310 Alternative Dispute Resolution

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PREFACE
LL.B. Study Notes
310 Alternative Dispute Resolution
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This is PREFACE. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4
➔ Refer : Bare acts are a good source, in any subject of law :

✔ http://lawfaculty.du.ac.in/course_materials.html
✔ https://www.lawfinderlive.com/bts4/ARBITRAT.htm
CONTENTS |Module-1 |Module-2 |Module-3 |Module-4 http://duralex.bhatt.net.in/

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CONTENTS
310 Alternative Dispute Resolution
TOPIC Page
Module-1 Alternative Dispute Resolution 3
Module-2 Arbitration Award 41
Module-3 Enforcement of the Foreign Award and Miscellaneous 56
Module-4 Practical Exercises : 20 Marks 79
Objectives of the course :

➔ The above course is also one of the Compulsory Clinical Courses prescribed by the Bar
Council of India - Rules of Legal Education, 2008.
➔ The Major concern of law is conflict resolution. Familiarization with the modalities and
techniques of resolution of conflict is necessary component in the endeavors of
developing expertise in juridical exercise.
➔ The traditional justice delivery system through adjudication by courts had already given
way to a large extent of back log of cases. There are many alternative mode of dispute
resolution in the common law countries. The advent of globalization has enthused this
transformation everywhere.
➔ The study of ADR is highly significant in molding the students of law to act as soldiers of
justice in the ever - changing Socioeconomic scenario. The course aims to give the
students an insight into the processes of arbitration, conciliation and mediation in areas
where the traditional judicial system had its away in the past and in the new areas of
conflicts that demand resolution by alternative methods.
➔ No doubt, the course has to be taught with comparative and international perspectives
with a view to bringing out the essential awareness of the national and international
Systems emerging at the present context.
➔ In this course there will be a theoretical Examination of 80 Marks to be taken by the
University and the rest of 20 Marks are to be given by the college evaluating the
students through their visits to various ADR centers, Arbitration Tribunals, Mediation
Centers etc and through practical exercises.
Theoretical Examination : 80 Marks

Practical Exercises : 20 Marks

Module-1 :
1) Alternative Dispute Resolution :
1.1) Meaning, object and importance
1.1.1) Arbitration, Conciliation, Mediation
1.1.2) Distinction between Arbitration, Conciliation and Mediation
1.2) Arbitration: Meaning and scope
1.3) Arbitration Agreement :
1.3.1) Essentials, Kinds of Arbitration Agreements
1.3.2) Who can enter into Arbitration Agreement
1.3.3) Validity and reference to Arbitration
1.4) Arbitration Tribunal :
1.4.1) Appointment of the Arbitration Tribunal
1.4.2) Grounds for challenge
1.4.3) Procedure of the Tribunal :
1.4.4) Time, Place and Language of Hearing
1.4.5) Statement of Claim and defence, counter claim and other
proceedings
1.4.6) Jurisdiction and Powers of the Tribunal
This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4
MODULE-1 QUESTIONS :
➔ What is the meaning of Alternate Dispute Resolution ? Discuss the distinction

between Arbitration, Conciliation and Mediation. (Mar-2014)
✔ Explain in detail the concept and importance of arbitration, conciliation, mediation and
negotiation. (Mar-2015)
✔ Explain in detail :
 1. Arbitration
 2. Lok Adalat
 3. Mediation
 4. Conciliation
 5. Negotiation
✔ Explain in detail the aims, objects, and importance of arbitration, conciliation and

Alternate Dispute Resolution systems. (Apr-2016)

✔ Compare Judicial Process, Arbitration and Mediation :
 Explain : Decision of Arbitrator and verdict of court. (Apr-2013)
 Write explanatory note : Decision of arbitrator and verdict of court. (Apr-2017)
✔ Compare Mediation, Conciliation and Lok Adalat :
✔ Compare Arbitration and Conciliation :
✔ Explain the meaning of Alternate Dispute Resolution. Discuss the distinction between
arbitration, conciliation, and mediation. (Apr-2017)
➔ Explain in detail the concept and importance of arbitration proceedings with case
laws. (Mar-2015)
✔ What is arbitration ? Explain in details the characteristics of contract of arbitration.
(Apr-2013, Mar-2014)
✔ On which principles the laws of Arbitration is based ? Discuss the important objects,
reasons and its origin. (Apr-2013, Mar-2014)
✔ What is Arbitration ? Discuss the matters which can be and which cannot be
referred to Arbitration. (Mar-2014)
✔ Explain in detail which matters can be and can not be referred to arbitration
proceedings with case laws. (Mar-2015, Apr-2016)
✔ Write short note : Matters which cannot be referred to arbitration. (Mar-2014)
✔ State the disputes which can not be assigned to Arbitration. (Apr-2017)
✔ Explain : Matters which can be and which cannot be referred to arbitration. (Apr-
2013)
➔ Explain : Advantages and disadvantages of Arbitration. (Apr-2013, Mar-2014)
➔ Explain in detail the advantages and disadvantages of arbitration agreement.
(Mar-2015)
➔ Explain in detail : Effect of death and insolvency of parties to an arbitration (Apr-
2013, Apr-2016)
✔ Write short note : Effect of death of the parties to an arbitrator. (Mar-2014)
➔ Explain in detail the essentials of arbitration agreement with decided cases. (Mar-
2015)
✔ Explain in detail the implied conditions of arbitration agreement with case laws.
(Apr-2016)
✔ What is arbitration ? Explain in details the characteristics of contract of
arbitration. (Apr-2013, Mar-2014)
✔ Write short note : Kinds of Arbitration Agreement (Mar-2014, Apr-2017)
✔ Discuss fully the essential elements of Arbitration agreement. (Apr-2017)

➔ Explain in detail the provisions of stay of judicial proceedings pending in the

court as per arbitration agreement with case laws. (Mar-2015)
✔ Explain : Stay of judicial proceeding pending on arbitration agreement. (Apr-2013,
Mar-2014)
➔ Explain in detail : Arbitration tribunal. (Mar-2015)
✔ Discuss the appointments, powers, and jurisdiction of Arbitration Tribunals. (Apr-
2017)
✔ Discuss : Time, Place and Language of Hearing by Arbitration Tribunal.
✔ Explain : Power of the court to appoint an Arbitrator and Umpire. (Apr-2013)
 Explain in detail : Powers of the court to appoint an arbitration or an umpire (Apr-
2016)
✔ Explain : Composition, jurisdiction of Arbitral Tribunal. (Apr-2013, Mar-2014)
➔ Discuss : Grounds for challenge to appointment of Arbitration Tribunal.
➔ Discuss : Procedure of Arbitration Tribunal, including Statement of Claim and
defence, counter claim and other proceedings.
MODULE-1 ANSWERS :
➔ What is the meaning of Alternate Dispute Resolution ? Discuss the distinction

between Arbitration, Conciliation and Mediation. (Mar-2014)
✔ Explain in detail the concept and importance of arbitration, conciliation, mediation and
negotiation. (Mar-2015)
✔ Explain in detail :
 1. Arbitration
 2. Lok Adalat
 3. Mediation
 4. Conciliation
 5. Negotiation
✔ Explain in detail the aims, objects, and importance of arbitration, conciliation and
Alternate Dispute Resolution systems. (Apr-2016)
✔ Compare Judicial Process, Arbitration and Mediation :
 Explain : Decision of Arbitrator and verdict of court. (Apr-2013)
 Write explanatory note : Decision of arbitrator and verdict of court. (Apr-2017)


✔ Explain the meaning of Alternate Dispute Resolution. Discuss the distinction between
arbitration, conciliation, and mediation. (Apr-2017)
ANSWER :
✔ Refer :
 http://lawfaculty.du.ac.in/files/course_material/VI_Term/LB-602%20Alternative
%20Dispute%20Resolution/(3)%20Development%20of%20ADR%20-Mediation
%20in%20India.pdf
 http://cbseacademic.in/web_material/doc/Legal_Studies/Legal%20Studies%20Text
%20Book%20Class%20XII.pdf
 https://www.scribd.com/doc/28710435/Difference-between-arbitration-
conciliation-negotiation-and-mediation
%20Dispute%20Resolution/(2)%20Comparison%20Between%20Judicial
%20Process%20and%20Various%20ADR%20Processes.pdf
 https://www.lawfinderlive.com/bts4/ARBITRAT.htm
✔ Outline :
 Meaning and History of ADR :
 Need for modern ADR :
 International response to litigation explosion :
 Indian response to litigation explosion :
 Benefits of ADR :
 Types of ADR :
● 1. Arbitration
 Objects of Arbitration' and Conciliation Act 1996
 Features of Arbitration' and Conciliation Act 1996 :
 Meaning of ‘Arbitration’ :
 Essential ingredients of the arbitration :
 Process of arbitration :
 Court referred arbitration
 Types of Arbitration :
● 2. Lok Adalat – Permanent Lok Adalat
● 3. Mediation
 Meaning and Types :

 Process of Mediation :
● 4. Conciliation
 Meaning :
 Laws on Mediation and Conciliation :
● 5. Negotiation
 Compare Adjudication (Judicial Process), Arbitration and Mediation :
 Compare Mediation, Conciliation and Lok Adalat :
 Compare Arbitration and Conciliation :
✔ Meaning and History of ADR :
 Alternative Dispute Resolution (ADR) system, as per it literal meaning refers to the
use of an ‘alternative’ (informal) techniques of dispute resolution.
 The history of ADR in India pre-dates the modern adversarial model of Indian
judiciary. The modern Indian judiciary was introduced with the advent of the British
colonial era, as the English courts and the English legal system influenced the
practice of Indian courts, advocates and judges.
 However, even before the advent of such formalistic models of courts and judiciary,
Indian legal system was characterised by several native ADR techniques.
 The Vedic age in India, witnessed the flourishing of specialised tribunals such as
 Kula (for disputes of family, community, tribe, castes, races),
 Shreni (for internal disputes in business, corporation of artisans) and
 Puga (for association of traders/commerce branches).
● In these institutions, interest-based negotiations dominated with a neutral third
party seeking to identify the underlying needs and concerns of the parties in
dispute.
 Similarly, People’s courts or Panchayat continued to be at the centre of dispute
resolution in villages.

 Though documentation is scant, it is believed that nearly every community,

country, and culture has a lengthy history of using various methods of informal
dispute resolution.
 Mediation, Conciliation and Arbitration, in their earlier forms are historically more
ancient than the present day Anglo-Saxon adversarial system of law.
 Various forms of mediation and arbitration gained a great popularity amongst
businessmen during pre-British Rule in India. The Mahajans were respected,
impartial and prudent businessmen who used to resolve the disputes between
merchants through mediation. The rule in the constitution of the Association made
a provision to dismember a merchant if he resorted to court before referring the
case to mediation.
● This informal procedure in vogue in Gujarat, the western province of India, was
a combination of Mediation and Arbitration, now known in the western world, as
Med-Arb.
● This type of mediation had no legal sanction in spite of its wide common
acceptance in the business world.
✔ Need for modern ADR :
 The British system of justice gradually became the primary justice delivery system
in India during the British regime of about 250 years and came to be recognized for
its integrity and gained peoples' confidence.
 Independence brought with it,
● the Constitution,
● awareness for fundamental and individual rights,
● governmental participation in growth of the nation's business, commerce and
industry,

● establishment of the Parliament and State legislatures,

● government corporations,
● financial institutions,
● fast growing international commerce and public sector participation in business.
● The Government became a major litigant.
● Tremendous employment opportunities were created.
 An explosion in litigation resulted from multiparty complex civil litigation, expansion
of business opportunities beyond local limits, increase in population, numerous new
enactments creating new rights and new remedies and increasing popular reliance
on the only judicial forum of the courts.
 The inadequate infrastructure facilities to meet with the challenge exposed the
inability of the system to handle the sheer volume of caseloads efficiently and
effectively.
 Instead of waiting in queues for years and passing on litigation by inheritance,
people often get inclined either to avoid litigation or to start resorting to extra-
judicial remedies.
 Almost all the democratic countries of the world have faced similar problems with
court congestion and access to justice.
✔ International response to litigation explosion :
 The United States was the first to introduce drastic law reforms about 30 years
back and Australia followed suit.
 The United Kingdom has also adopted alternative dispute resolution as part of its
legal system.
 The European Union also endorses mediation for the resolution of commercial
disputes between member states.
✔ Indian response to litigation explosion :
 1908 : Arbitration, as a dispute resolution process was recognized as early as
1879 and also found a place in the Civil Procedure Code of 1908 .
 1940 : When the Arbitration Act was enacted in 1940 the provision for arbitration
originally contained in Section 89 of the Civil Procedure Code was repealed.
 1947 : The concept of mediation received legislative recognition in India for the
first time in the Industrial Disputes Act, 1947.
● The conciliators appointed under Section 4 of the Act are "charged with the duty
of mediating in and promoting the settlement of Industrial disputes".
● Detailed procedures were prescribed for conciliation proceedings under the Act.
 1987 : The Indian Legislature made headway by enacting The Legal Services
Authorities Act, 1987 by constituting NALSA (National Legal Services Authority) as

a Central Authority with the Chief Justice of India as its Patron-in-Chief. The Central
Authority has been vested with duties to perform, inter alia, the following
functions :-
● To encourage the settlement of disputes by way of ADRs negotiations, arbitration
and conciliation.
● To lay down policies and principles for making legal services available in the
conduct of any case before the court, any authority or tribunal.
● To frame most effective and economical schemes for the purpose.
● To utilize funds at its disposal and allocate them to the State and District
Authorities appointed under the Act.
● To undertake research in the field of legal services.
● To recommend to the Government grant-in-aid for specific schemes to voluntary
institutions for implementation of legal services schemes.
● To develop legal training and educational programmes with the Bar Councils and
establish legal services clinics in universities, Law Colleges and other institutions.
● To act in co-ordination with governmental and non-governmental agencies
engaged in the work of promoting legal services.
 1991 : Since the inception of the economic liberalization policies in India and the
acceptance of law reforms the world over, the legal opinion leaders have concluded
that mediation should be a critical part of the solution to arrears of cases in the
civil courts.
 1995-96 : In 1995-96 the Supreme Court of India under the leadership of the
then Chief Justice, Mr. A. M. Ahmadi, undertook an Indo-U.S. joint study for finding
solutions to the problem of delays in the Indian Civil Justice System and every High
Court was asked to appoint a study team which worked with the delegates of The
Institute for Study and Development of Legal Systems [ISDLS], a San Francisco
based institution.
● After gathering information from every State, a central study team analyzed the
information gathered and made some further concrete suggestions and
presented a proposal for introducing amendments relating to case management
to the Civil Procedure Code with special reference to the Indian scenario.
 1996 : The Indian parliament enacted the Arbitration and Conciliation Act in
1996, making elaborate provisions for conciliation of disputes arising out of legal
relationship, whether contractual or not, and to all proceedings relating thereto.
The Act provided for
● the commencement of conciliation proceedings,
● appointment of conciliators and assistance of suitable institution for the purpose
of recommending the names of the conciliators or even appointment of the
conciliators by such institution,

