DISPUTES

Dispute could be over many issues like

- Payment and Fees related issues;

- Bill Clearances;
- Dispute over contract;
- Quality of service; etc.

Dispute may be between:

A) Owner and Contractor (Architect is middle person)

B) Owner and Architect may have dispute over many issues like:
-Lack of supervision
-Payment and fees related
- Professional Service
-Delay of Project

C) Architect and Contractor may have disputes like:

- Payment and Fees issues
- Quality issues
- Construction defects and their rectification
- Lack of Supervision of site
 Conciliation and Mediation
• Conciliation as per (ILO 1983)- The practice by which
the services of a neutral third party are used in a
dispute as a means of helping the disputing parties to
reduce the extent of their differences and to arrive at
an amicable settlement or agreed solution.
• It is a process of orderly or rational discussion under
the guidance of the conciliator to refer a dispute for
conciliation even where parties do not consent
• ‘Conciliator’ may request each party to submit to him a
brief written statement describing the “general nature
of the dispute and the points at issue”.
• He can ask for supplementary statements and
documents.
• Conciliator shall assist parties in an independent and impartial
manner.

• Conciliator Shall be guided by principles of objectivity, fairness

and justice, giving consideration, among other things, to the
rights and obligations of the parties, the usages of the trade
concerned and the circumstances surrounding the dispute,
including any previous business practices between the parties.

• Conciliator Shall take into account “the circumstances of the

case, the wishes the parties may express, including a request
for oral statements”.
• The conciliator may, at any stage of the conciliation
proceeding, make proposals for a settlement of the dispute.

• Such proposals need not be in writing and need not be

accompanied by a statement of the reasons therefor
• Role of the ‘conciliator’ in India is pro-active and
interventionist, the role of the ‘mediator’ must necessarily
be restricted to that of a ‘facilitator’.

• ‘Mediation’ is a facilitative process in which “disputing

parties engage the assistance of an impartial third party, the
mediator, who helps them to try to arrive at an agreed
resolution of their dispute.

• The mediator has no authority to make any decisions that are

binding on them, but uses certain procedures, techniques and
skills to help them to negotiate an agreed resolution of their
dispute without adjudication

• Mediation is negotiation carried out with the assistance of a

third party. The mediator, in contrast to the arbitrator or
judge, has no power to impose an outcome on disputing
parties
• In a transformative approach to mediation,
mediating persons consciously try to avoid
shaping issues, proposals or terms of
settlement, or even pushing for the
achievement of settlement at all.

• In stead, they encourage parties to define

problems and find solutions for themselves
and they endorse and support the parties’
own efforts to do so.”
• Brown quotes (at p 127) the 1997 Handbook
of the City Disputes Panel, UK, conciliation “is
a process in which the Conciliator plays a
proactive role to bring about a settlement”
and mediator is “a more passive process”.
 Architect - quasi Arbitrator
• Architect – The quasi Arbitrator
• The architect – must be Fair, obtain views of
both parties before decision
• Most economical way of ending controversy
 Arbitration
• If dispute cant be settled by the architect’s
decision or by mediation , then it is subjected
to arbitration
• Method of resolving disputes between two
parties by a third party
• Arbitrator Gives final decision
• Disinterested, neutral person or panel of three
hears the evidence and arguments of both
sides in a dispute and then makes a decision
• Unlike litigation, arbitration is private and
confidential and awards are not published

• Village Panchayat System

• As compared to litigation it is Informal, less
expensive, quicker, only civil (not criminal),
confidential/private, usually binding and
parties select the arbitrators
Arbitration Agreement –
• Written contract in which 2 or more
parties agree to settle dispute outside of
court
• Ordinarily a clause in contract document
• Arbitration and Conciliation Act 1996 and
the subsequent amendments to act
regulate domestic arbitration in India
Arbitration Binding:
• Binding arbitration involves the submission
of a dispute to a neutral party who hears
the case and makes a decision

• If arbitration is binding, appeal in future is

not possible
Arbitration Tribunal :
• Panel of 1 or more adjudicators to resolve a dispute by way of
arbitration

• It consists of a sole arbitrator, or more arbitrators which might

include a chairman or an UMPIRE

• Where the tribunal consists of an odd number of arbitrators, one

of them may be designated as the umpire or chairman.

• The selection of title carries some significance. When an arbitrator

is "chairman", then they will not usually exercise any special or
additional powers, and merely have a presidential function as the
tribunal member who sets the agenda.

• Where a member of the tribunal is an umpire, they usually do not

exercise any influence on proceedings, unless the other arbitrators
are unable to agree — in such cases, then the umpire steps in
and makes the decision alone
 Appointment of Arbitrators

In accordance with the Act as discussed

 Fees for Arbitrators:
• Fees of the arbitrator and expenses of arbitration shall be borne
equally by the parties unless the sole arbitrator otherwise directs in
his award with reasons

• The arbitral institution shall determine the fees of the arbitral

tribunal and the manner of its payment to the arbitral tribunal

• For the purpose of determination of the fees of the arbitral tribunal

and the manner of its payment to the arbitral tribunal, the High
Court may frame such rules as may be necessary, after taking into
consideration the rates specified in the Fourth Schedule.

