Arbitration Notes for passing with ease., Lecture notes of Law

Download Arbitration Notes for passing with ease. and more Lecture notes Law in PDF only on Docsity! Question: On which model law is Indian Arbitration Act Based? (2Marks) Ans: The Indian law of arbitration is contained in the Arbitration and Conciliation Act 1996 (Act). The Act is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976. The Statement of Objects and Reasons of the Act recognizes that India’s economic reforms will become effective only if the nation’s dispute resolution provisions are in tune with international regime. The Act is a composite piece of legislation. It provides for domestic arbitration; international commercial arbitration; enforcement of foreign award and conciliation (the latter being based on the UNCITRAL Conciliation Rules of 1980). The more significant provisions of the Act are to be found in Part I and Part II thereof. Part I contains the provisions for domestic and international commercial arbitration in India. All arbitration conducted in India would be governed by Part I, irrespective of the nationalities of the parties. Part II provides for enforcement of foreign awards. Question: Enforcement of foreign awards: New York & Geneva Convention? (2Mark) Ans: ENFORCEMENT OF ARBITRAL AWARD: NEW YORK CONVENTION, 1958 GENEVA CONVENTION, 1927 Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign awards passed under the New York Convention Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains provisions relating to foreign awards passed under the Geneva Convention. OBJECTIVE: The NY Convention has two objectives: 1. The recognition and enforcement of arbitral agreements 2. The recognition and enforcement of arbitral awards OBJECTIVE: The Geneva protocol had two objectives 1. it sought to make arbitration agreements, and arbitration Clauses in particular, enforceable internationally; and 2. it sought to ensure that such arbitration agreements would be enforced in the territory of the state in which they were made The Foreign Awards (Recognition and Enforcement) Act, 1961 which came into force on 30th November, 1961 had been enacted pursuant to the New York Convention of 1958. The Arbitration (Protocol and Convention ) Act, 1937 which came into force on 4th March, 1937 provided for the enforcement of foreign arbitral awards to which the Geneva Convention of 1927 applied. Question: What are foreign Arbitration Agreements? (2Marks) Ans: Foreign arbitration agreements come into force internationally and are therefore used in transactions of international nature. As explained in Model Law as well as the 1996 Act: Defined under ARTICLE 7 of the UNCITRAL MODEL LAW: “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 defi ned legal relationship, whether contractual or not. An arbitration agreement can be as simple as a provision in a contract stating that by signing that contract you are agreeing to arbitration in the case of any future disputes. Section 7 of the Arbitration and Conciliation Act, 1996 enumerates that an arbitration agreement can be in the form of a separate agreement or in the form of an arbitration clause in the contract. Essentials of Arbitration Agreement: 1 Written Agreement, 2 Intention, 3 Signature, 4 Independent Clause. Ques : Appointment Of Arbitrators/ Grounds For Challenging The Appointment Of The Arbitrator? (2Marks) Section 11 of The Arbitration and Conciliation Act, 1996 provides for the appointment of Arbitrator(s). An arbitrator is appointed under the following means - (1) Appointment by Parties; (2) Appointment by Court The parties may agree to appoint a sole (one) arbitrator or more than one arbitrator. An arbitrator named by the parties and so appointed can proceed with the arbitration proceedings. If the parties do not name their own arbitrator, they may mutually agree that arbitrator(s) may be appointed by a third designated person. Disclosure of certain circumstances SECTION 12(1) of the Act, amended in 2015, compels a prospective arbitrator to provide a written disclosure of certain circumstances which may give rise to suspicions to his independence or impartiality. Whether a circumstance is suspicious to the independence of an arbitrator, is to be decided by the arbitrator himself. SECTION 12(1)(A) states that the arbitrator should disclose if he has any direct, indirect, past or present relationship to the parties, or if he has any financial, business, professional or any other kind of interest in the subject-matter of the dispute, which would affect his impartiality in the case. SECTION 12(1)(B) similarly points to any circumstances that would affect an arbitrator’s capacity to devote enough time to finish the arbitration within twelve months. Ques: Theme of the Indian Arbitration Act? (2Marks) Ans: The Act is a composite piece of legislation. It provides for domestic arbitration; international commercial arbitration; enforcement of foreign award and conciliation (the latter being based on the UNCITRAL Conciliation Rules of 1980). The more significant provisions of the Act are to be found in Part I and Part II thereof. Part I contains the provisions for domestic and international commercial arbitration in India. All arbitration conducted in India would be governed by Part I, irrespective of the nationalities of the parties. Part II provides for enforcement of foreign awards. Part I is more comprehensive and contains extensive provisions based on the Model Law. It provides inter alia for arbitrability of disputes; non-intervention by courts; composition of the arbitral tribunal; jurisdiction of arbitral tribunal; conduct of the arbitration proceedings; recourse against arbitral awards and enforcement. Part II on the other hand, is largely restricted to enforcement of foreign awards governed by the New York Convention or the Geneva Convention.