ALTERNATIVE

DISPUTE
RESOLUTION
(ADR)
 `

• US President Abraham Lincoln –

• “Discourage litigation persuade your neighbors to

compromise, whenever you can point out to them how
the nominal winner is often a real loser, in fees,
expenses, waste of time…”

• In simple terms he was advocating ADR for resolving

disputes.
 What is ADR – It is nothing but
Alternative Dispute Resolution.
Concept of ADR
lies in resolving the dispute outside the
standard court procedures.
Encourages communicative capacity of the
disputants.
Why ADR ? Because - Statistics of legal
cases are alarming in India.
Reasons for the increase in litigation – Niti Ayog
Commission’s Working Group report --12th Five Year
Plan (2012 – 2017)
• Poor judge-population ratio
• Vacancies in courts
• Plethora of laws
• Prolonged and costly litigation caused by procedures
and lawyers’ interests
• Poor infrastructure; and
• Weak alternate dispute redressal mechanisms
 Thus :-
 Judicial Manpower needs to increase by seven times
to overcome the crisis-15000- the number of judges
India will need over the next three years
 Shortage of Judges in subordinate courts is one of
the key reasons for pending litigation
 State is obligated to carry out the decisions of the
Apex Court and increase the judge population ratio to
50 per million as held in the - All
India Judges association case.
• Hence need was felt by people for an ADR.

• To sum up the primary object of ADR,

• ----- According to P.C Rao, Secretary General, of
the International Centre for ADR,
• is avoidance of vexation, expenses and delay and
• promotion of the ideal of ‘access to justice’ for all.
• So, is ADR is a modern phenomena.
• No. The history of Informal dispute resolution goes
back to 12th century in China, England and America.

• Position in India? –
• According to Dr. Priyanath Sen author of the
‘The General Principles of Hindu Jurisprudence
• the ADR mechanism dates back to the period of
Dharmashastra’s.
• ADR used for - resolution of disputes between members
of particular clan and locality by Kulas (family or clan
assemblies),

• Srenis(guilds of men following same profession), and

Parishads (assemblies of learned men who knew law).

• More specifically in rural areas Nyaya panchayat’s

decided almost all the disputes between the inhabitants of
the village.
• Most importantly they were recognized as the
systems of the administration of justice and not
merely as ‘alternatives’.

• Importantly procedure and nature of proceedings

of the above institutions - was similar to ADR
being simple informal inexpensive quick.
Reasons behind the phenomenal growth of ADR :

1. Expeditious disposal of cases

2. Inexpensive litigation
3. Informal method of resolution
4. Growth of Commercial transactions
5 LPG–Liberalization, Privatization, Globalization
• Mechanisms of ADR- Negotiation, Mediation,
Conciliation, Arbitration & Lok Adalat .

ADR has advantages ---

• The same is explained by the following diagram
developed by Pepperdine University for Dispute
resolution
• Consensual Processes Adjudicatory Process
• Negotiation Mediation Arbitration Litigation
• A communication Facilitated Informal third Formal
• process utilized to Negotiation party decision third party
• put deals together making decision making
or resolve conflicts

Parties retain control of

the outcome and the process Parties retain control of the outcome but Parties give up control of the
yeild to assistance in the management of outcome and the conducting Parties give up control of the out
the process. of the process come and the process
Control of outcome
Control of process
High Low
Parties look to future in light of past Processes look to the past to determine its resolution and set the stage for a better future
•Model explains the different ADR’s in a continuum
explaining the advantages and unique features.
•Drawing the line from Negotiation upto Adjudication and
Legislation, the line of formality increases from left to right.

•While the consensual process is totally informal and by

Agreement,

•the Adjudication process, which is controlled by state and

conducted in accordance with law is totally formal and by
imposition.
•At the bottom the control levels are explained.

•While in negotiation the control over the initiation,

procedure and outcome is greater,

•it gets diminished in other processes and

•it is totally absent in adjudication and legislation process.

• Advantages –
• 1) can be used any time even when a case is pending
before a court

• 2) can be used to reduce a number of contentious

issues

• 3) can provide a better solution to the disputes more

expeditiously and at less cost than litigation.
• 4) dispute remains a private matter and has a chance
of getting resolved soon.

• 5) procedures per se are flexible and not controlled

by rigorous rules of procedures. - CPC ?
• 6) There need not be a professional advocate or
counsel present in the proceedings ?

• 7) helps reduce the workload of courts thereby

allowing it to focus on cases which have to be
resolved by courts. ?
• Prime example of the effective working of
Conciliation, a form of ADR

• The model of pre-trial In-trial and post-trial

Conciliation Project in subordinate courts evolved
by Himachal Pradesh High Court

• - commended by the Law Commission in its 77th -

Delay and Arrears in Trial Courts and 131th report
-.
• However inspite of its obvious advantages for the ADR
procedure to be more successful, it is necessary that

• i) there should be good law,

• ii) good infrastructure facilities for holding ADR

proceedings &

• iii) professionally trained ADR practitioners.

• So, whether ADR is all advantage, No. -- there are
obvious flaws and disadvantages

• 1) biggest disadvantage -- unfamiliarity of the process

itself.

• 2) ADR is difficult in the sense that there is unequal

bargaining power of one of the parties.
• 3) settlement is reached between the parties the same
is not binding on the parties.

• 4) A party may sabotage the success of the dispute

resolution process leading to trial denovo thus
leading to protracted litigation and

• which can further give rise to later litigation

defeating the whole purpose of ADR mechanism.
•4) legal profession also attracted by the popularity and volume
of arbitration --- making the arbitral process more formalized

•thus making more judicial in nature thereby losing the

distinction between it and the courts.

•5) The courts intervention before during and after arbitration,

made arbitration as dilatory as the court system.–to some
extent reduced by the Arbitration and Conciliation Act,
1996.
 • COURT IMPETUS TO ADR MECHANISM:
• The Supreme Court in F.C.I. v. Joginderpal
Mohinderpal, (1989) 2 SCC 347, observed:-
• “We should make the law of arbitration simple, less
technical and more responsible to the actual realities
of the situation, but must be responsive to the canons
of justice and fair play and make the arbitrator adhere
to such process and norms which will create
confidence, not only by doing justice between the
parties, but by creating a sense that justice appears to
have been done.”
•Historical Perspective:

•Object and the forms of ADR was in existence in ancient India.

•This panchayat form existed till the medieval India and by and
large the system worked well though it was found to be
deficient

•where disputes related to caste matters and particularly

complexities arising out of and economic changes.
• The first traces of change in the earlier ADR system
was made –

• in the year 1772 in the form of ‘Regulations’ and

thereby attempt was made to introduce of system
of Arbitration in India in consonance with British
Jurisprudence.
• Now what are the types of Arbitration:
• 1) Adhoc Arbitration :
• Here in pursuance of Agreement the parties
themselves appoint their own Arbitrator/ Arbitrators.

