-question-of-existence-of-an-
arbitration-agreement/?print=pdf&doing_wp_cron=1597163507.7355411052703857421875
5. Article Gateway to Arbitration : The Role of Courts in India reported at (2017) 8 SCC J-5-
traces the courts' approach over the years with respect to pre-arbitration judicial
intervention, under Section 8 (reference to arbitration in case of domestic arbitration),
Section 45 (reference to arbitration in case of foreign seated arbitration) and Section 11
(appointment of arbitrator by court), and how Indian jurisprudence has evolved in this area
before and after the amendment
Assignment for
attendance (only
after reading the
materials provided)
Arbitration and Conciliation Act 1996

Advocate
HISTORY OF ARBITRATION IN INDIA
The modern codified practise of arbitration in India dates back to the nineteenth century when the government
enacted the Indian Arbitration Act, 1899. The Act, however, was confined to the three princely states i.e. Bombay,
Madras and Calcutta. Later, however, arbitration found mention in the Code of Civil Procedure, 1902 under Section
89. But due to lack of robust procedural modalities, it merited an independent statute. In turn, the Arbitration Act,
1940 came into force which applied to the whole of India. The 1940 Act, although an improvement to the prior
Act, proved inefficient, cumbersome and lacking in the various domains.
*The Act also faced criticism from the apex court; Justice D.A. Desai stated in Guru Nanak Foundation v Rattan
Singh – “Interminable, time-consuming, complex and expensive Court procedures impelled jurists to search for an
alternative Forum, less formal, more effective and speedy for resolution of disputes, avoiding procedural claptrap
and this led them to Arbitration Act, 1940. However, the way in which the proceedings under the Act are
conducted and without exception challenged in Courts has made Lawyers laugh and legal philosophers weep.”
Hence, the Arbitration and Conciliation Act, 1996 was enacted, based on the UNCITRAL Model Law on
International Commercial Arbitration, 1985. The new Act came into force with a breath of fresh air of an expedited
and improved procedure. It also attracted cross border trade and investment after the remarkable shift of global
policy in 1991. The Arbitration and Conciliation Act, 1996 consolidated and amended the existing Arbitration Act,
1940, Arbitration (Protocol & Convention) Act, 1937 and the Foreign Awards Act, 1961.
THE ADVENT OF 1996 ACT
Despite the far-reaching improvements made in the statute, arbitration failed to emerge as a sound and reliable
resolution mechanism due to a multitude of reasons. Due to the lack of a fee matrix, the arbitrators bombarded
the parties by charging exorbitant fees. The application to the High Court seeking an award to be set aside under
Section 34 automatically stayed the enforcement of the award, thereby prolonging the remedy to the award
holding party. Furthermore, there was no time limit to ensure that the promise of the expedite procedure is
actually fulfilled.
After facing serious challenges with the 1996 Act, the government invited suggestions from several eminent jurists
and amended the Act in 2015. The Arbitration and Conciliation (Amendment) Act, 2015 brought sweeping changes
to the procedure and entailed a series of strong judicial interpretations. The amendment was essentially founded
on the principles to strengthen the arbitral tribunal and minimise the scope of intervention by the court.
Despite these improvements, the lack of institutional arbitration culture was felt strongly as most of the
arbitrations were ad hoc. A High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in
India was constituted on 13th January 2017 and headed by Justice B.N. Srikrishna. In line with the committee’s
recommendations, the Arbitration and Conciliation (Amendment) Act, 2019 was passed. The highlight of the
amendment was the introduction of the Arbitration Council of India (ACI) to promote arbitration and grade
arbitration institutions. This is still to be enforced as per law.
ARBITRATION AND CONCILIATION ACT, 1996
The 1996 Act seeks to consolidate and amend the law relating :
-domestic arbitration,
-international commercial arbitration,
-enforcement of foreign arbitral awards
-and to define the law relating to conciliation
– taking into account the UNCITRAL Model Law and Rules. –
However, the said Model Law and Rules do not become part of the Act so as to become an aid to construe the
provisions of the Act. (Union of India v East Coast Boat Builders and Engineers Ltd., AIR 1999 Del 44).
Under the Arbitration Act, 1940, there was a procedure for filing and making an award a rule of Court i.e. a
decree, after the making of the award and prior to its execution. Since the object of the 1996 Act is to provide
speedy and alternative solution to the dispute, the said procedure is eliminated in the 1996 Act. Even for
enforcement of a foreign award, there is no need to take separate proceedings, one for deciding the enforceability
of the award to make it a rule of the Court or decree and the other to take up execution thereafter. The Court
enforcing the foreign award can deal with the entire matter in one proceeding. (Fuerst Day Lawson Ltd. v Jindal
Exports Ltd., AIR 2001 SC 2293).
INTRODUCTION TO THE ARBITRATION AND CONCILIATION ACT, 1996
COMMENCEMENT OF 1996 ACT –
Though the 1996 Act received the Presidential assent on 16 August 1996, it, being a continuation of the Arbitration
and Conciliation Ordinance, is deemed to have been effective from 25 January 1996 i.e. the date when the first
Ordinance was brought in force. (Fuerst Day Lawson Ltd. v Jindal Exports Ltd., AIR 2001 SC 2293). Therefore, the
provisions of the Arbitration Act, 1940, will continue to apply to the arbitral proceedings commenced before 25
January 1996. (Shetty’s Construction Co. (P) Ltd. v Konkan Railway Construction, (1998) 5 SCC 599).
Section 85 (2) (a) of the 1996 Act further provides that notwithstanding the repeal of the Arbitration Act, 1940, its
provisions shall continue to apply in relation to arbitration proceedings that commenced prior to the coming into
force of the 1996 Act on 25 January 1996, unless otherwise agreed by the parties.
Section 21 gives the parties an option to fix another date for the commencement of the arbitral proceedings.
Therefore, if the parties to the arbitration had agreed that the arbitral proceedings should commence from a day
post 25 January 1996, the provisions of the 1996 Act will apply. In cases where arbitral proceedings had
commenced before coming into force of the 1996 Act and are pending before the arbitrator, it is open to the
parties to agree that the 1996 Act will be applicable to such arbitral proceedings. (Thyssen Stahlunion Gmbh v
Steel Authority of India, (1999) SCC 334).
Domestic Arbitration The expression “domestic arbitration” has not been defined in the 1996 Act.
An arbitration held in India, the outcome of which is a domestic award under Part I of this Act, is a domestic
arbitration (Sections 2(2) and 2(7)). Therefore, a domestic arbitration is one that takes place in India, wherein
parties are Indians and the dispute is decided in accordance with substantive law of India (Section 28(1) (a)).
Part I of the 1996 Act Part I restates the law and practice of arbitration in India, running chronologically through
each stage of arbitration, from the arbitration agreement, the appointment of the arbitral tribunal, the conduct of
the arbitration, the award to the recognition and enforcement of awards.
BINDING EFFECT OF AWARD
Once the parties have agreed to refer a dispute to arbitration, neither of them can unilaterally withdraw from the
arbitral process. The arbitral tribunal shall make an award which shall be final and binding on the parties and
persons claiming under them respectively (Section 35), and such award unless set aside by a court of competent
jurisdiction (Section 34), shall be enforceable under the Code, in the same manner as if it were a decree of the
Court (Section 36).
LIMITED JUDICIAL INTERVENTION UNDER THE 1996 ACT
There is no provision for reference to arbitration by the intervention of the Court. Section 5 of the 1996 Act
provides for a limited role of the judiciary in the matters of arbitration, which is in consonance with the object of
the Act to encourage expeditious and less expensive resolution of disputes with minimum interference of the Court
(P. Anand Gajapathi Raj v P.V.G. Raju, AIR 2000 SC 1886).
ARBITRATION AGREEMENT
The existence of arbitration agreement is a condition precedent for the exercise of power to appoint an arbitrator
under Section 11 of the 1996 Act. The issue of existence and validity of the “arbitration agreement” is altogether
different from the substantive contract in which it is embedded. The arbitration agreement survives annulment of
the main contract since it is seperable from the other clauses of the contract. The arbitration clause constitutes an
agreement by itself. (Firm Ashok Traders v Gurumukh Das Saluja, (2004) 3 SCC 155).
SECTION 8 OF THE ACT OF 1996
In cases where there is an arbitration clause, it is obligatory for the Court under the 1996 Act to refer the parties to arbitration
in terms of their arbitration agreement (Section 8). However, the Act does not oust the jurisdiction of the Civil Court to decide
the dispute in a case where parties to the arbitration agreement do not take appropriate steps as contemplated by Section 8 of
the Act. Similarly, the Court is to refer the parties to arbitration under Section 8 of the 1996 Act only in respect to “a matter
which is the subject matter of an arbitration agreement”. Where a suit is commenced “as to a matter” which lies outside the
arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no
question of application of Section 8. The words “a matter” indicates that the entire subject matter of the suit should be subject
to arbitration agreement. (Sukanya Holdings Pvt. Ltd. V Jayesh H. Pandya, (2003) 5 SCC 531). Section 8 of the 1996 Act is
attracted to only arbitrable disputes, which the arbitrator is competent or empowered to decide (Vidya Drolia v. Durga Trading
Corpn., (2021) 2 SCC 1).
Illustration :
The parties agreed to refer the question of winding up a company to arbitration. However, the power to order winding up of a
company is conferred upon the company court by the Companies Act. As the arbitrator has no jurisdiction to wind up a
company, the Court cannot make such a reference under Section 8. (Haryana Telecom Ltd. v Sterlite Industries (India) Ltd., AIR
1999 SC 2354).
Illustration : ‘The parties agreed to refer the question as to whether probate should be granted or not to arbitration. Since the
judgement in the probate suit under the Indian Succession Act is a judgement in rem, such question cannot be referred to
arbitration (Chiranjilal Shrilal Goenka v Jasjit Singh, (1993) 2 SCC 507).
The application under Section 8 of the 1996 Act can be filed in the same suit or as an independent application before the same
Court. Ordinarily the application under Section 8 of the 1996 Act has to be filed before filing of written statement in the
concerned suit. But when the defendant even after filing the written statement applies for reference to arbitration and the
plaintiff raises no objection, the Court can refer the dispute to arbitration’ . The arbitration agreement need not be in existence
before the action is brought in Court, but can be brought into existence while the action is pending. Once the matter is
referred to arbitration, proceedings in civil suit stands disposed of.
CHALLENGING AWARD
The Court to which the party shall have recourse to challenge the award would be the Court as defined in Section 2
(e) of the Act, and not the Court to which an application under Section 8 is made. (P. Anand Gajapathi Raju v P.V.G
Raju AIR 2000 SC 1886). Where during the pendency of the proceedings before the Court, the parties enter into
an agreement to proceed for arbitration, they would have to proceed in accordance with the provisions of the
1996 Act .
Illustration :
The High Court, in exercise of its writ jurisdiction, has no power to refer the matter to an arbitrator and to pass a
decree thereon on the award being submitted before it. (T.N Electricity Board v Sumathi, AIR 2000 SC 1603).
SECTION 9 INTERIM MEASURE BY COURT
The Court is empowered by Section 9 of the 1996 Act to pass interim orders even before the commencement of
the arbitration proceedings. Such interim orders can precede the issuance of notice invoking the arbitration
clause. (Sundaram Finance Ltd v NEPC India Ltd, AIR 1999 SC 565).
The Court under Section 9 merely formulates interim measures so as to protect the right under adjudication
before the arbitral tribunal from being frustrated. (Firm Ashok Traders v Gurumukh Das Saluja, (2004) 3 SCC 155).
If an application under Section 9 of the 1996 Act for interim relief is made in the Court before issuing a notice
under section 21 of the Act, the Court will first have to be satisfied that there is a valid arbitration agreement and
that the applicant intends to take the dispute to arbitration. Once it is so satisfied, the Court will have jurisdiction
to pass orders under Section 9 giving such interim protection as the facts and circumstances of the case warrant.
Once the matter reaches arbitration, the High Court would not interfere with the orders passed by the arbitrator or
the arbitral tribunal during the course of arbitration proceedings. The parties are permitted to approach the Court
only under Section 37 or through Section 34 of the 1996 Act.
COMPOSITION OF ARBITRAL TRIBUNAL (SEC 10-15) CHAPTER 3
The Arbitral Tribunal has been defined by Section 2 (d) of the 1996 Act to mean a sole arbitrator or a panel of arbitrators
appointed in accordance with the provisions of Sections 10 and 11 of the Act. The number of arbitrators should not be an even
number. An arbitrator must be independent and impartial. A prospective arbitrator should disclose in writing to the parties
any circumstances likely to give rise to justifiable doubts as to his independence or impartiality (Section 12(1), 1996 Act).
The 1996 Act prescribes the procedure for challenging the arbitrator, terminating his mandate, and his replacement by a new
arbitrator (Sections 13 to 15). Arbitration under the 1996 Act is a matter of consent and the parties are generally free to
structure their agreement as they see fit. The parties have been given maximum freedom not only to choose their arbitrators,
but also to determine the number of arbitrators constituting the arbitral tribunal.
There is no right to challenge an award if the composition of the arbitration tribunal or arbitration procedure is in accordance
with the agreement of the parties even though such composition or procedure is contrary to Part I of the 1996 Act. Again, the
award cannot be challenged if such composition or procedure is contrary to the agreement between the parties but in
accordance with the provisions of the 1996 Act. If there is no agreement between the parties about such composition of the
arbitral tribunal or arbitration procedure, the award can be challenged on the ground that the composition or procedure was
contrary to the provisions of the Act. (Narayan Prasad Lohia v Nikunj Kumar Lohia, (2002) 3 SCC 572). Where the agreement
between the parties provides for appointment of two arbitrators, that by itself does not render the agreement as being invalid.
Both the arbitrators so appointed should appoint a third arbitrator to act as the presiding officer (Section 11 (3), 1996 Act).
Where the parties have participated without objection in an arbitration by an arbitral tribunal comprising two or even number
of arbitrators, it is not open to a party to challenge a common award by such tribunal on the ground that the number of
arbitrators should not have been even. The parties are deemed to have waived such right under Section 4 of the 1996 Act.
(Narayan Prasad Lohia v Nikunj Kumar Lohia, (2002) 3 SCC 572).
The determination of the number of arbitrators and appointment of arbitrators are two different and independent functions.
The number of arbitrators, in the first instance is determined by the parties, and in default, the arbitral tribunal shall consist of a
sole arbitrator. However, the appointment of an arbitrator should be in accordance with the agreement of the parties, or in
default, in accordance with the mechanism provided under Section 11 of the 1996 Act.
APPOINTMENT UNDER SECTION 11
High Court –Arbitration other than International Commercial Arbitration
Supreme Court- International Commercial Arbitration
RECOURSE AGAINST ARBITRAL AWARD
Section 34 of the 1996 Act provides for recourse against the arbitral award.The limited grounds for setting aside an
arbitral award are
• the incapacity of the party.
• invalidity of agreement.
• absence of a proper notice to the party.
• award beyond scope of reference.
• illegality in the composition of the arbitral tribunal or in arbitral procedure
• dispute being non-arbitrable.
• award being In conflict with public policy.
Section 34 of 1996 Act is based on Article 34 of the UNCITRAL Model law. The arbitrator is the final arbiter of a
dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn
his own conclusions or has failed to appreciate the facts. Court will not re-appreciate the evidence before the
arbitrator, even if there is a possibility that on the same evidence, the Court may arrive at a different conclusion
than the one arrived at by the arbitrator Similarly, if a question of law is referred to the arbitrator and he gives a
conclusion, it is not open to challenge the award on the ground than an alternative view of the law is possible
The Court to which the party shall have recourse to challenge the award would be the Court as defined in Section
2(1)(e) of the 1996 Act read with Section 42
FINALITY AND ENFORCEMENT OF AWARDS
Section 35 of the 1996 Act provides that subject to the provisions of Part I of the Act, an arbitral award shall
become final and binding on the parties claiming under them respectively. The award can, therefore, be enforced,
even if there are other issues outstanding in the reference. Section 36 of the 1996 Act renders an arbitral award
enforceable in the same manner as if it were a decree, if no challenge is preferred against it within the time
prescribed for making a challenge or, when upon a challenge being preferred, it has been dismissed.
The arbitral award becomes immediately enforceable without any further act of the Court once the time expires
for challenging the award under Section 34 of the 1996 Act.
INTERNATIONAL COMMERCIAL ARBITRATION AND FOREIGN AWARDS

