Arbitration Proceedings

Arbitration is a dispute resolution process for appointing an arbitrator for a binding settlement in the dispute between two consenting parties. This means that disagreements can be settled outside the courts, saving time and resources simultaneously.

The appointment of a third person whose decision is obligatory for the parties referring that dispute is a legal instrument to encourage a mutually settlement of conflicts between two or more parties. In current modern times when there is no time to do so, arbitration is an excellent approach to speed up conflict resolution.

However, all litigations are not arbitrary and many litigations are beyond the arbitrary categories of conflicts. The following are:

criminal offences

insolvency and termination of procedures

evidence, administrative letters, estate certificate etc.) expulsion

patents, trademarks, copyright

antitrust laws

breastfeeding/corrumping laws

Who will act as the arbiter?

The arbitrator is normally a senior lawyer (often a retired judge) who is selected to hear the case by agreement between the parties. The arbitrator can be aided by expert assessors in the assessment of difficult technical evidence, which is a unique aspect of the arbitration procedure.

What is the location of the arbitration?

Arbitration can take place in any location. There are a variety of professional organisations that help with arbitration hearings.

Who attends an arbitration hearing?

Some arbitrations are resolved exclusively on the basis of “the papers,” and it is not always required to appear before the arbitrator. In other circumstances, the arbitration will be conducted in a similar manner to a regular trial, with the exception that lawyers and solicitor advocates will not be required to wear gowns and the formalities of court will not be observed.

What are some of the benefits of arbitration?

The main benefit is that the parties to the arbitration have practically complete control over the form and method of the proceedings:

Complete control over the process — the parties can agree on the course of the procedures. This may result in the method being streamlined to meet the specific needs of the case at hand;

The Arbitration Act significantly restricts the grounds for contesting an arbitrator's decision. The arbitrator's ruling is acknowledged to be final, which can bring processes that could have dragged on for years through the court system to a close quickly.

Arbitrations are private, whereas court procedures are open to the general public. If the subject matter is important, such as proprietary technology or trade secrets, the parties will benefit from limiting the number of people who have access to the evidence before the arbitration panel.

Convenience — in civil litigation, the Court sets the trial dates with little regard for the parties' convenience. Trial dates can be difficult to come by, especially when a case involves multiple court days. During the arbitration procedure, the parties might agree on dates that are most convenient for them and their witnesses.

What are some of the drawbacks of arbitration?

Despite its popularity, arbitration has a number of drawbacks that parties should be aware of if they are considering including arbitration terms in their contracts or participating in arbitration procedures.

It necessitates the parties' cooperation and good faith. Under the Civil Procedure Rules, a court has broad authority to penalise litigants who are obstructive or dilatory in their conduct of the proceedings. The powers of an arbitrator are not as strong as those of a judge to find someone in contempt of court; the pre-arbitration procedures are frequently not as clear and direct as those outlined in the Civil Procedure Rules, which can result in delays and excessively long hearings; and there is limited scope for challenging an arbitrator's decision. An aggrieved party would have to establish that the tribunal lacked substantive jurisdiction; there was a major irregularity in the proceedings that justified the award being set aside; and the arbitrator made a legal error.

International Commercial Arbitration is a way of resolving disputes arising from international commercial contracts. An arbitration is often an alternative to litigation in which parties to the arbitration check each other so that their national laws or norms of procedure are avoided.

Arbitration to resolve cross-border issues without being brought before domestic courts avoiding national court proceedings for a long and technical period.

Arbitrage is international according to Article 1(3) of the United Nations International Trade Commission (UNCITRAL) when:

(a) Parties shall have their places of business in several States when the agreement is concluded.

(b) The following shall be located outside the State in which the parties are located:

(i)The venue of arbitration shall be placed outside the State in which parties have their place of business, as determined under or under the arbitration agreement;

(ii) Any location where a substantial portion of the commercial relationship obligations are to be fulfilled or where the subject-matter of a dispute is closely related

(iii) On the subject-matter of an arbitration agreement, the parties expressly agree that the agreement relates to more than one country.

Arbitration Necessity:

Flexible, reasonable, favourable and time-saving methods for dispute resolution without requiring the parties to undergo rigorous, time-saving or resource-consuming procedures of a conventional justice delivery system have to be invented to advance, liberalise and globalise international business relations.

International trade arbitration is the main component in the international dispute remedy/resolution process with the experience of the International Commerce Arbitrators armed with the appropriate knowledge of international laws controlling international trade and the customs of the parties.

Applicable law / Arbitration mechanism

The Indian arbitration law is substantially based on the common law of England. The Arbitration Act 1996, based on the United Nations model of 1985 on International Trade Arbitration and the UNCITRAL Rules of Arbitration of 1976, regulates and regulates Indian arbitration.

Three acts, namely, contained the previously current arbitration statute provisions in India:

Law on Arbitration, 1940

Law on Arbitration, 1937.

The Act of 1961 on the Recognition and Enforcement of Foreign Awards.

The foregoing statutes were subsequently annulled under the 1996 Arbitration and Conciliation Act.

In 2015, the 1996 Arbitration and Conciliation Act was significantly changed to enhance the face of arbitration under India in the 2015 Amendment Act. As revised in 2015, the Arbitration and Conciliation Act 1996 takes into account:

Domestic Arbitration

International Commercial Arbitration

Foreign Arbitration Awards Enforcement

In Section 2(1)(a), the aforementioned Act defines arbitration as "any dispute arbitration resulting from legal relations, whether or not managed by a permanent arbitral institution."

Section 2(1)(f) of the International Commercial Arbitration Act 1996 defines the following as: "Contractual or not, the arbitration of disputes originating from legal ties must be treated as a commercial law in effect in India and where there is at least one Party:

A person who is or is ordinarily resident in a country other than India

A corporation incorporated in any other country than India

A corporation or an organisation or a body of persons in any nation other than India whose central management is carried out.

The foreign country's government"

In Section 7(1) of the 1996 Act of Arbitration and Conciliation (amended in 2015).

An agreement which has been presented by the parties to be made, or which could occur, between the parties, for the purposes of arbitration of all or certain particular parties. A legal connection must be the relationship between the parties which may or may not be a contractual relationship.

An arbitration agreement may exist completely separately, or an arbitration clause may be included in the arbitration agreement.

The agreement on arbitration must be written:

A document both parties have signed

An electricity exchange of letters, telegrams, information, including telecommunications.

Where a reference was made in a contract to the document to incorporate the arbitration clause into the agreement, the part consisting of the arbitration clause shall be regarded as an arrangement for the arbitration of the agreement in its entirety if the contract is written in writing and the intention is to incorporate it into the agreement.

By adopting Arbitration and Reconciliation Act 2015, the scope of arbitration in India as at present has improved substantially:

The courts refer the parts for arbitration, unless a valid arbitration agreement is not in place.

For interim orders handed down by courts before the beginning or the beginning of an arbitration proceeding, the proceeding shall start within 90 day or such time as speed of the arbitration proceedings;

Additional fees will be awarded to the arbitral tribunal if awards are awarded in the space of 6 months and the arbitrator's fees will be cut by up to 5 percent each month after the specified time period; Awards given before the tribunal shall be dispensed within one year; The Parties may elect to proceed arbitral with a speedy approach.