MODULE 1

I. ARBITRATION

II. CONCILIATION

III. ARBITRATOR

IV. UMPIRE

V. ORDER OF REFERENCE

VI. SELECTION OF ARBITRATOR

VII. POWER AND DUTY OF ARBITRATOR

VIII. ARBITRATION AWARD

IX. IMPLIMENTATION OF AWARD.

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A R B I T R AT I O N
Arbitration, a form of alternative
dispute resolution (ADR), is a way
to resolve disputes outside
the courts
Source : https://en.wikipedia.org/wiki/Arbitration

With involvement of various participants(stakeholders)

It is the method of settling the disputes
and differences between two or more in the building industry, there is
bound to be
parties whereby they appoint one or DISPUTES in some cases
more persons to adjudicate upon the
said disputes and differences that have These disputes maybe SETTLED by the of
arisen or that may hereafter arise and tribunal bodies appointed for the
agree to abide by the decision of the
said one or more persons nominated for purpose
the purpose of adjudication Source : Professional practice ; K.G.KRISHNAMURTY; S.V
RAVINDRA
Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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 A R B I T R AT I O N
BASED ON MODEL RULES
FROM PAST TO PRESENT DAY PRESCRIBED BY THE UNITED
NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW ,1986

The Arbitration and

Conciliation Act 1996,
Arbitration since there are no limits set down
Act 1940 to discourage courts from stepping
full code of into an ongoing arbitration
arbitration in
PROVIDES FOR DOMESTIC ,
The India
INTERNATIONAL , COMMERCIAL
Arbitration ARBITRATION AND ENFORCEMENT
Act 1899 OF FOREIGN ARBITRAL AWARDS
was passed to fill
some gaps in the LAW RELATING TO CONCILIATION
VILLAGE earlier British period ALSO FORM A PART OF THE ACT
COUNCIL/ legislations,
THE
PANCHAYAT
Source :Professional practice ; K.G.KRISHNAMURTY; S.V RAVINDRA
for speedy settlements Illustration : Author

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A R B I T R AT I O N
ADVANTAGES OVER LITIGATION

1. SPEED
2. LESS EXPENSIVE
3. PRIVACY
4. INFORMALITY OF PROCEEDINGS
5. CONTINUITY OF GOOD RELATIONS
6. EXPERTISE OF ARBITRATORS
7. FLEXIBILITY IN CHOICE OF MEETING
PLACE/ LOCATION
8. FINALITY OF DECISION
Source :Professional practice ;
K.G.KRISHNAMURTY; S.V RAVINDRA

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D I F F E R E N C E B E T W E E N CO N C I L L I AT I O N
A N D A R B I T R AT I O N

Arbitration Conciliation
For arbitration, the parties shall For conciliation, a third party shall
select arbitrators. The selected play the role of a conciliator
arbitrators then shall resolve the helping the parties to
dispute and render an arbitration resolve dispute through
award which is final and negotiation.
binding.
The conciliator is not allowed to
An arbitration award is final, the directly resolve the dispute
agreement achieved and render a decision,
through conciliation is not binding but the parties of the dispute
on the parties. Therefore, if one themselves shall achieve an
party do not voluntarily agreement with the help of the
implement the agreement, the conciliator.
other can institute court or
arbitration proceedings.

Source : http://www.sblaw.vn/what-is-the-difference-between-
arbitration-and-conciliation/

