INDEX

SR no. Topic Page no.

Arbitration
1. 2

2. Conciliation 5

3. Arbitration and 7
Conciliation Act 1996

4. CASES RELATED TO THE 9

ACT

5. Career related to the act 11

6. Types of cases 13

7. Conclusion 14

8. Bibliography 15
 1

Arbitration
MEANING:

Arbitration is a private process that provides an alternative to litigation. It is a form of

alternative dispute resolution (ADR) where the parties involved in a dispute agree to
have it heard by one or more arbitrators. The arbitrators are neutral and make a binding
decision on the dispute after hearing arguments and receiving evidence.

There are limited rights of review and appeal of arbitration awards. Arbitration is not the
same as: judicial proceedings (although in some jurisdictions, court proceedings are
sometimes referred as arbitrations), alternative dispute resolution, expert determination,
or mediation (a form of settlement negotiation facilitated by a neutral third party).

ADVANTAGES:

 Arbitration is often faster than litigation in court.

 Arbitral proceedings and an arbitral award are generally non-public, and can
be made confidential.
 In arbitral proceedings the language of arbitration may be chosen, whereas in
judicial proceedings the official language of the country of the competent
court will be automatically applied.

DISADVANTAGES:

 There are very limited avenues for appeal, which means that an erroneous
decision cannot be easily overturned.
 Although usually thought to be speedier, when there are multiple arbitrators on
the panel, juggling their schedules for hearing dates in long cases can lead to
delays
 Discovery may be more limited in arbitration or entirely non-existent.
 2

Features Of Arbitration:

 Consensual Process: Arbitration is a consensual process where parties agree to

resolve their disputes outside of the court system. They voluntarily submit their
dispute to arbitration, often based on a prior agreement or contract.

 Neutral Decision-Maker: Parties involved in arbitration select an impartial third

party or a panel of arbitrators to hear the case and make a binding decision. The
arbitrator(s) are chosen for their expertise in the subject matter of the dispute
and are neutral in their decision-making.

 Flexibility and Informality: Arbitration proceedings are typically less formal

compared to court trials. The process can be tailored to suit the specific needs of
the parties involved, allowing for more flexibility in procedures, evidence
presentation, and scheduling of hearings.

 Confidentiality: Arbitration proceedings are usually confidential, maintaining the

privacy of the dispute and the details of the proceedings. This confidentiality can
be beneficial, especially for sensitive commercial or personal matters.

 Final and Binding Decision: The decision rendered by the arbitrator(s) is final
and binding on the parties involved, meaning it cannot be appealed in most
cases, except in limited circumstances specified by law.

 Enforceability: Arbitration awards are generally easier to enforce across

different jurisdictions compared to court judgments due to international
conventions such as the New York Convention, which facilitates the recognition
and enforcement of arbitral awards in multiple countries.

 Choice of Law and Procedure: Parties have the flexibility to choose the
governing law and procedural rules applicable to their arbitration, providing them
with greater control and predictability over the resolution process.
 3

Types of Arbitration:

1. Domestic arbitration – It means that the proceedings of arbitration will take

place as per Indian laws and be subject to Indian jurisdiction.

2. International and commercial arbitration – This is done in cases involving

disputes out of a legal relationship where one of the parties is a foreign national,
body corporates in some other country, a company or group which is under the
control of some other country and government of a foreign country.

3. Institutional arbitration – It is administered by arbitration institutions like the

Indian Council of Arbitration, the International Centre for Alternative Dispute
Resolution (ICADR) etc.

4. Statutory arbitration – some acts provide for the resolution of disputes by

arbitration. In case there is any inconsistency between any Act and Part I of the
Arbitration Act then the provisions given in that Act will prevail.

5. Ad hoc arbitration – It means an arbitration where parties agree without any

assistance from the Arbitral tribunal.

6. Fast track arbitration – It is also called documentary arbitration. The arbitration

proceedings are very fast and time-saving. It is solely based on the claim
statement by one party and its written reply by another.

7. Look–sniff arbitration – It is a combination of an arbitral process and the

opinion of an expert. There are no formal submissions and hearings under this.