● submission of statements to the conciliator

● and the role of conciliator in assisting the parties in negotiating settlement of
disputes between the parties.
 1999 : In 1999, the Indian Parliament passed the CPC Amendment Act of 1999
inserting Sec.89 in the Code, providing for reference of cases pending in the Courts
to ADR which included mediation. The Amendment was brought into force with
effect from 1st July, 2002.
✔ Side note :
 For an interesting read on the Process of referral to different modes of ADR under
Section 89 of CPC, 1908 and issues with Section 89 of the CPC 1908, refer to
https://indiankanoon.org/doc/1875345/ Afcons Infrastructure Ltd. v. Cherian
Varkey Construction Company Pvt. Ltd. (2010) 8 SCC 24
✔ Benefits of ADR :
 The ADR methods are speedier, informal and cheaper modes of dispensing justice
when compared to the conventional judicial procedure.
 It is free from technicalities as in the case of conducting cases in law Courts
 The parties' involvement in the process creates greater commitment to the result
so that compliance is more likely
 ADR provides a more convenient forum to the parties who can choose the time,
place and procedure, for conducting the preferred dispute redressal process.
 If the dispute is technical in nature, parties have an opportunity to select the
expert who possesses the relevant legal and technical expertise.
 It is interesting to note that ADR provides the flexibility to even refer disputes to
non-lawyers. For example, several disputes of technical character e.g. disputes
pertaining to the regulation of the construction industry are usually referred to
engineers rather than lawyers.
 ADR is also encouraged amongst the disputants to reduce delays and high
pendency of court cases.
 The rise of ADR is further supported, as the law courts are confronted with
following problems, such as :
● 1. The lack of number of courts and judges which creates an inadequacy within
the justice delivery system;
● 2. The increasing litigation in India due to increasing population, complexity of
laws and obsolete continuation of some pre-existing legal statutes;
● 3. The increasing cost of litigation in prosecuting or defending a case, increasing
court fees, lawyer s fees and incidental expenses;
● 4. Delay in disposal of cases resulting in huge pendency in all the courts.
 Alternative Dispute Resolution is more likely to preserve goodwill or at least not

escalate the conflict, which is especially important in situations where there is a

continuing relationship.
 In the light of the apparent need and benefits provided by ADR, it has emerged as
a successful alternative to court trials.
 The rise of the ADR movement in India indicates that it is contributing
tremendously towards reviving the litigant s faith in justice delivery mechanisms.
✔ Types of ADR :
 1. Arbitration
 2. Lok Adalat – Permanent Lok Adalat
 3. Mediation
 4. Conciliation
 5. Negotiation
✔ 1. Arbitration :
 Historical overview of the laws on arbitration :
● The Arbitration and Conciliation Act of 1996 is the relevant legislation that
governs the process of arbitration in India.
● The Arbitration and Conciliation Act of 1996 provides for an elaborate codified
recognition of the concept of arbitration, which has largely been influenced by
significant movements of judicial reforms and conflict management across the
world.
● Prior to 1996, the law on arbitration in India was substantially contained in three
enactments, namely,
 the Arbitration Act, 1940,
 the Arbitration (Protocol and Convention) Act, 1937 and

 the Foreign Awards (Recognition and Enforcement) Act, 1961.

● 1980 : The United Nations Commission of International Trade Law (UNCITRAL)
adopted a set of Conciliation Rules.
● 1985 : The UNCITRAL adopted the Model Law on International Commercial
Arbitration.
● An important feature of the said UNCITRAL Model Law and Rules was that they
harmonised concepts on arbitration and conciliation of different legal systems of
the world and were designed for universal application.
● The General Assembly of the United Nations, in view of the desirability of
uniformity of the laws of conciliation and arbitration, recommended use of these
Model Rules in cases where the disputes arise in the context of international
commercial relations and the parties seek amicable settlement of their disputes
by recourse to conciliation or arbitration.
● After 1991 economic reforms, it was recognised that our economic reforms may
not become fully effective if the law dealing with settlement of both domestic
and international commercial disputes remains out of tune with such reforms.
● The Law Commission of India, several representative bodies of trade and
industry and experts in the field of arbitration proposed amendments to the
1940 Act to make it more responsive to contemporary requirements.
● Prior to 1996, there was no general law on conciliation in India.
● The Arbitration and Conciliation Act of 1996 is modeled on the UNCITRAL model
laws and seeks to consolidate and amend the laws relating to domestic
arbitration, international commercial arbitration, enforcement of foreign arbitral
awards and to define the law relating to conciliation.
● The Arbitration and Conciliation Act, 1996 has ushered a new era of dispute
resolution for domestic and commercial legal issues.
● In Konkan Railways Corp. Ltd. v. Mehul Construction Co. (2000) 7 SCC 201) the
Supreme Court of India has affirmed that
 the Arbitration and Conciliation Act, 1996 should be interpreted and applied,
keeping the 'international mercantile community' in mind.
 Objects of Arbitration' and Conciliation Act 1996 : The main objectives of the Bill
are as under :-
● (i) to comprehensively cover international and commercial arbitration and
conciliation as well as domestic arbitration and conciliation;
● (ii) to make provision for an arbitral procedure which is fair, efficient and capable
of meeting the needs of the specific arbitration;
● (iii) to provide that the arbitral tribunal gives reasons for its arbitral award ;
● (iv) to ensure that the arbitral tribunal remains within the limits of its

jurisdiction;
● (v) to minimise the supervisory role of courts in the arbitral process ;
● (vi) to permit an arbitral tribunal to use mediation, conciliation or other
procedures during the arbitral proceedings to encourage settlement of disputes;
● (vii) to provide that every final arbitral award is enforced in the same manner as
if it were a decree of the court;
● (viii) to provide that a settlement agreement reached by the parties as a result
of conciliation proceedings will have the same status and effect as an arbitral
award on agreed terms on the substance of the dispute rendered by an arbitral
tribunal; and
● (ix) to provide that, for purposes of enforcement of foreign awards , every
arbitral award made in the country to which one of the two international
Conventions relating to foreign arbitral awards to which India is a party applies,
will be treated as a foreign award.
 Features of Arbitration' and Conciliation Act 1996 : The Act has the following salient
features :
● (1) The introduction of Principle of waiver.
● (2) Involvement of judges in the process of appointment of Arbitrator.
● (3) Presiding Arbitrator replaces the Umpire.
● (4) Arbitral Tribunal is empowered to decide the question of jurisdiction.
● (5) Separation of arbitration clause from contract.
● (6) The arbitral tribunal deciding challenge against its own competence.
● (7) Role of Civil Court removed during the conduct of arbitral proceeding. The
arbitral proceeding cannot be challenged during its conduct.
● (8) Mandatory for Arbitral Tribunal to make speaking award.
● (9) Arbitral Tribunal empowered to correct and interpret the award. The Act has
limited the powers of Court and enhanced those of Arbitrators.
● (10) Limited grounds for setting aside of award. Error apparent on the face of
award no more a ground for setting aside of arbitral award.
● (11) Introduction of settlement during the arbitral proceedings.
● (12) Arbitral award given status of a decree. The requirement of filing the award
done away with.
 Meaning of ‘Arbitration’ :
● Sec-2(1)(a) of Arbitration and Conciliation Act, 1996 defines the
 term "Arbitration" means any arbitration whether or not administered by
permanent arbitral institution.

● Arbitration is a term derived from the nomenclature of Roman law.

● Arbitration is a private arrangement of taking disputes to a less adversarial, less
formal and more flexible forum and abiding by judgment of a selected person
instead of carrying it to the established courts of justice.
● According to Halsbury's Laws of England -
 "An arbitration is 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."
 Essential ingredients of the arbitration :-
● <this is different from “essentials of arbitration agreement” discussed elsewhere
in this doc>
● (a) A difference or dispute actually in existence between two or more parties.
● (b) A reference for determination of such difference or dispute.
● (c) Determination of such difference or dispute by such person or persons known
as Àrbitrator'.
● (d) Such determination shall be after hearing both the parties in a judicial
manner.
 Process of arbitration :
● Arbitration can be chosen by the parties,
 either by way of an agreement (Arbitration Agreement)
 or through the reference of the Court (Court Referral of Arbitration) .
● The parties in an arbitration have the freedom to select a qualified expert known
as an arbitrator.
● The process of arbitration is confidential, unlike the court proceedings which are
open to the public.
 This feature of arbitration makes it popular especially for commercial disputes
where business secrets revealed during the process of dispute resolution are
protected and preserved.
 Similarly companies can maintain their commercial reputation, as they can
prevent the general public or their customers from discovering the details of
their on-going legal disputes.
● The decision rendered by an arbitrator is known as an arbitral award . Similar to
a judgment given by a judge, the arbitral award is binding on the disputing
parties.
● Once an arbitral award is rendered, it is recognised and enforced (given effect
to) akin to a court pronounced judgment or order.
● In addition to an arbitral award, the arbitrator also holds power and authority to

grant interim measures, like a judge in the court. eg temporary relief, granted
while the legal proceedings are on-going in order to preserve and protect certain
rights of the parties, till the final award is rendered.
 Therefore, an arbitral award holds several similarities with a court order or
judgment.
● Note : Unlike a judgment rendered by a judge in the court, the arbitral award
does not hold precedential value (see the doctrine of stare decisis which means
stand by the decision ) for future arbitrations.
● Arbitrators are free to base their decisions on their own conception of what is fair
and just.
 Thus unlike judges, they are not strictly required to follow the law or the
reasoning of earlier case decisions.
 Court referred arbitration :
● Sec-8 of the Arbitration and Conciliation Act, 1996 provides :
 (1) A judicial authority before which an action is brought in a matter which is
the subject of an arbitration agreement shall,
• if a party so applies not later than when submitting his first statement on
the substance of the dispute, refer the parties to arbitration.
 (2) The application referred to in sub-section (1) shall not be entertained
unless it is accompanied by the original arbitration agreement or a duly
certified copy thereof.
 (3) Notwithstanding that an application has been made under Sub- section (1)
and that the issue is pending before the judicial authority,
• an arbitration may be commenced or continued and an arbitral award
made."
● Thus Sec-8 says that,
 when a matter is pending before a Court, which is subject to an arbitration
agreement,
• Court shall, upon application by parties to dispute, duly accompanied by
original or certified copy of arbitration agreement, refer the parties to
arbitration,
 however, such application is required to be made before submitting first
statement upon substance of dispute in court.
 Moreover, Sub-section (3) of Section 8 clarifies that,
• even if such an application has been made and the issue is pending before
the judicial authority,
• the parties may commence arbitration proceedings or continue them and an
arbitral award may be made therein.

 Types of Arbitration :
● Domestic Arbitration - An arbitration with Indian parties, where the place of

arbitration is in India and rules applicable are Indian.
● Foreign Arbitration - An arbitration where proceedings are conducted in a place
outside India and the award is required to be enforced in India.
● Ad-hoc Arbitration - An arbitration which is governed by parties themselves,
without recourse to a formal arbitral institution.
 It may be domestic or international in character.
● Institutional Arbitration - An arbitration where parties select a particular
institution, which in turn takes the arbitration forward by selecting an arbitrator
and laying out the rules applicable within an arbitration, e.g. mode of obtaining
evidence, etc.
 There are several institutions to govern arbitration. Examples of prominent
institutions of arbitration include, The London Chamber of International
Arbitration (LCIA) which has its offices across the world, including New-Delhi,
India.
● Statutory Arbitration - An arbitration which is mandatorily imposed on the
parties by operation of a particular law or statute, applicable to them.
 For example, the Defence of India Act, 1971 is one such legislation that

mandates a recourse to arbitration in case of any dispute arising within the

Act.
● International Commercial Arbitration - An arbitration in which at-least one of the
disputing parties is a resident/body corporate of a country other than India.
Arbitration with the government of a foreign country is also considered to be an
 Sec-2(1)(f) of the Arbitration and Conciliation Act, 1996.
• "international commercial arbitration" means,
• an arbitration relating to disputes arising out of legal relationships
considered as commercial under the law in force in India, and
• where at least one of the parties is-
• (i) an individual who is a national of any country other than India; or
• (ii) a body corporate which is incorporated in any country other than
India; or
• (iii) a company or an association or a body of individuals whose central
management and control is exercised in any country other than India;
or
• (iv) the Government of a foreign country;
 Glossary of Terms :
● Arbitration agreement -
 An agreement whereby parties agree to submit their present or future
disputes/differences to arbitration. This may be in writing or via other means
of communication.
● Court referral to arbitration -
 If a party to the dispute approaches the Court despite the presence of an
arbitration agreement, the other party may raise a claim before the Court. The
Court then must refer the dispute back to arbitration, if it has been previously
agreed by the parties. This method of initiating arbitration is known as court
referral to arbitration.
● Statement of claim -
 The initial documents filed by the claimants enlisting the issues raised to be
resolved in an arbitration.
● Counter-claim defense -
 Respondent’s reply to the claim presented by the claimant.
● Setting aside of an arbitral award -
 An arbitral award rendered in an arbitration may be struck down or invalidated
by the courts. The grounds of such invalidation are limited to: incapacity of a
party to enter into arbitration agreement in the first place, improper

appointment of arbitrator, dispute falling outside the terms of the arbitration

agreement, bias on the part of arbitrator, award violating public policy at large.
✔ 2. Lok Adalat :
 <for details read study notes on “314 Legal Aid & Para-Legal Services”>
 The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to
the global legal jurisprudence.
 The institution of Lok Adalat in India, as the very name suggests, means, People's
Court. "Lok" stands for "people" and the term "Adalat" means court.
 India has a long tradition and history of such methods being practiced in the
society at grass roots level.
● In ancient times the disputes were referred to panchayats which were
established at village level.
● Panchayats used to resolve the dispute through arbitration.
 It has proved to be a very effective alternative to litigation.
 This very concept of settlement of dispute through mediation, negotiation or
through arbitral process known as decision of "Nyaya-Panchayat" is conceptualized
and institutionalized in the philosophy of Lok Adalat.
 It involves people who are directly or indirectly affected by dispute resolution.
 The evolution of movement called Lok Adalat was a part of the strategy to relieve
heavy burden on the Courts with pending cases and to give relief to the litigants
who were in a queue to get justice.
 The modern institution of Lok Adalat is presided over by a sitting or retired judicial
officer such as the chairman, with usually two other members- a lawyer and a
social worker.
 A Lok Adalat has jurisdiction to settle any matter pending before any court, as well
as matters at pre-litigative stage, i.e. disputes which have not yet been formally
instituted in any Court of Law.
● Provided such matters are of the nature of civil or compoundable criminal
disputes.
 The salient features of Lok Adalat are participation, accommodation, fairness,
voluntariness, neighbourliness, transparency, efficiency and lack of animosity.
 The benefits of Lok Adalat include :
● There is no court fee and even if the case is already filed in the regular court,
the fee paid will be refunded if the dispute is settled at the Lok Adalat.
● There is no strict application of the procedural laws and the disputing parties can
directly interact with the judges.
● The decision of Lok Adalat is binding on the parties and its order is capable of

execution through legal process.

 Constitutional basis for Lok Adalat :
● Pursuant to Article 39-A of the Constitution of India, the Parliament has enacted
The Legal Services Authorities Act, 1987.
● The Act provides for various provisions of dispute settlement through Lok Adalat.
● The Act constitutes legal services authorities to provide free legal aid and
competent legal services to the weaker sections of the society.
● In 2002, the Act was amended to establish permanent Lok Adalats for public
utility services.
● Furthermore, the National Legal Services Authority (NALSA), a statutory body
constituted under the National Legal Services Authorities Act, 1987 is the apex
body responsible for (i) laying down policies and principles for making legal
services (ii) frame the most effective and economical schemes for legal services,
(iii) monitor implementation of such schemes.
● NALSA is engaged in providing legal services, legal aid and speedy justice
through Lok Adalats.
● It also disburses funds and grants for implementing legal aid schemes, literacy
camps and programs.
● Similarly, the State Legal Services Authorities and District Legal Services
Authorities have been constituted in every state capital and districts respectively.
✔ 3. Mediation :
 Read from Module-3.
✔ 4. Conciliation :
 Read from Module-3.
✔ 5. Negotiation :
 It is the simplest, and most informal means for redressal of disputes .
 In this mode the parties begin their talk without interference of any third person.
 The aim of negotiation is the settlement of disputes by exchange of views on issues
concerning the parties.
 There is an ample opportunity for presentation of case in this mode of redressal.
 If there is understanding and element of patience between the parties, then this
mode of redressal of dispute is the simplest and most economical.
 Negotiation is a communication process used to put deals together or resolve
conflicts.
 It is a voluntary, non binding process in which the parties control the outcome as
well as the procedures by which they will make an agreement.

