Question 1:- What are the situations which cannot be referred to arbitration?
Answer 1:- Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides. Other forms of ADR include mediation (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts. By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:
Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon: Some court procedures lead to judgments which bind all members of the general public, or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States. Matters relating to crimes, status and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
Role of Conciliator Conciliation is the process in which a conciliator seeks to facilitate a negotiated agreement in which the parties to a dispute. The Conciliator will have an advisory role on the content of the dispute and/or the outcome of its resolution. while arbitration agreements with consumers are only considered valid if they are signed by either party. but not a determinative one. In addition to this. Examples: German law excludes disputes over the rental of living space from any form of arbitration. identify the disputed issues. with the assistance of the conciliator.
. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England).g. develop options. and if the signed document does not bear any other content than the arbitration agreement. consumers. a number of national procedural laws may also contain provisions relating to arbitration. Some other relevant international instruments are:
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The Geneva Protocol of 1923 The Geneva Convention of 1927 The European Convention of 1961 The Washington Convention of 1965 (governing settlement of international investment disputes) The UNCITRAL Model Law (providing a model for a national law of arbitration) The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)
Question 2:.What is the role of a conciliator? Answer 2:. e. consider alternatives and endeavour to reach an agreement. By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. The Conciliator is to act in good faith and maintain a neutral.
States regulate arbitration through a variety of laws.•
Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public.
The Conciliator will have an advisory role on the content of the dispute and/or the outcome of its resolution. Clauses (b) and (c) of Article 39 of the Constitution lay down that the State shall direct its policy towards ensuring: (i) that the ownership and control of material resources of the community are so distributed as to best serve the common good. where the Conciliator considers it to be appropriate in connection with the conciliation of a dispute. and (ii) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. shall pay in equal shares the agreed Conciliator's fee and reasonable out of pocket expenses and any other reasonable costs of and incidental to the conciliation (such as hearing room fees). 1969 empowers the MRTP Commission to enquire into
. 1969 has its genesis in the Directive Principles of State Policy embodied in the Constitution of India. express and record the Concilitor's opinion as to whether or not one or more parties to the dispute has acted on a fair and equitable basis within the meaning of Section 4. The disputants shall bear their own costs of the conciliation and unless otherwise agreed. 4.2. The Conciliator is to act in good faith and maintain a neutral. impartial position in assisting the parties to reach an agreement on a mutually accepted solution and to facilitate the negotiation process.1. The Conciliator may.The MRTP Act.1 Section 10 of the MRTP Act.impartial position in assisting the parties to reach an agreement on a mutually accepted solution and to facilitate the negotiation process. Question 3:.What are the unfair trade practices under the MRTP Act? Answer 3:. but not a determinative one.
Enquiries are instituted by the Commission under relevant Sections of the MRTP Act. 1969 also provides for appointment of a Director General of Investigation and Registration for making investigations for the purpose of enquiries by the MRTP Commission and for maintenance of register of agreements relating to restrictive trade practices.2005. Monopolistic Trade Practices 4. The Commission can also order a preliminary investigation by the Director General of Investigation and Registration when a reference on a restrictive trade practice is received from the Central/ State Government. 4.What are the essentials of a valid offer?
. 1974. 2005December. submits an application to the Commission for an enquiry. or when Commission's own knowledge warrants a preliminary investigation.12. 1969 after the Director General of Investigation and Registration has completed the preliminary investigation and as a result of the findings.2 The MRTP Commission receives complaints both from registered consumer and trade associations and also from individuals either directly or through various Government Departments. 1969 and Regulation 119 of the MRTP Commission Regulations. Question 4:. The MRTP Act. 2005.monopolistic or restrictive trade practices upon a reference from the Central Government or upon its own knowledge or on information. All the 5 enquiries were pending as on 31. Complaints regarding Restrictive Trade Practices or Unfair Trade Practices from an association are required to be referred to the Director General of Investigation and Registration for conducting preliminary investigation in terms of Sections 11 and 36C of the MRTP Act.2.3 Five enquiries under Section 10(b) were pending with the MRTP Commission at the beginning of the year 2005. while no fresh inquiry was instituted during the period April.
religious or moral acts without any intention of creating legal relations will not be a valid offer. unambiguous and certain. it is called "general offer". They must not be loose and vague. The offeror may prescribe any mode of acceptance. he is deemed to have accepted the offer. for example.100 to any one who brings back his missing dog. He cannot say that if the acceptor does not communicate his acceptance within a specified time. an offer to perform social. If the offer is not intended to create legal relationship. This is a specific offer and can only be accepted by Sridhar.100 to Sridhar. When offer is made to a definite person or to a special class of persons. then he has to abide by all the terms and
. Sunil promises to give Rs. Any member of the public can accept this offer by searching for and bringing back Sunil's missing dog. A promise to pay an extra Rs. This is not an offer which can be accepted because the amount of money to be paid is not certain. 5. The offeror is free to lay down any terms any terms and conditions in his offer. for example. Sridhar does not turn up at the dinner party. 3. An offer should may contain any term or condition. if he brings back his missing dog. If the other party accepts it.Answer 4:. for example.. This is a general offer. 4. Sunil issues a public advertisement to the effect that he would give Rs. The terms of an offer must be definite. When an offer is made to the world at large or public in general. 6. It must not be a casual statement. Sridhar says to Sunil "I will give you some money if you marry my daughter". 500 if a particular house proves lucky is too vague to be enforceable. A specific offer can be accepted only by that person to whom it has been made and a general offer can be accepted by any person. Sunil invites Sridhar to a dinner party and Sridhar accepts the invitation. A valid offer must intend to create legal relations. An offer may be made to a definite person or to the general public. it is called "specific offer". But he cannot prescribe the form or time of refusal so as to fix a contract on the acceptor. Sunil cannot sue Sridhar for breach of contract as there was no intention to create legal obligation. 2. An offer to do or not to do must be made with a view to obtaining the assent of the other party. Mere enquiry is not an offer. it is not an offer in the eyes of law. Hence.