• They proceed with the Arbitration till the

culmination of award.
• All rules prescribed in the Act must be strictly
followed by the parties and the Arbitral Tribunal.

• The award obtain is a final award and where there is

an arbitration agreement, the suit is barred.
• 2) Institutional Agreement:

• Here the parties get conducted the Arbitration

proceedings through an institution speciliasing in
conducting Arbitration such as Chamber of
Commerce in each state, and thru’ the
Inter Governmental agencies.
• These institutions provide all facilities for conduct of
Arbitration proceedings including appointment of
Arbitrators from the panel of Arbitrators maintained
by them.

• They conduct Arbitration in accordance with the rules

framed by them.
• 3) International Commercial Arbitration:

• Subject to the Law of Arbitration, International

Commercial Arbitration means

• an arbitration on disputes arising on International Trade

limited to what are as known as Commercial transactions
between and among the parties residing in different
Countries.
•4) Statutory Arbitration:

•Where an Act provides compulsory Arbitration, the parties

resort to arbitration only as provided in the Statute.

•Here the statute itself names the Arbitrator and parties

aggrieved by any action taken or orders issued by any
authority under the Act, they have to compulsorily approach
the named Arbitrator for a decision on the dispute.
• Recourse to a Court without seeking Arbitration is
barred.
• Eg :- Co-operative societies Act, Electricity Act,
Land Acquisition Act, Railways Act, Telegraphic Act,
Industrial disputes Act
• are some of the legislations which provide for
compulsory arbitration, which is nothing but
Statutory Arbitration.
• WHAT DISPUTES CAN BE REFERRED TO
ARBITRATION

• Generally speaking, all disputes of a civil nature or quasi-

civil nature which can be decided by a civil court can be
referred to arbitration.

• Thus, disputes relating to property, right to hold an office,

compensation for non-fulfillment of a clause in a contract,
disputes in a partnership etc. can be referred to arbitration.
• Even the disputes between an insolvent and his
creditors can be referred to arbitration by the official
receiver/liquidator with the leave of the court.

• Thus disputes arising in respect of defined legal

relationship, whether contractual or not, can be
referred to Arbitration.
• Therefore, the relationship may not be a contractual
one.

• A dispute may arise out of quasi contracts e.g. the

division of family property. The same may be
validly referred to Arbitration.
• Now to what sort of disputes is ADR suitable.
• Both Procedural law & Substantive law.

• CPC, CRPC, Family Disputes, Industrial Disputes

Act, Hindu Marriage Act, Motor Vehicle claims,
Negotiable Instruments Act.
• DISPUTES EXCLUDED FROM ARBITRATION

• However, certain disputes where the law has given

jurisdiction to determine certain matters to specified
tribunal only, cannot be referred to arbitration.
• An illustrative list of such matters :—

• Testamentary matters involving questions about

validity of a will.
• Disputes relating to appointment of a guardian.
• Disputes pertaining to criminal proceedings
• Disputes relating to Charitable Trusts
• Winding up of a company
• Matters of divorce or restitution of conjugal rights
• Lunacy proceedings
• Disputes arising from an illegal contract
• Insolvency matters, such as adjudication of a
person as an insolvent.
• ARBITRATION & CONCILIATION ACT,
1996
• Sec 2(a) of Arbitration and Conciliation Act 1996
defines Arbitration:

• The term Arbitration means -

• any Arbitration whether or not administered by a
permanent Arbitral Institution.
• It also means an alternative means of resolving the
disputes
• provided the parties have previously agreed to do
so instead of going to court.

• Some authors have meant Arbitration to mean

• ‘a Private Court’ without certain powers of court
like the power of execution of award, - taking out
contempt proceedings.
•The term Arbitration has been derived from the
nomenclature of Roman Law –
• Arbitari (to examine or judge )

•In Halsbury’s laws of England, arbitration has been

defined as –
•“the reference of dispute or difference between not less
than two parties, for determination, after hearing both
sides in a judicial manner, by a person or persons other
than a court of competent jurisdiction”
• Therefore we can conclude that,

• where a dispute is sought to be resolved by a

intervention of third party is called ‘Arbitration’.
• However, for an Arbitration to take place there should
be an Arbitration Agreement.

• So what is an Arbitration agreement?

• Arbitration Agreement is defined in Sec 2(b) of

the Arbitration and Conciliation Act, 1996.
• Sec 2 (b) defines An Arbitration Agreement as ‘an
agreement referred to in Sec 7 of the Act’.
• Further Sec 7 (1) provides that an Arbitration
Agreement means -
• ‘an agreement by the parties to submit to arbitration
of certain disputes which have arisen or which may
arise between them in respect of a defined legal
relationship whether contractual or not.
• So, then whether an Arbitration Agreement should be in
writing.
•(2) An arbitration agreement may be in the form of an arbitration
clause in a contract or in the for of separate agreement.
•(3) An arbitration agreement shall be in writing
•(4) An arbitration agreement is in writing if it is contained in
a) a document is signed by the parties
•b) an exchange of letters, telex other means of communication
through electronic means which provides a record of the
agreement or
•c) there is an exchange of statements of claim and defense in
which the existence of agreement is alleged by one party and not
denied by the other
• So if the Arbitration Agreement should be in writing, -
whether an Oral Agreement is valid. i.e whether it has any
legal validity.

• i) Whether such an oral Agreement is itself enforceable in law

• & Ii) whether an award made as a result of such an oral

Agreement is enforceable in law.

• The oral Agreement cannot be legally enforceable.

• So what constitutes an arbitration agreement _
Judiciary has laid down well settled principles in
this regard. Jagdish Chander v Ramesh Chander
(2007) 5 SCC 719.
• (i) If the terms of the agreement clearly indicate an
intention on the part of the parties to the agreement to
refer their disputes to a private tribunal for
adjudication and an willingness to be bound by the
decision of such tribunal on such disputes,
• it is an arbitration agreement.
• While there is no specific form of an arbitration
agreement, the words used should disclose a
determination and obligation to go to arbitration
and not merely contemplate the possibility of going
for arbitration. Where there is merely a possibility
of the parties agreeing to arbitration in future,
• as contrasted from an obligation to refer disputes
to arbitration, there is no valid and binding
arbitration agreement.
• (ii) Even if the words ‘arbitration’ and
‘arbitral tribunal (or arbitrator)’ are not used
with reference to the tribunal which has to adjudicate
upon the disputes, in a clause relating to settlement of
disputes,
• it does not diminish the clause being an arbitration
agreement if it has attributes or elements of an
arbitration agreement.
• (iii) Where the clause provides that in the event of
disputes arising between the parties, the disputes
shall be referred to Arbitration, it is an arbitration
agreement.
• Where there is a specific and direct expression of
intent to have the disputes settled by arbitration, it
is not necessary to set out the attributes to make it
an arbitration agreement.
• But where the clause relating to settlement of
disputes, contains words which specifically excludes
any of the attributes of an arbitration agreement -
it will not be an arbitration agreement.
• For example, where an agreement requires or permits
an authority to decide a claim or dispute without
hearing, or
• requires the authority to act in the interests of only
one of the parties, or provides that the decision of the
Authority will not be final and binding on the parties,
or that if either party is not satisfied with the decision
of the Authority, he may file a civil suit seeking relief,
• it cannot be termed as an arbitration agreement.
• (iv) But mere use of the word ‘arbitration’ or
‘arbitrator’ in a clause will not make it an arbitration
agreement, if it requires or contemplates a further
or fresh consent of the parties for reference to
arbitration.
• For example, use of words such as “parties can, if they
so desire, refer their disputes to arbitration” or “in the
event of any dispute, the parties may also agree to refer
the same to arbitration” or “if any disputes arise
between the parties, they should consider settlement by
arbitration” indicate that the clause is not intended to
be an arbitration agreement.
• Similarly, a clause which states that “if the parties so
decide, the disputes shall be referred to arbitration” or
is not an arbitration agreement.
• Such clauses merely indicate a desire or hope to
have the disputes settled by arbitration, or a
tentative arrangement to explore arbitration as a
mode of settlement if and when a dispute arises.
 • Attributes of Arbitration :

