Arbitration and Conciliation Act Notes for Judiciary [Download PDF]

Author : Yogricha

Updated On : February 19, 2024

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Overview: Arbitration and Conciliation Act notes are important for all the Judiciary Aspirants who are targetting Delhi Judiciary, Bihar Judiciary, Jharkhand Judiciary, Tamil Nadu Judiciary, etc.

You must make notes from the first day of your preparation to ensure that your preparation is complete and use the notes given by Judiciary Gold's faculty in this article, also refer to the important sections mentioned in this article.

We have made a comprehensive list of all the sections that have been previously asked in judiciary exams for you. You can directly focus on all the sections mentioned below and make notes accordingly by referring to the short notes document by Judiciary Gold.

In this article we will cover:

  • Objective of Arbitration and Conciliation Act of 1996
  • Important Sections for Judiciary examinations.
  • Notes of Arbitration and Conciliation Act of important sections
  • MCQ questions for practice
  • How to make your own notes for Judiciary Preparation

Objective of Arbitration and Conciliation Act of 1996

The Arbitration and Conciliation Act of 1996 is the legislative framework governing arbitration in India. This act was incorporated into the Indian constitution on January 25, 1996. It encompasses various facets of arbitration, including international commercial arbitration, domestic arbitration, and the enforcement of foreign arbitral awards.

Rooted in the UN model law, it aligns with the legal standards adopted by the United Nations Commission on International Trade Law (UNCITRAL). In essence, the Arbitration and Conciliation Act, 1996, marks a substantial improvement over its predecessors: the Arbitration Act of 1940, the Arbitration Act of 1937, and The Foreign Awards Act of 1961.

It derives its foundation from the UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL rules on conciliation. Refer to arbitration and conciliation act 1996 notes given below for your comprehensive preparation.

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Over the past six years, this legislation has undergone three amendments, in 2015, 2019, and 2021. The 2021 amendment was introduced to bring India's international arbitration law up to par with global standards. The Act serves as a comprehensive, unified legal framework for domestic arbitration, international commercial arbitration, and the enforcement of foreign arbitral awards. Additionally, it defines the legal principles governing conciliation.

The key objectives of the Arbitration and Conciliation Act are as follows:

  1. Comprehensive Coverage: The Act comprehensively addresses both international and domestic commercial arbitration and conciliation.
  2. Fair and Efficient Procedure: It establishes a fair, efficient, and society-serving procedure for arbitration and conciliation.
  3. Transparency: The Act mandates that the tribunal provides reasons for any arbitral award it grants.
  4. Jurisdiction Limitation: It ensures that the tribunal does not exceed its jurisdictional boundaries.
  5. Reduced Judicial Burden: The Act aims to minimize the involvement of courts and reduce the burden on the judiciary.
  6. Alternative Dispute Resolution (ADR): It enables the tribunal to opt for arbitration and conciliation as dispute resolution methods.
  7. Enforceability: The Act stipulates that every award is enforceable in the same manner as a court decree.
  8. Equivalence of Conciliation Agreements: It establishes that conciliation agreements reached by the parties have the same legal standing as awards granted by an arbitral tribunal.
  9. Enforcement of Foreign Awards: The Act also addresses the enforcement of foreign arbitral awards.

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Different Categories of Arbitration for your Judiciary Preparation:

  1. Domestic Arbitration: This refers to arbitration proceedings conducted under the jurisdiction of Indian laws, with the legal framework of India governing the process.
  2. International and Commercial Arbitration: These proceedings pertain to disputes arising from legal relationships where one of the involved parties is a foreign national, a foreign corporate entity, a company under the control of another country, or a government of a foreign nation.
  3. Institutional Arbitration: Institutional arbitration is administered by specialized arbitration organizations such as the Indian Council of Arbitration and the International Centre for Alternative Dispute Resolution (ICADR). These institutions oversee and facilitate arbitration processes.
  4. Statutory Arbitration: Some laws prescribe arbitration as the method for resolving disputes. In cases of inconsistency between any Act and Part I of the Arbitration Act, the provisions of the specific Act will take precedence.
  5. Ad Hoc Arbitration: Ad hoc arbitration occurs when parties agree to arbitrate without relying on an established arbitration institution or tribunal's assistance. They manage the arbitration process independently.
  6. Fast Track Arbitration (Documentary Arbitration): Fast track arbitration, also known as documentary arbitration, is characterized by rapid and time-efficient arbitration proceedings. It primarily relies on the claim statement presented by one party and the written reply provided by the other, expediting the process.
  7. Look–Sniff Arbitration: This unique form of arbitration combines the arbitral process with expert opinion. Unlike formal submissions and hearings, it involves sensory assessments and evaluations by experts.
  8. Flip–Flop Arbitration (Pendulum Arbitration): In this arbitration method, the involved parties present two case scenarios and invite the arbitrator to choose one of the two options. It allows for flexibility in resolving disputes by offering multiple solutions.

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Important Sections of Arbitration and Conciliation Act of 1996 for Judiciary examinations

Section 2
Section 3-23
Section 25 - 27
Section 29 A - 37
Section 42 - 43
Section 61 - 64
Section 74

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Notes of Arbitration and Conciliation Act of important sections

The Arbitration and Conciliation Act, 1996, encompasses several important provisions, which are organized into four main parts:

Part I (Sections 2-43): This section governs the place of arbitration within India, treating the award issued as a domestic award.

Part II (Sections 44-60): Part II deals with the enforcement of foreign awards.

Part III (Sections 61-81): This part pertains to the process of conciliation.

Part IV (Sections 82-86): Part IV contains supplementary provisions.

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Section 2 of the Arbitration and Conciliation Act of 1996 provides key definitions and interpretations of terms used throughout the Act. Here are some important notes regarding Section 2 of the Act:

  1. Definitions: Section 2 serves as the section containing crucial definitions, clarifying the meaning of various terms used in the Act. These definitions are fundamental to the proper interpretation and application of the legislation.
  2. Arbitration Agreement: The section defines an "arbitration agreement" as an agreement between parties to submit their disputes to arbitration. This is a core element of the Act, as it lays the foundation for arbitration proceedings.
  3. Arbitral Tribunal: The term "arbitral tribunal" refers to the person or panel of individuals responsible for arbitrating disputes. This includes a sole arbitrator, a panel of arbitrators, or an emergency arbitrator.
  4. Court: In the context of the Act, "court" is defined as the judicial authority that exercises jurisdiction in relation to arbitration proceedings. It clarifies the role of the judiciary in supporting and overseeing arbitration.
  5. International Commercial Arbitration: Section 2 provides a definition for "international commercial arbitration," specifying the criteria that a dispute must meet to be considered international. This is essential for distinguishing between domestic and international arbitration.
  6. Party: The term "party" is defined to include not only the actual participants in the arbitration agreement but also any persons claiming through or under them. This ensures a broad scope when determining who is bound by the arbitration agreement.
  7. Place of Arbitration: It defines the "place of arbitration," which is significant as it determines the legal framework applicable to the arbitration proceedings, including the arbitration law governing the process.
  8. Recognition and Enforcement: The section addresses the recognition and enforcement of foreign arbitral awards, defining the key terms and conditions related to this important aspect of international arbitration.
  9. Tribunal: The Act defines a "tribunal" broadly, encompassing both arbitral tribunals and authorities appointed by the judiciary for arbitration-related matters.
  10. UNCITRAL Model Law: Section 2 recognizes the importance of the United Nations Commission on International Trade Law (UNCITRAL) Model Law by referring to it in the definitions. The Model Law is a significant influence on the Act's framework.