 Since, most parties place very few limitations on the negotiation process, it allows
for a wide range of possible solutions maximizing chances of finding amicable
solution to the dispute.
✔ Compare Adjudication (Judicial Process), Arbitration and Mediation :
Judicial process Arbitration Mediation
1 Judicial process is an Arbitration is a quasi- Mediation is a negotiation

adjudicatory process judicial adjudicatory process and not an
where a third party process where the adjudicatory process. The
(judge/ Other arbitrator(s) appointed mediator facilitates the
authority) decides the by the Court or by the process. Parties participate
outcome parties decide the directly in the resolution of
dispute between the their dispute
parties. and decide the terms of
settlement.
2 Procedure and decision Procedure and decision Procedure and settlement

are governed, are governed, are not controlled, governed
restricted, and restricted and or restricted by statutory
controlled by the controlled by the provisions thereby allowing
provisions of the provisions of the freedom and flexibility.
relevant statutes. Arbitration &
Conciliation Act, 1996.
3 The decision is binding The award in an A binding settlement is

on the parties. arbitration is binding on reached only if parties arrive
the parties. at a mutually acceptable
agreement.
4 Adversarial in nature, Adversarial in nature as Collaborative in nature as

as focus is on past focus is on focus is on the present and
events and determination of rights the future and resolution of
determination of rights and liabilities of disputes is by mutual
and liabilities of parties. agreement of parties
parties. irrespective of rights and
liabilities.
5 Personal appearance or Personal appearance or Personal appearance and

active participation of active participation of active participation of the
parties is not always parties is not always parties are required.
required. required.
6 A formal proceeding A formal proceeding A non-judicial and informal

held in public and held in private proceeding held in private

Judicial process Arbitration Mediation
follows strict procedural following strict with flexible procedural

stages. procedural stages. stages.
7 Decision is appealable. Award is subject to Decree/Order in terms of the

challenge on specified settlement is final and is not
grounds. appealable.
8 No opportunity for No opportunity for Optimal opportunity for

parties to communicate parties to communicate parties to communicate
directly with each directly with each directly with each other in
other. other. the presence of the mediator.
9 Involves payment of Does not involve In case of settlement, the

court fees. payment of court fees. court fee already paid is
refundable as per the
Rules.
Mediation Conciliation Lok Adalat
1 Mediation is a non- Conciliation is a non-  Lok Adalat is conciliatory

adjudicatory process. adjudicatory process. and NON-adjudicatory if
it is established u/s 19
of the Legal Services
Authorities Act, 1987.
 Lok Adalat is conciliatory
and adjudicatory if it is
established u/s 22B of
the Legal Services
Authorities Act, 1987.
2 Voluntary process. Voluntary process. Voluntary process.

Mediator is a neutral Conciliator is a Presiding Officer is a
third party. neutral third party. neutral third party.
3 Service of lawyer is Service of lawyer is Service of lawyer is available

available available
4 Scope not limited Scope not limited The scope of negotiation is

limited.
5 The function of the The function of the The function of the Presiding
Mediator is mainly conciliator is more Officer is persuasive.

Mediation Conciliation Lok Adalat
facilitative. active than the

facilitative function of
the mediator.
6 The consent of the The consent of the The consent of the parties is
parties is not parties is mandatory not mandatory for referring
mandatory for for referring a case to a case to Lok Adalat.
referring a case to conciliation.
mediation.
7 The referral court In conciliation, the The award of Lok Adalat is

applies the principles agreement (if any) is deemed to be a decree of the
of Order XXIII Rule enforceable as it is a Civil Court and is
3, CPC for passing decree of the court as executable as per Sec-21
decree/order per Sec-74 of the of the Legal Services
enforceable in terms Arbitration and Authorities Act, 1987.
of the agreement. Conciliation Act,
1996.
8 Not appealable. Not appealable. Not appealable.
9 The focus in is on The focus in is on The focus in is on

the present and the the present and the the past and present.
future. future.
10 Is a structured Is a structured process Involves only discussion and

process having having different stages. persuasion.
different stages.
11 Parties are actively Parties are actively and Parties are not actively and
and directly involved. directly involved. directly involved.
12 Confidentiality is Confidentiality is Confidentiality is not

observed. observed. observed.

 Similarities :
● The only similarity that appears between Arbitration and Conciliation is that,
 a third person is chosen or nominated by the parties to resolve their disputes .
 Differences : Arbitration and Conciliation : https://keydifferences.com/difference-
between-arbitration-and-conciliation.html

Arbitration Conciliation
Arbitration is a dispute settlement

Conciliation is a method of
process in which a impartial third
resolving dispute, wherein
party is appointed to study the
Meaning an independent person
dispute and hear both the party
helps the parties to arrive at
to arrive at a decision binding
negotiated settlement.
on both the parties.
A conciliator do not have

the power to enforce his
decision. Agreement (if
An arbitrator has the power to any) is enforceable as if it
Enforcement
enforce his decision. is a decree of the court as
per Sec-74 of the
Arbitration and
Conciliation Act, 1996.
Prior
Required Not Required
Agreement
Available for Existing and future disputes. Existing disputes.
Legal
Yes No
proceeding

GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
➔ Explain in detail the concept and importance of arbitration proceedings with case
laws. (Mar-2015)
✔ What is arbitration ? Explain in details the characteristics of contract of arbitration.
(Apr-2013, Mar-2014)
✔ On which principles the laws of Arbitration is based ? Discuss the important objects,
reasons and its origin. (Apr-2013, Mar-2014)
✔ What is Arbitration ? Discuss the matters which can be and which cannot be
referred to Arbitration. (Mar-2014)
✔ Explain in detail which matters can be and can not be referred to arbitration
proceedings with case laws. (Mar-2015, Apr-2016)
✔ Write short note : Matters which cannot be referred to arbitration. (Mar-2014)
✔ State the disputes which can not be assigned to Arbitration. (Apr-2017)

✔ Explain : Matters which can be and which cannot be referred to arbitration. (Apr-
2013)
ANSWER :
✔ Refer :

✔ What is arbitration ?
 <Refer to the first answer in this note>
✔ Concept and importance of arbitration proceedings :
✔ Objects, reasons and origin of Arbitration :
✔ Matters which can be referred to Arbitration :
 Generally, all disputes which can be decided by a civil court, involving private
rights, can be referred to arbitration.
● Thus, disputes about property or money, or about the amount of damages
payable for breach of contract etc., can be referred to arbitration.
✔ Matters which can not be referred to Arbitration :
 Broadly speaking, matters involving criminal offences, morality and public policy
cannot be referred to arbitration.
 Following matters cannot be referred to arbitration :
● 1. Matrimonial matters, like divorce or conjugal rights.
● 2. Insolvency matters, eg declaring a person insolvent.
● 3. Criminal offences.
● 4. Dissolution or winding up of a company.
● 5. Matters relating to guardianship of minors or lunatics.
● 6. Testamentary matters like validity of a will .
● 7. Questions relating to charities or charitable trusts;
● 8. Matters falling within the purview of the Monopolies and Restrictive Trade
Practices Act
➔ Explain : Advantages and disadvantages of Arbitration. (Apr-2013, Mar-2014)

ANSWER :

✔ Refer :
 http://www.allenandallen.com/blog/arbitration-advantages-and-disadvantages.html
 To do – put in tabular form ---> https://www.welzaz.com/advantages-
disadvantages-arbitration/
✔ Advantages : There are numerous advantages to arbitration as a way to resolve a
case.
 The parties to the dispute usually agree on the arbitrator, so the arbitrator will be
someone that both sides have confidence will be impartial and fair.
 The dispute will normally be resolved much sooner.
 Arbitration is usually much less expensive.
● Partly that is because the fee paid to the arbitrator is a lot less than the expense
of paying expert witnesses to come and testify at trial. (Most of the time the
parties to arbitration split the arbitrator's fee equally).
● There are also lower costs in preparing for the arbitration than there are in for
preparing for a trial. Partly this is due to the fact that the rules of evidence are
often more relaxed than in a trial, so that documents can be submitted in lieu of
having a witness come to trial and testify. For instance, if a claimant has several
doctors who are out-of-state, the cost of bringing them to trial or going out-of-
state to take their depositions may be prohibitive for trial, but in arbitration you
can usually use just their records and reports.
 Unlike a trial, arbitration is essentially a private procedure, so that if the parties
desire privacy then the dispute and the resolution can be kept confidential.
 If arbitration is binding, there are very limited opportunities for either side to
appeal, so the arbitration will be the end of the dispute. That gives finality to the
arbitration award that is not often present with a trial decision.
✔ Disadvantages : There are, however, sometimes disadvantages to arbitration as a
method of resolving a dispute.
 If arbitration is binding, both sides give up their right to an appeal. That means
there is no real opportunity to correct what one party may feel is an erroneous
arbitration decision.
 Rules of evidence may prevent some evidence from being considered by a judge or
a jury, but an arbitrator may consider that evidence. Thus, an arbitrator's decision
may be based on information that a judge or jury would not consider at trial.
 If certain information from a witness is presented by documents, then there is no
opportunity to cross-examine the testimony of that witness.
 Discovery may be more limited with arbitration. In litigation, Discovery is the
process of requiring the opposing party -- or even a person or business entity who
is not a party to the case - to provide certain information or documents. As a

result, many times arbitration is not agreed to until after the parties are already in
litigation and discovery is completed. By that time, the opportunity to avoid costs
by using arbitration may be diminished.
 If arbitration is mandatory or required by a contract, then the parties do not have
the flexibility to choose arbitration only when both parties agree. Mandatory
arbitration allows one party to force the other party to use arbitration. In situations
where the arbitrator is reliant on one party for repeat business, then the potential
for abuse is present and the advantage of impartiality is lost.
 The standards used by an arbitrator are not clear, although generally the arbitrator
is required to follow the law. However, sometimes arbitrators may consider the
"apparent fairness" of the respective parties' positions instead of strictly following
the law, which would result in a less favorable outcome for the party who is favored
by a strict reading of the law. Although this issue has been present since antiquity
(Aristotle said "? an arbitrator goes by the equity of a case, a judge by the law, and
arbitration was invented with the express purpose of securing full power for
equity.", this consideration is often overlooked in evaluating the applicability of
arbitration.
✔ Conclusion :
 In summary, arbitration can serve as a very useful tool for resolving disputes,
● but careful consideration has to be given as to whether it is applicable to or
preferable in a particular dispute.
 Your attorney can best advise you on whether or not it is most appropriate for your
case.
➔ Explain in detail the advantages and disadvantages of arbitration agreement.

(Mar-2015)
ANSWER :
✔ Refer :

➔ Explain in detail : Effect of death and insolvency of parties to an arbitration (Apr-

2013, Apr-2016)
✔ Write short note : Effect of death of the parties to an arbitrator. (Mar-2014)
ANSWER :

✔ Refer :
 http://kamkus.org/coursematerial/ARBITRATION%20CONSILATION%20&
%20ADRS.pdf
✔ Effect of Death :
 Sec-40 : Arbitration agreement not to be discharged by death of party thereto :
● (1) An arbitration agreement shall not be discharged by the death of any party
thereto, either as respects the deceased or any other party,
 but shall in such event be enforceable by against the legal representatives of
the deceased.
● (2) The mandate of an arbitrator shall not be terminated by the death of any
party by whom he was appointed.
● (3) Nothing in this section shall affect the operation of any law by virtue of which
any right of action is extinguished by the death of a person.
 Thus the death of a party neither discharges the arbitration agreement nor revokes
the authority of the arbitrator.
● Legal representatives of the deceased are entitled, and are also bound, to be
brought on record.
● But all this is subject to the provision of sub-section (3) that where the right of
action is extinguished by the death of a party
 the arbitration proceedings would abate in the same manner as a suit would
have abated.
● The principle of law is enshrined in the maxim action personalise moritur cum
persona.
 Certain rights of action die with the man. But this applies only to actions of
personal nature, such as the contract to marry, sing or paint.
 Where an action is capable of surviving beyond the life of the person
concerned, it may be enforced by as well as against his legal representatives.
 This is also true of arbitration proceedings
✔ Effect of insolvency :
 Sec-41 : Provisions in case of insolvency :
● (1) Where it is provided by a term in a contract to which an insolvent is a party
 that any dispute arising thereout or in connection therewith shall be submitted
to arbitration,
• the said term shall, if the receiver adopts the contract, be enforceable by or
against him so far as it relates to any such dispute.
● (2) Where a person who has been adjudged an insolvent had, before the
commencement of the insolvency proceedings, become a party to a arbitration

agreement,
 and any matter to which the agreement applies is required to be determined in
connection with, or for the purposes of, the insolvency proceedings
• then, if the case is one to which sub-section (1) does not apply,
• any other party or the receiver may apply to the judicial authority having
jurisdiction in the insolvency proceedings for an order directing that the
matter in question shall be submitted to arbitration in accordance with
the arbitration agreement ,
• and the judicial authority may, if it is of opinion that, having regard to all
the circumstances of the case, the matter ought to be determined by
arbitration, make an order accordingly.
● (3) In this section the expression "receiver" includes an Official Assignee.
 Thus,
● One of the effects of the insolvency of a party is that,
 if the receiver or official assignee adopts the contract (since he has the power
to disown certain contracts), which contains the arbitration clause,
• then he will become bound by the clause and the matter will have to be
decided by arbitration.
● The second rule laid down is that
 if the matter in dispute has to be decided for the purpose of carrying out the
insolvency proceedings and the dispute has arisen by virtue of a contract
which provided for arbitration,
• then the receiver or the other party may apply to the court for an order. And
the court shall pass an order only if it appears to the court that having
regard to all the circumstances of the case the matter should be decided by
arbitration.
➔ Explain in detail the essentials of arbitration agreement with decided cases. (Mar-
2015)
✔ Explain in detail the implied conditions of arbitration agreement with case laws.
(Apr-2016)
✔ What is arbitration ? Explain in details the characteristics of contract of
arbitration. (Apr-2013, Mar-2014)
✔ Write short note : Kinds of Arbitration Agreement (Mar-2014, Apr-2017)
✔ Discuss fully the essential elements of Arbitration agreement. (Apr-2017)

ANSWER :
✔ Refer :
✔ Outline :
 What is arbitration ?
 What is “arbitration agreement ?
 Essentials of "Valid Arbitration Agreement"
● (A) Valid and Binding Contract
● (B) Intention To Refer The Dispute To Arbitrator
● (C) Present or Future Disputes
● (D) The Agreement Must Be In Writing
✔ What is arbitration ?
✔ What is “arbitration agreement ?
 According to Section 2(1)(b) of The Arbitration and Conciliation Act 1996
● Àrbitration Agreement' means an agreement referred to in Section 7 .
 Section 7 of the Act provides -
● (1) "arbitration agreement" means,
 an agreement by the parties,
• to submit to arbitration all or certain disputes,
• which have arisen or which may arise between them,
• in respect of a defined legal relationship, whether contractual or not .
● (2) An arbitration agreement may be in the form of (i) an arbitration clause in a
contract or (ii) in the form of a 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 singed by the parties;
 (b) an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement; or
 (c) an exchange of statements of claim and defence,
• in which the existence of the agreement is alleged by one party and not
denied by the other.
 THUS, the definition of arbitration agreement is made comprehensive. It not only
gives the essentials of arbitration agreement but also explains the same.

