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    Gr-B-The Arbitration & Con Act

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    The Arbitration & Con Act

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    Gr-B-The Arbitration & Con Act

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    bnksukanta
    6 views5 pages
    The Arbitration & Con Act

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    The Arbitration & Con Act

    Copyright:

    © All Rights Reserved
    Download as DOC, PDF, TXT or read online from Scribd
    Download as doc, pdf, or txt
    6 views5 pages

    Gr-B-The Arbitration & Con Act

    Uploaded by

    bnksukanta
    The Arbitration & Con Act

    Copyright:

    © All Rights Reserved
    Download as DOC, PDF, TXT or read online from Scribd
    Download as doc, pdf, or txt
    of 5

    Gr-B:The Arbitration & Conciliation Act, 1996(2X5)

    1. What are the duties and obligations of an Arbitral Tribunal?


    Ans:- Duties and obligations of an Arbitral Tribunal are as follows:
    i). The arbitrator must be impartial. He should not be interested in either of the
    parties or in the subject matter.
    ii). He should make, sign and publish the award stating reasoning against each of
    disputes.
    iii). He should not act beyond his jurisdiction.
    iv). He should not be guilty of fraud or misconduct.
    v). He must act judiciously and follow the rules of justice, equity, and good
    conscience.
    vi). He should decide the dispute as per terms of agreement and according to law,
    otherwise, the court will set aside his decision/award.

    2. Distinguish between Arbitrator & Mediator:-


    An arbitrator conducts arbitration, which is of a binding procedure where the dispute is
    submitted for adjudication by an arbitral tribunal consisting of a sole or an odd number
    of arbitrators, which gives its decision in the form of an award that finally settles the
    disputes and is binding on the parties. On the other hand mediation is used to settle
    disputes when the parties are unable to settle their disputes and hence they often use
    mediation in order to reach a settlement agreement with the aid of a neutral third
    person who is expert in the field in which the parties are claiming dispute.

    An arbitrator is bound to conduct arbitral proceedings in accordance with the rules of


    natural justice. The mediator is not hindered by such constraints. He may meet or
    communicate with the parties together or with each one of them separately. He may
    invite parties to meet him or may communicate with them orally or in writing. He
    must however assist the parties in an independent and impartial manner. Mediator
    helps parties agree, without himself / herself reaching of announcing a conclusion or
    decision. There is no need for the mediator to beside who was ‘right’ or ‘wrong’ in
    order to resolve the interests of the parties. The mediator’s only duty is to keep the
    process fair and un-biased.

    3. Can the arbitrators make interim award if so, when and in what manner?
    Ans:-Sub-section (6) of Section 31 of the Arbitration & Conciliation Act. 1996
    provides for making an interim award by the Arbitral Tribunal. Such award is not
    controlled by any agreement between the parties. It provides that an arbitral tribunal
    may, at any time during the arbitral proceedings, make an interim award on any matter
    with respect to which it make a final arbitral award.
    1
    An interim arbitral award is also an award which has the same status and effect of an
    arbitral award. Therefore, it has to be made in the same way as an award, after hearing
    the parties, and on consideration of the merits and evidence adduced. In an interim
    award, the arbitral tribunal may decide some of the issues or some of the claims with
    respect to which it make a final arbitral award. It may determine the issue of liability
    by leaving the question of amount of damages to be dealt with later. But the interim
    arbitral award must determine some part of the disputes referred to the arbitrator.

    4. “An Arbitration Agreement not to be discharged by death of party thereto”-


    Discuss.

    Ans:- Section 40 of the “Arbitration and Conciliation Act,1996” lays down the
    provisions relating to the death of a party to the arbitration agreement. An arbitration
    agreement is not extinguished by the death of any party as laid down in Section 40 of
    the Act, which reads as follows:

    1). An arbitration agreement shall not be discharged by the death of any party
    thereto either as respects the deceased or as respects any other party, but shall
    in such event be enforceable by or against the legal representative of the
    deceased.

    2). The mandate of an arbitrator shall not be terminated on 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.

    Therefore, Section 40 makes it clear that the arbitration agreement shall not
    be discharged/ extinguished on the death of the parties and the mandate of the
    arbitrator shall not be terminated on the death of any party by whom he was
    appointed.