• The question as to what constitutes an Arbitration

have been explained in the matter of -
• K.K Modi vs K.N Modi by the Supreme Court of
India - AIR 1998 SC 1297.
• Among the attributes which must be present for an
agreement to be considered as an arbitration
agreement are:
• i) The arbitration agreement must contemplate that
the decision of the tribunal will be binding on the
parties of the Agreement.
• Ii) The jurisdiction of the tribunal to decide the rights
of the parties must flow from the consent of the
parties,
• or from the order of the Court or from a statute, so
that it is clear that what is sought to be conducted is a
process of Arbitration.

• Iii) The agreement must contemplate that substantive

rights of the parties will be determined by the agreed
tribunal.
• Iv) The tribunal will determine the rights of the
parties in an impartial and judicial manner with the
tribunal owing an equal obligation of fairness towards
both sides.

• v) That the agreement of the parties to refer their

disputes to the decision of the tribunal must be
intended to be enforceable by law.
• Vi) The agreement must contemplate that the tribunal
will make a decision upon a dispute which is already
formulated at a time when a reference is made to the
tribunal.
• A Domestic Arbitration clause can be as follows:
• All disputes arising out of this contract or arising in
relation thereto or in connection with the terms of
contract shall be referred to arbitration by an arbitral
tribunal consisting of sole arbitrator / one arbitrator
to be named by each party and the two arbitrators so
appointed shall appoint the presiding arbitrator.
The Arbitration proceedings shall be held at
Visakhapatnam.
The Arbitration shall be in accordance with the Arbitration
and Conciliation Act, 1996. The award passed by the
arbitral tribunal shall be final and binding on the parties.
• The test as to whether a dispute fell within the scope of
Arbitration clause is -

• whether recourse to the Arbitration Agreement was

necessary for the purpose of determining of the disputes
between the parties.

• V) One important aspect is the party executing the

Arbitration Agreement must be in existence on the date
of execution of Agreement.
• When a person claiming to be Managing Director of
a proposed company, yet to be incorporated enters
into an agreement with another party which contains
an arbitration clause. What is the status of the same?

• Such company not being in existence, is not bound by

the Arbitration clause. – APTDC v Pampa Hotels
Ltd. AIR 2010 SC 1806.
• Arbitration clause incorporated in Agreements
entered in to with Government. - Essentials

• i) Agreement containing an arbitration clause must

conform to the mandatory requirements of Art 299 of
the Constitution of India.
• Ii) the contract must be expressed in the name of the
President of India or Governor of the State and
executed on behalf of the President or the Governor.
• Iii) It should be naturally in writing and must be
executed by a person authorized to execute it on
behalf of the President or the Governor. –

• Iv) One of the most significant aspects of an

arbitration agreement is that whether there can be
Arbitration Agreement on behalf of a minor.
• As a minor is not competent to enter into contract he
cannot agree to submit to Arbitration.
• However, an arbitration agreement may be made on
behalf of the minor by his natural or legal guardian
if it is made in good faith and for the
benefit of the minor.
• However if the minor is not properly represented and
the guardian fails in his duty the award is not binding
on the minor. - Mohiri Bibi v Dharmodas Ghosh
• s/m tea case here
• The main thrust of amendments in the Arbitration
and Conciliation (Amendment) Act 2015 :
• i) The main thrust of amendments is to minimize the
delays in arbitration process and courts’ intervention
by
• ii) Empowering arbitral Tribunal with the same
powers of a court for the purpose of granting
interim measures/relief
• iii)Suggesting indicative model fee structure for Arbitral
Tribunal

• iv)Fixing time limits for passing of arbitral award

and disposal of applications by courts

• v) Mandating detailed disclosures/ guidelines for

disqualification for ensuring impartiality,
independence of arbitrators
• Sec 2 ----- -----
• Sec 7 (4) (b) -
• an exchange of letters, telex, telegrams or other
means of telecommunication which provide a record
of the agreement; -
• After the words - or other means of
telecommunication, the words - including
communication through electronic means
-Amendment Act 2015
• (1) The effect is that judicial authority before whom
the 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,

• Sec 8 - Power to refer parties to arbitration where

there is an arbitration agreement - Effect of the
Arbitration clause.
• 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, is bound to
refer the parties to Arbitration, and
(Unless it find that prima facie no valid arbitration
agreement exists)- Amendment Act 2015.
• (2) The application is accompanied by the original
agreement or a duly certified copy thereof.
• (where the party making an application does not
have the agreement and is retained by the other
party – it shall request the court to direct the other
party to produce the original or a certified copy)
-Amendment Act, 2015
• Though it is mandatory for court to refer the
parties to arbitration, however certain conditions
are required to be satisfied.
• i) There is an existence of a legally valid agreement
which is operative and capable of being performed.
• Ii) One of the parties start legal proceedings.

• Iii) The legal action is brought in manner which is the

subject of an arbitration agreement.
• Iv) The dispute in the legal proceedings is covered by
and is arbitrable under the Agreement
• V) An application is made by a party to the
judicial authority before whom an action is
brought requesting that the parties be referred to
Arbitration.
• Vi) Such application is made by a party before
submitting his first statement on the substance of
dispute.
• P. Anand Gajapathi Raju and Others v P. V. G.
Raju (Dead) and Others (2000) 4 SCC 539
 • PROCEDURE -ARBITRATION ACT, 1996
•Appointment of Arbitrator and composition of the
Arbitral Tribunal.

•The obvious question is what is an arbitral tribunal?