✔ Essentials of "Valid Arbitration Agreement" :-

 (A) There should be a valid and binding contract.
 (B) There should be intention to refer the dispute to arbitration and to be bound by
its decision.
 (C) The agreement must be in respect of present or future disputes.
 (D) Agreement must be in writing.
✔ (A) Valid and Binding Contract -
 First essential of an Arbitration agreement is that it must be contained in or in
respect of a valid binding contract between two parties.
 By `Valid contract' means it must satisfy all requirements of it being valid under
Indian Contract Act.
 If there is no valid or binding contract or where parties to contract are not on
consensus on any or many issues then existence of arbitration agreement, which
could enable them (Parties) for referring their present or future disputes to
Arbitrator, can also not be invoked.
✔ (B) Intention To Refer The Dispute To Arbitrator -
 Second essential Condition for a valid Arbitration agreement is that there should be
intention of parties to refer the dispute to arbitration.
 In other words there must be "animus arbitrandi".
 Such intention of referring the dispute for arbitration should be explicit and clear
from record. It is not only essential that parties are agreed to refer the disputes for
arbitration it is also necessary that they agreed to be bound by arbitration
award.
● In K.K. Modi v. K.N. Modi, AIR 1998 SC 1297 -
 A Memorandum of Understanding was drafted containing Settlement of various
disputes between group A and B. In terms of settlement, shares and assets of
various companies were required to be valued as per terms contained in
settlement, it was also contained in Memorandum of Understanding, that
disputes are to be referred to chairman I.F.C.I. or his nominees whose decision
will be final and binding.
 However that clause did not contemplate any judicial determination by
chairman I.F.C.I.,
 It was held that it was not intended by parties for referring to dispute for a
new decision, infact it was meant for proper implementation of terms of
already settled disputes, so intention of parties was not to have judicial
determination of any dispute by Chairman I.F.C.I.
● Thus important element for creating "Arbitration Agreement" was missing . viz
intention of parties to refer the present or future disputes to Arbitrator and to be

bound by his decision as required under section 7 of Act.

● Hence, decision Chairman I.F.C.I was not held to be arbitration award .
✔ (C) Present or Future Disputes -
 Third requirement of Àrbitration agreement' is that it must relate to any present
or future disputes between parties.
 In Delux Silk Traders v. M/s Satyanarayan Mahender Kumar and Others., AIR 1979
Bom. 149 it was observed that
● if there is no dispute within the meaning of an agreement to refer i.e. where
there is no controversy in being as when party admits liability but simply fails to
pay, there can be no arbitration.
✔ (D) The Agreement Must Be In Writing -
 Other important condition for valid arbitration agreement is that it must be in
writing.
 Section 7(3) provides that an arbitration agreement shall be in writing,
 Section 7(4) says that an arbitration agreement is in writing if it is contained in -
● (a) document signed by parties.
● (b) an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of agreement.
● (c) an exchange of statements of claims and defence in which the existence of
agreement is alleged by one party and not denied by other.
 What would constitute the agreement in writing was decided by the Supreme Court
in Vaidya Hari Shanker Laxmiram Rajyaguru v. Protojirary Hari Shanker Rajyaguru,
(1988) 3 SCC 21.
● In this case, the award was challenged on the ground that there was no written
arbitration agreement.
● The Court found that the parties had agreed to refer dispute to arbitration, and
award was signed by both the parties.
● It was held that,
 the conduct of parties showed the existence of arbitration agreement and the
agreement was also reiterated by signing endorsement on the award.
 In the case of I.T. Classic Finance Ltd. v. Grapco Mining Co. Ltd., AIR 1997 Cal 397,
it was held that,
● when the second petitioner has not signed the lease agreement containing the
arbitration clause, as such, he cannot enforce the arbitration agreement.

➔ Explain in detail the provisions of stay of judicial proceedings pending in the

court as per arbitration agreement with case laws. (Mar-2015)
✔ Explain : Stay of judicial proceeding pending on arbitration agreement. (Apr-2013,
Mar-2014)
ANSWER :
✔ Refer :

ANSWER :
✔ Refer :
✔ Meaning of “Court” in the context of arbitration :
 Under Section 2(e) of the Act "Court" means
● the principal Civil Court of original jurisdiction in a district, and
 includes the High Court in exercise of its ordinary original civil jurisdiction ,
• having jurisdiction to decide the question forming the subject-matter of the
arbitration if the same had been the subject-matter of a suit,
 but does not include any civil court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
 A revenue Court is not included in the expression "Civil Court" as used in the
section, AIR 1949 All 360 : AIR 1962 H.P. 10.
 The Civil Court includes a Court of revision, AIR 1972 Patna 29.
 "Civil Court" includes an appellate Court. [Dutt v. Kheru, ILR 33 All 645; Nachippa
Chettiar v. Subramanya Chettiar, AIR 1960 SC 367].
 When Civil Court can inference in the order of instrument A.I.R. 1993. Ker 125
(F.B.)
✔
➔ Explain in detail : Arbitration tribunal. (Mar-2015)

✔ Discuss the appointments, powers, and jurisdiction of Arbitration Tribunals. (Apr-
2017)
✔ Discuss : Time, Place and Language of Hearing by Arbitration Tribunal.
✔ Explain : Power of the court to appoint an Arbitrator and Umpire. (Apr-2013)
 Explain in detail : Powers of the court to appoint an arbitration or an umpire (Apr-
2016)
✔ Explain : Composition, jurisdiction of Arbitral Tribunal. (Apr-2013, Mar-2014)

ANSWER :
✔ Refer :
 https://en.wikipedia.org/wiki/Arbitral_tribunal
 http://arbitrationblog.kluwerarbitration.com/2017/09/05/appointment-arbitrators-
india-finally-courts-divest-power/
 http://www.mondaq.com/india/x/147394/Arbitration+Dispute+Resolution/Appoint
ment+Of+Arbitrator+Under+Section+11+4+5+6+Of+The+Arbitration+Act+A+Ne
verEnding+Saga+Of+Judicial+Interpretation
✔ What is “Arbitration Tribunal”?
 This term has been newly constituted in the Arbitration and Conciliation Act, 1996.
 It simply means a panel of arbitrators,
● whereas in the former Act of 1940 there would be arbitrators in equal number
appointed by the parties and one umpire appointed by the arbitrators of both the
parties.
 The tribunal may consist of a sole arbitrator, or there may be two or more
arbitrators, which might include either a chairman or an umpire.
✔ Appointment of Arbitration Tribunal : Power of the court to appoint an
Arbitrator :
 Sec-11 : Arbitration and Conciliation Act, 1996 :
 A person of any nationally may be an arbitrator, unless otherwise agreed by the
parties.
 Sole arbitrator :
● Sec-11(1) : Parties are free to agree on a procedure for appointing the
arbitrator.
● Sec-11(5) : Failing any agreement on appointment of a sole 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 (or the person or institution designated by him).
 Sec-11(7) : A decision on a matter by the Chief Justice (or the person or
institution designated by him) is final.
 Arbitration with three arbitrators :
● Sec-11(1) : Parties are free to agree on a procedure for appointing the
arbitrators.
● Sec-11(3) : Failing any agreement on appointment of arbitrators, each party
shall appoint one arbitrator, and the two appointed arbitrators shall appoint the

third arbitrator who shall act as the presiding arbitrator. (Note under the old Act
of 1940 such person was called Ùmpire')
● Sec-11(4) : IF
 (a) a party fails to appoint an arbitrator within thirty days from the receipt of a
request to do so from the other party; or
 (b) the two appointed arbitrators fail to agree on 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 the person or institution designated by him).
 Sec-11(7) : A decision on a matter by the Chief Justice (or the person or
institution designated by him) is final.
 Taking care of exigencies :
● Sec-11(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 from them under that procedure; or
• (c) a person, including an institution, fails to perform any function entrusted
to him or it under that procedure,
 a party may request the Chief Justice to take the necessary measure, unless
the agreement on the appointment procedure provides other means for
securing the appointment.
● Sec-11(11) : Where more than one request has been made to the Chief Justices
of different High Courts or their designates,
 the Chief Justice or his designate to whom the request has been first made
shall alone be competent to decide on the request.
 Considerations for the Chief Justice :
● Sec-11(8) : The Chief Justice in appointing an arbitrator, shall have due regard
to -
 (a) any qualifications required of the arbitrator by the agreement of the
parties; and
 (b) other considerations as are likely to secure the appointment of an
independent and impartial arbitrator.
 International commercial arbitration :
● Sec-11(9) : In the case of appointment of sole or third arbitrator in an
international commercial arbitration,
 the Chief Justice of India may appoint an arbitrator of a nationality other than

the nationalities of the parties where the parties belong to different

nationalities.
● Sec-11(12) :
 In the case of an international commercial arbitration,
• the reference to "Chief Justice" in Sec-11 shall be construed as a reference
to the "Chief Justice of India".
 Else
• the reference to "Chief Justice" in Sec-11 shall be construed as a reference
to the "Chief Justice of the High Court itself within whose local limits the
principal Civil Court is situate.
 In Kamla Solvent v. Manipal Finance Corp. Ltd. AIR 2001 Mad. 440 - It was
observed that,
● it is well settled that where an arbitrator is named in the arbitration agreement,
provisions Section 11 of the Act are not attracted and court will not have
jurisdiction to try and decide the petition filled by party for appointment of
another arbitrator.
 In Sri Venkateshwara Construction Co. v. Union of India, AIR 2001 A.P. 284 - It was
observed that,
● Chief Justice or his designate, while exercising power under section 11 of new
Act, cannot entertain to decide the disputes that are sought to be referred to his
arbitration.
● The duty of the Chief Justice or his designate is only to appoint an
Arbitrator/Arbitrators if the parties fail to do so, and leave all other questions to
the decisions of Arbitrator/Arbitrators.
✔ Powers of Arbitration Tribunal :

✔ Jurisdiction of Arbitration Tribunal :

✔ Time, Place and Language of Hearing by Arbitration Tribunal :
 Section 20 : Arbitration and Conciliation Act, 1996 :
● (1) The parties are free to agree on the place of arbitration.
● (2) Failing of 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.
➔ Discuss : Grounds for challenge to appointment of Arbitration Tribunal.

ANSWER :
✔ Refer :
✔ Provision for challenge to appointment of Arbitrator :
 Sec-12 : Arbitration and Conciliation Act :
● (1) When a person is approached in connection with his possible appointment as
an arbitrator,
 he shall disclose in writing any circumstances likely to give rise to justifiable
doubts as to his independence or impartiality.
● (2) An arbitrator, from the time of his appointment and throughout the arbitral
proceedings,
 shall, without delay, disclose to the parties in writing any circumstances
referred to above.
● (3) An arbitrator may be challenged only if -
 (a) circumstances exist that give rise to justifiable doubts as to his
independence or impartiality, or
 (b) he does not possess the qualifications agreed to by the parties .
● (4) A party may challenge an arbitrator appointed by him, or in whose
appointment he has participated, only for reasons of which he becomes aware
after the appointment has been made."
✔ In Jiwan Kumar Lohia v. Durga Dutt Lohia (AIR 1992 SC 188), the Supreme Court
said that
 "Reasonable apprehension of bias in the mind of a reasonable man, can be a good
ground for the termination of the mandate of an arbitrator."
 However, the parties shall be precluded from challenging the same if they had the
knowledge of facts affecting impartiality and continue with proceeding on the
principle of `waiver'.
✔ Procedure for challenge :
 In earlier Act of 1940 Court was empowered to remove arbitrator and/or Umpire,
● (1) if he has misconducted himself or the proceedings, and
● (2) on the application made by the party that the arbitrator has failed to use all

reasonable despatch upon entering on and proceedings with the reference and
making the award.
 Under Arbitration and Conciliation Act 1996,
● Adequate safeguards and incentives are provided to the Arbitrator to proceed
only if he is independent or impartial.
● The Act provides that withdrawal of Arbitrator shall not imply correctness of
challenge and encourage independent person to withdraw.
● The Act cautions the unscrupulous arbitrator that even if he continues as a
Tribunal, the Court can deny him the fee of arbitrator, having found him on
wrong foot.
 Sec-13 of the Act provides as to procedure for challenging the appointment of
arbitrator.
● (1) The parties are free to agree on a procedure for challenging an arbitrator .
● (2) Failing any agreement referred to in sub-section (1), a party who intends to
challenge an arbitrator shall,
 within fifteen days after becoming aware of the constitution of the arbitral
tribunal
• or after becoming aware of any circumstances raising justifiable doubts as
to independence or impartiality of an arbitrator,
 send a written statement of the reasons for the challenge to the arbitral
tribunal.
 (3)
● If both parties agree to challenge, the Arbitrator is automatically removed.
● If both parties do not agree on challenge and the arbitrator challenged under
sub-section (2) does not withdraws from his office,
 the arbitral tribunal shall decide on the challenge .
 (4) If a challenge is not successful, the arbitral tribunal shall continue the arbitral
proceedings and make an arbitral award.
 (5) Where an arbitral award is made after unsuccessful challenge,
● the party challenging the arbitrator may make an application for setting aside
such an arbitral award in accordance with section 34.
✔
➔ Discuss : Procedure of Arbitration Tribunal, including Statement of Claim and

defence, counter claim and other proceedings.

ANSWER :
✔ Refer :
✔ Statement of Claim : Statement of Defence :
 Section 23 : Arbitration and Conciliation Act, 1996 :
● (1) Within the period of time agreed upon by the parties or determined by the
arbitral tribunal,
• the claimant shall state the facts supporting his claim, the points at issue
and the relief or remedy sought,
• and the respondent shall state his defence in respect of these particulars,
 unless the parties have otherwise agreed as to the required elements of these
statements.
 (2) The parties may submit with their statements all documents they consider to be
relevant or may add a reference to the documents or other evidence they will
submit.
 (3) Unless otherwise agreed by the parties, either party may amend or
supplement his claim or defence during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow the amendment or
supplement having regard to the delay in making it.
✔ Thus,
 Section 23 of Act provides regarding,
● mode of putting up claims and defence by parties in arbitral proceedings.
 It is laid down that within time as agreed upon by parties or fixed by arbitral
tribunal
● claimant shall state the facts in support of claim and for relief
● and then respondent shall put up his defence in respect of those facts
● and particular parties shall be at liberty to submit any statements, documents
etc. which in their view is relevant for determining the dispute.
● Moreover, either party may amend or supplement his claim or defence during
course of arbitral proceeding provided that -
 (A) Parties have agreed for not making any amendment or supplement to
claim or defence, or
 (B) Arbitral tribunal consider the proposed amendment or supplement, to be
inappropriate or belated.
 So in contradistinction to language as used in the Order 6 Rule 17 of CPC 1908,
● The Arbitration and Conciliation Act, 1996 as a matter of general rule allow

parties to amend or supplement their respective claims/defences unless parties

themselves have decided against it or arbitral tribunal found such amendments
to be belated.

Module-2 :
2) Arbitration Award :
2.1) Rules of Guidance
2.2) Forms and Content of the Arbitration Award
2.3) Settlement through ADR
2.4) Interim Award, Award of interest by Arbitrator
2.5) Requirements of Valid Award
2.6) Correction and interpretation of Award
2.7) Grounds for setting aside the Award
2.7.1) Incapacity of the Party
2.7.2) Invalidity of Arbitration Agreement
2.7.3) Want of proper notice and hearing
2.7.4) Contravention of composition and procedure
2.7.5) Breach of conviviality
2.7.6) Impartiality of the arbitrator
2.7.7) Bar of limitation, res judicata
2.7.8) Consent of parties
2.8) Termination Proceedings
2.9) Powers of Arbitrators
➔ What is “Arbitral Award”?