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Section 3: Receipt of written communications:

(1) Unless otherwise agreed by the parties,- (a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and (b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

(2) The communication is deemed to have been received on the day it is so delivered. (3) This section does not apply to written communications in respect of proceedings of any judicial authority.

Section 3 of the Arbitration and Conciliation Act provides a default rule for determining when a written communication is deemed to have been received in the absence of any specific agreement to the contrary between the parties involved in an arbitration. The section presumes that written communications are received as follows:

a. Delivery to the Addressee: A written communication is considered received when it is physically delivered to the addressee, either in person or at their place of business, habitual residence, or mailing address.

b. Reasonable Inquiry: If none of the above-mentioned locations can be found after making a reasonable inquiry, the communication is deemed to be received when it is sent to the addressee's last known place of business, habitual residence, or mailing address. This must be done by registered letter or by any other means that provides a record of the attempt to deliver it.

Timing of Receipt: The section specifies that a communication is considered received on the day it is actually delivered according to the methods described in the section.

Exemption: It's important to note that Section 3 does not apply to written communications related to proceedings of any judicial authority. This means that the rules outlined in this section are specific to arbitration and not applicable to court proceedings.

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Section 4: Waiver of right to object-

A party who knows that: (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.

Explanation: 

If a party is aware that:

(a) There has been non-compliance with any provision in this Part from which the parties have the option to deviate, or (b) There has been a failure to meet a requirement as specified in the arbitration agreement,

And yet, that party continues with the arbitration without promptly raising an objection to such non-compliance, or, if a specific time limit is provided for raising such an objection, without doing so within that allotted time frame, that party shall be considered as having voluntarily forfeited their right to object.

Section 7 - Arbitration agreement:

According to Section 7 (2) arbitration agreement can be in the form of a clause in the main contract or it can be in the form of a separate agreement. The latter is called submission agreement. Generally arbitration agreements are in the form of a clause in the main contract.

Form of arbitration Agreement: The Act does not prescribe any particular form for an arbitration agreement apart from that it must be in writing. If it is not in writing it cannot be enforced.

An oral agreement to refer a dispute to arbitration is not competent. Section 7 (4) mentions the above mentioned agreement is considered to be in writing if it is contained in: a) a document signed by the parties; b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

The Supreme Court has held that the - statement of claim and defence‖ mentioned in Section 7 (4) (c) need not be the statement of claim and defence filed before the arbitrator and could be a stamen of claim and defence in any suit, petition or application filed before any court.

Section 8 - Power to Refer Parties to Arbitration Where there is an Arbitration Agreement:

When parties enter into an arbitration agreement, there is a positive obligation on their part to refer a dispute related to the said agreement to arbitration. Similarly an obligation is on the part of the national courts to decline jurisdiction or to refuse to entertain a matter which is a subject matter of an arbitration agreement between same parties.

The only situation where the court can refuse to do the same is if the arbitration agreement is if the court ―finds that, prima facie no valid arbitration agreement exists.‖ However a court will refer the matter to arbitration only if a party to the agreement asks the court to refer the matter to arbitration.

Also such an application must be accompained by the original arbitration agreement or a duly certified copy of the same. Furthermore such an application must be made by the said party before filing 20 his first statement on the substance of the dispute. Failure to do the same would amount to a waiver and allow the court to proceed.

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Section 9: Section 9 of the Arbitration and Conciliation Act, 1996, addresses the subject of interim relief during an arbitration proceeding. It allows any party to seek interim relief at three key junctures:

  1. Before Commencement: Prior to the initiation of the arbitration proceedings.
  2. During Proceedings: Throughout the course of the arbitration proceedings.
  3. Before Enforcement: After the issuance of the arbitral award but before its enforcement.

Section 9(1)(i): According to Section 9(1)(i) of the Act, an individual may submit an application to appoint a guardian for a minor or a person of unsound mind in the context of arbitral proceedings.

Section 9(1)(ii): Section 9(1)(ii) grants the Court or the adjudicating authority the broad authority to issue interim protective measures, which encompass various forms of relief.

Arbitrators

Determining the Number of Arbitrators: Parties are allowed to establish an agreement that adheres to the legal framework. Section 10 of the Act empowers parties to freely decide the number of arbitrators responsible for resolving their disputes. The only stipulation is that the number of arbitrators should not be even. If the parties are unable to reach a decision, a single arbitrator will be appointed. However, an agreement with an even number of arbitrators cannot be invalidated solely on this basis (Narayan Prasad Lohia v. Nikunj Kumar Lohia, 2002).

Procedure for Arbitrator Appointment: Section 11 of the Act prescribes the procedure for appointing arbitrators. The key requirements for such appointments include:

  • The appointing party must provide proper notice to the other party; failure to do so renders the appointment invalid.
  • The selected arbitrator must be duly informed and must provide consent before their appointment is finalized.
  • Consent must be secured before the appointment is confirmed.

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Furthermore, if the parties fail to appoint an arbitrator within 30 days of the request or if two arbitrators are appointed but the third one is not, the appointment will be made by the Chief Justice or a designated representative on his behalf, with the prior consent of the parties.

Termination of Arbitrator: Grounds for arbitrator termination are outlined in Section 14 and Section 15 of the Act. These include:

  • Inability to perform functions without undue delay (whether de jure or de facto).
  • Voluntary withdrawal or termination by the parties.
  • Termination when the arbitrator withdraws voluntarily or by mutual agreement of the parties.

Upon an arbitrator's termination, a substitute arbitrator will be appointed in accordance with Section 15.

Jurisdiction: Section 16 of the Act asserts that the tribunal shall operate within its jurisdiction. If the arbitral tribunal lacks jurisdiction, a plea may be raised, but it must be raised no later than when the statement of defense is submitted. The Act also allows parties dissatisfied with the arbitral award to file an application for setting it aside under Section 34 of the Act.

The Supreme Court, in the case of Centrotrade Minerals and Metals v. Hindustan Copper Ltd. (2006), affirmed that any issues related to jurisdiction may be raised by participants in the proceedings or external parties. However, if raised by a party, it must be addressed during the proceedings or at the outset.

Section 29A - Arbitral Award Time Limit: This section addresses the time limits for the completion of arbitral proceedings. It states that the award should be made within 12 months from the date the arbitral tribunal enters upon the reference. However, this time frame can be extended by the mutual consent of the parties.

Explanation:

(1) In cases other than those related to international commercial arbitration, the arbitral tribunal is required to issue its award within twelve months from the date when the pleadings under sub-section (4) of section 23 are concluded.

  • However, it's worth noting that in international commercial arbitration matters, every effort should be made to expedite the process, aiming to resolve the case within a twelve-month period from the conclusion of pleadings under sub-section (4) of section 23.

(2) If the award is issued within six months from the date the arbitral tribunal commences the proceedings, the tribunal may be entitled to receive additional fees as agreed upon by the parties.

(3) By mutual agreement, the parties can extend the time frame specified in sub-section (1) for making the award, but this extension cannot exceed six months.

(4) Should the award not be delivered within the period stipulated in sub-section (1) or the extended period permitted by sub-section (3), the mandate of the arbitrator(s) will terminate unless the Court, either before or after the specified period expires, grants an extension.

However, if the Court determines that the proceedings were delayed due to actions of the arbitral tribunal, it may order a reduction of the arbitrator(s)' fees, not exceeding five percent for each month of delay. Furthermore, if an application under sub-section (5) is pending, the arbitrator's mandate continues until the application is resolved, and the arbitrator must be given an opportunity to present their case before any fee reduction.