An “international commercial arbitration” has been defined in Section 2(f) of the 1996 Act to mean : arbitration
relating to disputes arising out of legal relationships considered commercial under the law in force in India and
where atleast one of the parties is
• a foreign national or an individual habitually resident outside India
• a body corporate incorporated outside India
• a company or association of individuals whose central management and control is exercised by a country other
than India
• the Government of a foreign country
THE LAW APPLICABLE may be Indian law or foreign law depending upon the contract (Section 2(1)(f) and Section
28(1)(b)). Part I of the 1996 Act is to also apply to international commercial arbitrations which take place out of
India, unless the parties by agreement, express or implied, exclude it or any of its provisions.
Part II of the 1996 Act only applies to arbitrations which takes place in a convention country. An international
commercial arbitration may, however, be held in a non-convention country. The 1996 Act nowhere provides that
the provisions of Part I are not to apply to international commercial arbitrations which take place in a non-
convention country. The very object of the Act is to establish a uniform legal framework for the fair and efficient
settlement of disputes arising in international commercial arbitrations.
Illustration :
Even if in terms of the arbitration agreement, the arbitration proceedings between two foreign parties were being
held under I.C.C Rules outside India, yet a party to the arbitration proceedings may seek an interim injunction
under Section 9 of the Act against Oil and Natural Gas Commission, a Government Company, for restraining it
making any payment to the opposite party till the arbitration proceedings pending between the parties is not
concluded. Such injunction in respect of the properties within territory of India is maintainable. However, if the
injunction is sought for properties outside the country, then such an application under Section 9 is not
maintainable in Indian Court.
Part II of the 1996 Act pertains to the enforcement of certain foreign awards and consists of two chapters.
Chapter I relates with New York Convention Awards which are supplemented by the First Schedule to the 1996 Act.
Chapter II refers with Geneva Convention Awards which is to be read with the Second and the Third Schedule of
the Act. The expression “foreign award” which means an arbitral award on differences between persons arising
out of legal relationship considered as commercial under the law in India. An award is ‘foreign’ not merely because it is made
on the territory of a foreign state but because it is made in such a territory on an arbitration agreement not governed by the law of India. (NTPC
READING MATERIAL
1. https://blog.ipleaders.in/arbitration-
agreement-primer-checklist/
2. http://rsrr.in/2021/04/20/implications-of-
the-2021-arbitration-amendment-act/
Acts and provisions mentioned in the lecture

Assignment for attendance (only
after reading the materials
provided)
1. Summaries the three parts of the

Arbitration and Conciliation Act 1996
in context of 2015 Amendment(Not
exceeding 150 words)
Arbitration Agreement

Co-Faculty
An arbitration agreement is the raison d’être of an
arbitration proceeding. It is only through an arbitration
agreement that parties can submit their issues to be
adjudicated by the arbitral tribunal.
RUSSELL ON ARBITRATION, 19th Edn., p. 59,