✔ Write short note : Requirements of Valid Arbitration Award.
➔ Write short note : Rules of Guidance for Arbitration Award.
➔ Write short note : Forms and Content of the Arbitration Award.
➔
➔ Discuss : (1) Objection relating to jurisdiction, objection regarding existence or validity
of arbitration agreement, (2) Interim award by arbitrator.
✔ Discuss the powers of Arbitration Tribunal to issue orders of interim measures. (Apr-
2017)
➔ Explain : Interim relief by court. (Apr-2013)

✔ Write short note : Interim relief by court. (Mar-2014)

✔ Explain in detail : Interim relief by the court. (Mar-2015)
➔ Write short note : Award of interest by Arbitrator.
➔ Write short note : Correction and interpretation of Arbitration Award.
➔ Discuss Grounds for setting aside the Award, (i) Incapacity of the Party, (ii) Invalidity of
Arbitration Agreement, (iii) Want of proper notice and hearing, (iv) Contravention of
composition and procedure, (v) Breach of conviviality, (vi) Impartiality of
✔ Explain in detail the grounds of an application for setting aside the arbitration award
with case laws. (Apr-2016, Apr-2017)
✔ Explain : The ground of an application for setting aside the Arbitral Award. (Apr-2013)
✔ Write short note : The grounds of an application for setting aside the Arbitral Award.
(Mar-2014)
✔ Discuss in detail the grounds for setting aside the Arbitral Award. (Mar-2014)
✔ Explain in detail the provisions of setting aside the arbitration award with case laws.
(Mar-2015)
➔ Discuss : Termination of Arbitration Proceedings.
➔ Explain : Power and duties of an Arbitrator and legal misconduct of an arbitrator.
(Apr-2013)
✔ Explain in detail : Legal misconduct of an arbitrator. (Apr-2016)
MODULE-2 ANSWERS :
➔ What is “Arbitral Award”?

✔ Write short note : Requirements of Valid Arbitration Award.
ANSWER :
✔ Refer :
✔ According to Section 2(1)(c)
 "Arbitral award" includes an interim award.
✔ "Arbitral award" in simple words means,
 the judicial determination, arrived at by Arbitrator after making enquiries,
recording evidence and hearing all parties.
✔ An arbitral award must dispose off the entire controversy submitted to arbitrator

so that there cannot be future litigation.

✔ An arbitral award must contain following particulars :-
 (i) all those facts which led to refer the dispute to Arbitrator.
 (ii) all the submission, claims-counter-claims of each parties.
 (iii) all necessary inquiries made by arbitrator.
 (iv) short description of evidence (if any) recording for determination of disputes.
 (v) its determination and reasoning thereof.
✔ In Tamil Nadu Electricity Board v. M/s Bridge Tunnel Constructions, AIR 1997 SC 1376
: 1997(3) J.T. 467 it was observed that,
 the law on the award as governed by the new Act, is other way about of the pre-
existing law; it mandates that the award should state the reasons upon which it is
based.
 In other words unless
 (a) the parties have agreed that no reasons are to be given or
 (b) the award is an arbitral award on agreed terms under section 30 of the
new Act,
● the award should state reasons in support of determination of liability/Non-
liability.
✔ It was held by Supreme Court in Goa, Daman and Diu Housing Board v. Ramakant V.P.
Darvodkar, 1991(1) CCC 265 (SC) that
 it is evident from the awards made by the arbitrator that the arbitrator had
considered all the specific issues raised by the parties in the arbitration proceedings
and came to his finding after giving cogent reasons.
 Therefore, it is not proper to hold that the arbitrator has misconducted himself or in
the proceedings in the matter of giving awards.

GO TO CONTENTS.
➔ Write short note : Rules of Guidance for Arbitration Award.

ANSWER :
✔ Refer :


➔ Write short note : Forms and Content of the Arbitration Award.

ANSWER :
✔ Refer :
✔ Section 31 of The Arbitration and Conciliation Act, 1996 deals with form and contents
of arbitral award.
✔ Sec-31 :
 (1) An Arbitral award shall be made in writing and shall be signed by the members
of arbitral tribunal.
 (2) For the purpose of sub-section (1), in arbitral proceedings with more than one
arbitrator, the signatures of the majority of all members of arbitral tribunal shall be
sufficient so long as reason for any omitted signature is stated.
 (3) The arbitral award shall state the reasons upon which it is based, unless -
● (a) the parties have agreed that 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 the 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 .
 (6) The arbitral tribunal may, at any time during the arbitral proceedings, make an
interim arbitral award on any matter with respect to which it may make a final
arbitral award.
 (7)
● (a) Unless otherwise agreed by the parties, where and in so far as an arbitral
award is for the payment of money, the arbitral tribunal may include in the sum
for which the award is made interest, at such rate as it deems reasonable, on
the whole or any part of the money, for the whole or any part of the period
between the date on which the cause of action arose and the date on which the
award is made.
● (b) A sum directed to be paid by an arbitral award shall, unless the award
otherwise directs, carry interest at the rate of eighteen per centum per annum
from the date of the award to the date of payment.
 (8) Unless otherwise agreed by the parties, -
● (a) the costs of an arbitration shall be fixed by the arbitral tribunal;
● (b) the arbitral tribunal shall specify -
 (i) the party entitled to costs,

 (ii) the party who shall pay the costs,

 (iii) the amount of costs or method of determining that amount, and
 (iv) the manner in which the costs shall be paid.
● Explanation. - For the purpose of clause (a), "costs" means reasonable costs
relating to -
 (i) the fees and expenses of the arbitrators and witnesses,
 (ii) legal fees and expenses,
 (iii) any administration fees of the institution supervising the arbitration, and
 (iv) any other expenses incurred in connection with the arbitral proceedings
and the arbitral award.
 In T.P. George v. State of Kerala and Others, AIR 2001 SC 816 while interpreting
Section 31(7) of new Act, Supreme Court observed that,
● Arbitrator can award interest for all four stages
 (1) From the stage of accrual of cause of action till filling of arbitration
proceedings,
 (2) during pendency of the proceedings before arbitrator,
 (3) future interest arising between date of award and date of decree and
 (4) Interest arising from the date of decree till realisation of award.
➔ Discuss : (1) Objection relating to jurisdiction, objection regarding existence or validity

of arbitration agreement, (2) Interim award by arbitrator.
✔ Discuss the powers of Arbitration Tribunal to issue orders of interim measures. (Apr-
2017)
ANSWER :
✔ Refer :
✔ (1) Objection relating to jurisdiction, objection regarding existence or
validity of arbitration agreement :
 Sec-16 : Arbitration and Conciliation Act 1996 :
● (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on
any objections with respect to the existence or validity of the arbitration
agreement, and for that purpose -
 (a) an arbitration clause of the contract shall be treated as an agreement
independent of the other terms of 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.
● (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised
not later than the submission of the statement of defence;
 however, a party shall not be precluded from raising such a plea merely
because that he has appointed, or participated in the appointment of, an
arbitrator.
● (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall
be raised as soon as the matter alleged to be beyond the scope its authority is
raised during the arbitral proceedings.
● (4) The arbitral tribunal may, in either of the cases referred to in Sub- section
(2) or sub-section (3), admit a later plea if it considers the delay justified.
● (5) The arbitral tribunal shall, where such a plea is rejected, continu with the
arbitral proceedings and make an arbitral award.
● (6) Where an arbitral award is made after rejection of plea regarding lack of
jurisdiction, or existence of arbitration clause, or validity of arbitration
agreement
 the party making such a plea, may make an application for setting aside such
an arbitral award in accordance with section 34.
 Thus, Section 16 of the Act empowers the Arbitral Tribunal to adjudicate,
 the objections regarding its own jurisdiction or
 validity of arbitration agreement as arbitration agreement or
● and that an agreement clause in a contract is considered to be independent and
separate from main contract,
● and that even if arbitral tribunal decides the contract to be null and void,
 such decision does not necessarily makes arbitration clause contained in it, to
be invalid.
 However objection regarding jurisdiction have to be raised by any party before
submission of statement of defence.
● It is important to point out that such objection can lawfully be raised by even the
party who has appointed or has participated in the process of appointment of
arbitrator.
 Section 16(6) of Act enable the aggrieved party of any decision on objection to
make application for setting aside the order as according to provisions of Section
34.
 In Konkan Railway Corp. Ltd. v. Rani Construct (P) Ltd., AIR 2002 SCW 426
Supreme Court has held that,
● Section 16 enables the arbitral tribunal to rule on its own jurisdiction.

● Arbitral Tribunal can rule on any objection with respect to existence or validity of
the arbitration agreement
 and Arbitral tribunal's authority under section 16 is not confined to the width of
jurisdiction but goes also to the root of its jurisdiction.
 Similarly in Narayan Prasad Lohiya v. Nikunj Kumar Lohia, AIR 2002 SC 1139 Full
Bench of Supreme Court has observed that
● under section 16 of the Act, a party can challenge the composition of arbitral
tribunal before arbitral tribunal itself.
● Such challenge must be taken under section 16(2), not later than the submission
of statement of defence.
● Section 16(2) makes it clear that such challenge can be taken, even though the
party may have himself appointed the arbitrator.
✔ (2) Interim award by arbitrator :
 Section 17 :
● (1) Unless otherwise agreed by the parties, the tribunal may,
 at the request of a party,
 order a party to take interim measure of protection as the arbitral tribunal may
consider necessary in respect of the subject-matter of the dispute.
● (2) The arbitral tribunal may require a party to provide appropriate security in
connection with a measure ordered under sub-section (1).
➔ Explain : Interim relief by court. (Apr-2013)

✔ Write short note : Interim relief by court. (Mar-2014)
✔ Explain in detail : Interim relief by the court. (Mar-2015)
ANSWER :
✔ Refer :
✔ Sec-9 of the Arbitration and Conciliation Act, 1996 lays down as under :
 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 -
● (i) for the appointment of a guardian for a minor or a person of unsound mind
for the purposes of arbitral proceedings; or

● (ii) for an interim measure of protection in respect of any of the following

matters, namely :-
 (a) the 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) the detention, preservation or inspection of any property or thing,
• which is the subject-matter of the dispute in arbitration,
• or as to which any question may arise therein
• and authorising for any of the aforesaid purposes any person to enter upon
any land or building in the possession of any party, or authorising any
samples to be taken or any observation to be made, or experiment to be
tried, which may be necessary or expedient for the purpose of obtaining full
information or evidence;
 (d) interim injunction or the appointment of a receiver;
 (e) such other interim measure of protection as may appear to the court to be
just and convenient,
 and the Court shall have the same power for making orders as it has been the
purpose of, and in relation to, any proceedings before it.
✔ Thus, Sec-9 of the Arbitration and Conciliation Act, 1996,
 provides for interim application as to causes arising both before or during arbitral
proceedings relating to the following :
● 1. Appointment of guardian of minor or unsound person.
● 2. protection relating to :-
 (a) preservation, interim custody or sale of any goods subjected to arbitration.
 (b) securing the amount in dispute;
 (c) detention, preservation or inspection of property in dispute or the subject-
matter of dispute and such other matters;
 (d) interim injunction or appointment of a receiver.
 (e) other interim measure as may deemed just and convenient.
 And that, the court will have the same powers as it has in other matters .
✔ In M/s Buddha Films Pvt. Ltd. v. Prasar Bharti, AIR 2001 Delhi 241 - Delhi High Court
while relying on Apex Court judgment in Sunderam Finance Ltd. v. NEPC India Ltd.,
AIR 1999 SC 565 has observed that,
 initiation of arbitration proceedings would not be pre-condition for filling petition
under section 9 of the Act.
 What is important is manifest intention to have the dispute referred to an arbitral

Tribunal.
 A situation may so demand that party may choose to apply under section 9 for an
interim measures even before issuing a notice contemplated by Section 21 of the
said Act.
 And while passing order under section 9 and in order to ensure that effective steps
are taken to commence the arbitral proceedings,
● the Court while exercising jurisdiction under section 9
● can pass a conditional order to put the applicant to such terms as it may deem
fit with a view to see that effective steps are taken for commencing arbitral
proceedings.
✔ In Baby Arya v. D.V.B. AIR 2002 Del 50 - It was observed by Delhi High Court that,
 a party or person is entitled to interim protection if the action of other party is
either in breach of the terms of agreement or militates against equity, fair play or
natural justice, otherwise not.
✔ In Bhatia International v. Bulk Trading S.A. and others, AIR 2002 SC 1432 - It was
observed that,
 Part II of Act which deals with enforcement of foreign awards does not contain any
provision similar to Section 9 or 17,
● and there is nothing to indicate the intention of legislature not to apply Section 9
and 17 to Arbitrations which are taking place in foreign country,
 therefore, application under section 9 for seeking interim measures is maintainable
in India even when arbitration proceedings are taking place in foreign country.
➔ Write short note : Award of interest by Arbitrator.

ANSWER :
✔ Refer :

➔ Write short note : Correction and interpretation of Arbitration Award.

ANSWER :
✔ Refer :

✔ Sec-33 : Arbitration and Conciliation Act 1996 :

 (1) Within thirty days from the receipt of the arbitral award , unless another period
of time has been agreed upon by the parties -
● (a) a party, with notice to the other party, may request the arbitral tribunal to
correct any computation errors, any clerical or typographical errors or any other
errors of a similar nature occurring in the award;
● (b) if so agreed by the parties, a party, with notice to the other party, may
request the arbitral tribunal to give an interpretation of a specific point or part
of the award.
 (2) If the arbitral tribunal considers the request made under sub-section (1) to be
justified,
● it shall make the correction or give the interpretation within thirty days from
the receipt of the request
● and the interpretation shall form part of the arbitral award .
 (3) The arbitral tribunal may correct any error on its own initiative, within thirty
days from the date of the arbitral award.
 (4) a party with notice to the other party, may request, within thirty days from the
receipt of the arbitral award, the arbitral tribunal to make an additional arbitral
award as to claims presented in the arbitral proceedings but omitted from the
arbitral award.
 (5) If the arbitral tribunal considers the request made under sub-section (4) to be
justified, it shall make the additional arbitral award within sixty days from the
receipt of such request.
 (6) The arbitral tribunal may extend, if necessary, the period of time within which it
shall make a correction, give an interpretation or make an additional arbitral award
under sub-section (2) or sub-section (5).
 (7) Section 31 (Form and contents of arbitral award) shall apply to a correction or
interpretation of the arbitral award or to an additional arbitral award made under
this section.
✔ Compare with similar provision in CPC 1908 :
 Section 33 of the Act is more or less on similar line as Section 152 of CPC .
 Sec-33 provision is different from the well settled legal principle that after the
making of award the arbitral tribunal become functus officio.
 Section 33 empowers the arbitral tribunal to not only correct errors, but also to
give an interpretation on a specific point on the request of the party after making
of arbitral award, and to make additional award.
 The arbitral tribunal giving the ìnterpretation award' was unknown to arbitration
jurisprudence.