•An Arbitral Tribunal means a sole arbitrator or a panel

of odd arbitrators appointed in accordance with the
provisions of Sec 10 and Sec 11 of the Arbitration and
Conciliation Act.
 Provisions in relation to the composition of an
Arbitral Tribunal. - Sec 10 to Sec 15 of the Act.
• Sec 10 – relates to the number of Arbitrators.

• Sec 11 – relates to mode of appointment

• Sec 12 – relates to the grounds for challenging the

appointment of Arbitrator.
• Sec 13 lays down the procedure for challenge.

• Sec 14 stipulates that the mandate of an arbitrator

shall terminate in case of failure or impossibility to
Act.

• Sec 15 lays down additional grounds for termination

of Mandate and appointment of substitute arbitrator.
• Sec 10 gives the option to the parties for appointing
the number of Arbitrators -

• however this is subject to restriction imposed under

section 10(1) which restricts the arbitrators being
even in number.

• (2) Where, however the parties do not determine as

stipulated above - the arbitrator shall be an sole
Arbitrator.
• Sec 11 – Mode of appointment of Arbitrators
• According to Russell, the term appoint means to
“concur in appointing”.
• How does the appointment take place –
• The proposed person must be approached and told
that it is desired to appoint him as arbitrator in a
particular matter and he must indicate his
willingness to act as such.
•This should also be communicated in writing to the
other party by him in clear and unequivocal language.

•The expression ‘appointment’ connotes effective

appointment. A mere nomination unknown to the
appointee would not be enough to constitute an
appointment.

•.
• Sec 11 -In Section 11 (instead of (Chief Justice)
Supreme Court and (Chief Justice) High Court.)
“The arbitral institution referred to shall be
substituted; (2019 Amendment)

• Sec 11 (1) also stipulates that a person of any

nationality may be appointed as an arbitrator.
However the parties are free to decide otherwise
• Sec 11 (2) speaks about procedure for
appointment of Arbitrator. The parties are free to
decide on the procedure of appointment of the
Arbitrator/s. However this is subject to
sub-section 6.
• (3)Failing any agreement referred to in
sub-section(2), in an arbitration with three
arbitrators,
• each party shall appoint one arbitrator, and the two
appointed arbitrators shall appoint the third arbitrator
who shall act as the presiding arbitrator.
• Sec 11(2) and Sec 11(3) speak about appointment
of Arbitrator by the parties.
• Another mode of appointment of Arbitrator is by the
Chief Justice of a High Court /Chief Justice of India.-
However the Chief Justice (High Court/Supreme
Court) can only exercise powers only upon the
request of a party.
• In section 11 of the principal Act,—after sub-section
(3), the following sub-section shall be inserted,
namely:—
• “(3A) The Supreme Court and the High Court
shall have the power to designate, arbitral
institutions, from time to time, which have been
graded by the Council under section 43-I, for the
purposes of this Act:
• Provided that in respect of those High Court
jurisdictions, where no graded arbitral institution are
available, then,
• the Chief Justice of the concerned High Court may
maintain a panel of arbitrators for discharging the
functions and duties of arbitral institution and
• any reference to the arbitrator shall be deemed to
be an arbitral institution for the purposes of this
section and the arbitrator appointed by a party
shall be entitled to such fee at the rate as specified
in the Fourth Schedule:
• Provided further that the Chief Justice of the
concerned High Court may, from time to time, review
the panel of arbitrators.”; (2019 Amendment)
•So - what are the circumstances in which a party may request the
Chief Justice or the person delegated by him to appoint the
Arbitrators.

•The same is governed under Sections 11 (4) (5) and (6).-The

Circumstances under which the Chief Justice (High court) can
make the appointment are : [Sec 11(4)]
•a) In case of an arbitration with three arbitrators, when the
procedure prescribed under Sec 11 (3) applies –and
•i) either because one of the parties fails to appoint an arbitrator
within thirty days from the receipt of the request to do so from the
other party, or
 Ii) because the two arbitrators appointed by the parties fail to
agree upon the third arbitrator within thirty days from the date of
their appointment the appointment shall be made, upon request of
a party, by the Chief Justice or any person or institution
designated by him.

•5) Failing any agreement referred to in sub-section (2), in an

arbitration with a sole arbitrator, if the parties fail to agree on
the arbitrator within thirty days from receipt of a request by one
party from the other party to so agree
•the appointment shall be made, upon request of a party, by the
Chief Justice (High court) or any person or institution designated
by him.
• (6) Where, under an appointment procedure agreed
upon by the parties,-
• (a) a party fails to act as required under that
procedure; or
• (b) the parties, or the two appointed arbitrators, fail to
reach an agreement expected of them under that
procedure; or
• (c) a person, including an institution, fails to
perform any function entrusted to him or it under
that procedure, --- then
• .
• a party may request the Supreme Court or (High court)
or any person or institution designated by him to take the
necessary measure, unless the agreement on the
appointment procedure provides other means for
securing the appointment.
• (7) A decision on a matter entrusted by sub-section (4) or
sub-section (5) or sub-section (6) to the Chief Justice
(High court) or the person or institution designated by
him is final ....
• words – and no appeal including letter patent appeal
shall lie against such decision---- added -Amendment
Act, 2015
• Qualities and qualifications of the Arbitrator.
• The Act does not lay down any specific qualification for
the appointment of the Arbitrator.

• However Sec 11 (8) of the Arbitration and Conciliation Act,

1996 says that it will be proper that the appointment by the
Court would be of
• a person qualified to adjudicate the dispute considering
the technicalities thereof and that he would be
independent and impartial.
• After the Seventh Schedule to the principal Act,
the following Schedule shall be inserted, namely:
––
• ‘‘THE EIGHTH SCHEDULE
• (See section 43J) (2019 Amendment)
•(8) The Supreme Court or (High court) or the person or
institution designated by such court,----- (before
appointing an arbitrator shall seek a disclosure in
writing from the prospective arbitrator in terms of sub-
section (1) of section 12, and have due regard to --) –
Amendment Act, 2015
•(a) any qualifications required of the arbitrator by the
agreement of the parties and
•(b) (the contents of disclosure and) - Amendment Act,
2015 other considerations as are likely to secure the
appointment of an independent and impartial arbitrator.
• (9) In the case of appointment of sole or third
arbitrator in an international commercial
arbitration, the (Supreme Court) or the person or
institution designated by him

• may appoint an arbitrator of a nationality other

than the nationalities of the parties, where the
parties belong to different nationalities.
• (11) Where more than one request has been made
under sub-section (4) or sub-section (5) or sub-
section (6) to the Chief Justices of different High
Courts or their designates, - then

• - the Chief Justice or his designate to whom the

request has been first made under the relevant
sub-section shall alone be competent to
decide on the request.
• (12) (a) Where the matters referred to in sub-sections
(4) (5) (6) (7) (8) and sub-section (10)

• arise in an international arbitration the reference

to Supreme Court or as the case may be to High
Court in those sub-sections shall be construed as
Supreme Court.
• One question which arises for consideration is after
the Court appoints the Arbitrator, does it have
jurisdiction to make an order of reference of the
disputes to the arbitrator.