(5) The extension of the period mentioned in sub-section (4) may be requested by any party and granted only for valid reasons, subject to terms and conditions imposed by the Court.

(6) While extending the period as per sub-section (4), the Court has the authority to substitute one or all of the arbitrators. In such cases, the arbitral proceedings will resume from the stage already reached, based on the existing evidence and material. The newly appointed arbitrator(s) will be deemed to have reviewed the previously presented evidence and material.

(7) In situations where arbitrator(s) are appointed under this section, the reconstituted arbitral tribunal will be considered a continuation of the originally appointed arbitral tribunal.

(8) The Court has the discretion to impose actual or exemplary costs on any of the parties under this section.

(9) Applications filed under sub-section (5) should be handled by the Court as promptly as possible, with an effort to resolve the matter within sixty days from the date of notice being served on the opposing party.

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Section 30: This section deals with the extension of time for making the arbitral award. It allows the tribunal, with the agreement of the parties, to extend the time for making the award by a maximum of six months. If the award is not made within this extended period, the tribunal's mandate terminates, unless the parties agree otherwise.

(1) An arbitration agreement allows the arbitral tribunal to actively promote the settlement of a dispute. If the parties concur, the arbitral tribunal can employ mediation, conciliation, or other methods at any point during the arbitration proceedings to facilitate a resolution.

(2) In the event that the parties reach a settlement during the arbitration proceedings, the arbitral tribunal is obligated to conclude the proceedings. Upon the parties' request, and if not opposed by the tribunal, the terms of the settlement may be documented as an arbitral award.

(3) An arbitral award based on agreed terms is created in accordance with the procedures outlined in section 31 of the Act. The award expressly identifies itself as an arbitral award.

(4) An arbitral award formed on agreed terms holds the same standing and legal effect as any other arbitral award addressing the substance of the dispute.

Section 31: Section 31 outlines the form and content of the arbitral award. The award must be in writing and signed by the members of the tribunal. It should include the reasons for the decisions unless the parties have agreed to skip providing reasons.

Form and Contents of Arbitral Award

(1) An arbitral award must be documented in writing and bear the signatures of the members of the arbitral tribunal.

(2) In cases with multiple arbitrators, the signatures of the majority of all tribunal members are adequate, provided that any absent signature is explained.

(3) The arbitral award should provide the rationale for its decisions, unless: (a) The parties have mutually agreed that no reasons need to be provided, or (b) The award is an arbitral award based on agreed terms, as per Section 30 of the Act.

(4) The arbitral award must specify its date and the place of arbitration, determined in line with Section 20, with the award being deemed as issued at that location.

(5) Following the creation of the arbitral award, a signed copy must be delivered to each party involved.

(6) The arbitral tribunal retains the authority to issue interim arbitral awards on any matter that may be the subject of a final arbitral award, at any point during the arbitration proceedings.

(7) In cases where an arbitral award concerns monetary compensation, unless otherwise agreed by the parties, the arbitral tribunal may incorporate interest, at a reasonable rate, on the entire or a portion of the sum from the date when the cause of action arose to the date of the award.

  1. [b) If an arbitral award orders a specific payment, unless otherwise specified in the award, the payment will accrue interest at a rate two percent higher than the prevailing interest rate on the date of the award, from the award date to the payment date. Explanation: The term "current rate of interest" holds the same meaning as defined in clause (b) of section 2 of the Interest Act, 1978 (14 of 1978).]

  2. [(8) The expenses associated with an arbitration will be determined by the arbitral tribunal as per section 31A. Explanation: "Costs," as mentioned in clause (a), encompass reasonable expenses encompassing: (i) The fees and costs of the arbitrators and witnesses, (ii) Legal fees and costs, (iii) Any administrative fees of the overseeing institution for the arbitration, and (iv) Any other expenditures incurred during the course of the arbitration proceedings and the formulation of the arbitral award.]

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Section 31A: Discretion in Cost Determination

Section 31A(1) grants arbitral tribunals and courts the authority to exercise their discretion in determining costs concerning arbitral proceedings and court proceedings connected to arbitration under any provision of the 1996 Act.

It's noteworthy that while the previous Section 31(8)(a) mentioned "costs of an arbitration," the new provision uses the term "costs" exclusively.

The Explanation to Section 31A(1) maintains the same definition ascribed to 'costs' in the earlier provision, i.e., the Explanation to Section 31(8). In the context of Section 31A, 'costs' refer to reasonable expenses associated with:

  • Fees and expenses of arbitrators, courts, and witnesses,
  • Legal fees and expenses,
  • Administrative fees of the institution overseeing the arbitration,
  • Any other expenditures incurred during the arbitration or court proceedings and the formulation of the arbitral award.

The sole difference between the former provision found in Section 31(8) explaining the meaning of costs and the Explanation to Section 31(A)(1) is the inclusion of the term "Court" in clauses (i) and (iv). The phrase "...fees and expenses of...Courts..." presumably encompasses court fees. Similarly, when calculating costs, any other expenses related to court proceedings must also be taken into account.

Section 32: Section 32 addresses the termination of proceedings. It states that the arbitral tribunal can terminate the proceedings when the claimant withdraws the claim, or the parties agree on the termination.

Section 33: This section allows for corrections and interpretation of the award. Parties can request the tribunal to correct any errors or provide explanations on certain points of the award.

Section 34: Section 34 provides the grounds for setting aside an arbitral award. It includes grounds like incapacity, invalid arbitration agreement, due process violation, jurisdictional errors, and public policy violation. The court may set aside an award if any of these grounds are established.

Section 35: This section deals with the finality and enforcement of the award. An arbitral award is considered final and binding on the parties, and it shall be enforced as a decree of the court.

Section 36: Section 36 of the Act deals with the enforcement of the award. Once the time limit for challenging the award under Section 34 has expired, or after the court has refused to set aside the award, the award becomes enforceable. It can be enforced in the same manner as a decree of the court.

Section 37: Section 37 provides for the appeal against the arbitral award. An appeal can be made to a higher court against an order of the court refusing to set aside the award or against an order enforcing the award.

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Arbitral award 

It is a final determination of a claim or a part of it or a counter-claim awarded by the arbitral tribunal. It must be written and duly signed by the members of the arbitral tribunal as given under Section 31 of the Act.

The Section further gives the power to the tribunal to make interim awards for any matter. In case of payment of money, it can award the interest which seems reasonable, just and fair to the tribunal. 

Section 32 of the Act empowers the arbitral tribunal to terminate the proceedings by making a final arbitral award.

The procedure for any correction in the award or its interpretation is given under Section 33 of the Act. It also gives the power to the tribunal or the arbitrator to amend, correct or remove any errors of any kind within 30 days but is silent on judicial review. The tribunals cannot exercise their jurisdiction beyond whatever has been mentioned in this section. 

Types of arbitral awards

  1. Interim award – It is the determination of any issue arising out of the main dispute. It is a temporary arrangement to satisfy a party and is subject to the final award. 
  2. Additional award – According to Section 33 of the Act, if the parties find that certain claims have been missed out by the arbitral tribunal and they were present in the proceedings then it can after notifying other parties, make a request to the arbitral tribunal to make an additional award and cover the claims which have been left. 
  3. Settlement awards – It is made if the parties agree on certain terms of the settlement. As per Section 30 of the Act, the arbitral tribunal may use any method of dispute resolution like mediation, conciliation or negotiation to bring a settlement between the parties. 
  4. Final award – It is an award which finally determines all the issues in a dispute. It is conclusive unless set aside by courts and binding on the parties. 