• if the parties to an arbitration have agreed to an arbitrators' fee

schedule, the arbitrators must charge their fees in accordance with
this agreed schedule and not in accordance with the Fourth
Schedule of the Arbitration and Conciliation (Amendment) Act 2015
(Gammon Engineers and Contractors Pvt Ltd v National Highways
Authority of India).
Arbitration Award
• It refers to a decision made by the arbitrator in
an arbitration proceedings
• Similar to a judgement
• The arbitral award shall generally state the
reasons upon which it is based
• An arbitral award may be set aside by the Court
as per conditions in the act
• Generally Application must be made within 3
months of award
Arbitral Proceedings
1) Filing and Initiation for Arbitration - One Party may submit
request to COA (in case of architectural project), ant the
other is notified for response within set timeframe
2) Arbitrator Selection
The COA may work with parties to identify arbitrators based
on criteria determined by parties themselves
3) Preliminary Hearing
4) Information exchange and preparation
5) Hearing
6) Post Hearing Submission
7) Arbitration Award
Relevance of various Acts/Rules for
Architects
1) The Architect’s Act 1972
2) The Arbitration and Conciliation Act 1996
3) The Consumer Protection Act
4) The Companies Act 2013
5) Indian Copyright Act
6) Income Tax Act
The Consumer Protection Act, 1986

"Service", as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986,
means service of any description which is made available to potential users and
includes the provision of facilities in connection with banking, financing insurance,
transport, processing, supply of electrical or other energy, board or lodging or both,
housing construction, entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge or under
a contract of personal service.

In other words, rendering professional service by an architect for "consideration" falls

within the ambit of "service".

The relationship between the Client and the Architect is that of recipient and provider
of service.

The professional services rendered by the architect mean the services rendered
pursuant to the Conditions of Engagement and Scale of Charges, entered into between
the Client and the Architect.
• "Deficiency", as defined under Section 2(1)(g)
of the Consumer Protection Act, 1986, means
any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner
of performance which is required to be
maintained by or under any law for the time
being in force or has been undertaken to be
performed by a person in pursuance of a
contract or otherwise in relation to any
service.
 The Company Act 2013
• INCORPORATION OF COMPANY AND MATTERS INCIDENTAL THERETO
• PROSPECTUS AND ALLOTMENT OF SECURITIES
• SHARE CAPITAL AND DEBENTURES
• ACCEPTANCE OF DEPOSITS BY COMPANIES
• REGISTRATION OF CHARGES
• MANAGEMENT AND ADMINISTRATION
• ACCOUNTS OF COMPANIES
• AUDIT AND AUDITORS
• APPOINTMENT AND QUALIFICATIONS OF DIRECTORS
• MEETINGS OF BOARD AND ITS POWERS
• APPOINTMENT AND REMUNERATION OF MANAGERIAL PERSONNEL
• INSPECTION, INQUIRY AND INVESTIGATION
• COMPROMISES, ARRANGEMENTS AND AMALGAMATIONS
• PREVENTION OF OPPRESSION AND MISMANAGEMENT
• REGISTERED VALUERS
• REMOVAL OF NAMES OF COMPANIES FROM THE REGISTER OF COMPANIES
• REVIVAL AND REHABILITATION OF SICK COMPANIES
• WINDING UP
• COMPANIES INCORPORATED OUTSIDE INDIA
• GOVERNMENT COMPANIES
• REGISTRATION OFFICES AND FEES
• COMPANIES TO FURNISH INFORMATION OR STATISTICS
• NATIONAL COMPANY LAW TRIBUNAL AND APPELLATE TRIBUNAL
• SPECIAL COURTS
• MISCELLANEOUS like provions for fraud, false statements, etc.
 Indian Copyright Act 1957

• According to Copyright act 1957-

• Section 2(b) "work of architecture" means any building or
structure having an artistic character or design, or any
model for such building or structure;
• Section 2(c) "artistic work" means—
• (i) a painting, a sculpture, a drawing (including a diagram,
map, chart or plan), an engraving or a photograph, whether
or not any such work possesses artistic quality;
• a work of architecture; and
• any other work of artistic craftsmanship

• Freedom of Panorama
Few general Points just for information of students
• The disciplinary action taken by the Council of
Architecture against the architect who has been
found guilty of professional misconduct does not
absolve him of his liabilities under the Code of
Civil Procedure,1908 and the Code of Criminal
Procedure,1973, if any.
• Some of the relevant laws include, The Law of
Torts, The Consumer Protection Act and The
Indian Penal Code 1860, etc.
 Types of Architectural Firm

• Employs 1 or more licensed architect

• Sole Proprietorship – one licensed principal
architect
• Partnership Firm :
- Partners agree to advance mutual interest
- Goals, responsibilities, authorities, distribution
and evaluation of success, etc are worked out
and agreed through agreement
- Articles of Partnership – to ensure agreement
affirmatively explicit and enforceable. Like pres
release
• Limited Liability Partnership

• In case of a partnership or LLP, all the partners

need to be registered with the CoA.

• Limited Companies, Private/Public Companies,

societies and other juridical persons are not
allowed to practice architecture nor use the
title of an architect as per the Architects Act.
 Indemnity Insurance:
• The architect is required to indemnify the client
against losses and damages incurred by the client
through the acts of the Architect and shall take
out and maintain a Professional Indemnity
Insurance Policy, as may be mutually agreed
between the Architect and the Client, with a
Nationalised Insurance Company or any other
recognized Insurance Company by paying a
requisite premium.