• It does not have jurisdiction and if it does so, the

award would be rendered invalid.
• New sub-sec (13) to Sec 11 has been incorporated:

• An application for appointment of an Arbitrator shall be

disposed of by the High Court or Supreme Court as
expeditiously as possible and an endeavour shall be made
to dispose of the matter within 60 days. - Amendment Act,
2015

• Substituted within a period of 30 days from the date of

service of notice on the opposite party. (2019 Amendment)
 – (14) The arbitral institution shall determine the
fees of the arbitral tribunal and the manner of its
payment to the arbitral tribunal subject to the
rates specified in the Fourth Schedule.
• Explanation.—For the removal of doubts, it is
hereby clarified that this sub-section shall not apply
to international commercial arbitration and in
arbitrations (other than international commercial
arbitration) where parties have agreed for
determination of fees as per the rules of an arbitral
institution.” (2019 Amendment)
• Datar case here
• Sec 12 –
• is widely worded and explanation added. Grounds are given
in the Fifth Schedule which shall guide in
determining whether circumstances exist which give
rise to justifiable doubts as to the independence or
impartiality of an arbitrator. - Amendment Act, 2015

• After 12 (4) - Sec 12 (5) inserted Amendment Act, 2015 –

significance and import
• Challenge to the appointment of Arbitrator. –
- Sec 12 and Sec 13
•12.(1) Grounds for challenge:-
•(1) when a person is approached in connection with
possible appointment of arbitrator a obligation is cast
upon him to

•disclose without delay to the parties in writing, any

circumstances likely to give justifiable doubts as to his
independence or impartiality. ---
• Amendment Act, 2015- (a) such as the existence
either direct or indirect, of any past or present
relationship with
• or interest in any of the parties or
• in relation to the subject-matter in dispute,
whether financial, business, professional or
other kind,
• which is likely to give rise to justifiable doubts as
to his independence or impartiality;
• and (b) which are likely to affect his ability to
devote sufficient time
• to the arbitration and in particular his ability to
complete the entire arbitration within a period of
twelve months.
• (2)This is applicable throughout the Arbitral
proceedings.
• (3) The Section stipulates only two grounds on which
the appointment of the Arbitrator may be challenged:
• i) circumstances exist that give rise to justifiable
doubts as to his independence or impartiality.
• Ii) he does not posses the qualifications agreed to by
the parties.
• (4)A party may challenge an arbitrator appointed by
him also. But-only for those reasons of which he
becomes aware after the appointment has been made.
• Amendment Act, 2015 -“(5) Notwithstanding any prior
agreement to the contrary, any person whose relationship,
with the parties or counsel or the subject-matter of the
dispute, falls under any of the categories specified
in the Seventh Schedule shall be ineligible to be
appointed as an arbitrator:
• Provided that parties may, subsequent to disputes
having arisen between them, waive the applicability of
this sub-section by an express agreement in writing.
• Assignia and gmbh cases here
• Sec 13 – Challenge Procedure :
• (2). A party who intends to challenge an arbitrator
shall,
• within fifteen days becoming aware of the
constitution of the arbitral tribunal
or
• after becoming aware of any circumstances
referred to in sub-section (3) of section 12,
• send a written statement of the reasons for the
challenge to the arbitral tribunal.
 • Consequence & Implication
• (3) Unless the arbitrator challenged under
sub-section (2) withdraws from his office -or the
other party agrees to the challenge, arbitral
tribunal shall decide on the challenge.

• (4) If a challenge under sub-section (2) is not

successful,
• the arbitral tribunal shall continue the arbitral
proceedings and make an arbitral award.
• (5) Where an arbitral award is made under
sub-section (4), the party challenging the arbitrator
may make an application for setting aside such an
arbitral award in accordance with section 34.

• (6) Where an arbitral award is set aside on an

application made under sub-section (5), the Court
may decide as to whether the arbitrator who is
challenged is entitled to any fees.
• 14. Failure or impossibility to act. -
• (1) (The mandate of an arbitrator shall terminate and he
shall be substituted by another arbitrator, if -)
Amendment Act, 2015
• (a) he becomes de jure or de facto unable to perform his
functions or
• for other reasons fails to act without undue delay; and

• (b) he withdraws from his office or the parties agree to the

termination of his mandate.
• (2) If a controversy remains concerning any of the
grounds referred to in clause (a) of sub-section (1),
• unless otherwise agreed by the parties,
• - a party may, apply to the Court to decide on the
termination of the mandate. ----
• (3) If, under this section or sub-section (3) of section
13, - an arbitrator withdraws from his office or a
party agrees to the termination of the mandate of an
arbitrator,

• it shall not imply acceptance of the validity of any

ground referred to in this section or sub-
section (3) of section 12. –
• ( A voluntary withdrawal by arbitrator)
• 15. Termination of mandate and substitution of
arbitrator - (1) In addition to the circumstances
referred to in section 13 or section 14, the mandate
of an arbitrator shall terminate----

• (a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.
• (2) Where the mandate of an arbitrator terminates, a
substitute arbitrator shall be appointed according
to the rules that were applicable to the appointment
of the arbitrator being replaced.

• (3) Unless otherwise agreed by the parties, where an

arbitrator is replaced under sub-section (2), any
hearings previously held may be repeated at the
discretion of the arbitral tribunal.
• (4) Unless otherwise agreed by the parties,

• an order or ruling of the arbitral tribunal made

prior to the replacement of an arbitrator under
this section shall not be invalid
• solely because there has been a change in the
composition of the arbitral tribunal.
(Sub-sec (3) & (4) proviso enables the parties to
proceed with the matter without delay)
• Termination of the mandate of Arbitrator – Whether -
termination of proceedings :

• Termination of mandate means that the arbitrator who

was granted the mandate to conduct the arbitration
ceases to hold office.

• The question arises whether arbitration is terminated.

- No
 • Conduct of Arbitral Proceedings -
• Steps of Arbitration
• Prior to hearing of the matter-
• preliminary steps
• i) Modes of appointment of the arbitrator
• - Agreement between the parties,
• - by an order of the court,
• - by an statutory bodies or
• - by rules of an institution.
• complete by the arbitrator/s acceptance of the
appointment.

• ii) Fixing the date and venue of Arbitration for the

first/preliminary meeting of the parties with the
Arbitral Tribunal.
 • Steps of Arbitration-
• During the hearing of the matter
First Procedural Order
1) Preliminary hearing
2) Further dates and fixation of Venue
3) Language
4) Institutional
5) SOC -SOD/WS
• 6) Counter claim
• 7) Affidavit
• 8) Discovery of Documents for evidentiary value.
• 9) Draft Issues
• 10) witnesses
• 11) Further Hearing dates for evidence arguments &
declaration of award
• 12) Interim application –
• 13) ....
• LAW OF LIMITATION - Limitation Act, 1963 is
applicable. –

• For this purpose, date on which the aggrieved party

requests other party to refer the matter to
arbitration shall be considered.