:
“If it appears from the terms of the agreement by which a
matter is submitted to a person's decision that the
intention of the parties was that he should hold an inquiry
in the nature of a judicial inquiry and hear the respective
cases of the parties and decide upon evidence laid before
him, then the case is one of an arbitration.”
AN ARBITRATION AGREEMENT ONCE MADE, CANNOT BE DETERRED
An arbitration agreement once made, cannot be deterred when a

dispute arises. In Ravi Prakash Goel v. Chandra Prakash Goel, the
Supreme Court held that where there is an arbitration agreement
present and applicable, the parties cannot take recourse to the civil
court without first undergoing arbitration. It is mandatory for the
courts under Section 8 of the 1997 Act, to refer the parties to
arbitration when there is an applicable arbitration agreement.
FORMS OF ARBITRATION AGREEMENT
A fundamental requirement under Section 7 of the 1997 Act is that

an arbitration agreement shall be in writing. Besides that, Section 7
grants liberty to the parties to form an arbitration agreement in
multiple ways as enumerated below:
- CONTD_
• A standalone separate Arbitration Agreement
• An Arbitration Clause
• Incorporation by reference
In M/s Elite Engineering and Construction (HYD.) Private Ltd. v. M/s Techtrans
Construction India Private Ltd., the Supreme Court held that a general reference to the
incorporation of a separate arbitration clause will not be tenable in law. The reference
shall be clear and must indicate the intention of the parties to incorporate.
• By communication
Section 7(b) of the 1996 Act- an arbitration agreement can also be inferred from the
exchange of letters, telex, telegrams, or other means of telecommunication, which
provide a record of the agreement between the parties. In short, an agreement can be
construed from the correspondence of the parties where there is a clear and
unequivocal intention to refer the disputes to arbitration.
Galaxy Infra and Engineering Pvt. Ltd v. Pravin Electricals Pvt. Ltd the Delhi High Court
held that the draft agreement exchanged by email between the parties can be
construed as a valid arbitration agreement.
Section 7(c) of the 1996 Act - a statement of claims or allegations is made and is met with ‘non-denial’ by the other
party, the presence of an arbitration agreement can be construed.
DRAFTING AN EFFECTIVE ARBITRATION AGREEMENT
• Supreme Court, in the cases Jagdish Chander v. Ramesh Chander and K. K. Modi v. K. N.
Modi directly tackled the question of what constitutes a valid arbitration agreement. The
Hon’ble Court arrived at a list of principles that should be incorporated in an arbitration
agreement. The principles are as follows:
• The arbitration agreement must be in writing.
• The parties shall agree to refer any dispute (present or future) arising out of a contract to a
private tribunal.
• The private tribunal should be empowered to adjudicate upon the disputes in an impartial
manner, giving due opportunity to the parties to put forth their case before it.
• The parties must agree to be bound by the decision of the arbitral tribunal.
• The intention of the parties to refer the dispute to a private tribunal must be unequivocally
reflected.
• There must be ‘consensus ad idem’ between the parties i.e. they should agree to the same
thing in the same sense.
• The words shall contemplate an obligation and determination on the part of the parties to
invoke arbitration and not merely a possibility. For example, use of the words such as “parties
can if they so desire, refer their dispute to arbitration” or “ in the event of any dispute, the
parties may also agree to refer the same to arbitration” shall not be construed as submission
to arbitration.
• The agreement clauses shall not in any way specifically exclude any of the aforementioned essentials. For example, a
clause permitting the tribunal to decide a claim without hearing the other side.
POINTS TO BE KEPT IN MIND
• ARBITRATION AGREEMENT IS NOT REQUIRED TO BE IN
ANY PARTICULAR FORM
Rukmanibai Gupta v. Collector, (1980) 4 SCC 556
• INTETION TO REFER MUST BE EXPRESS OR IMLPIED

Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719
• THE AGREEMENT TO SUBMIT TO ARBITRATION MUST

BE IN WRITING
Smita Conductors Ltd. v. Euro Alloys Ltd., (2001) 7 SCC 728
• ARBITRATION CLAUSE SURVIVES THE AGREMENT

Ashapura Mine-Chem Ltd. v. Gujarat Mineral
Development Corpn., (2015) 8 SCC 193
• NOVATION OF ARBITRATION CLAUSE
OBLITERATES ARBITRATION AGREEMENT
Larsen & Toubro Ltd. v. Mohan Lal Harbans Lal

Bhayana, (2015) 2 SCC 461
• SECTION 7 (5)- THE REFERENCE IN A CONTRACT

TO A DOCUMENT CONTAINING AN ARBITRATION
CLAUSE CONSTITUTES AN ARBITRATION
AGREEMENT IF THE CONTRACT IS IN WRITING -
INCORPORATION OF ARBITRATION CLAUSE
M.R. Engineers & Contractors (P) Ltd. v. Som Datt

Builders Ltd., (2009) 7 SCC 696
Reading Material
1. https://blog.ipleaders.in/arbitration-agreement-primer-checklist/
2. Section 2 (b), 3, 4 and Section 7
3. Summary of case laws mentioned in the lecture

Assignment for
attendance (only
after reading the
materials provided)
Arbitration Tribunal (reference and appointment)
and exclusivity of jurisdiction.
Court’s intervention in Arbitration Agreement, Waiver
and reference of the disputes to Arbitration, types of
disputes to arbitration and exceptions
APPLICABILITY OF PART I
Controversies w.r.t the applicability of Part 1 of the Act to
internationally seated arbitration agreements which began
from Bhatia International v. Bulk Trading SA, (2002) 4 SCC
105, which was finally settled by the Supreme Court in 2012 in
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services
Inc. (2012) 9 SCC 552
After 2015 amendment
Section 2 (2) provides that Part I shall apply where the place of
arbitration is in India. However it is also provided that subject
to an agreement to the contrary, the provisions of sections 9, 27
and clause (a) of sub-section (1) and sub-section (3) of
section37 shall also apply to international commercial
arbitration, even if the place of arbitration is outside India, and
an arbitral award made or to be made in such place is
enforceable and recognised under the provisions of Part II of
this Act
ARBITRATION AGREEMENT
 Sec 7 - WHAT IS ARBITRATION AGREEMENT
 The arbitration agreement is often referred to as the
‘foundation stone’ of arbitration as it is, generally speaking,
a method of dispute resolution based on mutual party
consent to arbitrate future or current disputes.
 An arbitration agreement encompasses an agreement by two
or more parties to submit to arbitration either:
 'future' disputes that may arise where the agreement is set
out in the substantive agreement between the parties, ie in
an arbitration clause, or
 'current' disputes where the agreement to arbitrate is set
out in a stand-alone agreement entered into between the
parties after the dispute
Go Through AV 6 and study material.
The Significance of the Seat of the Arbitration
- Act does not define the term “seat” or “venue”. Section 20 of the Act merely
defines the “place of arbitration” which is being used interchangeably with the
terms “seat” and “venue”
- “seat” connotes the situs of the arbitration or the center of gravity of the
arbitration proceedings
- lex arbitr- the law of seat
- territorial link between the arbitration proceedings and the seat of the arbitration
- The term “Venue” or “place” often refers to a convenient location selected by the
parties to carry out the arbitration proceedings and should not be confused with the
seat or venue.
Case Laws
*Roger Shashoua v. Mukesh Sharma 2009 EWHC 957 (Comm) : (2009) 2 Lloyd’s Rep
376, commonly referred to as the Shashoua Principle by Indian courts- London as the
venue of arbitration but had not selected it as a seat. London- seat
The Decision in Union of India v. Hardy Exploration and Production (India) Inc(2019) 13 SCC 472
(Hardy Exploration)
- Parties had selected that Kuala Lumpur was the venue of arbitration but were silent on the seat
- After disputes arose, the arbitration proceedings commenced and the award was signed at Kuala
Lumpur
- Award was against the Appellant
- Appellant sought to challenge the award under the Act before the Delhi High Court contending that
Delhi was the seat
- On appeal the Supreme Court delivered a judgment deviating from the Shashoua Principle
- The Court held that the parties had not chosen the seat of arbitration and noted that the Tribunal
also had not made any findings with respect to the same. It was observed that Kuala Lumpur was
designated by the parties as the venue of arbitration and thus it did not mean that Kuala Lumpur
had become the seat of arbitration. The Court concluded that a venue could become a seat of
arbitration only if something else is added to it as a concomitant.
The Clarity in BGS SGS Soma JV v. NHPC Ltd. (2020) 4 SCC 234 (Soma JV)
- 3 Judges bench reiterated the Shashoua Principle
- Court propounded a test and laid down that when a particular place is designated as the venue of
arbitration the same should be considered to be the seat of arbitration. It noted that this should be
coupled with the fact that the parties have not made any other contrary indication that the venue
is not the seat of arbitration.
- The decision in Hardy Exploration was held per incuriam as it did not follow ratio laid down by the
Constitutional Bench in BALCO
- The Court wholeheartedly adopted the Shashoua Principle in Indian law.
WAIVER
 Section 4
Waiver of right to object. —A party who knows that—
(a) any provision of this Part from which the parties may
derogate, or
(b) any requirement under the arbitration agreement, has not
been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance without undue delay
or, if a time limit is provided for stating that objection, within that
period of time, shall be deemed to have waived his right to so
object.
 Quippo Construction Equipment Limited v. Janardan

Nirman Pvt. Ltd.
Court made it clear that none of the parties to an
arbitration can raise an objection as per their whims
and fancies and if the same is not done, there should
be a reasonable justification to the such ignorance.
Principle – One who sleeps over their own
rights cannot take advantage of their own
wrong
Other Cases on Waiver
 JG Engineers Pvt Ltd v. Calcutta Improvement Trust AIR