● It is intended to remove the ambiguities in award so as to make it sustainable. It

also eliminates the grounds for the setting aside of the awards.
 Likewise, Sec-34(4) the arbitral tribunal can also give additional award, if certain
issue remains undecided, thereby eliminating the grounds for setting aside the
arbitral award.
➔ Discuss Grounds for setting aside the Award, (i) Incapacity of the Party, (ii)
Invalidity of Arbitration Agreement, (iii) Want of proper notice and hearing, (iv)
Contravention of composition and procedure, (v) Breach of conviviality, (vi) Impartiality
of the arbitrator, (vii) Bar of limitation, res judicata, (viii) Consent of parties.
✔ Explain in detail the grounds of an application for setting aside the arbitration award
with case laws. (Apr-2016, Apr-2017)
✔ Explain : The ground of an application for setting aside the Arbitral Award. (Apr-2013)
✔ Write short note : The grounds of an application for setting aside the Arbitral Award.
(Mar-2014)
✔ Discuss in detail the grounds for setting aside the Arbitral Award. (Mar-2014)
✔ Explain in detail the provisions of setting aside the arbitration award with case laws.
(Mar-2015)
ANSWER :
✔ Refer :
✔ Who can apply of setting aside an award :
 Section 34(1) : Recourse to a Court against an arbitral award may be made ,
● only by an application for setting aside such award
● by a party to the award in accordance with sub-section (2) and sub-section (3)
of this section.
✔ Grounds for setting aside an award :
 Section 34(2) : An arbitral award may be set aside by the Court only if -
● (a) the party making the application furnishes proof that -
 (i) a party was under some incapacity; or
 (ii) the arbitration agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon, under the law for the time
being in force; or
 (iii) the party making the application

• was not given proper notice of the appointment of an arbitrator or of the

arbitral proceedings
• or was otherwise unable to present his case; or
 (iv)
• the arbitral award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration,
• or it contains decisions on matters beyond the scope of the submission to
arbitration;
• Provided that, if the decisions on matters submitted to arbitration can be
separated from those not so submitted, only that part of the arbitral award
which contains decisions on matters not submitted to arbitration may be set
aside; or
 (v) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in
conflict with a provision of this Part from which the parties cannot derogate, or,
failing such agreement, was not in accordance with this Part; or
● (b) the Court finds that -
 (i) the subject-matter of the dispute is not capable of settlement by arbitration
under the law for the time being in force,
 or (ii) the arbitral award is in conflict with the public policy of India.
 In this connection it may be noted that -
• an award is in conflict with the public policy of India if the making of the
award was induced or affected by fraud or corruption or was in violation of
section 75 or section 81.
 Bar of limitation :
● Arbitration proceedings are in the nature of suits and applications.
● Section 43(1) : All the provisions of Indian Limitation Act 1963 apply to
arbitrations as it applies to proceedings in Court.
● Section 43(2) : For the purposes of this section and the Limitation Act, 1963 (36
of 1963),
 an arbitration shall be deemed to have commenced on the date referred in
section 21 [date on which a request for that dispute to be referred to
arbitration is received by the respondent].
● Note : There is no provision in the Arbitration Act, which lays down within which
time an application for arbitration should be made.
✔ Period for making application to set aside an arbitral award :
 Section 34(3) :

● An application for setting aside may not be made, after three months have
elapsed
 from the date on which the party making that application had received the
arbitral award, or
 if a request had been made under section 33 [Correction and interpretation of
award; additional award],
• from the date on which that request, for Correction/ interpretation/
additional award, had been disposed of by the arbitral tribunal;
 But if the court is satisfied that the applicant was prevented by sufficient cause
from making the application within the said period of three months it may entertain
the application within a further period of thirty days, but not thereafter.
✔ Procedure :
 On receipt of an application under section 34(1), the Court may, where it is
appropriate and it is so requested by a party,
● adjourn the proceedings for a period of time determined by it
 in order to give the arbitral tribunal an opportunity to resume the arbitral
proceedings
 or to take such other action as in the opinion of arbitral tribunal will eliminate
the grounds for setting aside the arbitral award.
✔ In Rail India Technical and Economic Services Ltd., Bangalore v. Ravi Construction,
AIR 2002 NOC 30 Karnataka High Court while relying on the Supreme Court judgment
reported in AIR 1999 SC 2102 has observed :
 The claim for setting aside of the award on the ground of it being erroneous, illegal
and opposed to public policy would not be maintainable under Section 34 of
Arbitration and Conciliation Act (1996).
 An award can be challenged only on the grounds enumerated in Section 34 of the
new Act (1996),
● the challenge to the award on the ground that it is erroneous, is liable to be
rejected.
➔ Discuss : Termination of Arbitration Proceedings.

ANSWER :
✔ Refer :
✔ Sec-32 :

 (1) The arbitral proceedings shall be terminated by the final arbitral award or by an
order of the arbitral tribunal under sub-section (2).
 (2) The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings where -
● (a) the claimant withdraws his claim, unless the respondent objects to the order
and the arbitral tribunal recognises a legitimate interest on his part in obtaining
a final settlement of the dispute.
● (b) the parties agree on the termination of the proceedings, or
● (c) the arbitral tribunal finds that the continuation of the proceedings has for any
other reason become unnecessary or impossible.
 (3) Subject to Section 33 and Section 34(4), the mandate of the arbitral tribunal
shall terminate with the termination of the arbitral proceedings.
✔ Thus, arbitral proceedings culminate,
 either by passing of final arbitral award
 or when arbitral tribunal issue order of termination, upon -
● (i) withdrawal of claim by claimant unless respondent object the termination of
arbitral proceedings and Tribunal also recognize that final settlement of dispute
would legitimately be in the interest of respondent.
● (ii) agreement of parties for termination of proceeding.
● (iii) finding of arbitral tribunal to the effect that continuation of proceeding is
unnecessary or impossible.
✔ In Kifayatullah Haji Gulam Rasool v. Bilkish Ismail Mehsania, AIR 2000 Bom. 424 - It
was observed that,
 if one turns to the facts of the present case, it is clear that the mandate to the
arbitrator to complete the arbitration proceedings on or before 9-1-1999.
Therefore, the mandate of the arbitral tribunal stood terminated on 9-1-1999 by
efflux of time and also due to failure on the part of the arbitrators to act without
undue delay.
 Since no final award was passed nor any joint request of parties was made to
terminate proceedings, arbitral proceedings cannot be said to have come to an end.
➔ Explain : Power and duties of an Arbitrator and legal misconduct of an arbitrator.

(Apr-2013)
✔ Explain in detail : Legal misconduct of an arbitrator. (Apr-2016)
ANSWER :

✔ Refer :


Module-3 :
3) Enforcement of the Foreign Award and Miscellaneous :
3.1) Foreign Award, International and Commercial Arbitration: Essentials
3.2) Choice of place and proper law of arbitration
3.3) Enforcement of Foreign Awards: Procedure and essentials
3.3.1) New York Convention Awards
3.3.2) Geneva Convention Awards
3.4) Conciliation, Conciliators : Number and qualifications, appointment
procedure
3.5) Principles of Conciliation Procedure, Procedure, Settlement, Restrictions
on the role of conciliators, Termination of Conciliation proceedings
3.6) Provisions of Appeal and Revision
3.7) Rule making powers of High Courts and Central Government
➔ Write an explanatory note on International Commercial Arbitration. (Apr-2013, Mar-

2014, Mar-2015)
✔ Discuss : Choice of place and proper law for International Commercial Arbitration.
✔ Explain in detail : International commercial arbitration (Apr-2016)
➔ Explain in detail : Importance of foreign award. (Mar-2015)
➔ What are the conditions for the enforcement of Foreign award under the New
York as well as Geneva Convention ? (Apr-2013, Apr-2016, Apr-2017)
✔ Discuss procedures for the enforcement of Foreign awards.
✔ Explain in detail the provisions of Geneva as well as New York conventions for the
enforcement of foreign awards. (Mar-2015)
✔ Discuss in detail the conditions necessary for enforcement of foreign awards. (Apr-
2017)
✔ What are the conditions for the enforcement of Foreign award under the New York
Convention ? (Mar-2014)
✔ What are the conditions for the enforcement of Foreign award under the Geneva
convention ? (Mar-2014)
➔ Explain in detail with case laws the appointment of conciliator and mediator and
their role in conciliation and mediation proceedings. (Apr-2016)

✔ Discuss : Principles of Conciliation Procedure, Procedure, Settlement.

✔ Discuss : Restrictions on the role of conciliators.
✔ Discuss : Termination of Conciliation proceedings.
✔ Explain in detail the appointment of a conciliator and his role in conciliation
proceeding. (Apr-2013, Mar-2014)
 Write explanatory note : Appointment of conciliator and his role. (Apr-2017)
✔ Explain in detail the role of conciliator as well as mediator in conciliation and
mediation proceedings with case laws. (Mar-2015)
✔ Write explanatory note : Role of mediator in the mediation proceedings. (Apr-2017)
➔ Discuss : Provisions of Appeal and Revision of Conciliation proceedings .
➔ Discuss : Rule making powers of High Courts and Central Government regarding
Conciliation proceedings.
MODULE-3 ANSWERS :
➔ Write an explanatory note on International Commercial Arbitration. (Apr-2013, Mar-

2014, Mar-2015)
✔ Discuss : Choice of place and proper law for International Commercial Arbitration.
✔ Explain in detail : International commercial arbitration (Apr-2016)
ANSWER :
✔ Refer :
 <Search “contract entered into under a foreign law” in study notes on 301 Civil
Procedure Code (CPC) & Limitation>
%20Dispute%20Resolution/(6)%20Alternative%20Dispute%20Resolution,
%20including%20Arbitration,%20Mediation%20and%20Conciliation.pdf
 https://www.lawteacher.net/free-law-essays/international-law/international-
commercial-arbitration-recognition-and-enforcement-of-foreign-arbitral-awards-
international-law-essay.php
✔ Meaning of “international commercial arbitration” :
 An “international commercial arbitration” has been defined in Section 2(f) of the
1996 Act.
 Sec-2(f) : “international commercial arbitration” means,

● an arbitration relating to disputes arising out of legal relationships considered

commercial under the law in force in India and where atleast one of the parties
is,
 a foreign national or an individual habitually resident outside India
 a body corporate incorporated outside India
 a company or association of individuals whose central management and control
is exercised by a country other than India
 the Government of a foreign country
✔ Meaning of “foreign award” :
 Sec-44 : "Foreign Awards" means
● an arbitral award, on differences between persons arising out of legal
relationships, whether contractual or not, considered as commercial under the
law in force in India,
 made on or after the 11th day of October, 1960,
● (a) in pursuance of an agreement in writing for arbitration to which the
Convention on the Recognition and Enforcement of Foreign Awards , applies; and
 (b) in one of such territories declared to be territories to which said convention
applies.
 In the case of NTPC v Singer Company, AIR 1993 SC 998 it was held that,
● An award is “foreign‟ not merely because it is made on the territory of a foreign
state but because it is made in such a territory on an arbitration agreement not
governed by the law of India.
 A foreign award given after the 1996 Act came into force, can be enforced only
under Part II of 1996 Act.
✔ Applicable laws :
 The definition of international commercial arbitration in Section 2(1)(f) of the 1996
Act makes no distinction between international commercial arbitration held in India
or outside India.
 The law applicable may be Indian law or foreign law depending upon the contract
(Section 2(1)(f) and Section 28(1)(b)).
 Part I (Arbitration) of the 1996 Act is to also apply to international commercial
arbitrations which take place out of India,
● unless the parties by agreement, express or implied, exclude it or any of its
provisions.
 Part II of the 1996 Act only applies to arbitrations which takes place in a
convention country.
● Part II of the 1996 Act pertains to the enforcement of certain foreign awards

and consists of two chapters.

 Chapter I relates with New York Convention Awards which are supplemented
by the First Schedule to the 1996 Act.
 Chapter II refers with Geneva Convention Awards which is to be read with the
Second and the Third Schedule of the Act.
 An international commercial arbitration may, however, be held in a non-convention
country. In which case Part-I will still remain applicable.
● The 1996 Act nowhere provides that the provisions of Part I are not to apply to
international commercial arbitrations which take place in a non-convention
country.
✔ In Bhatia International v Bulk Tradings, AIR 2002 SC1432 it was held that,
 The very object of the Act is to establish a uniform legal framework for the fair and
efficient settlement of disputes arising in international commercial arbitrations.
✔ In Olex Focas Pty. Ltd. V Skodoecport Co. Ltd., AIR 2000 Del. 161 it was held that,
 Even if in terms of the arbitration agreement, the arbitration proceedings between
two foreign parties were being held under I.C.C Rules outside India,
● yet a party to the arbitration proceedings may seek an interim injunction
under Section 9.
 However, if the injunction is sought for properties outside the country, then such an
application under Section 9 is not maintainable in Indian Court.
✔ Importance of (i) enforcement of arbitral award, (ii) international
commercial arbitration, (iii) enforcement of foreign awards, (iv) New York
Convention :
 1. Importance of enforcement of arbitral award :
● Finality and binding nature of arbitral awards, distinguish arbitration from most
other alternative dispute resolution mechanisms.
● It is an implied term of every arbitration agreement that, its binding decision
would be performed by the losing party without delay.
● Moreover, the binding nature and the prompt performance of arbitral awards
have been emphasised in most arbitration clauses and submission agreements.
● Similarly, international arbitral institutions such as ICC and LCIA, are keen to
include their model rules express provisions to that effect.
● Therefore, once the arbitral award has been rendered, it is expected to be
enforced promptly.
● One of the reason for arbitration being a preferred method of dispute resolution,
in comparison with litigation, is that,
 the successful party is ensured that it will be able to enforce the arbitral award

at the end of arbitration proceedings, with much convenience.

● The arbitral award which is not duly recognized and enforced, or does that with
difficulties and unnecessary delay,
 indeed would be a mere pyrrhic victory (victory that actually defeats the
victor).
● It follows, therefore, that
 recognition and enforcement of foreign arbitral award, either voluntarily or by
court proceedings, is a key issue and central to mechanism of international
commercial arbitration.
 2. Importance of international commercial arbitration :
● International commercial arbitration has gained its popularity from the worldwide
recognition and enforcement of its arbitral awards.
● Post WW II, the growing number of international transactions between parties
from different countries with different legal jurisdictions,
 created the need for an appropriate mechanism to cope with the inevitable
disputes of such international contractual relationships.
● International commercial arbitration is considered to be the most preferred
mechanism that provides for practical solutions to the divergent issues of
international commercial transaction.
● Growing numbers of arbitral awards face various obstacles when they come to
recognition and enforcement. eg
• the applicable law to the dispute,
• the procedures to follow,
• who decide,
• and finally enforce the outcome,
 Consequently, arbitration would rendered worthless unless its final outcome;
the arbitral award, is duly recognised and enforced with minimal procedural
delay.
● Solution : 1958 New York Convention, followed by the UNCITRAL Model Law
1985 provides for international legal framework for recognition and enforcement
of foreign arbitral awards.
● The New York Convention on Recognition and Enforcement of Foreign Arbitral
Awards 1958 (NYC)
 is considered, to be the most important treaty in respect of recognition and
enforcement of foreign arbitral awards.
 3. Importance of enforcement of foreign awards :
● This world is a global village.

● Commercial relations between entities of different nations are exponentially

increasing.
● Along with increasing commercial activities across nations, naturally, disputes on
rights/ liabilities are bound to increase.
● <Read “Importance of international commercial arbitration” above>
● To stay relevant in this 21st century, all nations require legal frame work wherein
enforcement of foreign arbitral awards is made possible with minimal delay and
procedural stress.
 4. Importance of 1958 New York Convention (NYC) :
● Paramount significance of the NYC in the field of international commercial
arbitration can not be over emphasised.
● The NYC, unlike other conventions and treaties those dealing with recognition
and enforcement of foreign arbitral award,
 is the most applicable convention worldwide.
● It has been adopted by almost all the leading countries in international
commercial world. Out of the 192 UN Member States, 150 have ratified the
Convention.
● It is widely agreed that, the NYC with its underline assumption the “Pro-
enforcement" of arbitral awards, has laid down an international legal system
facilitating recognition and enforcement of foreign arbitral awards.
● As a result, NYC increases the confidence in international commercial arbitration
and makes recognition and enforcement of foreign arbitral awards much easier
than foreign judgement when sought to be enforced internationally.
● Even after more than half a century from its inception in 1958, it said that,
 the NYC is “the single most important pillar on which the edifice of
international arbitration rest, and
 a convention that “perhaps could lay claim to be the most effective instance of
international legislation in the entire history of commercial law.