• Total claim –
• Part claim
Illustration:
• Sec 16–Jurisdiction of Arbitral Tribunal.
• Competence of the Arbitral Tribunal to rule on its
own Jurisdiction
• 1) The Arbitral Tribunal may rule on its own
jurisdiction,
• including ruling on any objections on existence or
validity of the agreement.
 For the purpose of ruling on any objections on
existence or validity of the agreement –
(a) an arbitration clause which forms part of the
contract shall be treated as an agreement
independent of the other terms of the contract and

(b) a decision by the arbitral tribunal that the

contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
• Conditions for taking recourse to the provision:

• 2) plea of lack of jurisdiction shall not be raised

later than the submission of the statement of
defense.

- Appointing an Arbitrator or participating in it

will not bar the party from raising the plea.
• 3)plea the Arbitral Tribunal is exceeding the scope
of its authority shall be raised

• as soon as the matter alleged to be to be beyond

the scope of its authority
• is raised in course of Arbitral proceedings.
• 4) Discretion of Tribunal to admit plea
• 5) In the event that the Tribunal rejects the plea ----it
can continue with the proceedings and make an
arbitral award
• 6) party aggrieved - can only appeal after an
award is made under section 34 of the Act.
• Significance of the provision --- Spirit of ADR
mechanism is upheld.
 • Principles of Kompetenz Kompetenz
• 1) The principles requires that the arbitral tribunal
must exercise jurisdiction over the dispute under
the Arbitration Agreement.

• 2) Challenge to the existence or validity of the

arbitration agreement
• will not prevent the arbitral tribunal from
proceeding with the hearing and ruling upon its
jurisdiction
• 3) If it retains jurisdiction, making an award or the
substance of dispute would be permissible without
waiting for the outcome of any court action aimed
at deciding the issue of the jurisdiction.
• 4) The negative effect of the Kompetenz Kompetenz
principle is that the arbitrators are entitled to be
the first to determine their jurisdiction which is
later reviewable by the court, where there is action
to enforce or set aside the arbitral award.
• 5) Where the dispute is not before an arbitral
tribunal, the court must also decline jurisdiction
unless the arbitration agreement is patently void,
inoperative or incapable of being performed.
• Sec 9 - Interim measures etc. by Court.-
• 1) A party may, before, or during arbitral
proceedings or at any time after the making of the
arbitral award -
• but before it is enforced in accordance with section
36, apply to a court for -
•i) appointment of a guardian for a minor or person of
unsound mind for the purposes of arbitral proceedings or

•ii)for an interim or protection in respect of

•a) preservation,
• interim custody or
• sale of any goods which are the subject-matter of the
arbitration agreement
•b)securing the amount in dispute in the arbitration
•c) detention,
• preservation or
• inspection of any property or thing which is the subject-
matter of the dispute in arbitration----------------

•d) interim injunction or appointment of receiver

•e) such other interim measure of protection as may

appear to the Court to be just and convenient and
• Sub-sections (2) and (3) added to Sec 9.
-Amendment Act, 2015
• Earlier, scope under Section 9 was wide enough to
allow applications for relief before or during
arbitral proceedings or after award but before it is
enforced u/s 36.

• Now amendment made in Section 9 and section 17

certainly limit the scope for extending litigation
through court
• Sub-Sec (2) - is a very significant amendment
• Where before the commencement of the Arbitral
Proceedings, a court passes an order for any
interim measures protection under sub-section (1)
• the arbitral proceedings shall be commenced
within a period of 90 days from the date of such
order or within such further time as court may
determine.
 • Consequence & Implication
• Courts will now entertain applications for grant of
relief under Section 9 (interim measures) - only
before formation of Arbitral Tribunal.
• Arbitral Tribunal has to be constituted within
90 days from the date of order or
• within such time as the court may specify in its
order granting interim relief.
• (3) Once the arbitral tribunal has been
constituted, the court shall not entertain any
application under section 9. –

• ------unless it find that circumstances exist which

may not render the remedy provided under
section 17 efficacious ???
• Sec 17–Interim measures ordered by Arbitral Tribunal–(1)
A party may during, the arbitral proceedings “or at any
time after making an arbitral award but before it is
enforced in accordance with section 36”, (Now
Omitted) apply to the Arbitral Tribunal
• (i) --------------------------
(ii) -------------------------
(a) -------------------------
(b) -------------------------
(c) -------------------------
(d)
-------------------------
• - and the arbitral tribunal shall have the
same power for making orders, as the court has
for the purpose of, and in relation to, any
proceedings before it

• - to grant all kinds of interim measures which

the Court is empowered to grant, under
Section 9 and such orders of Tribunal are now
enforceable as if they are orders of court. –
• Thus, power of court u/s 9 is also given to Arbitral
Tribunal u/s 17 -
• Implication :
• Thus intention is further strengthened by amending
Section 17 - (ADR mechanism)
• (However power to be exercised before
commencement of the arbitral proceeding – some
discretion also left to court)
• Sec 19- Determination of rules of Procedure.

• (1) Arbitral Tribunal is not bound by

• Code of Civil Procedure, 1908 or

• Indian Evidence Act, 1872.
• (2) Subject to this part, -
• the parties to arbitration are free to agree on the
procedure to be followed by the Arbitral Tribunal.
• (3) Failing an agreement referred to in sub-section
(2), the arbitral tribunal may, subject to this part,
conduct the proceedings in the manner it considers
appropriate.

• (4) The power of the arbitral tribunal under

sub-section (3) includes power to determine
the admissibility, relevance, materiality and
weight of any evidence.
• 20. Place of arbitration.-
• (1) The parties are free to agree on the place of
arbitration.
• (2) Failing any agreement referred to in
sub-section (1), the place of arbitration
• shall be determined by the arbitral tribunal
having regard to the circumstances of the
case, including the convenience of the
parties.
• (3) Notwithstanding sub-section (1) or sub-section
(2), the arbitral tribunal may,
• unless otherwise agreed by the parties, - meet at
any place it considers appropriate
• for consultation among its members,
• for hearing experts or the parties, or
• for inspection of documents, goods or other property.
• Sec 21-Commencement of arbitral proceedings
• An Agreement was executed between A and B on
4th February 2000, having an Arbitration clause.
• Subsequently, disputes arose. So, A appointed its
arbitrator and addressed a letter to B, requesting him also
appoint an arbitrator and to refer the matter to arbitration
which was received by B on 24th April 2000. Thereafter,
B appointed his arbitrator on 9th May 2000.
• The two arbitrators appointed Z as the presiding arbitrator
and the date of the first Arbitration proceedings was fixed
on 10th June 2000 and accordingly the proceedings
began….
• 21-Commencement of arbitral proceedings
• Unless otherwise agreed by the parties,
• the arbitral proceedings, in respect of a particular
dispute
• commence on the date on which a request for that
dispute to be referred to arbitration is received by
the respondent.
• (whether notice is mandatory under Sec 21)
• Alpuro case here
• Sec 23 - Statements of claim and defence
• 1) the claimant shall state the facts supporting his claim,
the points of issue and the relief of remedy sought
• and the respondent shall statement of defense in respect
of these particulars – unless the parties have otherwiaw
ageed.
• 2) along with the xerox set of documents they consider
relevant
• All documents will be made available to other party
and the Arbitral Tribunal.
• Sec (2 A) added – Amendment Act, 2015
• Respondent in support of his case may also submit a
counter-claim in support of his case or plead a
set-off –

• which shall be adjudicated by the Arbitral Tribunal -

if they fall within the scope of the Arbitration
Agreement
• (3) Unless otherwise agreed by the parties –
• The claim or the defense statement can be
amended/supplement with the leave of the
Tribunal.