2002 SC 766
 BSNL v. Motorola India
 Dharampal Arora v. Share Tips
 Surendra Kapoor v. Prabir Kumar
 In Basheshar Nath vs. Commissioner of Income
Tax 1959 AIR 149, the Supreme Court held that
‘There must be a global surrender of a known
right or the intentional surrender or deserting
of a known existing legitimate right, or direct,
for example, warrants an induction of surrender
of a known right or benefit’.
Section 5 provides for the extent of judicial intervention and states that
“notwithstanding anything contained in any other law for the time being in force, in
matters governed by this Part, no judicial authority shall intervene except where so
provided in this Part”.
By virtue of Section 5 it can be asserted that the Act does not provide for judicial
intervention on any other issue or aspect. Judicial Intervention in Domestic
Arbitrations
Arbitration and Conciliation Act, 1996 provides for judicial intervention in the
following cases in domestic arbitrations:-
1. Making reference in a pending suit (Sec 8)
2. Passing interim orders (Sec 9)
3. Appointment of arbitrators (Sec 11)
4. Terminating mandate of arbitrator (Sec 14(2) )
5. Court assistance in taking evidence (Sec 27)
6. Setting aside an award (Sec 34)
7. Enforcement of an award by way of decree (Sec 36)
8. Entertaining appeals against certain orders (Sec 37)
9. Directing delivery of award Sec 39(2)
10.Reference of a dispute to arbitration in insolvency proceedings (Sec 41)
Reference - SECTION 8
8. Power to refer parties to arbitration where there is an arbitration agreement.—
(1) A judicial authority, before which an action is brought in a matter which is the subject of an
arbitration agreement shall, if a party to the arbitration agreement or any person claiming
through or under him, so applies not later than the date of submitting his first statement on
the substance of the dispute, then, notwithstanding any judgment, decree or order of the
Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no
valid arbitration agreement exists.
(2) The application referred to in sub-section (1) shall not be entertained unless it is
accompanied by the original arbitration agreement or a duly certified copy thereof.
[Provided that where the original arbitration agreement or a certified copy thereof is not
available with the party applying for reference to arbitration under sub-section (1), and the
said agreement or certified copy is retained by the other party to that agreement, then, the
party so applying shall file such application along with a copy of the arbitration agreement and
a petition praying the court to call upon the other party to produce the original arbitration
agreement or its duly certified copy before that court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue
is pending before the judicial authority, an arbitration may be commenced or continued and an
arbitral award made.
Reference – Factors to be seen
1. Whether it can be made applicable to

a civil dispute –
H. Srinivas Pai and Anr. v. H.V. Pai (D) thr. L.Rs. and Ors ( 2010)
12 SCC 521
“The Act applies to domestic arbitrations, international
commercial arbitrations and conciliations. The applicability
of the Act does not depend upon the dispute being a
commercial dispute. Reference to arbitration and
arbitability depends upon the existence of an arbitration
agreement, and not upon the question whether it is a civil
dispute or commercial dispute. There can be arbitration
agreements in non-commercial civil disputes also.”
2. Presence of Arbitration Agreement a pre-

requisite –
Smt. Kalpana Kothari v. Smt. Sudha Yadav and ors. (2002)1 SCC 203
“As long as the Arbitration clause exists, having recourse to Civil
Court for adjudication of disputes envisaged to be resolved through
arbitral process or getting any orders of the nature from Civil Court
for appointment of Receiver or prohibitory orders without evincing
any intention to have recourse to arbitration in terms of the
agreement may not arise.”
3. whether the validity of the arbitration

clause can be disputed before the Court –
Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums
(2003)6 SCC 503
“if the existence of the arbitration clause is admitted, in view of
the mandatory language of Section 8 of the Act, the courts ought
to refer the dispute to arbitration.”
4. The subject matter of the dispute is

the same as the subject matter of the
arbitration agreement –
Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Anr.
(2003) 5 SCC 531
“The relevant language used in Section 8 is-"in a matter
which is the subject matter of an arbitration agreement".
Court is required to refer the parties to arbitration.
Therefore, the suit should be in respect of 'a matter' which
the parties have agreed to refer and which comes within the
ambit of arbitration agreement.”
See however Ameet Lalchand Shah v. Rishabh Enterprises,

(2018) 15 SCC 678
5. Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1
Fourfold test to determine non-arbitrability.—
Propounding a fourfold test, held, that the subject-matter of a dispute in an
arbitration agreement is not arbitrable when: (1) the cause of action and
subject-matter of the dispute relates to actions in rem, that do not pertain to
subordinate rights in personam that arise from rights in rem; (2) the cause of
action and subject-matter of the dispute affects third-party rights, have erga
omnes effect i.e. where rights or obligations are owed towards all, require
centralised adjudication, and mutual adjudication would not be appropriate
and enforceable; (3) the cause of action and subject-matter of the dispute
relates to inalienable sovereign and public interest functions of the State and
hence mutual adjudication would be unenforceable; (4) the subject-matter of
the dispute is expressly or by necessary implication non-arbitrable as per
mandatory statute(s). The aforesaid fourfold test has to be applied with care
and caution. These tests are not watertight compartments: they dovetail and
overlap, albeit when applied holistically and pragmatically, will help and
assist in determining and ascertaining with great degree of certainty when as
per law in India, a dispute or subject-matter is non-arbitrable. Only when the
answer is in the affirmative that the subject-matter of the dispute would be
non-arbitrable
 OBLIGATION TO REFER -MERE ALLEGATIONS OF FRAUD ARE NOT SUFFICIENT FOR NOT
REFERRING DISPUTE FOR ARBITRATION
 Ameet Lalchand Shah v. Rishabh Enterprises, (2018) 15 SCC 678.
 REFERENCE TO BE MADE- UNLESS THE ISSUE IS NON ARBITRABLE AND TEST OF

ARBITRABILITY
 -Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1.
 -Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.(P) Ltd. ((2010) 8 SCC 24)
 -Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. (AIR 2011 SC 2507)
 THIRD PARTY REFERENCE

 ►REFERRED –
 -Cheran Properties Ltd. v. Kasturi and Sons Ltd., (2018) 16 SCC 413.
 ►NOT -REFERRED –
 - Reckitt Benckiser (India) (P) Ltd. v. Reynders Label Printing India Private Ltd., (2019) 7 SCC 62.
To Conclude Section 8 -
 Exception to the extent of intervention

 Amendment of 2015 nullifies the exception or not ?
 Saving beacon for arbitration (force to arbitrate)
Section 10
 10. Number of arbitrators.—(1) The parties are free to determine the

number of arbitrators, provided that such number shall not be an even
number. (2) Failing the determination referred to in sub-section (1), the
arbitral tribunal shall consist of a sole arbitrator.
CASE LAW
Narayan Prasad Lohia vs Nikunj Kumar Lohia & Ors, (2002) 3 SCC 572
 Relevant Sections
Sections 4, 5, 10, 11, 16, 34
Narayan Prasad Lohia vs Nikunj Kumar Lohia & Ors, (2002)
3 SCC 572
Facts of the Case
The Appellant and Respondent had a family dispute over business and properties. For
which two arbitrators were hired (Mr. Pramod Kumar Khaitan, and Mr.Sardul Singh
Jain). An award was passed by the two arbitrators on 6th October 1996. On 22nd
December 1997, the first respondent filed an application in Calcutta High Court for
setting aside the award. The contention was that, under Section 10 of The Arbitration
and Conciliation Act, 1966, an even number of arbitrators cannot be present. Since in
the present matter, two arbitrators were present, it was contended that arbitration
was void and invalid. On the same line of reasoning, it was also contended that the
award is henceforth also void and invalid. A single judge of the Calcutta HC set aside
the award on 17th November 1998, subsequently, an appeal dated 18th May 2000 was
also dismissed. Thereon, the matter was bought before the SC.
Issues before the Court
Whether Section10 is a non-derogable provision in Arbitration? Whether a mandatory
provision of the Act can be waived by the parties?
Narayan Prasad Lohia vs Nikunj Kumar Lohia & Ors, (2002)
3 SCC 572
Ratio Decidendi
The appellant contended that Section 10 is a mandatory provision of the Act. In the present matter, the Arbitral
tribunal was not validly constituted, hence it should be void and invalid. Moreover, if the constitution of the
arbitrators is invalid, it should also render the award void. The appellant also contended that Section 16 does
not provide for any challenge of the constitution of the Arbitration Tribunal. Therefore, an invalidly constituted
tribunal deems lack of jurisdiction. It was also contended that in the case of an even number of arbitrators,
they may have conflicting opinions, which may result in a fresh arbitration altogether. This could be a waste of
time and energy for both parties, and an infringement of public policy. Hence, Section 10 should be considered
a non-derogable provision. In the court’s opinion, that the question, whether Section 10 is non-derogable would
depend on whether a party has a right to object to the composition of the arbitral tribunal, and at what stage.
The decision of the Court (See para 5, 8, 9, 14, 16 , 20)

The court held the contention of Section 10 is a non-derogable provision, unacceptable. Since it cannot be said
that an arbitration agreement becomes invalid when only two arbitrators are appointed. In such a case, Section
11(3), the two arbitrators can appoint a third one. The court held that an appointment of the third arbitrator
can be done at a later stage, i.e when the two differ, and need not be mandatorily done at the initial stages of
the agreement. Further, the court held that an award can only be set aside under the provisions of Sections 12,
13, 16, and 34. An award cannot be set aside if the composition of the arbitral tribunal and proceedings are in
accordance with the agreement between the parties. The right to challenge an award, in case tribunal and
proceedings are not in accordance, is also restricted. In a sense that, even if the composition of the arbitral
tribunal or the arbitral procedure is not in accordance with the agreement of the parties but if such
composition or procedure is in accordance with the provisions of the Act, then the party cannot challenge the
award.
FOLLOWED IN Quippo Construction Equipment Ltd. v. Janardan Nirman (P) Ltd.,
(2020) 18 SCC 277 - PARA 21
Section 11
Section 11
REFER NOTE ON SECTION 11- PDF NOTE
REFER NOTE ON SECTIN 8- PDF NOTE

READING MATERIAL
* Section 4 of the Arbitration & Conciliation Act 1996;
* Section 8 of the Arbitration & Conciliation Act 1996;
* Judgements Cited in the PPT; and PDF NOTE more particularly
* M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716
* BGS SGS Soma JV v. NHPC Ltd. (2020) 4 SCC 234
* Booz Allen Hamilton v. SBI Finance Limited (to be studied carefully) &
current scenario thereafter.
* Vidya Drolia v. Durga Trading Corpn (2021) 2 SCC 1.
CHAPTER VIII
Finality and enforcement of arbitral awards
35. Finality of arbitral awards.
36. Enforcement.
CHAPTER IX
Appeals
37. Appealable orders.
35. Finality of arbitral awards.—Subject to this Part an arbitral
award shall be final and binding on the parties and persons
claiming under them respectively
Stamping
1. M Anasuya Devi & Anr v M Manik Reddy & Ors (2003) 8 SCC 565
2. Mohini Electricals Limited V Delhi Jal Board Decision dated 22 January
2021 passed by the Delhi High Court in OMP (ENF)(COMM) 2 of 2020
2(h) “party” means a party to an arbitration agreement.