Recourse against arbitral awards

Under Section 34 of the Act, a party if not satisfied can make an application to set aside the award granted by an arbitral tribunal. The time limit to make such an application is not more than 3 months from the date the arbitral award was made. The grounds are:

  • Incapacity of parties.
  • Non-existence of the agreement of arbitration.
  • Did not follow the due process. 
  • Error on the part of the arbitral tribunal to exercise its jurisdiction. 
  • Improper composition of the arbitral tribunal.
  • The subject matter is not capable of being referred to arbitration. 
  • It is against public policy. 
  • Fraud or corruption.

Section 37 of the Act provides that if a person is not satisfied with the order passed by the tribunal, he/she can appeal to the court.  However, there are no provisions for a second appeal once an appeal has been made. In the case of Pandey and Co. Builders Pvt. Ltd. v. State of Bihar (2007), it was held that the appellate authority in any case which is referred to arbitration must be decided from the definition of court given under Section 2 of the Act. 

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Section 42 - Jurisdiction:

Section 42 is designed to centralize jurisdiction in one specific court, preventing jurisdictional conflicts in cases related to arbitration. In situations where no clear "seat" is designated by agreement or where the designated "seat" functions primarily as a convenient location rather than a true jurisdiction, multiple courts may have potential jurisdiction.

Additionally, when parties have not yet agreed on the "seat" of arbitration, and the Arbitral Tribunal has not determined it under Section 20(2) in a specific case, an application under Section 9 may be filed in a court where part of the cause of action has arisen.

Section 42 remains effective and relevant because once the "seat" is designated, it operates as an exclusive jurisdiction clause. In the field of arbitration law, the term "seat" represents a concept that allows parties to choose a neutral venue for their arbitration proceedings.

This neutral venue may not have traditional jurisdiction, meaning that none of the relevant events may have occurred there, and the provisions of the Code of Civil Procedure, which apply to court cases, may not apply.

In State of West Bengal v. Associated Contractors, AIR 2015 SC 260 (3 J) it has been held that firstly the Court where first application was filed must have jurisdiction and secondly even if the first application was under Section 9 for interim relief before start of arbitration, still subsequent applications like Section 34 application will have to be filed there.

However, it was clarified that High Court or Supreme Court while appointing arbitrator under Section 11(6) or the judicial authority/Civil Court which refers the parties to arbitration under Section 8 is not Court as defined under section 2(1)(e) of A&C Act, hence, subsequent applications are not to be filed before such Courts as they are not covered by section 42.

Section 43: Limitation

As by virtue of Section 43 of Arbitration and Conciliation Act 1996, Limitation Act applies to arbitration proceedings hence delay in filing appeal may be condoned on sufficient cause under section 5, Limitation Act.

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Section 75- Confidentiality:

Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Disputes may involve certain details which parties would not want to come into the public domain or want to keep confidential. As arbitration unlike courts happen privately i.e. no outsider is allowed to witness the proceedings it enables such details to remain confidential.

Arbitration and Conciliation Act 1996 MCQ questions for practice

After you study from arbitration and conciliation act notes, here are some multiple-choice questions (MCQs) based on the Arbitration and Conciliation Act, 1996, for practice:

  • In the Arbitration and Conciliation Act, 1996, which part pertains to the enforcement of foreign awards?

  1. Part I
  2. Part II
  3. Part III
  4. Part IV
  • When does the time limit for making an arbitral award in non-international commercial arbitration begin, according to Section 29A of the Act?

  1. From the date of the agreement to arbitrate
  2. From the date of filing the arbitration application
  3. From the date of completion of pleadings
  4. From the date of the first arbitration hearing
  • Which section of the Act allows parties to encourage settlement during arbitral proceedings using mediation, conciliation, or other procedures?

  1. Section 28
  2. Section 31
  3. Section 34
  4. Section 42
  • What is the time limit for filing an application to set aside an arbitral award under Section 34 of the Act?

  1. 90 days from the date of the award
  2. 120 days from the date of the award
  3. 60 days from the date of the award
  4. 180 days from the date of the award
  • In cases where parties have not agreed on the "seat" of arbitration, how is the "seat" typically determined?

  1. By the Chief Justice of the Supreme Court
  2. By the Arbitral Tribunal
  3. By the parties themselves
  4. By the court in the jurisdiction where the arbitration proceedings are initiated
  • Section 9 of the Act deals with:

  1. Jurisdiction of Courts in arbitration matters
  2. the enforcement of foreign arbitral awards
  3. Interim relief in arbitration proceedings
  4. The composition of the arbitral tribunal
  • Under the Act, what is an "arbitral award on agreed terms"?

  1. An award issued by the court
  2. An award agreed upon by the parties
  3. An award issued without reasons
  4. An award for international commercial arbitration
  • What is the term used in the Act to refer to the concept of selecting a neutral venue for arbitration proceedings?

  1. Seat
  2. Venue
  3. Jurisdiction
  4. Settlement

Answers:

  1. b) Part II
  2. c) From the date of completion of pleadings
  3. a) Section 28
  4. a) 90 days from the date of the award
  5. d) By the court in the jurisdiction where the arbitration proceedings are initiated
  6. c) Interim relief in arbitration proceedings
  7. b) An award agreed upon by the parties
  8. a) Seat

How to make your own Notes for Arbitration and Conciliation Act 1996:

Creating your own Arbitration and Conciliation Act Notes1996 or any legal subject can be a helpful way to understand and retain important information. Here's a step-by-step guide on how to make your own notes:

  1. Start with reading the Bare Act and highlight the important sections as per your understanding.
  2. Pick previous year question papers and mark all the sections that have been asked previously once or multiple time. You also have to highlight the sections mentioned above and in the short notes document.
  3. Read and understand all the sections and try putting them into small pointers.
  4. Write down those pointer and support these sections with case laws and illustrations.
  5. Reach out to your teachers and mentors when you feel that you have a confusion.

Conclusion:

The Arbitration and Conciliation Act, 1996 is an important legislation in India that governs the arbitration process, the conduct of arbitral proceedings, and the enforcement of arbitral awards. It was enacted to provide a legal framework for the fair and efficient resolution of disputes through arbitration and conciliation. For your judiciary preparation read it from arbitration and conciliation act notes that you make or provided to you in this blog.

It is an essential topic for judiciary exams in India, as it deals with alternative dispute resolution methods and the role of the judiciary in arbitral proceedings.

  • Arbitration is a process in which disputes are resolved by one or more arbitrators who make a binding decision called an arbitral award.
  • Conciliation involves a neutral third party (the conciliator) who assists the parties in reaching a mutually agreed settlement.
  • Understand key terms like "arbitration agreement," "arbitral tribunal," "award," "conciliation," and "conciliation agreement."
  • Part I of the Act deals with domestic arbitration, while Part II deals with the enforcement of foreign arbitral awards.
  • Know the provisions regarding the jurisdiction of courts in arbitration matters.
  • Familiarize yourself with the concept of the "seat" of arbitration and its significance.
  • Understand the procedure for the appointment of arbitrators, their powers, and the grounds for challenging their appointment.
  • Learn the requirements for a valid arbitral award, including its form, contents, and the power of the tribunal to grant interim awards.
  • Understand the process of conciliation, the role of the conciliator, and the enforceability of settlement agreements reached through conciliation.
  • Familiarize yourself with significant judicial decisions related to the Act, as court rulings often interpret and clarify its provisions.

Understanding the Arbitration and Conciliation Act, 1996, is crucial for judiciary exams as it deals with an essential aspect of civil dispute resolution. Make sure to study the Act thoroughly, including its provisions and practical applications in arbitration and conciliation processes.