• Only care to be taken is that –

• no injustice is caused to the other party and
• it does not materially alter the original case made
out by the parties. - Illustration:
• In section 23 of the principal Act, after sub-section
(3), the following sub-section shall be inserted,
namely:––
• “(4) The statement of claim and defense under this
section shall be completed within a period of six
months from the date the arbitrator or all the
arbitrators, as the case may be, received notice, in
writing, of their appointment.”.(2019 Amendment)
• Section 24 (1) is amended - new sub-section
incorporated - Amendment Act, 2015

• to ensure that Tribunal (as far as possible) shall hold

oral hearings for presentation of evidence or
arguments on day to day basis and

• does not grant adjournments unless sufficient

cause is shown.
• Power is given to Tribunal to impose costs
including exemplary costs on party seeking
adjournment without valid reason
• (3) All statements, documents or other information
supplied to or applications made to arbitral tribunal
by one party shall be communicated to the other party
and
• any export report or evidentiary document on which
arbitral tribunal may rely in making its decision shall
be communicated to the parties.
• 25. Default of a party.-
• One interesting question is what happens – where
without showing sufficient cause
• (a) If claimant defaults in communicating his
statement of claim in accordance with sub-section (1)
of section 23,
• The arbitral tribunal shall terminate the proceedings
and - consequently the reference shall stand
dismissed.
(b) The respondent fails to communicate his statement
of defence in accordance with sub-section (1) of
section 23, the arbitral tribunal shall continue the
proceedings without treating that failure in itself as
an admission of allegations by the claimant –
and shall have the discretion to treat the right of
the respondent to file such statement of defence as
having being forfeited (amendment)
• (c) a party fails to appear at an oral hearing or to
produce documentary evidence,

• the arbitral tribunal tribunal may continue the

proceedings and make the arbitral award on the
evidence before it.
• However the same is subject to an agreement to
the contract to the contrary between the parties
and

• Why is this proviso there?

• The consequence of default can be avoided by
contrary agreement or showing sufficient cause.
•It thereby allows Arbitral Tribunal
•to resolve dispute by continuing with the Arbitral
proceedings and make an award
• Even
•if one of the parties adopts a delaying tactics to drag on the
proceedings.
•Likewise the non submission of the statement of defense,
shall itself will not be taken as a admission of allegations by
claimant. –
•(Difference in not submitting written statement in a suit
and an arbitration)
• In the non-event of the situation described in
Sec 25 , then ---
Inspection and discovery of documents by the
Arbitral Tribunal – Involves 2 aspects :
• i)Verification of the authencity of the documents
per se
• The document sought to be relied upon the parties
has to be an ‘original document’ –
• However, it is not sufficient that the document
per se is an original document.
• ii) Contents and the evidentiary value thereof:
• Further, for the document to have an evidentiary
value – it is necessary to examine the contents of the
same and it has to be affirmed by the author of the
document on oath.
• Then only the document attains an evidentiary
value and can be admitted and read in evidence.
(marked as ‘C’,‘C-1’…‘R’,‘R-1’)
• and is useful only where an author of a particular
document is available for adducing an evidence.
 Certain necessity - may arise subsequently, not
contemplated at the time of entering into
agreement between the parties :
• i) Imagine, a situation where the author of a
particular document is no longer available for
adducing evidence. -
• The parties can, with the leave of the Arbitral
Tribunal call the concerned person.
• However if it is not feasible then---
•can opt for adducing of secondary evidence with the
leave of the Arbitral Tribunal.
•Ii) Secondly, a situation may arise where the party has to
rely on a document of a third party to substantiate its
statement of claim or defense or a court order in the
proceedings.

procedure regarding the same.

•After notice issued a party does not appear before the
Arbitral Tribunal --- intention has to be ascertained in
not appearing before proceeding ex-parte.
• The next step is preparing the issues or the points
of determination –
• Usually the draft issues are prepared first by the
Arbitrator/s in consultation with the parties and their
advocate’s and then the issues are finalized.

• The idea is to narrow down the disputes between

the parties - keeping in view the spirit of the ADR
mechanism.
 Evidence by Affidavit
Claimant
• Opening of the statement of claim with brief details
about the claim, by the claimant’s witness --

• a) Examination in chief -followed by

• b) Cross examination --- then
• c) re-examination . (if any new points are canvassed
during cross examination and they have to be
rebutted.
• Respondent
• Opening of the statement of defense with brief details
about the defense, by the respondent’s witness --
• i) Examination in chief ---followed by
• ii) Cross examination --- then
• iii) re-examination by the respondent. (if any new
points appear during cross examination and they
have to be rebutted.
• Evidence has to be conducted by the advocate of the
claimant and respondent –

• on the basis of claim filed by way of affidavit by

the claimant and the written statement filed by
way of an affidavit by the respondent respectively.
• Lastly, arguments by the Advocate of claimant
followed by arguments of the respondent.
Re-arguments if any, by the advocate of the
claimant.

• 6) Finally an Award is made. (Other than the final

award there can interim award and additional
award) Due notice given to the parties.
• 26. (Omitted - 2019 Amendment)
• Lord Simon says - This is implicit in the very office
accepted by the Arbitrator/s who “are in much the
same position as judges, ----- they carry out more
or less the same functions”
• In the context - connotation of Natural Justice :
• 1) that the arbitrator/s must act impartially and must
not be judge in his own cause and
• Ii) he/they must act fairly and give the parties a
reasonable opportunity of being heard.
• Illustration : Evidence cannot be recorded ----
• Sec 28 ........
• Sec 29 - Decision making by panel of arbitrators.-
• (1) The award in matters other than international
commercial arbitration
• shall be made by the arbitral tribunal within a period
of twelve months from the date of completion of
pleadings under sub-section (4) of section 23:
• Provided that the award in the matter of international
commercial arbitration may be made as expeditiously
as possible and endeavour may be made to dispose of
the matter within a period of twelve months from the
date of completion of pleadings under sub-section (4)
of section 23.’’(2019 Amendment)
• (2) Notwithstanding sub-section (1), if authorised by
the parties or all the members of the arbitral
tribunal, questions of procedure may be decided by
the presiding arbitrator.
• Sec 29-A and Sec 29-B have been added. -
Amendment Act, 2015
• Section 29–A (1) Time limit for arbitral award - has
been added to provide time limit for making award within
12 months from the time Arbitrator/s enters into
reference. ?
Explanation.—For the purpose of this sub-section, an
arbitral tribunal shall be deemed to have entered upon
the reference on the date on which the arbitrator or all
the arbitrators, as the case may be, have received
notice, in writing, of their appointment.
• 2) It provides that Arbitral Tribunal shall be
entitled to such additional fee as may be may be
agreed by parties, if an award is made within a
period of six months from the date the arbitral
tribunal enters upon reference. ?

