The Arbitration and Conciliation Act, 1996: An Overview: by Kamal Kumar

The Arbitration and Conciliation
Act, 1996: An Overview
By Kamal Kumar
July 26, 2015
• What is Arbitration?
• Why do we need Arbitration?
• How is it different from the Court

Proceedings ?
History
• Arbitration has a long history in India. In ancient times, people often
voluntarily submitted their disputes to a group of wise men of a
community—called the Panchayat—for a binding resolution
• The first Arbitration law in India was the Arbitration Act 1899 which
was based on the English Arbitration Act 1899.
• Thereafter, the Arbitration Act, 1940 was enacted in India to

consolidate and amend the law relating to arbitration effective from 1
July 1940
• The Arbitration and Conciliation Act was again modified in 1996 with
the aim and the objective to give effect to the UNCITRAL Model Laws
as adopted by the United Nations Commission on International Trade
Law on 21 June 1985.
Objectives of the Arbitration Act
• To cover both international & domestic arbitration &
conciliation
• To make provisions for an arbitral procedure which is fair,
efficient and capable of meeting the needs of the arbitration
• To permit an arbitral tribunal to use mediation & conciliation
to encourage settlement of disputes
• To provide that a settlement reached by the parties as a result
of conciliation proceedings will have the same status and
affect as an arbitral award
• To provide that the arbitral tribunal gives reasons for its
arbitral award
• To provide that every arbitral award is enforced in the same
manner as if it were a decree of the court
Principal Characteristics
• Arbitration is consensual
• The parties are free to choose the arbitrator(s)
• Arbitration is neutral
• Arbitration is a confidential procedure
• The decision of the arbitral tribunal is final and easy to

enforce
Advantages of Arbitration
• Choice of Decision Maker (Arbitrator)
• Cost Effective & Efficient
• Privacy
• Court intervention is minimum
• Convenience
• Strict rules of CPC and Evidence Act are not required to be
followed, the Arbitrator is free to frame his own procedure to
conduct arbitration proceedings
• Finality of Decision
Disadvantages of Arbitration
• Unenforceability of the interlocutory orders of Arbitrator
• Waiver of the right to access the court
• If there are multiple arbitrators in the arbitration tribunal,

delays can happen due to juggling of their schedules for fixing
hearing dates
Scope of Arbitration
Examples of non-arbitrable disputes are:
• Disputes relating to rights and liabilities which give rise to or

arise out of criminal offences;
• Matrimonial disputes relating to divorce, judicial separation,
restitution of conjugal rights, child custody;
• Guardianship matters;
• Insolvency and winding up matters;
• Testamentary matters (grant of probate, letters of
administration and succession certificate);
• Eviction or tenancy matters governed by special statutes
Arbitration Agreement and its
Essential Elements
Arbitration agreement is 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 and has following essential elements:
• It must be in writing
• It must have all the essential elements of valid contract
• It must be to refer a dispute, present or future, to arbitration
• It may be in the form of an arbitration clause in a contract or
in the form of a separate agreement or in the form of a
reference in a written contract containing an arbitration
clause
Process of Arbitration Proceedings
• Initiating Arbitration
• Appointment of Arbitrator
• Preliminary Meeting
• Filing of Statement of Claims & other Pleadings
• Hearings
• Framing of Issues for determination
• Interchange of Evidence by way of Affidavits
• Deposition of the Witnesses
• Passing of Award
Arbitrator
The person who is appointed to determine the disputes is called
the arbitrator. Arbitrator(s) can be appointed by any of the
following manners:
• By the parties as per agreed procedure
• Each party may appoint one arbitrator and then the third
arbitrator is appointed by the two arbitrators
• Appointment by the court
Challenge to appointment of an Arbitrator- an appointment of

the arbitrator can be challenged on the grounds of:
• his independence or impartiality; or
• He does not possess the requisite qualifications
The appointment of the arbitrator can be challenged by
submitting a written statement before the arbitration tribunal.
Powers & Duties of Arbitrator
Powers Duties
• Pass Interim Orders • To see his appointment is in order
• Decide the procedure of the • Adjudicate the matter timely
arbitration proceedings • Act judicially & impartially
• Termination of Proceedings • Declare in writing any
• Appoint an Expert circumstances likely to give rise to
• Seek Court assistance in doubts as to his impartiality
taking evidence • Encourage settlement
• Correction in errors in, and • Shall not misconduct
interpretation of, award • Pass a final award
Arbitration Award and Recourse
against it
• The decision of an arbitrator is called an award. The award
shall be made in writing and shall be signed by the
arbitrator(s) and shall also state the reason upon which It is
based, unless agreed by parties otherwise. The award shall
also state its date and place.
Recourse against Arbitral Award

• An award can be challenged before the Courts by the
aggrieved party. However, the Arbitration Act provides very
limited grounds on which, the award can be challenged.
Arbitration vis-à-vis Cost Accountants
• Role of a Practicing Cost Accountant in Arbitration
Proceedings
– An arbitrator has been given powers (under section 26 of
the Arbitration Act) to appoint one or more experts to
report it on specific issues. Therefore, a practicing Cost
Accountant can also be appointed during arbitration
proceedings to give his expert opinions.
– A cost accountant can also be a part of the arbitration

tribunal, if parties agree on appointing a cost accountant
as an arbitrator.
Thank You !

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The Arbitration and Conciliation Act, 1996: An Overview: by Kamal Kumar

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The Arbitration and Conciliation

Act, 1996: An Overview

• Why do we need Arbitration?

• How is it different from the Court

• Thereafter, the Arbitration Act, 1940 was enacted in India to

• The parties are free to choose the arbitrator(s)

• Arbitration is a confidential procedure

• The decision of the arbitral tribunal is final and easy to

• Waiver of the right to access the court

• If there are multiple arbitrators in the arbitration tribunal,

• Disputes relating to rights and liabilities which give rise to or

Challenge to appointment of an Arbitrator- an appointment of

Recourse against Arbitral Award

– A cost accountant can also be a part of the arbitration

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