Presented to: Sagnika Das (Assistant Professor),

Presented by: Joy Sharma,

University ID: BWU/LLB/20/006,
Subject Code: LLB 602,
Subject Name: Alternative Dispute Resolution (ADR),
Brainware University, Barasat, West Bengal.
 ACKNOWLEDGMENT

I am highly obliged to our beloved Sagnika Das Madam for teaching this wonderful subject which is a very emerging field
of law especially for young advocates. Our Hon’ble Chief Justice of India always emphasises on the practice and impact
of Arbitration in todays and upcoming market and legal arena (both domestic and international arena). I am
overwhelmed for accepting my choice of topic to present. I was eager to share this practical experience and my
understanding on both statutory arbitration and private arbitration.

2 May 10, 2023

 CONTENTS

SLIDE No. TOPICS

4 Introduction
5 Concept of Arbitrability
6 Rights in Personam
7 Rights in Rem
Short forms used in
8 One type of right is arising from the other
presentation:
9 to 13 Industrial Dispute a practicle approach
AC Act 1996 > Arbitration &
14 Right in Rem arising out Right in Personam
Conciliation Act 1996,
15-16 Governing Laws of the dispute
17 Process flow of seeking in present dispute ID Act 1947 > (Industrial
Dispute Act 1947)
Salient features & Process flow of Section 10A of the
18 Industrial Dispute Act 1947 IPC > Indian Penal Code 1860,
19 Arbitration matters and High Court's indulgence DP Act : Dowry Prohibition
20-21 Conclusion and Fair criticism Act 1961.
22 References

3 May 10, 2023

 INTRODUCTION

Right in Rem*
(Real Right)
Right in Personam
Antecedent Rights arising from
(Right existing without any Right in Rem or
infringement of the same). vice-versa.
Right in Personam*
(Personal Right)
Legal Rights

It accrues when any of the

Remedial Rights antecedent right/s is/are
violated.

*the difference is based on the incidence of co-relative duties

4 Presentation May 10, 2023

 CONCEPT OF ARBITRABILITY

#Not arbitrable under Arbitration and Conciliation Act 1996.

#Right in Rem #Right in Rem arising from Right

in Personam.

*Right in Personam arising from

*Right in Personam Right in Rem.
(Personal Right)

*Arbitrable under Arbitration and Conciliation Act 1996.

5 Presentation
May 10, 2023
 RIGHTS IN PERSONAM
Booz Allen and Hamilton Inc. Vs SBI Home Finance Ltd.
and Ors, AIR 2011 SC 2507

Arbitrable under
Arbitration &
Conciliation Act 1996.

6 Presentation
May 10, 2023
 RIGHTS IN REM

Not arbitrable under Arbitration & Conciliation

Act 1996, since these involves right in rem.

“Every civil or commercial dispute, either

contractual or non-contractual, which can be
decided by a court, is in principle capable of
being adjudicated and resolved by arbitration
unless the jurisdiction of arbitral tribunals is
excluded either expressly or by necessary
implication”.

Booz Allen and Hamilton Inc. Vs SBI Home

Finance Ltd. and Ors, AIR 2011 SC 2507

7 Presentation
May 10, 2023
 ONE TYPE OF RIGHT IS ARISING OUT OF THE OTHER

After interpretation of the law laid by the Hon’ble Supreme Court of India in the
mentioned case, it can be inferred that,

✓ If Rights in Personam is arising out of Right in Rem then it is arbitrable under the
Arbitration and Conciliation Act 1996 and

Booz Allen and Hamilton Inc.

v ✓ If Right in Rem is arising out of Rights in Personam then it is non-arbitrable under
SBI Home Finance Ltd. and Ors, the Arbitration and Conciliation Act 1996.
AIR 2011 SC 2507

8 Presentation
May 10, 2023
 INDUSTRIAL DISPUTE (A PRACTICAL APPROACH)

An external complaint was filed by Mr. X’s wife (dated: 08-10-2018) at his department HOD, Head HR, BP HR, Manager and other
officials of his department, alleging domestic violence, cruelty, voluntary abandoning of her and their newly born child and not
attending court proceedings u/s Section 9 of HMA 1955 (Note: Office located at Bengaluru Karnataka and wife was at Chhattisgarh)

Departmental inquiry was held but without providing any show-cause. Since then Mr. X continuously tried to persuade and convince the
mentioned officials to provide him a copy of the contents of her complaints so that he can provide satisfactory reply and establish his
defence and safeguard his official career and reputation.

