The Government of India announced the Arbitration and Conciliation Act of 1996 by instituting the Arbitration and Conciliation Amendment Bill, 2015 in the Parliament of India. In a venture to make arbitration a mode of agreement of commercial disputes and make India a hub of international commercial arbitration, the President of India on 23 October 2015 made an Ordinance Arbitration and Conciliation (Amendment) Ordinance, 2015 revising the Arbitration and Conciliation Act, 1996.
Let’s know more about this act in detailed below.
Arbitration and Conciliation Act
The Arbitration and Conciliation Act, of 1996 defines International Commercial Arbitration as a dispute arising from a legal relationship where at least one party is a foreign national or resident. International commercial arbitration can be used to settle various debates, including those related to contracts, intellectual property, investments, and construction. It is frequently used in cases where the parties associated with the discussion have a commercial relationship and want to continue a working connection after the dispute is resolved.
Conciliation in Contract Act
Conciliation means a process, whether mentioned to by the uttering conciliation, contemplation, or an expression of similar import, whereby parties request a third person or persons (‘the conciliator’) to help them in their strive to reach a friendly settlement of their debate arising out of or relating to a fair or other lawful relationship. The conciliator does not have the authority to bring a mixture to the dispute upon the parties.
Difference Between Arbitration and Conciliation
Below is the difference between Arbitration and Conciliation.
|
Features |
Arbitration |
Conciliation |
|---|---|---|
|
The character of the third-party |
The arbitrator acts as a decision-maker and gives a final and blind decision. |
The conciliator acts as an arbitrate and facilitates talks between the parties but does not make a final decision |
|
Legal Binding |
The conclusion reached by the arbitrator is legally irrevocable and enforceable by law. |
The agreement reached through conciliation is not legally unbreakable unless the parties voluntarily decide to formalize it into a commitment. |
|
Process Control |
The parties have limited control over the arbitration process as the arbitrator controls the rules and line of action. |
The parties have more power over the conciliation process as they actively take part in negotiations and decide the result. |
What is Statutory Arbitration and Statutory Conciliation?
Statutory arbitrations are arbitrations managed by the supply of certain special acts that furnish arbitration concerning discussing emerging matters covered by those acts. There are 24 such Central Acts.
Section 442 states that the contemplation and conciliation console is “for mediation between the parties during the looming of any proceedings.” Thus, the statutory centre seems to be on only “mediation.” The Rules also appear to consider conciliation and thinking to be the same.
What is the Recourse Against Arbitral Award?
- Recourse to a Court opposed to an arbitral award may be constructed only by a petition for setting apart such award by subsection.
- Sub-section
- The arbitral award is in dispute with India’s public policy. It conflicts with the most primary notions of morality or justice.
Temporary Measures of Arbitration Act
The term “temporary measure” covers a broad range of sequences. Most interim measures are granted at a premature stage of controversy. They are short-term orders given by the court that need a party to perform or abstain from performing a specific act to preserve the status quo. It is usually allowed on a provisional basis pending a final resolution of the dispute, i.e. they are subject to later adaptation or set aside by the arbitral tribunal.
However, enough grounds for a party to request interim measures in arbitration and the aspiration of what those measures may depend on the arbitration agreement, any applicable arbitration rules and the full provisions of any national law in strength at the seat of arbitration.
For example, in Thai litigation, a plaintiff may capitulate an appeal for an interim measure together with the objection at any hour before the court renders its acumen for certain specific measures, such as the following:
- The seizure or fitting of the whole or part of a property in debate, or the property of the defendant, including any cash or property of a ternary person due to the defendant;
- A short-term order restraining the defendant from redo or continuing to perform a wrongful act, a form of contract, or other order with the motive of minimizing the damage and injury the plaintiff may comfort until the case becomes final or until the court orders otherwise;
- A sequence directing the Registrar, competent formal or any other person with authority and responsibility under Thai law to cease the registration, modification or dissolving of the registration about the property in debate or the property of the defendant or
- The provisional seizure and custody of the defendant.