[36. Enforcement.—(1) Where the time for making an application to set aside the arbitral
award under section 34 has expired, then, subject to the provisions of sub-section (2),
such award shall be enforced in accordance with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.
(2) Where an application to set aside the arbitral award has been filed in the Court
under section 34, the filing of such an application shall not by itself render that award
unenforceable, unless the Court grants an order of stay of the operation of the said
arbitral award in accordance with the provisions of sub-section (3), on a separate
application made for that purpose
(3) Upon filing of an application under sub-section (2) for stay of the operation of the
arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay
of the operation of such award for reasons to be recorded in writing:
Provided that the Court shall, while considering the application for grant of stay in the
case of an arbitral award for payment of money, have due regard to the provisions for
grant of stay of a money decree under the provisions of the Code of Civil Procedure,
1908 (5 of 1908).]
[Provided further that where the Court is satisfied that a Prima facie case is made out
that,— (a) the arbitration agreement or contract which is the basis of the award; or
(b) the making of the award, was induced or effected by fraud or corruption, it shall stay
the award unconditionally pending disposal of the challenge under section 34 to the
award.
Explanation.—For the removal of doubts, it is hereby clarified that the above proviso
shall apply to all court cases arising out of or in relation to arbitral proceedings,
irrespective of whether the arbitral or court proceedings were commenced prior to or
after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 (3
of 2016).]
Enforced like a decree of civil court
Section 34-74 Read With Order XX1 (Rules 1-106)

https://www.mondaq.com/india/arbitration-dispute-
resolution/873864/return-of-the-jedi-supreme-court-
strikes-down-section-87-of-the-arbitration-act
Para 57 of BCCI
para 31 of HCC
CHAPTER IX
Appeals
37. Appealable orders.—(1)[Notwithstanding anything contained in any other
law for the time being in force, an appeal] shall lie from the following orders
(and from no others) to the Court authorised by law to hear appeals from
original decrees of the Court passing the order, namely:—
[(a) refusing to refer the parties to arbitration under section 8;
(b) granting or refusing to grant any measure under section 9;
(c) setting aside or refusing to set aside an arbitral award under section 34.]
(2) Appeal shall also lie to a court from an order of the arbitral tribunal—
(a) accepting the plea referred to in sub-section (2) or sub-section (3) of
section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this
section, but nothing in this section shall affect or takeaway any right to
appeal to the Supreme Court.
Topic 7 – International Commercial Arbitration
International Commercial Arbitration, its nature,
scope, applicability, Role of Indian Courts in
International Commercial Arbitration etc
Ritesh Khatri
Course-In-Charge
FACTORS FOR ICA
• cross-border commercial disputes.
• Increase in international trade and investment
• Enmity is being made between parties as win-lose situations exist in the court
process as they ﬁght to establish their legal rights, as well as people spending
excessive time and money to such ﬁght
• The judicial system is fundamentally incapable of living up to the ideal of ‘access to

justice’ for all
• Lord Mustill (1989) – “commercial arbitration must have existed since the dawn of
commerce. All trade potentially involves disputes, and successful trade must have a
means of dispute resolution other than force. From the start, it must have involved
a neutral determination, and an agreement, tacit or otherwise, to abide by the
result, backed by some kind of sanction. It must have taken many forms, with
mediation merging no doubt into adjudication. The story is now lost forever. Even
for historical times, it is impossible to piece together the details, as will readily be
understood by anyone who nowadays attempts to obtain reliable statistics on the
current incidence and varieties of arbitrations. Private dispute resolution has always
been resolutely private”
International - refer to Article 1(3) of UNCITRAL
Commercial - Refer to footnote of Art. 1(1) of UNCITRAL

Although Labour, Family and other
disputes also in existence, but why
International Commercial Arbitration ???
In the international context, arbitration also

Section 2(1)(f) benefits from enforcement conventions that
allow the direct enforcement of awards. The
decisions of experts only have the force of
contract and, to enforce them, parties must
bring a new action in the appropriate jurisdiction
for breach of contract.
In Countries which
are signatories to
New York
Held Outside India
Convention Award treated as
International Foreign Award
Non Convention
Parties
Held in India Countries
ARBITRATION
Domestic Parties Countries

signatories to
Geneva Convention
UNDERSTAND THE CONCEPT OF
ICA versus FOREIGN AWARDS
• International Commercial Arbitration (ICA) has been defined in S. 2(1)(f)
of the 1996 Act to resolve disputes between parties where one of the
parties is either:—
(1) a national of another country.
(2) a resident of another country,
(3) a body corporate incorporated in another country,
(4) Government of a foreign country.
• A foreign award on the other hand is defined in S. 44 of the 1996 Act.

Enforcement of foreign awards is a concept different from an ICA, refer
from previous figure.
Award in ICA of two types – Awards Passed in India & Awards Passed
outside India.
PRINCIPLES OF PRIVATE INTERNATIONAL LAW THAT ARE APPLICABLE IN
INTERNATIONAL COMMERCIAL ARBITRATION
• Two conflict of laws issues arise in the context of international commercial
arbitration:
• What is the law governing the arbitration, which includes:
• construction and validity of the arbitration agreement
• the procedure of arbitration
• What is the law governing the substance of the dispute between the parties?
• An issue which frequently arises for determination by the tribunal at a
preliminary stage is the question of the law or rules to be applied to the merits
of the dispute. This is however just one aspect of a broader issue and the
following three categories of applicable law or rules need to be considered:
• The law of a particular country or some other considerations agreed between the parties
may govern the rights and obligations arising out of the parties’ substantive agreement. If a
national law is selected this is referred to as the governing or proper law of contract.
• A different law may apply to the rights and obligations arising out of agreement to
arbitrate. This is known as the law of the arbitration agreement.
• A law other than the law of the arbitration agreement may govern the procedures to be
adopted in an arbitration3. This is known as the procedural law or the curial law of the
arbitration.
Law Governing the Arbitration
• The law governing the arbitration has multiple uses:
(a) It determines the validity, effect and interpretation of the
arbitration agreement.
(b) This law is relied upon by the arbitrator to determine the scope of
his powers.
(c) The procedure to be followed by the arbitral panel is decided based
on this law (unless it follows the procedure of an arbitral institution)
• ss
Principles of private international law laid down in
NTPC v. Singer – 1992 SC
• National Thermal Power Corporation v. Singer Company - Whether the Delhi
High Court would have jurisdiction to set aside an arbitral award rendered in
England pursuant to ICC Rules, where the proper law of the contract was
Indian law.
• Supreme Court - the proper law of the arbitration agreement would be the
same as the proper law of contract, i.e. Indian law. Therefore pursuant to
Section 9(b) of the Foreign Awards Act, 1961 which stated that where Indian law
governs the arbitration agreement, the award rendered would be deemed to be
a domestic award irrespective of the place of arbitration, the resulting award
would be a domestic award liable to be set aside in India. While Section 9(b) has
hence been repealed and is no longer of any consequence, the first part of the
ratio, i.e. that the proper law of the arbitration agreement would be the same as
the proper law of the contract unless there is an “unmistakable intention” to the
contrary has been the subject matter of discussion subsequently.
• In addition to this proposition which constitutes the ratio of the case, the
Supreme Court laid down a number of propositions, which though obitur dicta,
determined the state of the law in India subject to subsequent Supreme Court
decisions that we will discuss later.
Propositions laid down by Supreme Court
These propositions have been divided into four categories:
(1)Propositions regarding proper law of contract

(2)Propositions regarding proper law of arbitration agreement
(3)Propositions regarding procedure of arbitration
(4)Propositions regarding jurisdiction of Courts
Two more propositions
Applicability of Singer in later time
• In Citation Infowares Limited v. Equinox Corporation – SC recognized
Presumption A and did not dispute it.
• However, in Indtel Technical Services Pvt. Ltd. v. W.S. Atkins Rail Ltd.
(2008 SC) it was pointed out by the Supreme Court that Presumption A
may not be applicable in certain cases falling within the ambit of Bhatia
International (2002 SC), when the seat of arbitration was India even
though foreign law governed the arbitration agreement.
• The ratio of Bhatia International can be interpreted in two ways:
(a) that Presumption A is no longer applicable only in cases where the seat of
arbitration is in India
(b) that the very basis of Presumption A does not hold good and Presumption A does
not operate under any circumstances.
WE SHALL ALSO SEE THAT HOW THE LAW CHANGED AFTER BHATIA INTERNATIONAL
PARTICULARLY IN BALCO
Foreign Terminologies
Lex maritime (“ley maryne”)
A body of oral rules, customs and usages relating to navigation and maritime commerce, the first elements of
which may be traced back to the Rhodian L (c. 800 B.C.), and which developed in medieval Western Europe
from the ninth to the twelfth centuries as part of a wider, customary mercantile law “lex mercatoria” or “Law
Merchant”. infr4, administered by merchant judges.
Lex Mercatoria (“law merchant")

- A body of oral, customary mercantile law, which developed in medieval Europe and was administered
quite uniformly across Europe by merchant judges, adjudicating disputes between merchants. The lex
originally included the lex maritima. In the contemporary world, some (although not all) scholars believe
there exists a modern lex mercatoria defined to include certain transnational trade usages and commercial
customs recognized internationally by the mercantile community, and possibly extending to certain
international conventions and even national laws pertaining to international economic relations.
International commerce titration
is frequently cited as a field in which the modern mercatoria is operative.
Lex loci arbitri
• The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place"
• That simply means that the law of the place of arbitration will prevail for all purposes,
• However, such a doctrine does not serve the real purpose of international arbitration.
Topic 7 – International Commercial Arbitration
PLACE OF INTERNATIONAL ARBITRATION, INDIAN LAW,
APPOINTMENT & LEGAL INFRASTRUCTURE
IMPORTANT CASE LAWS ON I.C.A.
Ritesh Khatri
Course-In-Charge
Let’s see the arbitration clause in Singer Case
7.2... the laws applicable to this Contract shall be the laws in force in
India. The courts of Delhi shall have exclusive jurisdiction in all matters
arising under this contract.
27.7 In the event of foreign contractor, the arbitration shall be