On 12-03-2019 a FIR was filed by Chhattisgarh Police u/s 34, Sec 4 DP Act 1961 and 498A IPC 1860 and subsequently Mr. X petitions for
Anticipatory Bail u/s 438 CrPC 1973 was refused by both Hon’ble Sessions and High Court of the concerned jurisdiction at
Chhattisgarh. Due to lack of basic support from his employer, to proceed then physically to the Hon’ble Supreme Court of India for
justice u/a 136 of the Constitution of India and suffering huge loss of reputation and humiliation he had no other option then to resign
from his job.

9 Presentation
May 10, 2023
 INDUSTRIAL DISPUTES (A PRACTICAL APPROACH)
Resignation email of Mr.X, dated 14-04-2019

10 Presentation
May 10, 2023
 A PRACTICAL APPROACH (ATTEMPT TO NEGOTIATE)

Initiation
of the
dispute

Note: He made this request during notice period.

11 May 10, 2023
 A PRACTICAL APPROACH (SECOND ATTEMPT TO
NEGOTIATE_AUGUST 2020)

Here he was
released from
service

12 May 10, 2023

 A PRACTICAL APPROACH
(NEGOTIATION FAILED)

This marks the initiation of the dispute

As expressly mentioned by the company that it was not willing to give reasons behind non disclosure about such a
material fact which kept Mr X ‘s career and reputation under stake, thus it can be conclusively stated that it had
acted violating public policy (violation of Principles of Natural Justice) infringing basic human rights of Mr. X.
Hence Right in Rem of Mr. X was violated/infringed.

13 May 10, 2023

 RIGHT IN REM ARISING OUT OF RIGHTS IN PERSONAM
As per Service Agreement

Kindly focus on the last sentence “the governing law shall be the laws of India”.

Booz Allen and Hamilton Inc. v SBI Home Finance Ltd. and Ors, AIR 2011 SC 2507 “If Right in Rem is arising out of
Rights in Personam then it is non-arbitrable under the Arbitration and Conciliation Act 1996”.

14 May 10, 2023

 “THE GOVERNING LAW SHALL BE THE LAWS OF INDIA”

Kohinoor Creations And Ors. vs Syndicate Bank on 26 May, 2005 (2) Arb LR 324, Hon’ble
Delhi High Court concluded that a statute where the legislative intent predominates that
any dispute if arise then it has to be dealt under special courts/tribunals designated in the
statute and general provisions under Arbitration and Conciliation Act 1996 will get the back
seat irrespective of the fact that special statute was enforced prior 1996 Act.

Booz Allen and Hamilton Inc. v SBI Home Finance Ltd. and Ors, AIR 2011 SC 2507

1. “If Right in Rem is arising out of Rights in Personam then it is non-arbitrable under the
Arbitration and Conciliation Act 1996”.
2. Rights involved in “industrial dispute” is a Right in Rem.

15 May 10, 2023

 “THE GOVERNING LAW SHALL BE THE LAWS OF INDIA”
(Contd..)

After literal interpretation of the law laid by the Hon’ble Supreme Court of India in Booz Allen and
Hamilton Inc. v SBI Home Finance Ltd. and Ors, AIR 2011 SC 2507, Hon’ble High Court of Judicature
at Bombay in Kingfisher Airlines v. Captain Prithvi Malhotra and others 2013 (7) Bom CR 738, inferred,
“the inquiry is not solely whether the claim being urged is in personam or in rem but whether the
resolution of the claim has been exclusively reserved for adjudication by a particular court or tribunal
for public policy reasons”.

As per Section 2(k), industrial dispute means “any dispute or difference between employers and
employers, or between employers and workmen, or between workmen and workmen, which is
connected with the employment or non-employment or the terms of employment or with the
conditions of labour, of any person”.

16
May 10, 2023
 PROCESS FLOW OF SEEKING REMEDY IN PRESENT DISPUTE

Arbitration
An Arbitration Right in under
Start Dispute arose Negotiation agreement exists as rem or Arbitration
failed per clause 13 of personam and
Service Agreement violated ? Personam Conciliation
Act 1996.
Before State Govt refers the matter to Tribunal/s Article
u/s 10 of the ID Act 1947. Rem
226
Sec 11 of AC
(to be decided by the disputed parties).
Conciliation Act 1996
under Resolution under
##Proceeds for Arbitration designated
Arbitration u/s 10A or Special Statute Since issue
Conciliation (Industrial Dispute
of ID Act 1947 Adjudication? Officer by the was domestic
Arbitration If conciliation Act 1947). in nature
fails State Govt.