The three Temporary Measures of Arbitration Act are as follows:
1. Temporary Measures under the UNCITRAL Model Law
Due to the reality that arbitration has gradually become more accepted around the world, the United Nations Commission on International Trade Law (the “UNCITRAL”) issued a mock-up law on arbitration in 1985 to be implemented by countries around the world known as the “UNCITRAL Model Law on International Commercial Arbitration” (the “Model Law”).
2. Temporary Measures under the Thai Arbitration Act
Article 39 of the Thailand Arbitration Organization Rules (the “TAI Rules”) provides that an arbitral board may grant interim or short-term measures for the defence of a party as it deems appropriate.
3. Temporary Measures under the Laws of Other Countries
In summary, the Japan Arbitration Act states that the parties may file a petition, either before the commencement of the arbitration procedure or during the route of such procedure, to request a provisional order from the court. Additionally, the parties may also file a petition asking for interim measures or temporary measures with the arbitral panel, and the arbitral committee can order to act accordingly.
Difference Between Arbitration and Conciliation
|
Features |
Arbitration |
Conciliation |
|---|---|---|
|
The character of the third-party |
The arbitrator acts as a decision-maker and gives a final and blind decision. |
The conciliator acts as an arbitrate and facilitates talks between the parties but does not make a final decision |
|
Legal Binding |
The conclusion reached by the arbitrator is legally irrevocable and enforceable by law. |
The agreement reached through conciliation is not legally unbreakable unless the parties voluntarily decide to formalise it into a commitment. |
|
Process Control |
The parties have limited control over the arbitration process as the arbitrator controls the rules and line of action. |
The parties have more power over the conciliation process as they actively take part in negotiations and decide the result. |
Correction and Interpretation of Award
- The parties are free to agree on the powers of the arbitral tribunal to correct, interpret an award or make an additional award.
- If, or to the extent there is no such agreement, the following provisions shall apply.
-
Within 30 days of receipt of the award, unless another period has been agreed upon by the parties:
- A party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature; or
- If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
Arbitral Award – Finality (Section 35)
It is supplied under section 35 of the Arbitration and Conciliation Act, 1996 that the given after an arbitration proceeding shall be irrevocable on the parties to the begin. When an arbitral award is made it is entirely concerning all the proportion and implies that no more steps can be taken further by the arbitral tribunal. The grant has a binding effect on the parties.
An award by an arbitral tribunal is final when:
- The spell that is issued to make an appeal challenging the award in the court expires;
- In circumstances when a party has classified a request in the court testing the award, the same gets a qualifier.
Effect of the 2015 Amendment
Ahead of the amendment of 2015 to section 36, if an award is questioned in the court, it would imply a mechanised stay on the arbitral award. But now the location has been changed and the provision of the automatic stay on the award by just by the petition has been pieced out. This was important as the party aggrieved by the award would use the filing of a request challenging the award as a biased instrument to put a wait on the arbitral award.
Also Read
Arbitration and Conciliation Act – FAQs
How do I know if I have to go to court or appeal to arbitration for a debate?
Make sure that you review it carefully. If not, you may need to file a lawsuit in an appropriate court within the relevant jurisdiction.
Is the arbitration agreement sound even though the main contract is invalid?
The arbitration agreement retains its autonomy and legality since it is separate from the contract, remaining unaltered by modifications to the terms or validity of the contract.
What can be done if one party disregards the arbitration agreement and remarks on court proceedings?
If the court proceedings are statements, the court will spread to accept jurisdiction, unless the arbitration agreement is determined by the court as unwell or incapable of being performed.
What is a tribunal?
Tribunal is another way of mentioning to the arbitrator arbeit appointed to decide a debate.
Can the tribunal’s decision (an ‘award’) be appealed?
Generally, it is hard to appeal a tribunals award. Usually, a dare can only be made where the proper legal processes for the arbitration were not followed.