8. Flip–flop arbitration – It is also called pendulum arbitration. The parties in this

type of arbitration create the cases before and then invite the arbitrator to decide
any one of the two options.
 4

CONCILIATION

Meaning:

Conciliation is a voluntary, confidential, and flexible alternative dispute resolution (ADR)

process. It involves a neutral third party, known as a conciliator, who helps the parties
involved in a dispute reach an agreement.

Conciliation differs from arbitration in that the conciliation process, in and of itself, has
no legal standing, and the conciliator usually has no authority to seek evidence or call
witnesses, usually writes no decision, and makes no award.

Advantages:

• Cost and time savings Conciliation can be quicker and less expensive than other
dispute resolution methods.

• Party autonomy Parties can choose the timing, language, place, structure, and content
of the conciliation proceedings.

• Confidentiality Settlement talks are confidential.

• Expertise The conciliator guides the parties through the negotiation and provides
creative solutions.

Disadvantages:

 Informal The conciliation process could be considered too informal and not taken
seriously.
 The conciliation process isn't legally binding
 No decision is guaranteed at the end.
 Waste of time and money If either of the parties involved do not enter the
process with the right attitude, then it may prove a waste of time and money.
 5

Features of Conciliation:

 The person assisting the parties to come to a compromise is called a conciliator.

 Conciliators give their opinion regarding the dispute.
 The process of conciliation is voluntary.
 It is a non-binding process.
 The main difference between arbitration and conciliation is that, unlike
arbitration, the parties in this process control the whole procedure and the
outcome.
 It is a consensual party and the desired outcome is the final settlement between
the parties based on their wishes, terms and conditions.
 A conciliator can become an arbitrator on the wish of the parties if no compromise
could be reached by the process of conciliation. This is known as Hybrid
Conciliation.
 6

Introduction of Arbitration and Conciliation Act 1996:

The Arbitration and Conciliation Act is a legal framework that governs the process of
arbitration and conciliation in India. It provides the procedural guidelines and regulations
for resolving disputes outside of traditional court proceedings through arbitration and
conciliation methods.

Key aspects covered by the Arbitration and Conciliation Act include:

 Arbitration: It outlines the procedures for initiating arbitration, the appointment

of arbitrators, their powers and jurisdiction, conduct of arbitration proceedings,
making and challenging arbitration awards, and enforcement of these awards.

 Conciliation: The act also provides guidelines for conciliation proceedings, which
involve a neutral third party (the conciliator) assisting disputing parties in
reaching a mutually acceptable resolution.

 Domestic and International Arbitration: The act covers both domestic

arbitration (arbitration taking place within India) and international commercial
arbitration (arbitration involving international parties or interests).

 Enforcement of Awards: It establishes the mechanisms for enforcing

arbitration awards within India, including provisions for challenging awards in
limited circumstances.

 Role of Courts: It defines the role of courts in supporting the arbitration process,
such as appointing arbitrators in certain situations, providing interim measures,
and assisting in the enforcement or setting aside of arbitral awards.

Overall, the Arbitration and Conciliation Act aims to provide a structured and effective
framework for dispute resolution through arbitration and conciliation, promoting timely
and efficient resolution while minimizing judicial intervention.
 7

Objectives of Arbitration & Conciliation Act 1996:

 Cover international and domestic commercial arbitration and conciliation

comprehensively.

 Make a procedure which is fair, efficient and capable of meeting the needs of the
society for arbitration and conciliation.

 Provides reasons by the tribunal for granting any arbitral award.

 Minimise the role of courts and reduce the burden on the judiciary.

 It permits the tribunal to opt for arbitration and conciliation as a method of

dispute settlement.

 It makes sure that every award is enforced in the same manner as the decree of
the court.

 It provides that the conciliation agreement reached by the parties has the same
effect as the award granted by an arbitral tribunal.

It also works on the enforcement of foreign awards.