• 3) The parties may, by consent can extend the time

only up to 6 months.
• 4)After that the mandate of the arbitrators shall
terminate. - Thereafter Court may extend the time –
provided that while extending the period

• if the delay is attributable to the arbitral tribunal,

then, it may order reduction of fees of the
arbitrator(s) their fees will be reduced by the
court not exceeding 5% for each month of delay.
• “Provided further that where an application under
sub-section (5) is pending, the mandate of the
arbitrator shall continue till the disposal of the said
application:

• Provided also that the arbitrator shall be given an

opportunity of being heard before the fees is
reduced.”. (2019 Amendment)
• 5) extension of period may be on application of
any of the parties and may be granted only on
sufficient cause on such terms and conditions as
court may impose.

• 6) While extending the period – discretion is given to

the court to substitute the arbitrator/s –
• In the event of arbitrator(s) being substituted
under this section, the arbitral proceedings shall
continue from stage already reached and on basis
of evidence and material already on record –

• --- the proviso allows the proceedings to continue

from the stage already reached on the basis of
material and evidence on record …. ?
• 7) In the event of arbitrators being appointed
arbitral tribunal thus reconstituted shall be
deemed to be in continuation of the previously
appointed arbitral tribunal.

• 8) It shall be open to court to impose actual or

exemplary costs on the parties
• 9) The application made by the party to the court for
extension of time – shall be disposed by the court
as expeditiously as possible and

• endeavour shall be made to dispose of the matter

within a period of sixty days from the date of
service of the notice on the opposite party
• Sec 29 B - Fast Track Procedure-Section 29 B has
been inserted to provide for resolution of dispute by
Fast track procedure.
• (1) Parties to arbitration may either before or at the time
of appointment of Appointment of Arbitral Tribunal
agree in writing to adopt fast track procedure to
resolve their dispute.
• (2) The Parties to the Arbitration Agreement, while
agreeing to the resolution of dispute by fast track
procedure, may agree that the arbitral tribunal shall
consist of a sole arbitrator who shall be chosen by the
parties.
• (3) Procedure to be followed while conducting the Arbitral
proceedings under sub-section (1)

• (a)The dispute shall be decided by Tribunal on the basis of

written pleadings, documents and submissions and
without oral hearings.
• (b) The arbitral tribunal shall have power to call for any
further information or clarification from the parties in
addition to the pleadings and documents filed by them...
• (c) An oral hearing may be held only, if, all the parties
make a request or if the arbitral tribunal considers it
necessary to have oral hearings for clarifying certain
issues.

• (d) The Arbitral Tribunal may dispense with any

technical formalities, if an oral hearing is held, and adopt
such procedure as deemed appropriate for the expeditious
disposal of the case.
•
• (4) The award shall be made within six months
from the date the Arbitral Tribunal enters upon
reference.
• (5) If the award is not made within the period
mention in Sub-sec (4)the provisions of Sec 29 A
Sub-sec (3) to (9) will apply.
• 6) The fees payable to the arbitrator and the manner
of payment shall be such as maybe agreed between
the arbitrator and the parties.
•  Sec 30 – SETTLEMENT

• Permissible for parties to arrive at mutual

settlement - even during an arbitration
proceeding itself.

• Scheme of Arbitration Act allows the Arbitral

Tribunal to make efforts to encourage mutual
settlement.
• Consequence and Implication

• i) If parties settle the dispute by mutual agreement,

the arbitration shall be terminated.

• Ii) and if both parties and the Arbitral Tribunal agree,

the settlement can be recorded in the form of an
arbitral award on agreed terms.
• Iii) Such arbitral award shall be made in
accordance with section 31 and shall state that it is
an arbitral award.

• Iv) Shall have the same status and effect as any

other arbitral award on the substance of the
dispute.
 • Making of an Arbitral Award :

• What is an Award. -
• Award is not defined under the Arbitration Act.

• However, Sec 2 (c) defines Arbitral Award as –

“arbitral award includes an interim award”
• According to Wharton’s Law Lexicon
• An Award is an instrument
• embodying the decision given by the Arbitral
Tribunal
• after adjudicating upon the disputes referred in a
quasi-judicial manner.

• Award means an final award declared by a

Sole Arbitrator or by an Arbitral Tribunal.
• Apart from ‘final award’
• the Act also contemplates
• an interim award,
• additional award and
• an award on agreed terms i.e arrived at by a
settlement between the parties during the course of
the Arbitral proceedings.
• Interim Award – Final Award – An interim award is
final as to the matter dealt with therein. –
Illustration----
• Interim Award - It is not tentative in the sense that
it may be changed, but it is tentative in the sense that
more would follow.
•One significant question which arises for consideration is
that whether an final award is final in the sense that it is
no longer possible to modify it.

•No, not an final award, in the sense –

•that it can be corrected and interpreted by taking
recourse to the provisions in the Arbitration Act.

•Final means complete in all respects leaving nothing

more to be done by the Arbitral Tribunal.
•According to Russell an award to be called as an award and
valid
•must be final,
•certain,
•consistent,
•possible and
•must decide matters submitted and no more submitted.
• Sec 31- Form and contents of arbitral award.-
• (1) An arbitral award shall be made in writing
• and shall be signed by the members of the arbitral
tribunal.

(2)Signatures of the majority of all the members of

the arbitral tribunal shall be sufficient --- so long
as the reason for any omitted signature is stated.
• 3) The award shall be a reasoned award.
• unless
• a)the parties have agreed no reasons are to be
given, or
• b) the award is an arbitral award on agreed terms
under section 30.
• 4) The arbitral award shall state its date and place of
arbitration as determined in accordance with
section 20 and
• the award shall be deemed to have been made at
that place
•(5) After the arbitral award is made, a signed copy
shall be delivered to each party.

•Significance of the provision.... The date of the

delivery of the award to the party is critical –
Significance & Implication ?

•Can a party to the Arbitration, say that since the

award is delivered to his advocate and not to him it
has caused prejudice to him.