Q: What is an arbitration and conciliation ?

Ans:  An arbitration is not defined in arbitration act , 1940 but it is defined under arbitration and conciliation act, 1996.  The arbitration and conciliation act comprises of four parts , 86 sections and 3 schedules. 

An arbitration is a process of determination of disputes by the decision of one or more persons called the arbitrator. The definition of Arbitration is given under Section 2(1)(a) of Arbitration and Conciliation Act,  1996. According to section 2(1)(a) of arbitration and conciliation act,  1996, arbitration” means any arbitration whether or not administered by permanent arbitral institution.

The ICA was established in 1965 as a specialized arbitral body at the national level under the initiatives of the Government of India and apex business organizations FICCI.

FICCI is Federation of Indian Chambers of Commerce & Industry. 

The main objective of ICA is to promote amicable, quick and inexpensive settlement of commercial disputes by means of arbitration, conciliation, regardless of location.  

Delhi Institute of International Arbitration is also a permanent arbitral institution. 


The definition of  Arbitration Agreement is defined under section 2(1)(b) of Arbitration and Conciliation Act,  1996. 

According to section 7 of Arbitration and Conciliation Act,  1996, an “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.
Arbitration agreement must be in the form of Arbitration clause or Seperate Agreement as per section 7(2) of Arbitration and Conciliation Act,  1996.

The definition of Arbitration Award is given under section 2(1)(c) of Arbitration and Conciliation Act,  1996.  According  to Section  2(1)(c) of Arbitration and Conciliation Act, 1996 , an arbitration award includes an interim award. 

Interim award is a temporary award until the tribunal has given its final decision. Section 17 of arbitration and conciliation act mentions about the interim orders or interim award. 

The Definition of Arbitration Tribunal is given under Section 2(1)(d) of Arbitration and Conciliation Act,  1996.


The court is defined under Section 2(1)(e) of Arbitration and Conciliation Act, 1996. 

The international commercial arbitration is defined under Section 2(1)(f) of Arbitration and Conciliation Act, 1996. 

The legal representative is defined under Section 2(1)(g) of Arbitration and Conciliation Act,  1996. 

The party is defined under Section 2(1)(h) of Arbitration and Conciliation Act,  1996.




A person who is appointed either by the parties or by the court to settle the dispute or matter is called an arbitrator. 

So, the dispute is settled by the decision or judgement of two or more arbitrators in arbitration. 

Many Jurists like Wharton, Haisbury, Mozley and Whiteley gave the definition of Arbitration .

According to wharton, an arbitration is the settlement of disputes or the case of differences by the judgement of one or more persons known as an umpire or arbitrators. 

Halsbury, Mozley and Whiteley and Wharton all gave similar definitions of Arbitration but Wharton mentioned the arbitrator similar to umpire. 

Conciliation is a alternate dispute resolution method in which an expert will be appointed to settle the dispute by persuading parties to reach agreement.

Following are the differences between Arbitration and Conciliation:

1. The person who is appointed for the process of arbitration is called an arbitrator. Appointment of Arbitrator is done under provision of section 11 of Arbitration and Conciliation act 1996 whereas the person appointed for the process of Conciliation is called conciliator. The appointment of conciliator is done under the provisions of section 64 of Arbitration and Conciliation act 1996.

2.  An arbitrator has the power to enforce his decision wheras the conciliator appointed to settle the dispute would not have the power to enforce the decision taken by him.

3.  Arbitration is available for existing as well as for future dispute but conciliation is available for existing disputes only and it does not focus on the future dispute. There is no conciliation agreement like arbitration agreement. 

Section 27 (5) of the Arbitration and Conciliation Act, 1996 which expressly confers the power on the arbitral tribunal to punish for its contempt.

Comments

Post a Comment

Popular posts from this blog

Q: How does rule 13 of national legal services authority rules, 1995 differs from section 13 of legal services authority act, 1987 ?

Ans: Rule 13 of National Legal Services Authority Rules, 1995 holds that a person shall not be qualified to be included in the Lok Adalat unless he is-    (a) a member of legal profession; or (b) a person of repute who is especially interested in the implementation of the Legal Services Schemes and Programmes; or (c) an eminent social worker who is engaged in the upliftrment of the weaker sections of the people, including the Scheduled Castes, the Scheduled Tibes, women, children, rural and urban labour. However, Section 19 of legal services authority act, 1987 further provides that the experience and qualifications of other persons as mentioned earlier for Lok Adalats other than those who are to be prescribed by the Central Government in consultation with Chief Justice of the Supreme Court 19(3) , shall be such as may be prescribed by the State Govcrnment in consultation with the Chief Justice of the High Court 19(4). According to section 19(2) of legal services ...
Read more

Q: Can a party to an arbitration agreement appoint a sole arbitrator on his own and impose it on the other party?

Ans: While it is possible for a party to a dispute to appoint a sole arbitrator, there must be an agreement between the parties to do so and the procedure prescribed by it must be followed. Thus, a party cannot appoint a sole arbitrator and impose the appointment on the other party if the agreed procedure is not followed.  Each party shall appoint one arbitrator . The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator. Thus, there must be minimum 3 arbitrators in arbitration tribunal. 
Read more

Q: What is Foreign Arbitration ?

Ans: Foreign awards are granted in foreign countries for any dispute referred to arbitration in international cases and are enforceable in India under the Act. It is divided into two chapters under the Act: The New York Convention The Geneva Convention    When both of the parties are foreigners they have mutually agreed to follow rules of a foreign land through arbitration while dealing with legal disputes, it is called foreign arbitration. In such cases, regardless of whether the arbitration takes place in India or or in the other country, foreign arbitration laws are followed. In such arbitration, a "foreign award" is sought to be enforced. For India, when an arbitration proceeding is conducted in a place outside India, it is called foreign arbitration.  Section 44: Foreign award for geneva convention. Foreign award is given in international commercial arbitration.  Section 2(1)(f) and Artilcle 51(d): International Arbitration. 
Read more