GO TO CONTENTS.
➔ Explain in detail : Importance of foreign award. (Mar-2015)

ANSWER :
✔ Refer :

 https://www.lawteacher.net/free-law-essays/international-law/international-
commercial-arbitration-recognition-and-enforcement-of-foreign-arbitral-awards-
international-law-essay.php
✔ Provisions for Enforcement of Foreign Awards are contained in PART II of the
Arbitration and Conciliation Act 1996.
 Chapter-I : 1958 New York Convention Awards (Sections-44 to 51)
 Chapter-II : 1927 Geneva Convention Awards (Sections-52 to 60) .
✔ Meaning of “foreign award” :
 Sec-44 : "Foreign Awards" means
● an arbitral award, on differences between persons arising out of legal
relationships, whether contractual or not, considered as commercial under the
law in force in India,
 made on or after the 11th day of October, 1960,
● (a) in pursuance of an agreement in writing for arbitration to which the
Convention on the Recognition and Enforcement of Foreign Awards , applies; and
 (b) in one of such territories declared to be territories to which said convention
applies.
 NTPC v Singer Company, AIR 1993 SC 998 :
● The expression “foreign award” which means an arbitral award on differences
between persons arising out of legal relationship considered as commercial
under the law in India.
● An award is “foreign‟ not merely because it is made on the territory of a foreign
state,
 but because it is made in such a territory on an arbitration agreement not
governed by the law of India.
✔ Scope of Foreign Awards :
 Section 44 defines that, the foreign awards means,
● an Arbitral award on differences between persons arising out of legal
relationship, whether contractual or not, considered as "commercial" under the
Indian Law.
 Article I of New York Convention does not lay down any distinction, in respect of
commercial or other contracts.
● However, it left open for the signatories of the Convention that they may agree
only on the arbitration in respect of commercial contracts.
 India has confined the scope of foreign awards to the "commercial contracts" .
 India has accorded the importance to the word "commercial" for its commitments
to the doctrine of permanent sovereignty over the natural resources .

 The doctrine finds place in the resolutions of General Assembly of UN.

 According to the doctrine,
● international commercial transactions must be strictly construed to refer to
movement of goods across the national frontiers,
 and must not extend to investment activities which confers proprietary interest
in assets upon foreigners.
 Moreover, India was toeing the line of mixed economy and had recently liberated
from the imperial forces. Therefore, the courts were taking narrow views of the
expression "commercial".
✔ Power of judicial authority to refer parties to arbitration :
 Section 45 :
● notwithstanding anything contained in Part I of the Code of Civil Procedure,
1908,
● a judicial authority, when seized of an action in a matter in respect of which the
parties have made an agreement referred to in section 44,
● shall, refer the parties to arbitration, unless it finds that the said agreement is
null and void, inoperative or incapable of being performed.
 Sec-45 gives power to judicial authority to refer parties to arbitration at the request
of one of the parties or any person claiming through such party,
● the Court may refer the parties to arbitration according to the agreement
entered into between them.
 The Court may refer reference only, when it finds that the agreement is null and
void inoperative and incapable of being performed.
✔ Importance of foreign award :
 <Search “Importance of (i) enforcement of arbitral award in this doc>
➔ What are the conditions for the enforcement of Foreign award under the New
York as well as Geneva Convention ? (Apr-2013, Apr-2016, Apr-2017)
✔ Discuss procedures for the enforcement of Foreign awards.
✔ Explain in detail the provisions of Geneva as well as New York conventions for the
enforcement of foreign awards. (Mar-2015)
✔ Discuss in detail the conditions necessary for enforcement of foreign awards. (Apr-
2017)
✔ What are the conditions for the enforcement of Foreign award under the New York
Convention ? (Mar-2014)

✔ What are the conditions for the enforcement of Foreign award under the Geneva
convention ? (Mar-2014)
ANSWER :
✔ Refer :
 https://en.wikipedia.org/wiki/Convention_on_the_Recognition_and_Enforcement_o
f_Foreign_Arbitral_Awards
 <Search “Foreign Judgment & its enforcement” in study notes on 301 Civil
Procedure Code (CPC) & Limitation>
✔ Provisions for Enforcement of Foreign Awards are contained in PART II of the
Arbitration and Conciliation Act 1996.
 Chapter-I : 1958 New York Convention Awards (Sections-44 to 51).
 Chapter-II : 1927 Geneva Convention Awards (Sections-52 to 60) .
✔ 1927 Geneva Convention : 1958 New York Convention :
 The New York Convention was established as a result of dissatisfaction with,
● the Geneva Protocol on Arbitration Clauses of 1923,
● and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.
 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
also known as the New York Convention,
● was adopted by a United Nations diplomatic conference on 10 June 1958 and
entered into force on 7 June 1959.
 The New York Convention was drafted under the auspices of the United Nations and
has been ratified by more than 150 countries, including most major countries
involved in significant international trade and economic transactions.
 The Convention requires courts of contracting states to give effect to private
agreements to arbitrate and to recognize and enforce arbitration awards made in
other contracting states.
 Although New York Convention is very successful, nowadays many countries have
adopted UNCITRAL Model Arbitration Law and widely recognize foreign arbitral
awards.
● Therefore, the New York Convention is not as important as it once was .
 Provisions of the New York Convention, together with the large number of
contracting states, have created an international legal regime that significantly
favors the enforcement of international arbitration agreements and awards
 Note :
● The term "arbitral awards" shall include not only awards made by arbitrators
appointed for each case but also those made by permanent arbitral bodies to

which the parties have submitted.

● For a non-contracting state (eg Taiwan),
 its arbitral awards can be recognized by other countries according to their
domestic laws, and vice versa.
● Even today, the earlier Geneva Convention on the Execution of Foreign
Arbitral Awards 1927 remains in force,
 but the success of the New York Convention means that the Geneva
Convention is rarely utilised in practice
✔ Importance of 1958 New York Convention (NYC) :
 <Search “Importance of (i) enforcement of arbitral award in this doc>
✔ Enforcement of Foreign award under the New York Convention : (Sections-44
to 51)
 Section 46 of Arbitration and Conciliation Act 1996 : Foreign Award when Binding :
● Any foreign award which would be enforceable under this Chapter,
 shall be treated as binding for all purposes on the persons as between whom it
was made,
 and may accordingly be relied on by any of those persons by way of defence,
set off or otherwise in any legal proceedings in India
 and any references in this Chapter to enforcing a foreign award shall be
construed as including references to filing on an award.
 Thus, u/s 46 the condition for its binding nature is that,
● the foreign award must be enforceable under Chapter I (New York
Convention Awards) of Part II of the Arbitration and Conciliation Act, 1996,
● such awards shall be binding for all purposes and on all persons concerned.
 Section 46 has been incorporated with a liberal object to recognize all the "Foreign
Awards" under this Chapter (New York Convention Awards) which is enforceable in
India.
● Thus, any foreign award under Chapter I (New York Convention Awards)
becomes enforceable and shall have binding force upon the parties between
whom it was made.
● These parties may rely on such a foreign award by way of claim, defence, set-off
and in any legal proceedings initiated in India.
 In the case of O.N.G.C. v. Western Co. of North America, AIR 1987 SC 674, the
Supreme Court of India said that the award can be said to have become "binding"
on the parties
● only when it has become enforceable and the enforceability must be determined
as per the law applicable to the award.

 Procedures for the enforcement of Foreign awards :

● Section 47 : Evidence :
 (1) The party applying for the enforcement of a foreign award shall, at the
time of the application, produce before the Court
• (a) the original award or a copy thereof, duly authenticated in the manner
required by the law of the country in which it was made;
• (b) the original agreement for arbitration or a duly certified copy
thereof; and
• (c) such evidence as may be necessary to prove that the award is a
foreign award.
 (2) If the award or agreement to be produced under sub-section (1) is in a
foreign language,
• the party seeking to enforce the award shall produce a translation into
English certified as correct by a diplomatic or consular agent of the country
to which that party belongs or certified as correct in such other manner as
may be sufficient according to the law in force in India.
 Explanation. - In this section and all the following sections of this Chapter,
"Court" means,
• the principal civil Court of original jurisdiction in a district,
• and includes the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction over the subject-matter of the award if the
same had been the subject-matter of a suit,
• but does not include any civil Court of a grade inferior to such principal civil
Court, or any Court of Small Causes.
 When enforcement of a foreign award may be refused? Conditions to be fulfilled for
enforcement of foreign awards :
● Section 48 of Act lays down conditions for enforcement of foreign awards in
India.
● These grounds are similar to those provided under section 38 with reference to
domestic awards.
● Section 48 : Arbitration and Conciliation Act 1996 : Conditions which must be
fulfilled for enforcement of a foreign award :
 (1) Enforcement of a foreign award may be refused, at the request of the
party against whom it is invoked, ONLY IF that party furnishes to the Court
proof that -
• (a) the parties to the agreement referred to in section 44 (def of foreign
award) were,
• under the law applicable to them, under some incapacity,

• or the said agreement is not valid under the law to which the parties have
subjected it; or
• (b) the party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator,
• or of the arbitral proceedings,
• or was otherwise unable to present his case; or
• (c) the award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration,
• or it contains decisions on matters beyond the scope of the submission to
arbitration; or
• (d) the composition of the arbitral authority or the arbitral procedure was
not in accordance with the agreement of the parties,
• or failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
• (e) the award not yet become binding on the parties,
• or has been set aside
• or suspended by a competent authority of the country in which, or under
the law of which, that award was made.
● (2) Enforcement of an arbitral award may also be refused if the Court finds
that -
 (a) the subject-matter of the difference is not capable of settlement by
arbitration under the law of India; or
 (b) the enforcement of the award would be contrary to the public policy of
India.
• Explanation the expression "public policy" means,
• fundamental policy of Indian law, or the interests of India, or justice or
morality,
• or that, the making of the award was induced or affected by fraud or
corruption.
• The Supreme Court in Renusagar Power Company Ltd. v. General Electric
Company (AIR 1994 SC 860), clarified that,
• the word Public Policy are used to mean public policy of India and not the
public policy of the place where the award has been made.
• The scope of public policy is narrower in enforcement of foreign award
than in enforcement of domestic arbitration award.
● Thus enforcement of foreign arbitral award may be refused ONLY IF
 either condition given u/s 48(1) are met, OR

 conditions given u/s 48(2) are met.

● Note : Sec-48(3) further provides that, in case of Sec-48(1)(e),
 the Court may, if it considers it proper, adjourn the decision on the
enforcement of the award,
• and may also, on the application of the party claiming enforcement of the
award, order the other party give suitable security.
✔ Enforcement of Foreign award under the Geneva Convention : (Sections-52 to
60)
 Today, though the Geneva Convention on the Execution of Foreign Arbitral Awards
1927 remains in force,
● the success of the 1958 New York Convention means that the 1927 Geneva
Convention is rarely utilised in practice.
 Section 53 of the Arbitration and Conciliation Act 1996 provides regarding "Foreign
Award" for the purpose of Geneva Convention Awards.
 Section 53 : Arbitration and Conciliation Act 1996 :
● "foreign award" means an arbitral award on differences relating to matters
considered as commercial under the law in force in India made after the 28th
day of July, 1924,-
 (a) in pursuance of an agreement for arbitration to which the Protocol set forth
in the Second Schedule (Protocol on Arbitration Clauses) applies, and
 (b) between persons of whom one is subject to the jurisdiction of some one
of such Powers declared to be parties to the Convention set forth in the Third
Schedule (Convention on The Execution Of Foreign Arbitral Awards),
• and of whom the other is subject to the jurisdiction of some other of the
Powers aforesaid, and
 (c) an award shall not be deemed to be final if any proceedings for the purpose
of contesting the validity of the award are pending in the country in which it
was made.
 Sec-54 : Power of Judicial Authority To Refer Parties To Arbitration :
● A judicial authority, on being seized of a dispute regarding a contract made
between persons to whom Section 53 applies and including an arbitration
agreement,
 shall refer the parties on the application of either of them to the decision of the
arbitrators
 and such reference shall not prejudice the competence of the judicial authority
in case the agreement or the arbitration cannot proceed or becomes
inoperative.
 Procedures for the enforcement of Foreign awards :

● Section 56 : Evidence : ---> Read directly from the bare act ---> somewhat
similar to Sec-47 (New York Convention).
 When enforcement of a foreign award may be refused? Conditions to be fulfilled for
enforcement of foreign awards :
● Section 57 ---> Read directly from the bare act ---> somewhat similar to Sec-48
(New York Convention).
➔ Explain in detail with case laws the appointment of conciliator and mediator and
their role in conciliation and mediation proceedings. (Apr-2016)
✔ Discuss : Principles of Conciliation Procedure, Procedure, Settlement.
✔ Discuss : Restrictions on the role of conciliators.
✔ Discuss : Termination of Conciliation proceedings.
✔ Explain in detail the appointment of a conciliator and his role in conciliation
proceeding. (Apr-2013, Mar-2014)
 Write explanatory note : Appointment of conciliator and his role. (Apr-2017)
✔ Explain in detail the role of conciliator as well as mediator in conciliation and
mediation proceedings with case laws. (Mar-2015)
✔ Write explanatory note : Role of mediator in the mediation proceedings. (Apr-2017)
ANSWER :
✔ Refer :
✔ Difference between conciliation and mediation :
 The key difference between mediation and conciliation lies in the role of the neutral
third party.
● A mediator merely performs a facilitative role and provides platform for the
parties to reach a mutually agreeable solution.
● The role of a conciliator goes beyond that of a mediator. A conciliator may be
interventionist in the sense that he/she may suggest potential solutions to the
parties, in-order to resolve their claims and disputes.
✔ Laws on Mediation and Conciliation :
 Both Mediation and Conciliation are governed by Section 89, a provision inserted by
the 2002 amendment of the CPC 1908.
 The Code is the primary legislation governing the method, procedure and legal
practice of civil disputes.

 Section 89 of the Code only deals with court referred mediation. Pre-litigation
mediation is not yet governed by any law in India.
 Similarly, conciliation only finds a reference in Section 89, CPC 1908.
● The process and methods within conciliation have been described in the
Arbitration & Conciliation Act, 1996.
● Further, the Industrial Disputes Act, 1947 also provides for conciliation as a
viable means of resolving disputes in the labour sector.
✔ Conciliation :
 Meaning of conciliation :
● Conciliation is a process similar to mediation as parties out of their own free will
appoint a neutral third party to resolve their disputes.
● Part-III of the Arbitration and Conciliation Act, 1996, deals with Conciliation.
● Section 61 :
 (1) Save as otherwise provided by any law for the time being in force and
unless the parties have otherwise agreed,
• this part shall apply to conciliation of disputes arising out of legal
relationship, whether contractual or not
• and to all proceedings relating thereto.
 (2) This part shall not apply where by virtue of any law for the time being in
force certain disputes may not be submitted to conciliation."
● What is visualised in Sec-61, is some effort to resolve differences through
informal negotiation before falling back on private arbitration or public litigation.
 Appointment of Conciliator :
● Section 63 : Arbitration and Conciliation Act 1996 :
 (1) There shall be one conciliator unless the parties agree that there shall be
two or three conciliators.
 (2) Where there is more than one conciliator, they ought, as a general rule to
act jointly.
● Section 64 : Arbitration and Conciliation Act 1996 :
 (1) Subject to Sub-section (2) -
• (a) in conciliation proceedings with one conciliator, the parties may agree on
the name of a sole conciliator;
• (b) in conciliation proceedings with two conciliators, each party may appoint
one conciliator.
• (c) in conciliation proceedings with three conciliators, each party may
appoint one conciliator and the parties may agree on the name of the third

conciliator who shall act as the presiding conciliator.