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 A R B I T R A T O R and Selection of Arbitrator
▪ A person appointed to dispense • An arbitrator is a judge .
NECESSARY ADJUDICATION, to settle • He is a person who is appointed to
disputes settle the disputes
▪ ‘JOINT ARBITRATORS’ , when more than • Fairness integrity , full confidence of
2 numbers are appointed the parties, disinterested nature of
▪ ‘SOLE ARBITRATOR’, when only one either party, capacity to think
person is appointed logically are some of the attributes
▪ ODD number of arbitrators required for of an arbitrator.
arbitration Source : Professional practice ;
▪ The appointment of third arbitrator will K.G.KRISHNAMURTY; S.V RAVINDRA
be from the Chief Justice or his
• As per the conditions of IIA form of
designate
contract the arbitrators have to be
▪ The appointment of third arbitrator can
Fellow of the Indian Institute of
also be made by the previous selected
Architects , which forms prime
two arbitrators themselves
qualifications for being appointed as
▪ The third arbitrator is to act as the
arbitrator if the IIA form of contract
Presiding Arbitrator .
forms a cementing aspect between
▪ The arbitral tribunal will include all
the contractor and the client
three arbitrators
Source : Professional practice ;DR. ROSHAN .H. NAMAVATI
Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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P O W E R & D U T Y O F A R B I T R AT O R

▪ Appointment to be accepted in writing ▪ All corrections pertaining to the award , be it a

▪ To study the case and claims of dispute they typo or omission to be made by the arbitrator
are appointed to resolve ▪ Interrogation with any party may be taken up ,
▪ Awareness and sharing of knowledge of by the arbitrator
legal rights of parties involved in the ▪ To strictly follow terms of reference. To decide
arbitration process nothing more than the issue referred to him
▪ To verify the arbitration and the award is ▪ To set the procedure , mode of presentation by
within the scope of the rights parties, time and place of meeting as required.
▪ To act in tandem with all other arbitrator
appointees to arrive at fair timely award Source : Professional practice ; K.G.KRISHNAMURTY; S.V
▪ To notify parties of meetings in official RAVINDRA
recorded manner.
▪ To hear all parties and witnesses in the
presence of both parties
▪ To take evidence under oath
▪ To avoid any private communication with
any party or any of their witnesses
▪ Administer oath to the parties
▪ State a special case for the opinion of the
court on any question of law involved.
▪ Award to be of conditional type and with
alternatives

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P R E S E N T E D B Y A S S O C I A T E P R O F E S S O R A I S H W A R Y A G . K 7
UMPIRE
Umpire Definition
ANOTHER WORD FOR AN ARBITRATOR or an arbitrator appointed to resolve
an arbitration WHEN THE ORIGINAL ARBITRATORS CANNOT AGREE
http://www.duhaime.org/LegalDictionary/U/Umpire.aspx

P R E S I D I N G A R B I T R AT O R
Each party appoints one arbitrator and the two arbitrators shall appoint a
third arbitrator who shall act as the presiding arbitrator.
He may determine the procedure for arbitration if there is no concurrence.
Source : Professional practice ; K.G.KRISHNAMURTY; S.V RAVINDRA

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ORDER OF REFERENCE
The order of reference is when the COURT APPOINTS A REFEREE. The
technical term is that the court is referring the case to the referee in order for
the referee to do something with LIMITED AUTHORITY GRANTED BY THE
COURT.
https://laninlaw.com/order-of-reference/

Reference in case of
arbitration is an agreement
drawn up between the two
contesting parties referring
the matter for the
adjudication of the arbitral
tribunal after the actual
disputes or differences
have arisen
Source : Professional practice ;DR. ROSHAN
.H. NAMAVATI

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DIFFERENCE BETWEEN ORDER OF
R E F E R E N C E A N D A R B I T R AT I O N

Arbitration Order of reference

1. Nucleus of arbitration agreement. 1. Nucleus of arbitration agreement
Originates by agreement of the .Originates after the disputes
parties before disputes arise. arise.
2. Relates to present or future 2. Relates to present disputes alone
disputes It is likely that no and does not contemplate future
disputes can take place in future disputes.
and as such there will not be any 3. Mentions the name of the
arbitration arbitrator.
3. It does not contain name of 4. Disputes are mentioned in
arbitrator sufficient detail over which
4. Not possible to define specific adjudication is required.
future disputes. 5. Time limit for award declaration

Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

Source :Professional practice ; K.G.KRISHNAMURTY; S.V RAVINDRA

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A R B I T R AT O R AWA R D
▪ The decision given by the arbitrator/s or ▪ The award must be within the
tribunal with respect to the dispute case scope of the arbitration.
assigned to them. ▪ It should be unbiased and solely
▪ The decision or award is final and the decision of arbitrator, and in
binding to both parties involved. case of tribunal , it will be that of
▪ The award must be without delay the presiding arbitrator.
▪ The award must be in written and official Source :Professional practice ;
on stamp paper, with signatures of K.G.KRISHNAMURTY; S.V RAVINDRA
parties, and arbitrators, and signatures
attested.
▪ Award must be fair , and self explanatory,
and unambiguous
▪ The signed copy to be issued to each
party
▪ The award must include details of day,
date, place of arbitration, claim,
adjudication in term of money etc
related to the award
▪ The award should preferably be a
reasoned award.
Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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I M P L E M E N TAT I O N O F AWA R D
▪ Arbitration clause in the Contract ▪ Experts may be sought or appointed
▪ Arbitrator is appointed for settlement of disputes by arbitrators to report specific
(party or designated authority will appoint them) issues
▪ Aggrieved party approach to designated authority ▪ Assistance of court maybe sought for
with issues and claims taking evidence
▪ The arbitration and conciliation act 1996 is followed ▪ Decision is by majority of tribunal
▪ Parties are treated with equality members ( in case where tribunal
▪ Each shall be provided an opportunity to state consists of small odd numbers)
grievances/issues/claims ▪ Award is in writing and duly signed
▪ The arbitral tribunal prescribes the procedure, the by arbitrators
parties are free to agree on procedure ▪ It is reasoned award unless
▪ The parties are free to agree on place of arbitration otherwise agreed to by parties
and language to be used. ▪ If award amount is not paid , it
▪ Arbitration proceedings start from the date of carries an interest of 18%per annum
receipt of request for arbitration by the respondent from date of award to date of
▪ Claimant shall state the facts supporting his claims , payment
issue involved and remedy sought. ▪ Award is final and binding . It is
▪ The respondent shall give defence in respect of enforced as if it were a decree of a
these claims civil court.
▪ Oral hearings and documentary evidence shall be
the basis for adjudication from the arbitrators

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A CASE

Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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A CASE

Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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P R E S E N T E D B Y A S S O C I A T E P R O F E S S O R A I S H W A R Y A G . K 14
Setting aside of Arbitration

The court can set aside the arbitral award on the following grounds

1. Incapacity of a party
2. Invalidity of Agreement
3. Want of proper notice
4. Award deals with dispute not referred to arbitration
5. Arbitral tribunal was defective in composition
6. Subject matter not capable of being settled by arbitration
7. Arbitral award being in conflict with public policy which will
encompass aspect like fraud, corruption etc.

Source : Professional practice ;DR. ROSHAN .H. NAMAVATI

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Other definitions

▪ Shuttle diplomacy in mediation : parties heard separately

▪ Appeal In law, an appeal is the process in which cases are reviewed, where parties
request a formal change to an official decision. Appeals function both as a process
for error correction as well as a process of clarifying and interpreting law
▪ Mediation : is arbitration in fact but not in law ; source Roshan Namavathi
▪ Scott`s schedule : is a formal document which sets out the issues in a tabular form,
with contentions of opposing parties. source Roshan Namavathi , page 267
▪ Functus officio : powers come to an end as task is completed. source Roshan Namavathi
▪ De jure describes practices that are legally recognized, regardless of whether the
practice exists in reality. SOURCE :https://en.wikipedia.org/wiki/De_jure
▪ De facto In contrast, ("in fact" or "in practice") describes situations that exist in
reality, even if not legally recognized SOURCE :https://en.wikipedia.org/wiki/De_jure

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