Normal view MARC view ISBD view

Taly Mallika

Arbitration law : A primer - Lucknow Eastern Book Co. 2011 - 208p xxi

Table Of Contents:
I. Introduction

1. Concept of arbitration
2. Types of alternate dispute resolution methods
Conciliation
Mediation
Lok Adalat
3. Statutory history of arbitration in India
The 1940 Act
The 1961 Act
The UNCITRAL Model Law
The 1996 Act
Distinction between the 1940 Act and the
1996 Act
4. Alternate dispute resolution methods and the Code of Civil Procedure, 1908
The insertion of Section 89 in the CPC
Recommended changes to Section 89
Interpretation of Section 89
Constitutional validity of Section 89
Justice M. Jagannadha Rao Committee Report
Rule-making powers
5. The right to a speedy trial and arbitration

II. Basic Concepts

1. Derogable and non-derogable provisions
Party autonomy
Statutory safeguards
Derogable provisions
Non-derogable provisions
Examples of derogable and non-derogable provisions
Practical significance of the distinction
2. Restricting the scope of judicial intervention
Balance between the judiciary and arbitral tribunals
Arbitration proceedings without judicial intervention
Permissible judicial intervention
Supervisory role of the High Courts
When the principle in Section 5 does not apply
3. Concept of an arbitrable dispute
A dispute
Dispute under the 1996 Act
Disputes capable of settlement by arbitration
Private disputes
Civil disputes
Disputes that are not under the jurisdiction of another special court
Disputes with the government
Scope of the term "dispute"
4. Types of arbitral proceedings
Institutional arbitration
Ad hoc arbitration
Fast-track arbitration
Statutory arbitration
Online arbitration
5. Agreement to arbitrate
Importance of arbitration agreements
Definition of an arbitration agreement
Doctrine of incorporation
Form and content of an arbitration agreement
Arbitration agreement to be certain
A defined legal relationship
The doctrine of severability
Interpretation of arbitration agreements
Multi-tiered arbitration clauses
Arbitration agreements under the 1940 Act
Standard arbitration clause

III. Arbitration Proceedings Before the Tribunal Alone

1. Commencement of arbitral proceedings
When arbitration proceedings commence
Relevance of the date of commencement
Notice to arbitrate
Importance of the notice to arbitrate
"Request for reference" and "reference"
2. Appointment of arbitrators by the parties
Number of arbitrators
When a sole arbitrator is to be appointed
Method for making appointments
Advantages of appointing an arbitral tribunal
3. Challenge to the appointment of the arbitral tribunal
Grounds for challenge
Bias
Lack of necessary qualifications
Duty to disclose
Challenge by the appointing party
Procedure for challenge
4. Termination of an arbitrator’s mandate
Grounds for termination
Arbitrator is unable to perform his functions
The arbitrator is unable to act without undue delay
The arbitrator resigns
Termination by the parties' agreement
Successful challenge under Section 12
Arbitration proceedings come to an end
How an arbitrator’s mandate terminates
Substitution of an arbitrator
Effect of substituting an arbitrator
5. Doctrine of competence-competence
Position under the 1940 Act
Importance of the doctrine of competence-competence
Concept of "jurisdiction"
An arbitral tribunal’s jurisdiction
Scope of enquiry
Operation of Section 16 with regard to Sections 8, 9 and 11
Time before which such a plea must be taken
Who may make a plea under Section 16?
Jurisdiction as a preliminary issue
Constitutionality of Section 16
6. Interim measures from the arbitral tribunal
When can interim relief be granted ?
Section 17 is a derogable provision
Enforcement of an order granting interim measures
Scope of protection
Observations
7. Conduct of proceedings
Equal treatment of the parties
Procedure and rules of evidence
Place of arbitration
Language
Statements of claim and defence
Evidence may be given under oath
Default in submitting statement of claim or defence
Oral hearing and written proceedings
Expert evidence
Court's assistance in taking evidence
8. Making of an arbitral award
Types of arbitral awards
Decision to be based on Indian law
Decision to be reached by majority
Awards passed in terms of a settlement
Procedural formalities
Reasoned decision
Remedies that an arbitral tribunal may provide
Specific relief
Grant of interest
Costs
Errors and interpretation
9. Termination of arbitral proceedings
Automatic termination of proceedings
Termination by an order of the arbitral tribunal
Withdrawal of the claim
Agreement to terminate
Where the proceedings are unnecessary or impossible
Effect of termination of proceedings
Other ways in which proceedings may be terminated
10. Finality and enforcement of an arbitral award
An award must be final and binding
"Final award" and "finality of an award"
Enforcement of an award
Which court can execute a decree?
Powers of the court granting an order of execution
An award must be capable of being enforced
Grace period before enforcement
Powers of a court to ensure execution
Severability of an award