conducted by three arbitrators, one each to be nominated by the
owner and the contractor and the third to be named by the President
of the International Chamber of Commerce, Paris. Save as above all
rules of conciliation and arbitration of the International Chamber of
Commerce shall apply to such arbitrations. The arbitration shall be
conducted at such places as the arbitrators may determine."
Sumitomo Heavy Industries Ltd v ONGC Ltd 1998 SCC
• Clause – 17. Laws/Arbitration
• 17.1 Applicable Laws
• All questions, disputes or differences arising under, out of or in connection with this contract shall
be subject to the laws of India.
• 17.2 Arbitration
• If any dispute, difference or question shall at any time hereafter arise between the parties hereto or their
respective representatives or assigns in respect of the construction of these presents or concerning anything
herein contained or arising out of these presents or as to the rights, liabilities or duties of the said parties
hereunder which cannot be mutually resolved by the parties, the same shall be referred to arbitration, the
proceedings of which shall be held at London, U.K. Within 30 days of the receipt of the notice of intention of
appointing arbitrators each party shall appoint an arbitrator of its own choice and inform the other party.
Before entering the arbitration, the two arbitrators shall appoint an umpire. In case the parties fail to appoint
its arbitrator within 30 days from the receipt of a notice from the other party in this behalf or if any dispute in
selection of umpire, the President of International Chamber of Commerce, Paris, shall appoint the arbitrator
and/or the umpire as the case may be.
• The decision of the arbitrators and failing to an agreed decision by them, the decision of the
umpire shall be final and binding on the parties.
• The arbitration proceedings shall be held in accordance with the provision of International
Chamber of Commerce and the rules made thereunder as amended from time to time. The
arbitration proceedings shall be conducted in English language."
Ratio in Sumitomo
• The curial law operates during the continuance of the proceedings before the
arbitrator to govern the procedure and conduct thereof. The courts administering the
curial law have the authority to entertain applications by parties to arbitrations being
conducted within their jurisdiction for the purpose of ensuring that the procedure
that is adopted in the proceedings before the arbitrator conforms to the requirements
of the curial law and for reliefs incidental thereto. Such authority of the courts
administering the curial law ceases when the proceedings before the arbitrator are
concluded.
• The law which would apply to the filing of the award, to its enforcement and to its
setting aside would be the law governing the agreement to arbitrate and the
performance of that agreement. Having regard to the clear terms of Clause 17 of the
contract between the appellant and the first respondent, the law governing the
contract and the law governing the rights and obligations of the parties arising from
their agreement to arbitrate, and, in particular, their obligation to submit disputes to
arbitration and to honour the award, are governed by the law of India; nor is there
any dispute in this behalf.
SINGER is almost followed

BHATIA INTERNATIONAL v. BULK TRADING
Bhatia International or Bulk Trading (as are called in short) is one of those rare judgments, which in one
single stroke managed to completely change the face of a legislation in Arbitration.
FACTS -
The parties to a contract containing arbitration clause resorted to arbitration in accordance with the rules
of International Chamber of Commerce (ICC) to be conducted in Paris.
The respondent in the case (foreign party) wanted to ensure that in the event of a favourable award it
would be able to recover its claim from the Appellant (Indian party). The respondent applied to the District
Judge of Indore under Section 9 of the Arbitration Act asking for certain interim measures to be taken so as
to secure the property of the Indian party situated in India. The Indian party contended that the
application under Section 9, Part I of the Act was not maintainable because Section 2(2) of the Act limits
the applicability of the whole of Part I of the Act to only those arbitrations which take place in India.
ISSUES & APPROACH
• The issue that then arose before the Court was as to whether Part I of the Act,
including Section 9, applied to even those arbitrations which took place outside
India or not.
• The High Court rejected the appellant’s contention who then approached the
Supreme Court.
• Approach I - legislative intent was clearly to limit the scope of provisions of Part I
to domestic arbitrations only and especially not to extend the operation of
Section 9 to arbitrations taking place out of India since the main objective of the
whole Act itself was to minimize judicial intervention in arbitration proceedings.
Section 2(2) provides that Part I shall apply where the place of arbitration is in
India.
• Approach II - Read Sections 2(2) and 2(5) together. use of phrases like ‘all
arbitrations’ and ‘all proceedings’ in the latter indicated Legislature’s intention
that Part I should extend to all arbitrations even those that were conducted
outside India. conflict that ostensibly existed between the two provisions could
be resolved by application of the Doctrine of Harmonious Construction17
according to which Section 2(2) would be interpreted as being inclusive and not
exhaustive in nature. Hence, Part I provisions were made applicable even to
foreign arbitrations.
RATIO
• A three judge bench unanimously held that all provisions of Part I,
including Section 9, apply to all arbitrations irrespective of whether they
took place inside India or outside. The Court further held that while in the
case of ‘domestic arbitrations’, provisions of Part I compulsorily apply; in
‘foreign arbitrations’, Part I applies only in those cases where the parties
have not expressly or impliedly excluded the same.
• Supreme Court carried out a detailed statutory interpretative analysis and
the paramount reason which guided the Court in this exercise was its
conviction that certain disastrous consequences would inevitably’ follow if
the former of the above two stated viewpoints were to be accepted. The
author has hereinafter discussed these consequences below in order to
determine as to whether these ‘consequences’ would have in fact actually
occurred if the Court had adopted the narrow interpretation of the Statute
or not
Supreme Court interpreted the legislature's intentions in
drafting the act to mean that Part I applies to international
arbitrations, unless excluded by the parties. The three-judge
bench of the Supreme Court held as follows:
“To conclude, we hold that the provisions of Part I would apply to all
arbitrations and to all proceedings relating thereto. Where such
arbitration is held in India the provisions of Part I would compulsorily
apply and parties are free to deviate only to the extent permitted by
the derogable provisions of Part I. In cases of international
commercial arbitrations held out of India provisions of Part I would
apply unless the parties by agreement, express or implied, exclude all
or any of its provisions. In that case the laws or rules chosen by the
parties would prevail. Any provision, in Part I, which is contrary to or
excluded by that law or rules will not apply.” (Emphasis added.)
Subsequent to Bhatia International – i.e. Venture
Global Engineering v. Satyam Computer 2008
CLAUSE – (b) This agreement shall be construed in accordance with and governed by the
laws of the State of Michigan, United States, without regard to the conflicts of law rules of
such jurisdiction. Disputes between the parties that cannot be resolved via negotiations shall
be submitted for final, binding arbitration to the London Court of Arbitration.
(c) Notwithstanding anything to the contrary in this agreement, the shareholders shall at all
times act in accordance with the Companies Act and other applicable Acts/rules being in
force, in India at any time
• Appellant (foreign company) challenged the foreign award which had been rendered in
London under the Rules of London Court of International Arbitration (LCIA) in favour of the
respondent (Indian company). The respondent had sought to enforce this award in the
USA. But, the appellant filed a civil suit in an Indian District Court seeking to set aside the
award on the ground of violation of Section 34 in Part I of the Act. The contentions that
were raised against this were that the application was not maintainable since there is no
provision to set aside an award under Part II and that in view of Section 48 in Part II of the
Act, Section 34 will automatically stand excluded. Secondly, it was contended that foreign
award could not be tested on merits on ground of whether it violates the substantive law
of India.
INDTEL TECHNICAL SERVICES(P) LTD v. W S
ATKINS RAIL LTD (25.08.2008 SC)
CLAUSE - 13. Settlement of disputes 13.1. This agreement, its construction,
validity and performance shall be governed by and constructed in accordance
with the laws of England and Wales;
13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in
connection with, this agreement which cannot be settled amicably by the parties
shall be referred to adjudication;
13.3. If any dispute or difference under this agreement touches or concerns any
dispute or difference under either of the sub-contract agreements, then the
parties agree that such dispute or difference hereunder will be referred to the
adjudicator or the courts as the case may be appointed to decide the dispute or
difference under the relevant sub-contract agreement and the parties hereto
agree to abide by such decision as if it were a decision under this agreement
Atkins ….
• INDTEL (an Indian Company) had entered into a Memorandum of
Understanding with WS Atkins PLC (a foreign company).
• The MOU expressly designated English law as the substantive law that
would govern the performance of the contract providing that “this
Agreement, its construction, validity, and performance shall be governed
by and constructed in accordance with the laws of England and Wales”.
• A dispute arose between the parties and INDTEL filed an application under
Section 11 of the Arbitration Act.
• The question before the Court was whether this application was
maintainable in view of the designation of English law and whether its
decision in Bhatia could be extended to cover a situation of this sort
• Supreme Court once again relied on Bhatia and categorically extended the
same to even Section 11 in Part I of the Act.
Citation Infowares Ltd v. Equinox Corp. (2009)
• Clause - 10. Any dispute between the parties hereto to arising from this
Agreement, or from an individual agreement concluded on the basis thereof,
shall be finally referred to a mutually agreed Arbitrator.
• 10.1 Governing law- This agreement shall be governed by and interpreted in
accordance with the laws of California, USA and matters of dispute, if any,
relating to this agreement or its subject matter shall be referred for arbitration
to a mutually agreed Arbitrator.
• RATIO - if the parties intended specifically in this case that the law governing the
contract was Californian law, as expressed in Bhatia International as well as in
Indtel Technical Services case, an implied exclusion of Part I should be
presumed.
There may be presumption where the parties have agreed to hold arbitration in a
particular country. In that circumstance, the presumption would arise that the law
of the country where the arbitration is agreed to be held would apply as a law of
contract. Where there has been no specific expression about the law of contract,
the situation is otherwise. In this case the law of contract is agreed upon as the
Californian law.
It seems that NTPC is followed.
Other Judgements
• Videocon Industries Ltd v Union of India
• Dozco India Private Ltd v Doosan Infracore Company Ltd
• Yograj Infrastructure Ltd v Ssang Yong Engg – 2011 SCC
• BALCO – (2012) 9 SCC 552
• Reliance Industries Limited and Another v Union of India – 2014 SCC
• Sakuma Exports v Louis Dreyfus Commodities Suisse SA – 2013 Arb LR
• Enercon (India) Ltd v Enercon GmbH – 2014 SCC
• Harmony Innovation Shipping Ltd v Gupta Coal India Ltd – 2015 SCC
BALCO
• Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc (BALCO)
• Matter was brought before the Constitutional Bench of the Supreme Court.
During the case, the court revisited the law laid down in Bhatia
International and Venture Global
• Supreme Court upheld the territorial principle and held that arbitrations
which are seated outside India will not attract Part I. However, the court
held that arbitrations – including international arbitrations – which are
seated in India will be governed by Part I
• BALCO judgment to be applied prospectively.
• Therefore, a party to a pre-BALCO arbitration agreement can successfully
argue that the application of Part I of the act has been expressly or
implicitly excluded.
Facts in BALCO
• Appellants entered into an agreement with the respondents whereby the respondents were required to
supply and install computer based system at one of the appellant premises. The agreement was governed
by the prevailing law of India but it contained an arbitration clause that stated that any dispute that may
arise in future shall be governed by the English arbitration law and the venue shall be London. Thus the
clause in the agreement stated that settlement or adjudication of any dispute in relation to rights or
obligations under the said agreement shall be governed by English arbitration law and the venue for the
arbitration proceedings shall be London.
• A dispute arose between the appellants and the respondents with respect to performance of agreement
and the matter was referred to arbitration. The arbitration proceeding were held in England and two
awards were passed in the proceeding. The Appellants thereafter filed application under section 34 of
Arbitration Act 1996 for setting aside awards. The district court and the High Court of Chhattisgarh refused
the setting aside of the awards and appellants filed an appeal against the said order in the Supreme court
of India.
• The counsel of the appellants relied on previously held judgments of Bulk trading and Venture Global and
submitted that Part I of the Act is applicable to the arbitration proceeding that were held in London and
the awards by virtue of S. 34 of part 1 could be set aside. The Appellants Counsels through their
submissions tried to showcase a relation between the various provisions of the Act to conclude that Part I
is applicable to International Commercial Arbitration that were not held in India.
Observation of Supreme Court
• Part I is applicable to all domestically rendered arbitration proceedings that include arbitration proceeding with no foreign party or arbitration
proceedings with both foreign parties but held in India or international commercial arbitration proceeding that are held in India.
• All provisions of Part I [Section 1, 2 (4), (5), (7)] reinforce that Part I shall be applicable to all arbitration proceedings held in India and cannot by
purpose of interpretation be extended to International commercial Arbitrations held outside India.
• Part I applies to all arbitration proceedings that are held in India and this extends also to those arbitration proceedings that are held under any
statutory legislation that is in force in India.
• Section 2 (7) reinforce that Part I shall be applicable to all arbitration proceedings that are held in India and distinguishes a domestically
rendered award covered by Part I from foreign award covered by Part II. Section 2 (7) excludes the possibility of the award passed in arbitration
proceedings held in India involving two foreign parties being considered as non-domestic award by providing that such an award shall be
domestic award.
• The choice of the country as the seat of arbitration inevitably imports an acceptance that the law of that country shall be applicable to the
arbitration proceedings. “Seat” of arbitration and “place” of arbitration are used interchanging but the seat shall remain the place mentioned in
the arbitration agreement. Parties of different nations are involved in international commercial arbitration and hence the venue for arbitration
might change but the seat shall remain the same.
• Section 48 of Part II does not confer jurisdiction on two courts to annul the award and is provided only to provide alternative to parties to
challenge the award in case law of the country where seat of arbitration is located has no provision for challenge of the award.
• The words “set aside or suspend” in the section 48 does not mean that the foreign award that is sought to enforced can be challenged on the
merits by the Indian Courts and the said provision merely recognizes courts of two nations who are competent to suspend or annul the award
and does not ipso facto confer any jurisdiction on the two courts to annul the award that is made outside India. The Indian arbitration act 1996
does not specifically provide conferment of jurisdiction on Indian court to set aside awards made outside India.
• Interim relief under Section 9 can be awarded in case seat of arbitration in international commercial arbitration is India and thus intervention
under Section 9 can be sought only with respect to domestic awards. Part II has no provision that grants interim relief leading to the logical
inference that Indian court cannot pass interim orders against award rendered outside India.
• The arbitral awards awarded in international commercial arbitration with seat of arbitration outside India shall be subject to the jurisdiction of
Indian courts only when they are sought to be enforced in India in accordance to Part II of the Act.
• Part I of the Act shall not be applicable to non –convention arbitral awards. There is no provision in the Act in respect to enforcement of non-
convention arbitral awards and hence remedy with respect to the same cannot be incorporated in Act and this can only be done on by
necessary amendments that can be introduced only by the Parliament.
Enercon – Seat v/s Venue
• Supreme Court took BALCO and said that the venue of arbitration can
be different from the seat; therefore, choosing a venue does not
imply the seat of arbitration.
• SC - "In the present case, even though the venue of arbitration
proceedings has been fixed in London, it cannot be presumed that
the parties have intended the seat to be also in London. In an
international commercial arbitration, venue can often be different
from the seat of arbitration. In such circumstances, the hearing of the
arbitration will be conducted at the venue fixed by the parties, but
this would not bring about a change in the seat of the arbitration.”
• Seat remained in India.
• Therefore, in determining the seat of arbitration – which is a
significant factor in determining the applicability of Part I – the
language used in the dispute resolution clause is paramount when
discerning the parties' intentions. Further, when determining the
seat, the courts will consider:
• the proper law of the main contract (in the absence of any contrary
indication); - Singer
• the venue; - Ssang Yong
• the law applicable to the arbitration agreement; and
• the closest connection of the arbitration agreement. SulameRica
Others
• CHOICE OF LAW DOCTRINE
• PARTY AUTONOMY
Topic 6 - CONCILIATION
Conciliation, it’s application & scope,