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Arbitration and Conciliation Act Notes for Judiciary [Download PDF]

Author : Yogricha

February 19, 2024

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Overview: Arbitration and Conciliation Act notes are important for all the Judiciary Aspirants who are targetting Delhi Judiciary, Bihar Judiciary, Jharkhand Judiciary, Tamil Nadu Judiciary, etc.

You must make notes from the first day of your preparation to ensure that your preparation is complete and use the notes given by Judiciary Gold's faculty in this article, also refer to the important sections mentioned in this article.

We have made a comprehensive list of all the sections that have been previously asked in judiciary exams for you. You can directly focus on all the sections mentioned below and make notes accordingly by referring to the short notes document by Judiciary Gold.

In this article we will cover:

  • Objective of Arbitration and Conciliation Act of 1996
  • Important Sections for Judiciary examinations.
  • Notes of Arbitration and Conciliation Act of important sections
  • MCQ questions for practice
  • How to make your own notes for Judiciary Preparation

Objective of Arbitration and Conciliation Act of 1996

The Arbitration and Conciliation Act of 1996 is the legislative framework governing arbitration in India. This act was incorporated into the Indian constitution on January 25, 1996. It encompasses various facets of arbitration, including international commercial arbitration, domestic arbitration, and the enforcement of foreign arbitral awards.

Rooted in the UN model law, it aligns with the legal standards adopted by the United Nations Commission on International Trade Law (UNCITRAL). In essence, the Arbitration and Conciliation Act, 1996, marks a substantial improvement over its predecessors: the Arbitration Act of 1940, the Arbitration Act of 1937, and The Foreign Awards Act of 1961.

It derives its foundation from the UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL rules on conciliation. Refer to arbitration and conciliation act 1996 notes given below for your comprehensive preparation.

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Over the past six years, this legislation has undergone three amendments, in 2015, 2019, and 2021. The 2021 amendment was introduced to bring India's international arbitration law up to par with global standards. The Act serves as a comprehensive, unified legal framework for domestic arbitration, international commercial arbitration, and the enforcement of foreign arbitral awards. Additionally, it defines the legal principles governing conciliation.

The key objectives of the Arbitration and Conciliation Act are as follows:

  1. Comprehensive Coverage: The Act comprehensively addresses both international and domestic commercial arbitration and conciliation.
  2. Fair and Efficient Procedure: It establishes a fair, efficient, and society-serving procedure for arbitration and conciliation.
  3. Transparency: The Act mandates that the tribunal provides reasons for any arbitral award it grants.
  4. Jurisdiction Limitation: It ensures that the tribunal does not exceed its jurisdictional boundaries.
  5. Reduced Judicial Burden: The Act aims to minimize the involvement of courts and reduce the burden on the judiciary.
  6. Alternative Dispute Resolution (ADR): It enables the tribunal to opt for arbitration and conciliation as dispute resolution methods.
  7. Enforceability: The Act stipulates that every award is enforceable in the same manner as a court decree.
  8. Equivalence of Conciliation Agreements: It establishes that conciliation agreements reached by the parties have the same legal standing as awards granted by an arbitral tribunal.
  9. Enforcement of Foreign Awards: The Act also addresses the enforcement of foreign arbitral awards.

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Different Categories of Arbitration for your Judiciary Preparation:

  1. Domestic Arbitration: This refers to arbitration proceedings conducted under the jurisdiction of Indian laws, with the legal framework of India governing the process.
  2. International and Commercial Arbitration: These proceedings pertain to disputes arising from legal relationships where one of the involved parties is a foreign national, a foreign corporate entity, a company under the control of another country, or a government of a foreign nation.
  3. Institutional Arbitration: Institutional arbitration is administered by specialized arbitration organizations such as the Indian Council of Arbitration and the International Centre for Alternative Dispute Resolution (ICADR). These institutions oversee and facilitate arbitration processes.
  4. Statutory Arbitration: Some laws prescribe arbitration as the method for resolving disputes. In cases of inconsistency between any Act and Part I of the Arbitration Act, the provisions of the specific Act will take precedence.
  5. Ad Hoc Arbitration: Ad hoc arbitration occurs when parties agree to arbitrate without relying on an established arbitration institution or tribunal's assistance. They manage the arbitration process independently.
  6. Fast Track Arbitration (Documentary Arbitration): Fast track arbitration, also known as documentary arbitration, is characterized by rapid and time-efficient arbitration proceedings. It primarily relies on the claim statement presented by one party and the written reply provided by the other, expediting the process.
  7. Look–Sniff Arbitration: This unique form of arbitration combines the arbitral process with expert opinion. Unlike formal submissions and hearings, it involves sensory assessments and evaluations by experts.
  8. Flip–Flop Arbitration (Pendulum Arbitration): In this arbitration method, the involved parties present two case scenarios and invite the arbitrator to choose one of the two options. It allows for flexibility in resolving disputes by offering multiple solutions.

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Important Sections of Arbitration and Conciliation Act of 1996 for Judiciary examinations

Section 2
Section 3-23
Section 25 - 27
Section 29 A - 37
Section 42 - 43
Section 61 - 64
Section 74

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Notes of Arbitration and Conciliation Act of important sections

The Arbitration and Conciliation Act, 1996, encompasses several important provisions, which are organized into four main parts:

Part I (Sections 2-43): This section governs the place of arbitration within India, treating the award issued as a domestic award.

Part II (Sections 44-60): Part II deals with the enforcement of foreign awards.

Part III (Sections 61-81): This part pertains to the process of conciliation.

Part IV (Sections 82-86): Part IV contains supplementary provisions.

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Section 2 of the Arbitration and Conciliation Act of 1996 provides key definitions and interpretations of terms used throughout the Act. Here are some important notes regarding Section 2 of the Act:

  1. Definitions: Section 2 serves as the section containing crucial definitions, clarifying the meaning of various terms used in the Act. These definitions are fundamental to the proper interpretation and application of the legislation.
  2. Arbitration Agreement: The section defines an "arbitration agreement" as an agreement between parties to submit their disputes to arbitration. This is a core element of the Act, as it lays the foundation for arbitration proceedings.
  3. Arbitral Tribunal: The term "arbitral tribunal" refers to the person or panel of individuals responsible for arbitrating disputes. This includes a sole arbitrator, a panel of arbitrators, or an emergency arbitrator.
  4. Court: In the context of the Act, "court" is defined as the judicial authority that exercises jurisdiction in relation to arbitration proceedings. It clarifies the role of the judiciary in supporting and overseeing arbitration.
  5. International Commercial Arbitration: Section 2 provides a definition for "international commercial arbitration," specifying the criteria that a dispute must meet to be considered international. This is essential for distinguishing between domestic and international arbitration.
  6. Party: The term "party" is defined to include not only the actual participants in the arbitration agreement but also any persons claiming through or under them. This ensures a broad scope when determining who is bound by the arbitration agreement.
  7. Place of Arbitration: It defines the "place of arbitration," which is significant as it determines the legal framework applicable to the arbitration proceedings, including the arbitration law governing the process.
  8. Recognition and Enforcement: The section addresses the recognition and enforcement of foreign arbitral awards, defining the key terms and conditions related to this important aspect of international arbitration.
  9. Tribunal: The Act defines a "tribunal" broadly, encompassing both arbitral tribunals and authorities appointed by the judiciary for arbitration-related matters.
  10. UNCITRAL Model Law: Section 2 recognizes the importance of the United Nations Commission on International Trade Law (UNCITRAL) Model Law by referring to it in the definitions. The Model Law is a significant influence on the Act's framework.

