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Arbitration in India Decoded, All you Should Know

India is one of the fastest growing Economy of the World. Arbitration is the most preferred dispute resolution method today in business contracts. The law offers a choice upon the parties to enter into commercial transactions knowing well that in case, of a dispute, they will refer their dispute to this simple, quick, convenient and cost-effective process saving them from tedious and complicated adversarial procedures of a court.

The Arbitration and Conciliation Act, 1996 covers both Domestic and International Arbitration. This statute deals with domestic arbitrations as also elements which also govern International Arbitration.

Key Elements of an Arbitration Agreement are as follows:
  1. Consent:
    An arbitration as an Alternative Dispute Resolution Mechanism can be resorted to only with the consent of the parties. The consent has to be borne out from within an arbitration agreement. This mutual agreement clearly specifies the desire of the parties to arbitrate their dispute. In other words, they clearly note that in the event of a dispute between them they would not go to the court, instead they will proceed to arbitrate their dispute. This agreement takes the form of a binding contract.
    As per section 7 of the the Arbitration and Conciliation Act, 1996, "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. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

  2. Presiding Authority:
    The individual or Group of persons adjudicating the dispute are better known as the arbitral tribunal. It is akin to a judge that presides over a court of law. The presiding person is known as the arbitrator, who is in charge of deciding the disputes between the parties. Just like the judge an arbitrator too has several responsibilities set out in the code.

    The arbitrator is under oath to perform its duties. He/She is bound in Law to take decisions and conduct proceedings in a neutral and impartial manner. One of the key features of an Arbitration Agreement is the fact that the parties are free to choose their presiding authority. This legislative clause not only inspires confidence in the arbitrators but also the process and the decisions taken. The Act also has provisions for removing arbitrators, if it is found that they are not working in a neutral and independent manner

    Institutional Arbitration Centres like IDRC have inhouse panel of India's most experienced Panel of esteemed Arbitrators/Mediators which include Former Hon'ble Chief Justices of India, Judges of Supreme Court, Chief Justices of High Court, Judges of High Court and District Courts, Queens Counsels of London, Former Secretaries to Govt. of India, CMDs and Directors of PSUs, Senior Advocates, Chartered Accountants, domain experts and many more.
  3. Seat of arbitration:
    The seat of arbitration determines the specific place whose courts would exercise jurisdiction over the offshoots of the arbitration proceeding. In absence of such an agreement, Arb & Conc. Act, 1996 solely operates within the territory of India.
  4. Party autonomy and procedure:
    Arbitration as a method of dispute resolution provides to the parties the choice to select applicable laws, especially if the arbitration is an international commercial arbitration. Additionally, there is an enormous flexibility to choose the procedure that shall be applicable. The Rules of the arbitration can be self - governed, however, the said rules have to be in the spirit of Public Interest of India.
  5. Finality of outcome:
    Arbitral awards passed are not amenable to Appeal. However, an arbitral award can only be set aside if the said award suffers from defects as provided under Section 34 of Arb & Conc. Act, 1996 such as invalid arbitration agreement, party's incapacity to enter into an agreement, independence and impartiality of an arbitrator, unfair procedure or breach of public policy of India etc.

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