 (2) Parties may enlist the assistance of a suitable institution or person in
connection with the appointment of conciliators, and in particular, -
• (a) a party may request such an institution or person to recommend the
names of suitable individuals to act as conciliator; or
• (b) the parties may agree that the appointment of one or more conciliators
be made directly by such an institution or person;
 Role of Conciliator in conciliation proceedings :
● Section 67 : Role of a Conciliator :
 (i) To assist the parties in an independent and impartial manner in their
attempt to reach an amicable settlement of their dispute.
 (ii) The conciliator shall be guided by principles of objectivity, fairness and
justice, giving considerations to, among other things, 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.
 (iii) The conciliator may conduct the proceedings in such a manner as he
considers appropriate, taking into account the circumstances of the case,
including any request by a party that the conciliator hear oral statements, and
the need for a speedy settlement of the dispute.
 (iv) The conciliator may at any stage of the proceedings, 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 thereof.
● Section 66 :
 The conciliator is not bound by the Code of Civil Procedure, 1908 or the Indian
Evidence Act, 1872.
● The term "fairness" embodies the concept of "equality",
 that means equal treatment and opportunity to the parties in conciliation, it is
to be ensured by the conciliator.
● The parties are also required to co-operate in good faith with the conciliator
 Procedure of conciliation :
● Section 62 : Commencement of Conciliation proceedings :
 A party willing to conciliate is required to send the written invitation to the
other party containing the subject matter.
 The proceedings commences on acceptance in writing by the other party .
 However, the proceedings shall not commence if the invitation is rejected or no

reply has been received within 30 days of the sending of invitation.

● Section 65 :
 (1) The conciliator, upon his appointment, may request each party to submit to
him a brief written statement describing the general nature of the dispute and
the points at issue.
• Each party shall send a copy of such statement to the other party .
 (2) The conciliator may request each party to submit to him a further written
statement of his position and the facts and grounds in support thereof,
supplemented by any documents and other evidence that such party deems
appropriate.
• The party shall send a copy of such statement, documents and other
evidence to the other party.
 (3) At any stage of the conciliation proceedings, the conciliator may request a
party to submit to him such additional information as he deems appropriate.
 Termination Of Conciliation Proceedings :
● Section 76 : The conciliation proceedings can be terminated,
 (a) by the signing of the settlement agreement by the parties on the date of
the agreement; or
 (b) by a written declaration of the conciliator, after consultation with the
parties, to the effect that further efforts at conciliation are no longer justified,
on the date of the declaration; or
 (c) by a written declaration of the parties addressed to the conciliator to the
effect that the conciliation proceedings are terminated, on the date of the
declaration; or
 (d) by a written declaration of a party to the other party and the conciliator, if
appointed, to the effect that the conciliation proceedings are terminated, on
the date of the declaration.
 Settlement agreement as a result of conciliation :
● The conciliator when forms the option that acceptable settlement agreement
may be reached, he shall formulate a possible settlement and submit it to the
parties for their observations.
● After receiving the observations of the parties, the conciliator may reformulate
the terms of possible settlement in the light of such observations.
● If the settlement is accepted the parties shall sign it and the same shall
be final and binding on them.
 The conciliator shall authenticate the settlement agreement and furnish a copy
thereof to each of the parties.
● Section 74 :

 The settlement agreement shall have the same status and effect as if it is an
arbitral award under Section 30 of the Arbitration and Conciliation Act 1996.
● As settlement agreement has been given similar status & effect as an award on
agreed terms on the substance of dispute,
 ie a party to an agreement may be estopped from invoking the ground for
setting aside it under Section 34.
● However, Section 34(2)(b)(i) provides that the court is not barred from setting
aside the agreement
 if it finds that the subject matter of the dispute is not capable of settlement by
conciliation.
● Further, the agreement could be set aside, under Section 61(2)
 if the settlement agreement is opposed to the public policy of India .
 Bar on arbitration and judicial proceedings during pendency of conciliation :
● Section 77 :
 During the continuance of conciliation proceedings parties are precluded from
initiating the arbitral or judicial proceedings in respect of a dispute that is the
subject matter of conciliation proceedings.
● However the parties may proceed with such proceedings if due to the limitation
of any other legal requirement, non-prosecution may defeat their rights.
✔ Mediation :
 Meaning of mediation :
● Mediation is a voluntary, disputant-centred, non binding, confidential and
structured process
 controlled by a neutral and credible third party who uses special
communication, negotiation and social skills to facilitate a binding negotiated
settlement by the disputants themselves.
● Mediation is a method of ADR in which parties appoint a neutral third party who
facilitates the mediation process in-order to assist the parties in achieving an
acceptable, voluntary agreement.
● The result of the mediation agreement is a settlement agreement, and not a
decision.
● The focus in mediation is on the future with the emphasis of building
relationships,
 rather than fixing the blame for what has happened in the past.
● The purpose of mediation is not to judge guilt or innocence
 but to promote understanding, focus the parties on their interests, and
encourage them to reach their own agreement.

●
● Mediation is premised on the voluntary will of the parties and is a flexible and
informal technique of dispute resolution.
● Mediation is more formal than negotiation but less formal than arbitration or
litigation.
● Unlike litigation and similar to arbitration, mediation is relatively inexpensive,
fast, and confidential.
 Types of mediation :
● Mediation can be classified into the following categories :
● Evaluative mediation -
 Evaluative mediation is focused on providing the parties with an evaluation of
their case and directing them toward settlement.
 During an evaluative mediation process, when the parties agree that the
mediator should do so, the mediator will express a view on what might be a
fair or reasonable settlement.
 The Evaluative mediator has somewhat of an advisory role in that s/he
evaluates the strengths and weaknesses of each side's argument and makes
some predictions about what would happen should they go to court.
● Facilitative mediation -
 Facilitative mediators typically do not evaluate a case or direct the parties to a
particular settlement. Instead, the Facilitative mediator facilitates the
conversation.
 These mediators act as guardian of the process, not the content or the
outcome.
 During a facilitative mediation session the parties in dispute control both what
will be discussed and how their issues will be resolved.
 Unlike the transformative mediator, the facilitative mediator is focused on
helping the parties find a resolution to their dispute.
 The facilitative mediator further provides a structure and agenda for the

discussion.
● Transformative mediation -
 Transformative mediation practice is focused on supporting empowerment and
recognition shifts, by allowing and encouraging deliberation, decision-making,
and perspective-taking.
 A competent transformative mediator practices with a micro-focus on
communication, identifying opportunities for empowerment and recognition as
those opportunities appear in the parties' own conversations, and responding
in ways that provide an opening for parties to choose what, if anything, to do
with them.
● Mediation with arbitration -
 Mediation has sometimes been utilized to good effect when coupled with
arbitration, particularly binding arbitration, in a process called
'mediation/arbitration'.
 The process begins as a standard mediation, but if mediation fails, the
mediator becomes an arbiter.
 This process is more appropriate in civil matters where rules of evidence or
jurisdiction are not in dispute.
 It resembles, in some respects, criminal plea bargaining and Confucian judicial
procedure, wherein the judge also plays the role of prosecutor.
 Despite their benefits, mediation/arbitration hybrids can pose significant
ethical and process problems for mediators.
• Many of the options and successes of mediation relate to the mediator's
unique role as someone who wields no coercive power over the parties or
the outcome.
• The parties awareness that the mediator might later act in the role of judge
could distort the process.
• Using a different individual as the arbiter addresses this concern.
● Online Mediation -
 Online mediation employs online technology to provide disputants access to
mediators and each other despite geographic distance, disability or other
barriers to direct meeting.
 Appointment of Mediator :
●
 Role of Mediator in mediation proceedings :
● The mediator should be neutral having no interest with the dispute or either
party.

 The mediator should try to establish his neutrality and control over the process
by
• maintaining neutral body language;
• using neutral, plain and simple words;
• using words of mutuality that apply to all parties;
• having appropriate eye contact;
• using calm, moderate, business like and deliberative tone and having a
attentive posture.
● The mediator is responsible in the conduct of the process while the parties
control the outcome.
● It is of the essence of successful mediation that parties should be able to reveal
all relevant matters without an apprehension that the disclosure may
subsequently be used against them as well.
 The mediator must state to the parties that he and the parties shall keep
confidential all matters relating to the mediation proceedings.
● Unless otherwise agreed by the parties, it would be legally impermissible for a
mediator to act as an arbitrator or a witness in any arbitral or judicial proceeding
in respect of the dispute that is the subject of mediation proceedings.
●
 Process of Mediation :
● The neutral third party facilitating the process of mediation is known as a
mediator.
● Mediation does not follow a uniform set of rules, though mediators typically set
forth rules that the mediation will observe at the outset of the process.
● Successful mediation often reflects not only the parties willingness to participate
but also the mediator’s skill.
● There is no uniform set of rules for mediators to become licensed, and rules vary
by state regarding requirements for mediator certification.
● Broadly speaking, mediation may be triggered in three ways :
 (i) Parties may agree to resolve their claims through a pre-agreed mediation
agreement without initiating formal judicial proceedings (pre-litigation
mediation).
 (ii) Parties may agree to mediate, at the beginning of formal court proceedings
(popularly known as court referrals).
 (iii) Mediation may be taken recourse of, after formal court proceedings have
started, or even post trial, i.e. at the appellate stage.
● Stages of mediation are as follows :

 Opening Statement by the mediator

 problem understanding stage.
 needs and interests understanding stage.
 problem defining stage.
 issues identification stage.
 options identification stage.
 options evaluation stage.
 Settlement agreement
● Ending mediation :
 The mediator should pay special attention on a proper ending to the mediation
process, which is the outcome of the efforts of the parties.
 If parties do not come to terms, the mediator should congratulate them for the
progress made, with hope for settlement in future.
 There is no such thing as failed mediation.
 If parties come to terms, the mediator should congratulate parties.
● Under the Indian law,
• contractual dispute (including money claims),
• strained relationships (from matrimonial to partnership),
• disputes which need a continuity of relationship (eg neighbour’s easement
rights), and
• consumer disputes,
 have been held to be most suited for mediation.
● For example, a suburban homeowner might find that the formal legal system
offers no realistic way to deal with his neighbour's overly bright driveway lights
that shine in his bedroom window. Such disputes however can be mediated.
● Mediation gives the participants an opportunity to raise and discuss any issues
they might wish to settle.
 For example, it might turn out that the neighbour lit his driveway because the
homeowner's dog went on his lawn, or because the homeowner's tree was
encroaching upon his property.
● Because mediation can handle any number of outstanding gripes or issues,
 it offers a way to discuss (and solve) the problems underlying a dispute and
create a truly lasting peace.
● The Supreme Court of India in its judicial decision has expressly clarified the
ambit of mediation. According to Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd., (2010) 8 SCC 24 representative suits, election

disputes, criminal offenses, case against specific classes of persons (minors,

mentally challenged) have been excluded from the scope of mediation.
➔ Discuss : Provisions of Appeal and Revision of Conciliation proceedings.

ANSWER :
✔ Refer :

➔ Discuss : Rule making powers of High Courts and Central Government regarding
Conciliation proceedings.
ANSWER :
✔ Refer :


Module-4 :
4) Practical Exercises : 20 Marks
4.1) Negotiation skills to be learned with simulated program
4.2) Conciliation skills
4.3) Arbitration Law and Practice including International arbitration and Arbitration
rules.
The above mentioned exercises are required to be conducted by senior legal practitioners
through simulation and case studies. At least three practical exercises/case study reports
shall be written in a journal after having visited the Arbitration-Conciliation Centers by a
student. Evaluation thereof shall be conducted in practical exercises to be submitted by a
student in a journal/diary to the concerned law college and the marks thereof will be sent
by the college after evaluation to the Gujarat University.
*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.
Suggested Readings :
➔ Avtar Singh, Law of Arbitration and conciliation and Alternative Dispute Resolution,
Eastern Book Company
➔ Dr. S. C. Tripathi, Alternate Dispute System (ADR), Central Law Publication
➔ Dr. S. K. Roychowdhary & H. K. Saharay, Arbitration & Conciliation, Eastern Law House
➔ Sukumar Ray, ADR, Eastern Law House
➔ S. K. Chawla, Law of Arbitration & Conciliation including other ADRs, Eastern Law House
➔ Madhusudan Saharay, Textbook on Arbitration & Conciliation with Alternative Dispute
Resolution, Universal Law Publishing Co., New Delhi
➔ P. K. Basu Majumdar, Law of Arbitration, Universal Law Publishing Co., New Delhi
➔ B.P. Saraf and M. Jhunjhunuwala, Law of Arbitration and conciliation, Snow white,
Mumbai.
➔ Gerald R. Williame (ed), The New Arbitration and Conciliation Law of India, Indian
Council of Arbitration New Delhi.

➔ A.K. Bansal, Law of International Commercial Arbitration, Universal, Delhi.

➔ P.C. Rao & Willam Sheffield, Alternative Disputes Resolution - What it is and How it
works, Universal, Delhi.
➔ G.K. Kwatra, The Arbitration and Conciliation Law of India, Universal Delhi.
➔ Basu N.D. Law of Arbitration and Conciliation, Universal Delhi.
➔ Johari, Commantary on Arbitration and Conciliation Act, 1996, Universal, Delhi.
➔ Markanda P.C. Law relation to Arbitration and Conciliation, Universal Delhi.
➔ Dr. S. R. Myneni, Alternate Dispute Resolution, Asia Law House
➔ Dr. U. Pattabhi Ramiah, Arbitration & ADR, Asia Law House
➔ Dr. N. V. Paranjape, Arbitration & Alternative Dispute Resolution, Central Law Agency
➔ S. P. Gupta, Arbitration & Conciliation, Allahabad Law Agency
➔ Justice P. S. Narayana, The Arbitration and Conciliation Act, 1996, ALT Publications
➔ Sarfaraz Ahmed Khan, Lokadalat : an effective alternative dispute resolution
mechanism, A.P.H. Pub. House, New Delhi

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➔ Stay connected using facebook.

This is PREFACE. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

➔ Refer : Bare acts are a good source, in any subject of law :

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Module-1 Alternative Dispute Resolution 3

Module-2 Arbitration Award 41

Module-3 Enforcement of the Foreign Award and Miscellaneous 56

Module-4 Practical Exercises : 20 Marks 79

Objectives of the course :

Theoretical Examination : 80 Marks

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This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

➔ What is the meaning of Alternate Dispute Resolution ? Discuss the distinction

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Alternate Dispute Resolution systems. (Apr-2016)

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➔ Explain in detail the provisions of stay of judicial proceedings pending in the

This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

➔ What is the meaning of Alternate Dispute Resolution ? Discuss the distinction

CONTENTS |Module-1 |Module-2 |Module-3 |Module-4 http://duralex.bhatt.net.in/

✔ Compare Mediation, Conciliation and Lok Adalat :

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 Though documentation is scant, it is believed that nearly every community,

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● establishment of the Parliament and State legislatures,

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● submission of statements to the conciliator

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escalate the conflict, which is especially important in situations where there is a

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 the Foreign Awards (Recognition and Enforcement) Act, 1961.

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● Arbitration is a term derived from the nomenclature of Roman law.

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● Domestic Arbitration - An arbitration with Indian parties, where the place of

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mandates a recourse to arbitration in case of any dispute arising within the

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appointment of arbitrator, dispute falling outside the terms of the arbitration

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execution through legal process.

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Judicial process Arbitration Mediation

1 Judicial process is an Arbitration is a quasi- Mediation is a negotiation

2 Procedure and decision Procedure and decision Procedure and settlement

3 The decision is binding The award in an A binding settlement is

4 Adversarial in nature, Adversarial in nature as Collaborative in nature as

5 Personal appearance or Personal appearance or Personal appearance and

6 A formal proceeding A formal proceeding A non-judicial and informal

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Judicial process Arbitration Mediation

follows strict procedural following strict with flexible procedural

7 Decision is appealable. Award is subject to Decree/Order in terms of the

8 No opportunity for No opportunity for Optimal opportunity for

9 Involves payment of Does not involve In case of settlement, the

✔ Compare Mediation, Conciliation and Lok Adalat :

Mediation Conciliation Lok Adalat

1 Mediation is a non- Conciliation is a non-  Lok Adalat is conciliatory

2 Voluntary process. Voluntary process. Voluntary process.