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Section 3: Receipt of written communications:

(1) Unless otherwise agreed by the parties,- (a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and (b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

(2) The communication is deemed to have been received on the day it is so delivered. (3) This section does not apply to written communications in respect of proceedings of any judicial authority.

Section 3 of the Arbitration and Conciliation Act provides a default rule for determining when a written communication is deemed to have been received in the absence of any specific agreement to the contrary between the parties involved in an arbitration. The section presumes that written communications are received as follows:

a. Delivery to the Addressee: A written communication is considered received when it is physically delivered to the addressee, either in person or at their place of business, habitual residence, or mailing address.

b. Reasonable Inquiry: If none of the above-mentioned locations can be found after making a reasonable inquiry, the communication is deemed to be received when it is sent to the addressee's last known place of business, habitual residence, or mailing address. This must be done by registered letter or by any other means that provides a record of the attempt to deliver it.

Timing of Receipt: The section specifies that a communication is considered received on the day it is actually delivered according to the methods described in the section.

Exemption: It's important to note that Section 3 does not apply to written communications related to proceedings of any judicial authority. This means that the rules outlined in this section are specific to arbitration and not applicable to court proceedings.

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Section 4: Waiver of right to object-

A party who knows that: (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.

Explanation: 

If a party is aware that:

(a) There has been non-compliance with any provision in this Part from which the parties have the option to deviate, or (b) There has been a failure to meet a requirement as specified in the arbitration agreement,

And yet, that party continues with the arbitration without promptly raising an objection to such non-compliance, or, if a specific time limit is provided for raising such an objection, without doing so within that allotted time frame, that party shall be considered as having voluntarily forfeited their right to object.

Section 7 - Arbitration agreement:

According to Section 7 (2) arbitration agreement can be in the form of a clause in the main contract or it can be in the form of a separate agreement. The latter is called submission agreement. Generally arbitration agreements are in the form of a clause in the main contract.

Form of arbitration Agreement: The Act does not prescribe any particular form for an arbitration agreement apart from that it must be in writing. If it is not in writing it cannot be enforced.

An oral agreement to refer a dispute to arbitration is not competent. Section 7 (4) mentions the above mentioned agreement is considered to be in writing if it is contained in: a) a document signed by the parties; b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

The Supreme Court has held that the - statement of claim and defence‖ mentioned in Section 7 (4) (c) need not be the statement of claim and defence filed before the arbitrator and could be a stamen of claim and defence in any suit, petition or application filed before any court.

Section 8 - Power to Refer Parties to Arbitration Where there is an Arbitration Agreement:

When parties enter into an arbitration agreement, there is a positive obligation on their part to refer a dispute related to the said agreement to arbitration. Similarly an obligation is on the part of the national courts to decline jurisdiction or to refuse to entertain a matter which is a subject matter of an arbitration agreement between same parties.

The only situation where the court can refuse to do the same is if the arbitration agreement is if the court ―finds that, prima facie no valid arbitration agreement exists.‖ However a court will refer the matter to arbitration only if a party to the agreement asks the court to refer the matter to arbitration.

Also such an application must be accompained by the original arbitration agreement or a duly certified copy of the same. Furthermore such an application must be made by the said party before filing 20 his first statement on the substance of the dispute. Failure to do the same would amount to a waiver and allow the court to proceed.

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Section 9: Section 9 of the Arbitration and Conciliation Act, 1996, addresses the subject of interim relief during an arbitration proceeding. It allows any party to seek interim relief at three key junctures:

  1. Before Commencement: Prior to the initiation of the arbitration proceedings.
  2. During Proceedings: Throughout the course of the arbitration proceedings.
  3. Before Enforcement: After the issuance of the arbitral award but before its enforcement.

Section 9(1)(i): According to Section 9(1)(i) of the Act, an individual may submit an application to appoint a guardian for a minor or a person of unsound mind in the context of arbitral proceedings.

Section 9(1)(ii): Section 9(1)(ii) grants the Court or the adjudicating authority the broad authority to issue interim protective measures, which encompass various forms of relief.

Arbitrators

Determining the Number of Arbitrators: Parties are allowed to establish an agreement that adheres to the legal framework. Section 10 of the Act empowers parties to freely decide the number of arbitrators responsible for resolving their disputes. The only stipulation is that the number of arbitrators should not be even. If the parties are unable to reach a decision, a single arbitrator will be appointed. However, an agreement with an even number of arbitrators cannot be invalidated solely on this basis (Narayan Prasad Lohia v. Nikunj Kumar Lohia, 2002).

Procedure for Arbitrator Appointment: Section 11 of the Act prescribes the procedure for appointing arbitrators. The key requirements for such appointments include:

  • The appointing party must provide proper notice to the other party; failure to do so renders the appointment invalid.
  • The selected arbitrator must be duly informed and must provide consent before their appointment is finalized.
  • Consent must be secured before the appointment is confirmed.

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Furthermore, if the parties fail to appoint an arbitrator within 30 days of the request or if two arbitrators are appointed but the third one is not, the appointment will be made by the Chief Justice or a designated representative on his behalf, with the prior consent of the parties.

Termination of Arbitrator: Grounds for arbitrator termination are outlined in Section 14 and Section 15 of the Act. These include:

  • Inability to perform functions without undue delay (whether de jure or de facto).
  • Voluntary withdrawal or termination by the parties.
  • Termination when the arbitrator withdraws voluntarily or by mutual agreement of the parties.

Upon an arbitrator's termination, a substitute arbitrator will be appointed in accordance with Section 15.

Jurisdiction: Section 16 of the Act asserts that the tribunal shall operate within its jurisdiction. If the arbitral tribunal lacks jurisdiction, a plea may be raised, but it must be raised no later than when the statement of defense is submitted. The Act also allows parties dissatisfied with the arbitral award to file an application for setting it aside under Section 34 of the Act.

The Supreme Court, in the case of Centrotrade Minerals and Metals v. Hindustan Copper Ltd. (2006), affirmed that any issues related to jurisdiction may be raised by participants in the proceedings or external parties. However, if raised by a party, it must be addressed during the proceedings or at the outset.

Section 29A - Arbitral Award Time Limit: This section addresses the time limits for the completion of arbitral proceedings. It states that the award should be made within 12 months from the date the arbitral tribunal enters upon the reference. However, this time frame can be extended by the mutual consent of the parties.

Explanation:

(1) In cases other than those related to international commercial arbitration, the arbitral tribunal is required to issue its award within twelve months from the date when the pleadings under sub-section (4) of section 23 are concluded.

  • However, it's worth noting that in international commercial arbitration matters, every effort should be made to expedite the process, aiming to resolve the case within a twelve-month period from the conclusion of pleadings under sub-section (4) of section 23.

(2) If the award is issued within six months from the date the arbitral tribunal commences the proceedings, the tribunal may be entitled to receive additional fees as agreed upon by the parties.

(3) By mutual agreement, the parties can extend the time frame specified in sub-section (1) for making the award, but this extension cannot exceed six months.

(4) Should the award not be delivered within the period stipulated in sub-section (1) or the extended period permitted by sub-section (3), the mandate of the arbitrator(s) will terminate unless the Court, either before or after the specified period expires, grants an extension.

However, if the Court determines that the proceedings were delayed due to actions of the arbitral tribunal, it may order a reduction of the arbitrator(s)' fees, not exceeding five percent for each month of delay. Furthermore, if an application under sub-section (5) is pending, the arbitrator's mandate continues until the application is resolved, and the arbitrator must be given an opportunity to present their case before any fee reduction.