role and termination etc.
Ritesh Khatri
Course-In-Charge
CONCILIATION
“conciliation” is not defined in 1996 Act. Article 1 of UNCITRAL Conciliation Rules [Appendix 49]
corresponding to section 61(1), refers to “the parties seeking an amicable settlement of their dispute.”
Conciliation may be defined “as a method used by parties to a dispute to reach an amicable settlement
with the assistance of an independent third person or institution.”
History
• Initially, conciliation was statutorily recognised by
• the Code of Civil Procedure, 1908,
• the Industrial Disputes Act, 1947 (Section 12) and
• the Hindu Marriage Act, 1955 (Section 23)
• it was unable to gain popularity mainly due to the lack of a proper structure and
statutory backing as it was more in the nature of a court annexed conciliation.
• The concept of pre-trial conciliation was put into practice by the High Court of
Himachal Pradesh in 1984 based on the Michigan Mediation in the USA, which was
widely appreciated by the Law of Commission of India in their 77th and 131 reports.
• This was again a court induced model of conciliation which was to be attempted by
parties prior to litigating.
• Enactment of Pt III to the Arbitration and Conciliation Act, 1996 there is in place, a
legislative framework for the regulation of voluntary conciliation
characteristics
• Vital method to prevent and settlement of dispute through third party
• Settling dispute without litigation
• Method of settlement (spl.)
• Process by which discussion between the parties is kept going through the participation of
conciliator
• Harmony is targeted
• Disputes arising out of legal relationships whether contractual or not Sec 61
• INVITE other to conciliate
• Proceedings to commence only when the reply is received within 30 days else deemed
rejection of the invitation
Some more…
The procedure laid down in Pt III (Sections 61 to 81) reflects certain broad principles:
•Non-adversary nature of conciliation proceedings.—There is no “claimant” or “plaintiff’ in” conciliation

procedure;
•Voluntary nature of proceedings.—Any party can commence and discontinue the proceedings and avoid
further expenses in this regard;
•Flexible procedure.—Discretion of the conciliator as to the adoption of procedural laws so as to ensure
speedy and inexpensive conduct of the proceedings;
•Decisions are recommendatory.—Dispute to be settled by mutual agreement & not by imposed decisions.
Commencement of Conciliation
Section 62
S. 62. Commencement of conciliation proceedings.
—
(1)The party initiating conciliation shall send to the other party a
written invitation to conciliate under this Part, briefly identifying the
subject of the dispute.
(2)Conciliation proceedings shall commence when the other party