Adjudicate
If NOT under
AC Act 1996 *Arbitrability
Proceeds for Proceed as to be decided
Adjudication u/s 10 Stop per AC Act by HC CJ or
of ID Act 1947 1996. fellow
associates.
*order appealable u/a 136 of
the Constitution of India. If YES under
17 SBP Case (2005) 8 SCC 618. AC Act 1996
 SALIENT FEATURES & PROCESS FLOW OF SECTION 10A,
INDUSTRIAL DISPUTE ACT 1947
##
Written, signed
Arbitration
Agreement + consent Agreement No
of arbitrator/s before Arbitration contains even No umpire is
dispute is referred to u/s 10A number of required.
Tribunal/s u/s 10 arbitrators?
Arbitrators may include
presiding officer of labour
Yes
courts or tribunals.
Copy of such
agreement to
An umpire the Govt + Such copy to be
No After published publicly
Sec 10 must be Conciliation
investigation, within 1 month
ID Act appointed. Officer
Arbitration
succeeded? Whose decision shall prevail if
arbitrators are equally divided in No other
their opinion parties
Yes added
Stop *Govt: other
Yes parties who are No
After investigating the dispute not parties in the
the arbitrator/s submits the (after publishing the notification). agreement, have
signed award to the Govt. interest ?

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 ARBITRATION MATTERS AND HIGH COURT’S INDULGENCE
Ambit is limited since it’s a
special statute and intent of
Legislature must not be vitiated
1. Lis involves a public law
character or Right in Rem.
2. ADR forum chosen
incompetent to provide
appropriate/complete relief.
3. Statutory contract in
question.
4. State or its instrumentality
is demonstrably arbitrary,
unreasonable.
5. If Fundamental Rights
are violated.
6. matter does not relate
only to the interpretation of
a contract which is within
the domain of an arbitrator.
19
*Thus petitions u/a 226, 227 of the Constitution of India are maintainable.
Engineering Mazdoor Sabha ... vs The Hind Cycles Ltd, 1963 AIR SC 874
Rohtas Industries Ltd. & Anr vs Rohtas Industries Staff Union 1976 AIR 425
*Ambit is wide since position
of Sec 10A arbitrator is above
a private arbitrator under AC
Writ Jurisdiction/Art 226 Act 1996.
or 227 of High Court
under Constitution of
India
1. No predefined
provision of appeal
provided after
Arbitration matters
under Arbitration & Arbitration matters arbitration award is
Conciliation Act 1996, under Section 10A of deemed final and
despite of an Industrial Dispute binding.
Act 1947
arbitration 2. Statutory Rules to be
clause/agreement. followed by
Arbitrator are
Under exceptional defined.
circumstances 3. Arbitrator acted
ultra-vires.
 CONCLUSION AND FAIR CRITICISM

Arbitration matters pending

(released in 2022)

20
 CONCLUSION AND FAIR CRITICISM (Contd..)
❑ As per statistical data released in 2022 by authentic sources, the number of pending arbitration matters are shocking.

❑ Even the Hon’ble Apex Court in M/s Shree Vishnu Constructions v The Engineer in Chief, Military Engineering Service & Ors SLP

5306/2022, lamented after the data provided by the High Courts and it was found that Sec 11((4), (5) and (6) of the AC Act 1996
matters were pending since number of years.

❑ Such an action from the judiciary, clearly vitiates the legislative intent behind Arbitration, as an effective mode of ADR.

❑ The Act of 1996 and all special statutes must be immediately amended to incorporate and establish a separate body/juristic person for
all matters where the arbitration proceedings or awards are being challenged or provide additional powers to Arbitration Council of
India dealing for the same.

❑ That’s because taking recourse of Courts at the midst of arbitration proceedings or after final award does not support the very purpose
of the Act of 1996 of other special statutes (where arbitration is provided). Taking recourse of the Courts, at the end of the day will
over-burden it and purpose of ADR gets vitiated.

21
 REFERENCES
1) Dr. N.V Paranjape, Studies in Jurisprudence & Legal Theory, (Central Law Agency, Allahabad, 9th Edition, 2019).

2) Prof. S.N Dhyani, Jurisprudence Indian Legal Theory, (Central Law Agency, Allahabad, 5th Edition, 2019).

3) Dr. Pundla Bhaskara Mohan, Advocate, High Court of Judicature at Hyderabad, “Arbitration and Conciliation Act, 1996 and its

relevance to subordinate courts”, August. 10, 2018.

4) Dr P.C Markanda, Law relating to Arbitration and Conciliation, (Lexis Nexis, 12th Edition, 2022).

5) The Industrial Dispute Act, 1947 (Act 14 of 1947).

6) The Arbitration and Conciliation Act, 1996 (Act 26 of 1996).

7) Age wise pendency of arbitration cases in India in 2022, available at: https://www.statista.com/statistics/1356526/india-age-wise-

pendency-of-arbitration-cases/ , (2022).

8) ILI footnoting standards.

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 Thank you !!

Thank you for your patient hearing and time.