(5) The extension of the period mentioned in sub-section (4) may be requested by any party and granted only for valid reasons, subject to terms and conditions imposed by the Court.

(6) While extending the period as per sub-section (4), the Court has the authority to substitute one or all of the arbitrators. In such cases, the arbitral proceedings will resume from the stage already reached, based on the existing evidence and material. The newly appointed arbitrator(s) will be deemed to have reviewed the previously presented evidence and material.

(7) In situations where arbitrator(s) are appointed under this section, the reconstituted arbitral tribunal will be considered a continuation of the originally appointed arbitral tribunal.

(8) The Court has the discretion to impose actual or exemplary costs on any of the parties under this section.

(9) Applications filed under sub-section (5) should be handled by the Court as promptly as possible, with an effort to resolve the matter within sixty days from the date of notice being served on the opposing party.

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Section 30: This section deals with the extension of time for making the arbitral award. It allows the tribunal, with the agreement of the parties, to extend the time for making the award by a maximum of six months. If the award is not made within this extended period, the tribunal's mandate terminates, unless the parties agree otherwise.

(1) An arbitration agreement allows the arbitral tribunal to actively promote the settlement of a dispute. If the parties concur, the arbitral tribunal can employ mediation, conciliation, or other methods at any point during the arbitration proceedings to facilitate a resolution.

(2) In the event that the parties reach a settlement during the arbitration proceedings, the arbitral tribunal is obligated to conclude the proceedings. Upon the parties' request, and if not opposed by the tribunal, the terms of the settlement may be documented as an arbitral award.

(3) An arbitral award based on agreed terms is created in accordance with the procedures outlined in section 31 of the Act. The award expressly identifies itself as an arbitral award.

(4) An arbitral award formed on agreed terms holds the same standing and legal effect as any other arbitral award addressing the substance of the dispute.

Section 31: Section 31 outlines the form and content of the arbitral award. The award must be in writing and signed by the members of the tribunal. It should include the reasons for the decisions unless the parties have agreed to skip providing reasons.

Form and Contents of Arbitral Award

(1) An arbitral award must be documented in writing and bear the signatures of the members of the arbitral tribunal.

(2) In cases with multiple arbitrators, the signatures of the majority of all tribunal members are adequate, provided that any absent signature is explained.

(3) The arbitral award should provide the rationale for its decisions, unless: (a) The parties have mutually agreed that no reasons need to be provided, or (b) The award is an arbitral award based on agreed terms, as per Section 30 of the Act.

(4) The arbitral award must specify its date and the place of arbitration, determined in line with Section 20, with the award being deemed as issued at that location.

(5) Following the creation of the arbitral award, a signed copy must be delivered to each party involved.

(6) The arbitral tribunal retains the authority to issue interim arbitral awards on any matter that may be the subject of a final arbitral award, at any point during the arbitration proceedings.

(7) In cases where an arbitral award concerns monetary compensation, unless otherwise agreed by the parties, the arbitral tribunal may incorporate interest, at a reasonable rate, on the entire or a portion of the sum from the date when the cause of action arose to the date of the award.

  1. [b) If an arbitral award orders a specific payment, unless otherwise specified in the award, the payment will accrue interest at a rate two percent higher than the prevailing interest rate on the date of the award, from the award date to the payment date. Explanation: The term "current rate of interest" holds the same meaning as defined in clause (b) of section 2 of the Interest Act, 1978 (14 of 1978).]

  2. [(8) The expenses associated with an arbitration will be determined by the arbitral tribunal as per section 31A. Explanation: "Costs," as mentioned in clause (a), encompass reasonable expenses encompassing: (i) The fees and costs of the arbitrators and witnesses, (ii) Legal fees and costs, (iii) Any administrative fees of the overseeing institution for the arbitration, and (iv) Any other expenditures incurred during the course of the arbitration proceedings and the formulation of the arbitral award.]

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Section 31A: Discretion in Cost Determination

Section 31A(1) grants arbitral tribunals and courts the authority to exercise their discretion in determining costs concerning arbitral proceedings and court proceedings connected to arbitration under any provision of the 1996 Act.

It's noteworthy that while the previous Section 31(8)(a) mentioned "costs of an arbitration," the new provision uses the term "costs" exclusively.

The Explanation to Section 31A(1) maintains the same definition ascribed to 'costs' in the earlier provision, i.e., the Explanation to Section 31(8). In the context of Section 31A, 'costs' refer to reasonable expenses associated with:

  • Fees and expenses of arbitrators, courts, and witnesses,
  • Legal fees and expenses,
  • Administrative fees of the institution overseeing the arbitration,
  • Any other expenditures incurred during the arbitration or court proceedings and the formulation of the arbitral award.

The sole difference between the former provision found in Section 31(8) explaining the meaning of costs and the Explanation to Section 31(A)(1) is the inclusion of the term "Court" in clauses (i) and (iv). The phrase "...fees and expenses of...Courts..." presumably encompasses court fees. Similarly, when calculating costs, any other expenses related to court proceedings must also be taken into account.

Section 32: Section 32 addresses the termination of proceedings. It states that the arbitral tribunal can terminate the proceedings when the claimant withdraws the claim, or the parties agree on the termination.

Section 33: This section allows for corrections and interpretation of the award. Parties can request the tribunal to correct any errors or provide explanations on certain points of the award.

Section 34: Section 34 provides the grounds for setting aside an arbitral award. It includes grounds like incapacity, invalid arbitration agreement, due process violation, jurisdictional errors, and public policy violation. The court may set aside an award if any of these grounds are established.

Section 35: This section deals with the finality and enforcement of the award. An arbitral award is considered final and binding on the parties, and it shall be enforced as a decree of the court.

Section 36: Section 36 of the Act deals with the enforcement of the award. Once the time limit for challenging the award under Section 34 has expired, or after the court has refused to set aside the award, the award becomes enforceable. It can be enforced in the same manner as a decree of the court.

Section 37: Section 37 provides for the appeal against the arbitral award. An appeal can be made to a higher court against an order of the court refusing to set aside the award or against an order enforcing the award.

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Arbitral award 

It is a final determination of a claim or a part of it or a counter-claim awarded by the arbitral tribunal. It must be written and duly signed by the members of the arbitral tribunal as given under Section 31 of the Act.

The Section further gives the power to the tribunal to make interim awards for any matter. In case of payment of money, it can award the interest which seems reasonable, just and fair to the tribunal. 

Section 32 of the Act empowers the arbitral tribunal to terminate the proceedings by making a final arbitral award.

The procedure for any correction in the award or its interpretation is given under Section 33 of the Act. It also gives the power to the tribunal or the arbitrator to amend, correct or remove any errors of any kind within 30 days but is silent on judicial review. The tribunals cannot exercise their jurisdiction beyond whatever has been mentioned in this section. 

Types of arbitral awards

  1. Interim award – It is the determination of any issue arising out of the main dispute. It is a temporary arrangement to satisfy a party and is subject to the final award. 
  2. Additional award – According to Section 33 of the Act, if the parties find that certain claims have been missed out by the arbitral tribunal and they were present in the proceedings then it can after notifying other parties, make a request to the arbitral tribunal to make an additional award and cover the claims which have been left. 
  3. Settlement awards – It is made if the parties agree on certain terms of the settlement. As per Section 30 of the Act, the arbitral tribunal may use any method of dispute resolution like mediation, conciliation or negotiation to bring a settlement between the parties. 
  4. Final award – It is an award which finally determines all the issues in a dispute. It is conclusive unless set aside by courts and binding on the parties. 