    5. Hari enters into an agreement with Madhu. The agreement contains an


    arbitration Clause. Hari files a suit against Madhu for breach of Agreement
    without referring the dispute to an Arbritrator.
    2
    (a) Is the suit maintainable? If not, why?
    (b)Madhu by filing written statement raised the question of maintainability
    of the instant suit referring to the arbitration Clause. What will be the
    role of judicial authority?

    Ans: (a) The suit is at all not maintainable.

    Here, Hari enters into an agreement with Madhu wherein an arbitration Clause
    was incorporated with a view to settle any disputes or differences arising out of
    the agreement/ contract. Since, there is existence of an arbitration clause in the
    instant agreement and the substance of the suit/ dispute is related to the subject
    matter of the agreement, the instant suit is not maintainable as per provision
    under Section-8 of the “Arbitration & Conciliation Act, 1996”.

    (c) By filling written statement, Madhu has rightly raised the question of maintainability of the
    instant suit referring the provision of relevant arbitration Clause as incorporated in the
    agreement. As per provision under Section-8 of the “Arbitration &
    Conciliation Act, 1996”, the judicial authority cannot entertain such suit and
    therefore the matter shall be referred to arbitration due to existence of
    Arbitration Clause in the agreement when the claimant (here Hari) submits his
    first statement on the substance of the disputes before the judicial authority.

    6. What constitute an arbitration agreement within the meaning of Section-7 of the


    Arbitration and Conciliation Act, 1996?

    Ans: Section-7 of the Arbitration and Conciliation Act, 1996 stipulates that “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 defined
    legal relationship, whether contractual or not.

    (2) An arbitration agreement may be in the form of an arbitration clause in a


    contract or in the form of separate agreement.

    (3) An arbitration agreement shall be in writing.

    (4) An arbitration agreement is in writing if it is contained in-

    (a) a document signed by the parties,

    3
    (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.

    (5) The reference in a contract to a document containing an arbitration clause


    constitutes an arbitration agreement if the contract is in writing and the reference is
    such as to make that arbitration clause part of the contract.

    7. Discussed under what circumstances the Chief Justice of High Court can appoint
    an Arbitrator and the procedure thereof.

    Ans:- If the authority as per arbitration clause of the agreement fails to make appointment of
    an arbitrator within a reasonable period (30 days), the Chief Justice of High Court can
    appoint an arbitrator in accordance with the provision laid down under Section-11 of
    the Arbitration and Conciliation Act, 1996.

    The prescribed procedures for appointment of an arbitrator by the Hon’ble Chief


    Justice of High Court are as follows-

    1) A person of any nationality may be an arbitrator, unless otherwise agreed by the


    parties.

    2) Subject to sub-section (6) of Section-11, the parties are free to agree on a


    procedure for appointing the arbitrator or arbitrators.

    3) Failing any agreement referred to in sub-section (2) in an arbitration with three


    arbitrators, each party shall appoint one arbitrator, and the two appointed
    arbitrators shall appoint the third arbitrator who shall act as the presiding
    arbitrator.

    4) If the appointment procedure in sub-section (3) applies and:-

    i) A party fails to appoint an arbitrator within thirty days from the receipt of a
    request to do so from the other party, or

    ii) The two appointed arbitrators fails 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 any person or institution designated by
    him.

    5) Failing any agreement referee to in sub-section (2), in an arbitration with a sole


    arbitrator, if the parties fail to agree on the arbitrator within thirty days from the
    receipt of a request by one party from the other party to so agree the appointment

    4
    shall be made, upon request of a party, by the Chief Justice or any person or
    institution designated by him.

    6) Where, upon an appointment procedure agreed upon by the parties:-

    a) A party fails to act as required under that procedure, or

    b) The parties, or the two appointed arbitrators, fail to reach an agreement


    expected of them under that procedure, or

    c) A person, including an institution, fails to perform any function entrusted to him


    or it under that procedure a party may request the Chief Justic or any person or
    institution designated by him to take the necessary measure, unless the
    agreement on the appointment procedure provides other means for securing the
    appointment.

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