 8

CASES RELATED TO THE ACT: -

Haryana Space Application Centre (HARSAC) v. Pan India Consultants

Pvt. Ltd. (2021)

Facts of the case

In this case, an application was filed under Section 29 A(4) of the Act wherein it was
stated that the decision of the arbitral tribunal was ready to be pronounced by the
authorities. Also, the required cost was paid to the tribunal. On this, the other party
argued that the application must be denied on the ground that it lacks reasons for
extension under the Section. However, the argument was rejected and an extension of
3-months was granted. HARSAC in a response filed a revision in the High Court. But it
again granted a four-month extension. To this, a special writ application was filed to the
Supreme Court.

Issue involved in the case

Whether the extension be given to the party or not?

Judgement of the Court

It was ruled by the court that the clause given in Section 12 is obligatory when it is dealt
together with the Schedule of the Act. It was also held that the Principal Secretary is not
qualified to be an arbitrator. If been the one, he would probably influence HARSAC. The
court also directed to appoint another arbitrator who will continue the proceedings and
help them come to an agreement within 6 months.
 9

Indus Biotech Pvt. Ltd. vs. Kotak India Venture Fund (2021)

Facts of the case

Indus Biotech issued some preference shares which are convertible at the option to
funds of Kotak India. A clause was added in the agreement of shareholders but they
could not agree on how to convert these shares into paid-up equity shares. As a result,
Kotak India filed an application when the other party failed to redeem those shares.

Issue involved in the case

Whether the subject matter of the dispute falls in those that could be referred to
arbitration if the case is pending in NCLT?

Judgement of the Court

The Supreme Court opined that the case cannot be referred to arbitration if the process
is in rem. It further stated that if any proceedings are pending
before NCLT under Section 7 of IBC, then any application under the Arbitration and
Conciliation Act, 1996 will not be entertained. In the instant case, the Supreme Court
held that the decision of NCLT was reasonable and the case (Indus Biotech Pvt. Ltd. v.
Kotak India Venture Fund, 2021) was successfully referred to an arbitral tribunal.
 10

Career related to this field

A career in arbitration and conciliation within the field of law can be both challenging and
rewarding. Here are some career paths and roles related to this field:

 Arbitrator/Conciliator: You can become an arbitrator or conciliator, facilitating

the resolution of disputes between parties. This role involves conducting hearings,
analyzing evidence, and making fair and impartial decisions to resolve conflicts
outside of the court system.

 Lawyer/Solicitor specializing in ADR: Lawyers can specialize in alternative

dispute resolution (ADR), becoming experts in arbitration and conciliation. They
represent clients in arbitration proceedings, advise on ADR strategies, and draft
arbitration agreements.

 Mediator: Mediators are neutral third parties who assist parties in reaching
mutually acceptable agreements through negotiation and facilitation. They help
parties communicate effectively and find common ground to settle disputes
amicably.

 Legal Consultant in ADR: Legal consultants specializing in arbitration and

conciliation provide advisory services to individuals, businesses, or organizations
on ADR procedures, drafting contracts, and ensuring compliance with arbitration
laws

 Academic/Researcher: Pursuing an academic career or conducting research in

the field of arbitration and conciliation can involve teaching law students,
conducting legal research, and contributing to the development of ADR practices
and policies.

 Arbitration Institution Staff: Working for arbitration institutions or

organizations that administer arbitration proceedings involves roles in case
management, administration, and ensuring compliance with procedural rules.

 Government Positions: Some government bodies deal with arbitration and

conciliation, and positions in government agencies or departments related to ADR
might involve policy-making, regulatory roles, or overseeing ADR processes.

To excel in this field, a strong understanding of dispute resolution mechanisms, excellent

communication skills, legal knowledge, analytical abilities, and the capability to remain
impartial and fair are essential. Gaining relevant experience through internships,
specialized courses, and networking within the ADR community can be beneficial in
establishing a career in arbitration and conciliation in law.
 11

Areas of practice where the Abitration and Conciliation Law Act is

used

Arbitration and conciliation law is utilized across various areas of legal practice,
including:

 Commercial Law: It's extensively used in commercial disputes such as contract

breaches, partnership disagreements, corporate disputes, and international trade
conflicts.