a Cooperative society and an association of persons. It claimed that a company could not be a consumer under the Consumer Protection Act. A company cannot be termed a person. 7. Communication may also be implied by his conduct. it approached the Supreme Court which has now finally and authoritatively laid down the law on the subject. The definition has to be interpreted widely. since the electricity is being used for commercial purpose. The Corporation claimed that the word “includes” should be construed as “means”. Under the General Clauses Act. is no acceptance at all. Rejecting this argument. a company is also a person. An acceptance of an offer. and since a company is not listed under the definition. The main arguments of the Corporation were: (a). the definition of person”includes” a firm. Under CPA. Question 5:. it is outside the purview of the CPA.Karnataka Power Transmission Corporation had challenged the maintainability of a consumer complaint by a company alleging deficiency in service in respect of supply of electricity. a H. telegram. Communication is necessary whether the offer is general or specific. so the company cannot approach the consumer for: (b).Find out a case where a person appealed under the consumer protection Act and Won? Answer 5:. The special terms or conditions in an offer must be brought to the notice of the offeree at the time of making a proposal. messenger.U. and ©. he cannot accept it. or even signs and gestures. The offeror may communicate the offer by choosing any available means such as a word of mouth. in ignorance of the offer.
. The dispute pertains to sale of electricity. a company cannot file a consumer complaint. the court held that the word “include” means the list is illustrative and not exhaustive. and the court have interpreted electricity to be goods and not a service. a “person” can file a consumer complaint. A person can accept the offer only when he knows about it.F. It is immaterial whether the terms and conditions were harsh or rediculous. An offer is effective only when it is communicated to the offeree. If he does not know. The intent of the legislature has to be considered. Under the CPA. mail. After having lost right from the District Forum to the National Commission.conditions of the offer. a written document.
Accordingly. It is difficult to shift business from paper to electronic form due to two legal hurdles .What does the information Technology Act enable? Answer 6:. Many legal provisions assume paper based records and documents and signature on paper. which involve the use of alternatives
.[Civil Appeal No. 1879 of 2003 and 7784 of 2002 decided on February 9. The next argument about electricity being goods was also rejected by the court. holding that electricity may be goods for the purpose of Sales Tax but under the CPA it is defined to be a service. The General Assembly of the United Nations by resolution dated the 30th January. 1997 adopted the Model Law on Electronic Commerce and recommended that all States should give favourable consideration to the Model Law when they enact or revise their laws. commonly referred to as "electronic commerce". transmit and store information is increasing. and a complaint for deficiency in service would be maintainable.
As per preamble to the Act. The Information Technology Act has been passed to give effect to the UN resolution and to promote efficient delivery of Government services by means of reliable electronic records. Hence the exclusion clause would not be applicable.(a) Requirements as to writing and (b) Signature for legal recognition. Computer has many advantages in ecommerce.2009] Question 6:.. it was held that a company can also be a consumer entitled to file a complaint under the CPA. Use of computers to create.New communication systems and digital technology have made dramatic changes in way of transacting business. the purpose of Act is (a) to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication.
except cheque (b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act (c) a trust as defined in section 3 of the Indian Trusts Act(d) a will as defined in section 2(h) of the Indian Succession Act. including recognition of foreign Certifying Authorities * Controller to act as repository of all digital signature certificates * Certifying authorities to get License to issue digital signature certificates * Various types of computer crimes defined and stringent penalties provided under the Act * Appointment of Adjudicating Officer for holding inquiries under the Act * Establishment of Cyber Appellate Tribunal under the Act * Appeal from order of Adjudicating Officer to Cyber Appellate Tribunal and not to any Civil Court * Appeal from order of Cyber Appellate Tribunal to High Court * Act to apply for offences or
.10.Broadly. documents which are required to be stamped are kept out of the provisions of the Act. ..* Electronic contracts will be legally valid * Legal recognition of digital signatures * Digital signature to be effected by use of asymmetric crypto system and hash function * Security procedure for electronic records and digital signature * Appointment of Certifying Authorities and Controller of Certifying Authorities..to paper-based methods of communication and storage of information and (b) to facilitate electronic filing of documents with the Government agencies. The Act does not apply to — (a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act.The Act came into effect on 17.
Overview of the Act . including any other testamentary disposition by whatever name called (e) any contract for the sale or conveyance of immovable property or any interest in such property (f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette. .2000.The Act provides for .
contraventions committed outside India * Network service providers not to be liable in certain cases * Power of police officers and other officers to enter into any public place and search and arrest without warrant * Constitution of Cyber Regulations Advisory Committee who will advice the Central Government and Controller