IV. Judicial Intervention

1. Duty of the court to refer parties to arbitration
Antecedents to Section 8
Circumstances in which there is no duty to refer
Preconditions for reference
Bifurcation of a suit is not permissible
The duty is mandatory but not automatic
A party must apply to the court under Section 8
Fate of a suit once reference is made
"Arbitration" and "arbitral tribunal"
Conversion to an application for interim relief
When arbitration proceedings may commence?
2. Interim measures from the court
Prerequisites for the grant of interim relief
Prima facie case
Balance of convenience
Irreparable damage
Interim relief granted at the court’s discretion
Ex parte interim relief
The need for Section 9
There must be a manifest intention to commence arbitration proceedings
Principle of compatibility
Conflict between Section 9 and Section 17
3. Appointment of arbitrators by the court
Statutory procedure for appointment of an arbitral tribunal
Extent of scrutiny of the arbitration agreement
Distinction between judicial and administrative functions
Argument to show why the function is an administrative one
Argument to show why the function is a judicial one
Clarification of the "S.B.P. case"
"Live claim"
No conditional appointments
Expiry of the right to appoint
The Chief Justice of India’s scheme under Section 11
4. Challenge to an arbitral award
Grounds for challenge
"Challenge" and not "appeal"
Constitutionality of Section 34
Challenge because of incorrect procedure adopted
Challenge on the grounds of public policy
Criticism of the "ONGC case"
"Error of law apparent on the face of the award"
5. Appealable orders
Right to appeal.
Appealable orders under the 1996 Act
Order granting or refusing to grant any measure under Section 9
Order setting aside or refusing to set aside an arbitral award under Section 34
Order of the arbitral tribunal accepting a plea referred to in Section 16
Order granting or refusing to grant interim measures under Section 17
Orders under the 1996 Act which are not appealable
No appeal against a consent decree
No second appeal
Which courts are authorised to hear such appeals?
Revision

V. International Commercial Arbitration

1. Concept of international commercial arbitration
"International"
"Commercial"
Power to refer parties to international commercial arbitration
Interpretation of Section 45
2. Concept of applicable law
Contractual obligations to be given due regard
Private international law
Laws applicable in four stages
Law governing the recognition and enforcement of the arbitration agreement
Law governing the procedure to be adopted before the arbitral tribunal
Law governing the substance of the dispute
Law governing the recognition and enforcement of the arbitral award
3. Recognition of a foreign award
Requirements for a foreign award
"Convention country"
4. Enforcement of a foreign award
Conditions for the enforcement of a New York Convention award
Conditions for the enforcement of a Geneva Convention award
5. Applicability of Part I in international commercial arbitration proceedings
Position before 2002
Arguments against the application of Part I to international commercial arbitration
Part I is applicable to international commercial arbitration
Explanation of the "Bhatia case"
Application of Section 34 to international commercial arbitration

VI. Arbitration and Conciliation (Amendment) Bill, 2003

1. The need for amendment to the 1996 Act
2. Salient features.
Types of arbitration
Arbitration division
Fast-track arbitration
Applicability of Part I to international commercial arbitration
Some other salient features of the proposed amendment
3. In conclusion

ISBN: 9789350281994

Subjects--Topical Terms:
1. Arbitration Law

Dewey Class. No.: 347.090000 / TAL-2