Arbitration is a quasi-judicial proceeding wherein the parties in dispute appoint an arbitrator by agreement to adjudicate the said dispute and, to that extent, differs from court proceedings.
Arbitration in India is controlled by arbitration legislation, which specifies that in order to use arbitration as a conflict settlement tool; an agreement between the contesting parties must be signed. The parties can either opt for a separate arbitration agreement to be signed or include an arbitration clause in the main contract between the parties.
Expert lawyers of Lexmotion provides legal consultancy or assistance in all issues relating to an arbitration matter.
Arbitration agreement
An arbitration agreement is an agreement formed by the parties to submit all or certain disputes that have arisen or may arise between them in relation to a defined legal relationship, whether contractual or not.
Arbitration proceeding
Section 21 of the Arbitration and Conciliation Act of 1996 establishes the procedures for initiating arbitral proceedings. It allows the parties to agree on and define when the arbitration case can formally begin. In the absence of such an agreement, or if the parties are unable to reach an agreement, the arbitral procedures can begin when one party sends a written notice to the other party indicating its desire to bring the matter to arbitration. So, in the case of a specific disagreement, the arbitral proceeding begins on the date when the opposite party receives a request to refer that matter to arbitration. The provisions of Section 3 of the Act must be examined in order to ascertain the date of reception.
Execution of award
The execution of arbitral awards is addressed under Section 36 of the Arbitration and Conciliation Act. Once an award is made, the award holder must wait 90 days before applying to the relevant forum for execution. During this 90-day period, the award may be contested under Section 34 and set aside. The Court has the authority to enforce a monetary award, attachment of property, damages, specific performance, and so on.
Appeal
During arbitration proceedings, the assistance of court could be sought by the arbitrator and the parties in respect of several matters, reference to which had been made already. After the award is made, it may be set aside or amended on the following grounds:
- the subject matter of the dispute is not capable of resolution by arbitration under the law currently in force; or
- the arbitral award interferes with Indian public policy.
Proceedings in court
- Arbitration Clause-An agreement or clause that expressly states that if a disagreement arises between the parties, it will be resolved by arbitration.
- Arbitration notice –If a dispute arises and a party has chosen to use the arbitration procedure, the party against whom the default has been committed will issue an arbitration notice to initiate the arbitration process steps between the parties for invoking steps of arbitration process.
- Appointment of Arbitrator- After receiving notification from the other party, both parties will designate the arbitrators in accordance with the arbitration agreement or arbitration clause as specified in the arbitration agreement or arbitration clause.
- Statement of Claim- Next step in an arbitration proceeding in India is to draft a statement of claim. Statement of claim contains the dispute between the parties, events which lead to the dispute and the compensation claimed from the defaulting party. The other party can file a statement of counterclaim along with reply to the statement of claim. Top arbitration lawyers can help you with your statement of claim, reply to the statement of claim, or counterclaim.
- Hearing of Parties – The arbitral tribunal will hear both parties and examine their evidence.
- Award – After hearing the parties, the arbitral panel will render its ruling. The tribunal’s ruling is known as the ‘Award,’ and it is binding on the parties. An appeal against the arbitral award, on the other hand, can be lodged with the High Court.
- Execution of Award – The award must be carried out once it has been approved by the tribunal. The party in whose favour the judgement was passed must file for execution or enforcement of the judgement with the assistance of an experienced arbitration lawyer.
In India, the arbitration process does not adhere to the rules outlined in the Civil Procedure Code, and the arbitrator is not required to adhere to the protocols outlined in the Civil Procedure Code, 1908.
Timely advice
An arbitrator is normally required to disclose any circumstance that could raise legitimate doubts about the arbitrator’s impartiality or independence. When attempting to make the “ideal” disclosure, arbitrators must balance the need for thoroughness and transparency with the need to safeguard the confidentiality of earlier arbitrations and mediations, as well as entities not involved in the current hearing.