 Construction Law: Resolving disputes arising from construction contracts,

project delays, cost overruns, and quality issues often involves arbitration and
conciliation methods.

 Employment Law: It's used in resolving employment-related disputes like

wrongful termination, discrimination, labor disputes, and contractual
disagreements between employers and employees.

 International Trade and Investment: Disputes in international trade,

investment treaties, cross-border business transactions, and conflicts between
multinational corporations often resort to arbitration for resolution.

 Intellectual Property Law: Arbitration and conciliation are employed in

resolving disputes related to patents, trademarks, copyrights, and licensing
agreements.

 Real Estate Law: Disputes arising from property transactions, lease agreements,
construction defects, and landlord-tenant issues can be settled through
arbitration and conciliation.

 Insurance Law: It's utilized in settling disputes between policyholders and

insurance companies concerning coverage, claims, and liabilities.

 Family Law: In some cases, especially involving divorce settlements, child

custody, and property division, parties opt for arbitration or mediation to resolve
disputes outside of court.

 Consumer Disputes: Resolving disputes between consumers and businesses

over contracts, product defects, or services rendered often involve arbitration or
conciliation methods.

Arbitration and conciliation offer flexible and tailored solutions in various legal areas,
providing an alternative to traditional court litigation by offering quicker, cost-effective,
and private means of dispute resolution.
 12

Types of Cases that were under the field of The

Arbitration and Conciliation Act

In India, the Arbitration and Conciliation Act applies to a wide array of cases spanning
different areas of law. Some common types of cases that fall under the field of
arbitration and conciliation law in India include:

 Commercial Disputes: This includes disputes arising from contracts, trade

agreements, business transactions, joint ventures, partnerships, and commercial
agreements.
 Construction Disputes: Issues related to construction contracts, infrastructure
projects, delays, quality of work, payments, and disagreements between
contractors, subcontractors, and developers.
 International Trade Disputes: Conflicts between parties involved in
international trade, import-export transactions, cross-border contracts, and
commercial dealings with entities outside India.
 Corporate Disputes: Conflicts arising within companies, shareholders' disputes,
disputes between board members, or disagreements involving mergers,
acquisitions, or corporate restructuring.
 Intellectual Property Disputes: Disagreements over patents, trademarks,
copyrights, licensing agreements, and infringement issues.
 Employment Disputes: Cases involving wrongful termination, discrimination,
breach of employment contracts, labor disputes, and disputes arising from
employment agreements.
 Real Estate Disputes: Conflicts concerning property transactions, lease
agreements, landlord-tenant disputes, property development, and construction
issues.
 Banking and Finance Disputes: Disputes between financial institutions,
creditors, borrowers, and issues related to loan agreements, defaults, and
financial transactions.
 Consumer Disputes: Disputes between consumers and businesses regarding
products, services, warranties, and consumer rights.
 Matrimonial and Family Disputes: While less common, arbitration or
conciliation may be used in family-related disputes, including matters of divorce,
child custody, and inheritance.
These types of cases are commonly resolved through arbitration or conciliation as an
alternative to litigation in Indian courts.
 13

CONCLUSION:
The Act deals with alternate dispute resolution methods which are effective, cost-
friendly, and timesaving. Due to the pendency of cases and rigid procedural laws of the
courts and to prevent litigation, people nowadays generally prefer settling a dispute
outside the courts with the help of ADRs like arbitration, conciliation, mediation etc. The
Act provides the procedure to be followed in arbitration proceedings, arbitral tribunal, the
conduct of the tribunal along with the arbitral awards to be made in a dispute. The
decision is binding on the parties and given in the form of an arbitral award in an
arbitration agreement. It also prescribes the procedure of appeal to courts in case of
discrepancies
 14

BIBLIOGRAPHY: -
 https://www.indiacode.nic.in/handle/123456789/1978?
sam_handle=123456789/1362.
 https://www.advocatekhoj.com/library/bareacts/
 https://indiankanoon.org/doc/88531418/
 https://blog.ipleaders.in/arbitration-and-conciliation-act
 www.wikipedia.com