accepts in writing the invitation to conciliate.
(3)If the other party rejects the invitation, there will be no conciliation
proceedings.
(4)If the party initiating conciliation does not receive a reply within
thirty days from the date on which he sends the invitation, or within
such other period of time as specified in the invitation, he may elect to
treat this as a rejection of the invitation to conciliate and if he so
elects, he shall inform in writing the other party accordingly.
Some more…
Application & SCOPE
• Read Section 61
• Unless the parties have specifically excluded conciliation procedure, they are free to take recourse to
conciliation even if they had agreed for arbitration [Section 61(1)]. Section 30 lays down that it is not
incompatible with an arbitration agreement for the arbitration tribunal to use mediation, conciliation or other
procedures at any time during arbitral proceedings to encourage settlement of the dispute with the consent
of the parties. Section 77, however, prohibits the parties from initiating arbitral or judicial proceedings during
conciliation proceedings, except for preserving their rights
• An agreement to conciliate or mediate is not to be likened . . . to an agreement to agree, nor is it an
agreement to negotiate, or negotiate in good faith, perhaps necessarily lacking certainty and obliging a party
to act contrary to its interest. Depending upon its express terms and any terms to be implied, it may require
of the parties participation in the process by conduct of sufficient certainty for legal recognition of the
agreement.
• Unlike in the case of arbitration, a written conciliation agreement is not necessary. This reflects the voluntary
and non-binding nature of conciliation. This may also encourage parties for conciliation by oral agreement.
Section 62(1) and (2), however, require that the invitation to conciliate and acceptance thereof should be in
writing.
• Once the parties agree for conciliation, the provisions of Pt III will apply. The only permitted exclusion relates
to the prohibition under any law on reference of certain disputes to conciliation [Section 61(2)]. Like non-
international arbitration, the conciliation procedure is applicable to commercial as well as non-commercial
disputes which are capable of being settled by conciliation.
NO OF CONCILIATORS
• Section 63
• It should be noted that conciliation with two conciliators is conceived under the Rules to be as
appropriate as conciliation with three conciliators, despite the different composition and appointment
procedures. It may be felt, though, that the desirable independence and impartiality is only guaranteed
by a conciliator who is chosen by both parties, as is the case with the presiding conciliator in a panel of
three, while in conciliation with two conciliators each party appoints one of them. However, as stated in
Art 7 [corresponding to section 67 of the Act], every conciliator, irrespective of the manner in which he
was appointed, is expected to conduct the proceedings in an independent and impartial manner.
• This expectation is supported by experience gathered in international conciliation proceedings where
panels of two conciliators are not uncommon. It serves to distinguish between conciliation and party
negotiations which are often conducted through counsel or agents. The notion is reinforced, in an
indirect way, by Art 10 [corresponding to section 80 of the Act] which precludes a conciliator from acting
as a counsel of a party in any arbitral or judicial proceedings in respect of the same dispute. The
probable effect of this provision may be that a party might not wish to appoint his counsel as conciliator.
• Finally, it may be pointed out that an uneven number of conciliators, while facilitating the internal
decision-making process, is not necessary in conciliation since the task of the conciliators is to make
recommendations for a settlement and not to render binding decisions.
Conciliation v. Mediation
 While in most countries no distinction is made between conciliation and mediation, in India
however, the introduction of the term mediation while amending section 89 seems to have
implied that the two processes are different. In theory, the difference lies in the role of the
neutral third party who is attempting to resolve the dispute. The traditional understanding
among jurists is that in conciliation the conciliator plays a passive role and his involvement is
limited to ensuring that the parties understand each other clearly. Often the conciliator will
intervene only in case of an impasse. In contrast, a mediator is expected to take a proactive
approach and attempt to resolve the dispute by providing his opinions and advice,
including proposals for settlement.
 However, the ADR Rules discussed by the Indian Supreme Court Salem Advocate Bar Association, TN
v UOI in 2005 seems to indicate clearly that the neutral third party plays a more pro-active role
in conciliation and not mediation. On the other hand mediation, according to the Civil
Procedure Mediation Rules, 2003 mentioned in the same judgment, requires the mediator to
only ensure clear communication between the parties and is limited to a mere facilitative role
instead of an evaluative one.
 Therefore, despite the differences in opinion regarding mediation and conciliation, it is agreed
that the difference is limited to the matter of the degree of involvement of the neutral third
party in the proceedings. In the light of the Rules discussed by the Supreme Court and the role
of the mediator as enunciated in the Mediation Rules, it can be concluded that as far as India is
concerned the conciliator is expected to play a proactive role and the mediator is to restrict
himself to a conservative or passive role in the dispute resolution process.
TECHNIQUES
There are two commonly accepted techniques of Conciliation:
• facilitative method
• evaluative method.
Techniques of Conciliation: There are two methods of conciliation

namely the facilitative method and the evaluative method. The
difference lies in the role adopted by the conciliator during the
course of the proceedings.
In a facilitative mode, the conciliator will refrain from providing his
opinions or advice and will merely ensure that the parties do not
misunderstand each other.
In an evaluative mode, the conciliator take a more proactive
approach and attempts to get the parties to accept the merits and
demerits in their cases thereby leading them to a mutually
acceptable solution.
Section 89 vis-à-vis Arbitration & Conciliation Act 1996
Section 89 and O. X, Rules 1A, 1B & 1C of the CPC.
Under these provisions, if it appears to the court that there exist elements
of a settlement in any suit or proceeding before it, the court is required to
formulate the terms of settlement and give them to the parties for their
observations. Upon receiving the observations of the parties, the court may
reformulate the terms of a possible settlement and refer the same for any
of the following modes of dispute settlement (i) arbitration (ii) conciliation
(iii) judicial settlement through Lok Adalat or (iv) mediation.
Section 89(2)(a) of the CPC further provides that where a dispute has been
referred for arbitration or conciliation, the provisions of the Arbitration
& Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act.
Two significant additions in Act 1996
• Section 66 provides that the conciliator has a free reign
over procedural matters and is not bound by the CPC ,
or the Evidence Act.
• Section 74 states that a settlement agreement arrived
at after conciliation shall be treated as if it is an arbitral
award on agreed terms on the substance of disputes
rendered by an arbitral tribunal under section 30.
Barring these two departures, Pt III mirrors the

UNCITRAL Conciliation Rules, 1980.
Vital Examples of conciliation
•Indus Water Treaty between Pakistan and India
•Timor Sea Conciliation
Indian EXPERIENCE
• OLD - Wage Boards relating to particular trades or industries have
been frequently set up – their composition being determined on
an extension of the principle of conciliation: the Wage Boards
invariably consist of an equal number of representatives of
employers and employees with an independent member as
Chairman. Such Wage Boards are left to regulate their procedure in
such manner as they think fit and although they function as
administrative bodies (subject to their decisions being reviewed by
Courts in writ jurisdiction), their unanimous or near-unanimous
decisions are rarely interfered with.
INDIAN EXPERIENCE
• The Bengal Chamber of Commerce,
• The Marwari Chamber of Commerce,
• The Indian Chambers of Commerce,
• The Bombay Chamber of Commerce and
• The Madras Chamber of Commerce
have provided for Tribunals for the effective resolution of trade
disputes by arbitration – but in doing so the Rules of each of
these bodies have emphasized the overriding object –
conciliation / settlement as prime object.
Principle use of conciliation
• Export Promotion Councils,
• the Commodity Boards,
• Department of Intelligence and Statistics of Government of India,
• Export Inspection Council Calcutta,
• the Federation of Indian Export Organizations and the various Chambers of
Commerce situated in various commercial centres in the country –
They use the conciliation provide a service analogous to the Adjustment Service
provided by the Japan Commercial Arbitration Association and the Korean
Commercial Arbitration Association.
No fees are charged for conciliation services provided by the various Councils
and Boards in the country
All other provisions of act of 1996
• Section 61 to 81
• Sections 82 to 87 – Very Important provisions –
Shahi & Associates v. State of UP 2019(10) SCALE 609
• Section 87 –
Struck Down as manifestly arbitrary U/A 14 of COI
Hindustan Construction Company Ltd. v. Union of India, 2019 SCC OnLine SC 1520, decided on
27.11.2019
SUGGESTIVE READINGS
1. SARVESHCHANDRA, “ADR: Is Conciliation The Best choice?”,

P.C. RAO & WILLIAMSHEFFIELD (ed.) Alternate dispute Resolution- What it is and
How it works, 1st Edn 1997, reprint 2008, p 82.
2. UNCITRAL Model Law on International Commercial Conciliation, 2002
3. O.P. MALHOTRA & INDUMALTHOTRA, “The Law and Practice of Arbitration and
Conciliation”, 2nd Edn 2006, p1516; Barbara A. Nagle Lechman,”Conflict and
Resolution”, 1st Edn 1997, 129

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What is meant by ADR

➢ Alternative Dispute Resolution or ADR refers to an assortment

2. “Alternative dispute resolution or “ADR” refers to a wide range of dispute

Mr. Abhishek Kaushik

ORIGIN OF THE LAW OF ARBITRATION IN INDIA

Arbitration law in its present form gathered progressive vigour in transplantation

• Mr. K.P. Jayaswal's “Hindu Polity”,

• Descriptions in Sumerian inscriptions of about 4000 B.C. of settlement of

• Peace Foundation Pamphlet, Vol. VI - innumerable cases of settlement of

According to Colebrooke these three assemblies were different degrees

1776 Lord Cornwallis sent to India 1786.

Regulations before Cornwallis, instead of abolishing Panchayets,

1816 Madras Regulation IV of 1816 provided for Panchayets to settle disputes.

1816 Bengal Regulation XXII of 1816 provided for Panchayets to regulate

1827 Bombay and Madras also passed enactments encouraging arbitration by

1924 Representations made by various organisations, including the Associated

1985 On 11.12.1985, resolution was adopted by by the General Assembly

2015 & 2019 & 2021 Amendments

Preamble of Arbitration and Conciliation Act, 1996

BEFORE 1996 ACT

1. Independent and Unbiased- When a person is nominated as an arbitrator, he is

APPLICABILITY OF CPC AND EVIDENCE IN TRIBUNAL ETC.

Chapter III- COMPOSITION OF ARBITRAL TRIBUNAL

1. Article (11)paragraph(1)of(UNCITRAL) model law on international commercialarbitration

Mr. Abhishek Kaushik

INTERNATIONAL COMMERCIAL ARBITRATION AND FOREIGN AWARDS

Acts and provisions mentioned in the lecture

1. Summaries the three parts of the

Mr. Abhishek Kaushik

RUSSELL ON ARBITRATION, 19th Edn., p. 59,

An arbitration agreement once made, cannot be deterred when a

FORMS OF ARBITRATION AGREEMENT

A fundamental requirement under Section 7 of the 1997 Act is that

• INTETION TO REFER MUST BE EXPRESS OR IMLPIED

• THE AGREEMENT TO SUBMIT TO ARBITRATION MUST

• ARBITRATION CLAUSE SURVIVES THE AGREMENT

Larsen & Toubro Ltd. v. Mohan Lal Harbans Lal

• SECTION 7 (5)- THE REFERENCE IN A CONTRACT

M.R. Engineers & Contractors (P) Ltd. v. Som Datt

2. Section 2 (b), 3, 4 and Section 7

3. Summary of case laws mentioned in the lecture

 Quippo Construction Equipment Limited v. Janardan

 JG Engineers Pvt Ltd v. Calcutta Improvement Trust AIR

1. Whether it can be made applicable to

2. Presence of Arbitration Agreement a pre-

3. whether the validity of the arbitration

4. The subject matter of the dispute is

See however Ameet Lalchand Shah v. Rishabh Enterprises,

 REFERENCE TO BE MADE- UNLESS THE ISSUE IS NON ARBITRABLE AND TEST OF

 THIRD PARTY REFERENCE

 Exception to the extent of intervention

 10. Number of arbitrators.—(1) The parties are free to determine the

The decision of the Court (See para 5, 8, 9, 14, 16 , 20)

REFER NOTE ON SECTIN 8- PDF NOTE

2(h) “party” means a party to an arbitration agreement.

Section 34-74 Read With Order XX1 (Rules 1-106)

• The judicial system is fundamentally incapable of living up to the ideal of ‘access to

Commercial - Refer to footnote of Art. 1(1) of UNCITRAL

In the international context, arbitration also

Domestic Parties Countries

• A foreign award on the other hand is defined in S. 44 of the 1996 Act.

(1)Propositions regarding proper law of contract