Recourse against arbitral awards

Under Section 34 of the Act, a party if not satisfied can make an application to set aside the award granted by an arbitral tribunal. The time limit to make such an application is not more than 3 months from the date the arbitral award was made. The grounds are:

  • Incapacity of parties.
  • Non-existence of the agreement of arbitration.
  • Did not follow the due process. 
  • Error on the part of the arbitral tribunal to exercise its jurisdiction. 
  • Improper composition of the arbitral tribunal.
  • The subject matter is not capable of being referred to arbitration. 
  • It is against public policy. 
  • Fraud or corruption.

Section 37 of the Act provides that if a person is not satisfied with the order passed by the tribunal, he/she can appeal to the court.  However, there are no provisions for a second appeal once an appeal has been made. In the case of Pandey and Co. Builders Pvt. Ltd. v. State of Bihar (2007), it was held that the appellate authority in any case which is referred to arbitration must be decided from the definition of court given under Section 2 of the Act. 

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Section 42 - Jurisdiction:

Section 42 is designed to centralize jurisdiction in one specific court, preventing jurisdictional conflicts in cases related to arbitration. In situations where no clear "seat" is designated by agreement or where the designated "seat" functions primarily as a convenient location rather than a true jurisdiction, multiple courts may have potential jurisdiction.

Additionally, when parties have not yet agreed on the "seat" of arbitration, and the Arbitral Tribunal has not determined it under Section 20(2) in a specific case, an application under Section 9 may be filed in a court where part of the cause of action has arisen.

Section 42 remains effective and relevant because once the "seat" is designated, it operates as an exclusive jurisdiction clause. In the field of arbitration law, the term "seat" represents a concept that allows parties to choose a neutral venue for their arbitration proceedings.

This neutral venue may not have traditional jurisdiction, meaning that none of the relevant events may have occurred there, and the provisions of the Code of Civil Procedure, which apply to court cases, may not apply.

In State of West Bengal v. Associated Contractors, AIR 2015 SC 260 (3 J) it has been held that firstly the Court where first application was filed must have jurisdiction and secondly even if the first application was under Section 9 for interim relief before start of arbitration, still subsequent applications like Section 34 application will have to be filed there.

However, it was clarified that High Court or Supreme Court while appointing arbitrator under Section 11(6) or the judicial authority/Civil Court which refers the parties to arbitration under Section 8 is not Court as defined under section 2(1)(e) of A&C Act, hence, subsequent applications are not to be filed before such Courts as they are not covered by section 42.

Section 43: Limitation

As by virtue of Section 43 of Arbitration and Conciliation Act 1996, Limitation Act applies to arbitration proceedings hence delay in filing appeal may be condoned on sufficient cause under section 5, Limitation Act.

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Section 75- Confidentiality:

Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

Disputes may involve certain details which parties would not want to come into the public domain or want to keep confidential. As arbitration unlike courts happen privately i.e. no outsider is allowed to witness the proceedings it enables such details to remain confidential.

Arbitration and Conciliation Act 1996 MCQ questions for practice

After you study from arbitration and conciliation act notes, here are some multiple-choice questions (MCQs) based on the Arbitration and Conciliation Act, 1996, for practice:

  • In the Arbitration and Conciliation Act, 1996, which part pertains to the enforcement of foreign awards?

  1. Part I
  2. Part II
  3. Part III
  4. Part IV
  • When does the time limit for making an arbitral award in non-international commercial arbitration begin, according to Section 29A of the Act?

  1. From the date of the agreement to arbitrate
  2. From the date of filing the arbitration application
  3. From the date of completion of pleadings
  4. From the date of the first arbitration hearing
  • Which section of the Act allows parties to encourage settlement during arbitral proceedings using mediation, conciliation, or other procedures?

  1. Section 28
  2. Section 31
  3. Section 34
  4. Section 42
  • What is the time limit for filing an application to set aside an arbitral award under Section 34 of the Act?

  1. 90 days from the date of the award
  2. 120 days from the date of the award
  3. 60 days from the date of the award
  4. 180 days from the date of the award
  • In cases where parties have not agreed on the "seat" of arbitration, how is the "seat" typically determined?

  1. By the Chief Justice of the Supreme Court
  2. By the Arbitral Tribunal
  3. By the parties themselves
  4. By the court in the jurisdiction where the arbitration proceedings are initiated
  • Section 9 of the Act deals with:

  1. Jurisdiction of Courts in arbitration matters
  2. the enforcement of foreign arbitral awards
  3. Interim relief in arbitration proceedings
  4. The composition of the arbitral tribunal
  • Under the Act, what is an "arbitral award on agreed terms"?

  1. An award issued by the court
  2. An award agreed upon by the parties
  3. An award issued without reasons
  4. An award for international commercial arbitration
  • What is the term used in the Act to refer to the concept of selecting a neutral venue for arbitration proceedings?

  1. Seat
  2. Venue
  3. Jurisdiction
  4. Settlement

Answers:

  1. b) Part II
  2. c) From the date of completion of pleadings
  3. a) Section 28
  4. a) 90 days from the date of the award
  5. d) By the court in the jurisdiction where the arbitration proceedings are initiated
  6. c) Interim relief in arbitration proceedings
  7. b) An award agreed upon by the parties
  8. a) Seat

How to make your own Notes for Arbitration and Conciliation Act 1996:

Creating your own Arbitration and Conciliation Act Notes1996 or any legal subject can be a helpful way to understand and retain important information. Here's a step-by-step guide on how to make your own notes:

  1. Start with reading the Bare Act and highlight the important sections as per your understanding.
  2. Pick previous year question papers and mark all the sections that have been asked previously once or multiple time. You also have to highlight the sections mentioned above and in the short notes document.
  3. Read and understand all the sections and try putting them into small pointers.
  4. Write down those pointer and support these sections with case laws and illustrations.
  5. Reach out to your teachers and mentors when you feel that you have a confusion.

Conclusion:

The Arbitration and Conciliation Act, 1996 is an important legislation in India that governs the arbitration process, the conduct of arbitral proceedings, and the enforcement of arbitral awards. It was enacted to provide a legal framework for the fair and efficient resolution of disputes through arbitration and conciliation. For your judiciary preparation read it from arbitration and conciliation act notes that you make or provided to you in this blog.

It is an essential topic for judiciary exams in India, as it deals with alternative dispute resolution methods and the role of the judiciary in arbitral proceedings.

  • Arbitration is a process in which disputes are resolved by one or more arbitrators who make a binding decision called an arbitral award.
  • Conciliation involves a neutral third party (the conciliator) who assists the parties in reaching a mutually agreed settlement.
  • Understand key terms like "arbitration agreement," "arbitral tribunal," "award," "conciliation," and "conciliation agreement."
  • Part I of the Act deals with domestic arbitration, while Part II deals with the enforcement of foreign arbitral awards.
  • Know the provisions regarding the jurisdiction of courts in arbitration matters.
  • Familiarize yourself with the concept of the "seat" of arbitration and its significance.
  • Understand the procedure for the appointment of arbitrators, their powers, and the grounds for challenging their appointment.
  • Learn the requirements for a valid arbitral award, including its form, contents, and the power of the tribunal to grant interim awards.
  • Understand the process of conciliation, the role of the conciliator, and the enforceability of settlement agreements reached through conciliation.
  • Familiarize yourself with significant judicial decisions related to the Act, as court rulings often interpret and clarify its provisions.

Understanding the Arbitration and Conciliation Act, 1996, is crucial for judiciary exams as it deals with an essential aspect of civil dispute resolution. Make sure to study the Act thoroughly, including its provisions and practical applications in arbitration and conciliation processes.

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