Originally from:
Arbitration in Asia - 2nd Edition - Looseleaf
Arbitration in Asia - 2nd Edition - Electronic
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India
Fali S. Nariman
[1] INTRODUCTION
Arbitration is a necessary adjunct of commerce (national and international), an indispensable catalyst for facilitating trade. International Commercial Arbitration should be no different in Asia than
in other parts of the world since its importance is not in its theory, or where it takes place, but in its practical utility. As such, it must adapt and adjust itself to the wishes of those who take part in it. There is much prosperity in arbitration world-wide – certainly, for arbitrators and arbitral institutions. But arbitration must also be popular with users. An appropriate law is a first step in that direction, but only a first-step: one
must reckon with other factors as well.
Although Indian Law favours dispute-resolution by arbitration, Indian sentiment abhors the finality attaching to arbitral awards! A substantial volume of Indian Case-Law bears testimony to the long and
arduous struggle to be freed from binding arbitral decisions. Aided and abetted by the legal fraternity, the aim of every party to an arbitration (domestic or foreign) is: ‘try to win if you can; if you cannot, do your
best to see that the other side cannot enforce the award for as long as possible.’ In that sense arbitration as a means of settling disputes has not been a success. The trouble is that neither the private sector nor the
public sector in India are as yet sufficiently infused with the ‘spirit of arbitration’. The old Law of Arbitration (the Indian Arbitration Act 1940) contributed a great deal to the lack of this esprit d’arbitrage. An arbitration award should only be permitted to be set aside for grounds extraneous to its contents – such as, lack of jurisdiction, fraud or corruption of the arbitrator or of the other party, or a fundamental miscarriage of justice in the conduct of arbitral proceedings: popularly known (ever since 1958) as ‘New-York Convention grounds’: they became even better known after being lifted into and incorporated in the setting-aside-provisions of the UNCITRAL Model Law of 1985. Jurisdiction to correct patent legal errors on the face of the award was a
peculiarly English innovation. To have imported this questionable jurisdiction into litigious India (as we did under our 1940 Act) was, I believe, a great mistake.
PART P
India
Fali S. Nariman
______________________________________________________
Contents
[1] INTRODUCTION
[2] LEGISLATION
[2.1] General
[2.2] Underlying objective of the 1996 Act
[3] ARBITRATION AGREEMENTS
[3.1] Form and contents of the agreement
[3.2] Parties to the agreement
[3.3] Effect of the agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Number of arbitrators
[4.3] Appointment of arbitrators
[4.4] Challenge of arbitrators
[4.5] Termination of the mandate of the arbitral tribunal
[4.6] Pleas as to the arbitral tribunal’s jurisdiction
[4.7] Court assistance to the arbitral tribunal in taking evidence
[5] ARBITRATION PROCEDURE
[5.1] Place of arbitration
[5.2] Time limit for arbitration proceedings
[5.3] Arbitral proceedings in general
[5.4] Evidence
[5.5] Requiring deposits in connection with costs of the arbitration
[6] AWARDS
[6.1] Types of awards
[6.2] Making of the award
[6.3] Form of the award
[6.4] Correction and interpretation of the award and making of
additional award
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Assistance of courts–before or during arbitral proceedings
[7.2] Power of courts to refer parties to arbitration where there is an
arbitration agreement
[7.3] Power of courts before or during arbitral proceedings to grant
interim measures of protection
[8] RECOGNITION AND ENFORCEMENT OF AWARDS
[8.1] General
[8.2] Appeals (on the merits) from an arbitral award
[8.3] Setting aside of arbitral award
[8.3.1] Grounds for setting aside
[8.3.2] Procedure
[8.3.3] Waivers
[8.3.4] Appeals and limitation
[8.3.4.1] From order of court setting aside or refusing to
set aside arbitral awards
[8.3.4.2] Appeals from other orders
[8.3.4.3] Power of the court to extend time with respect
to future disputes provided in the arbitration
agreement which might become time-barred
[9] RECOGNITION AND ENFORCEMENT OF AWARDS: CURRENT
DECISIONS AND PRACTICE
[9.1] Procedure for enforcement of foreign awards
[9.2] Extent of court control of foreign awards
[9.3] Rules of public policy
[10] PRACTICAL INFORMATION
[10.1] Arbitration agreements
[10.1.1] Capacity, mode and manner of entering into arbitration
agreements: this is not provided for in the 1996 Act, but
in the general law
[10.1.2] Recommended arbitration clauses
[10.1.3] Governments and state agencies: practice
[10.1.4] Multi party arbitrations
[10.2] Arbitrators and arbitral tribunals
[10.2.1] Powers of arbitrators – where place of arbitration is in
India or where the applicable law is Indian law
[10.2.2] Appointment of arbitrators in institutional arbitration
[10.2.3] Costs in arbitration proceedings
[10.2.4] Fees of arbitrators
[10.3] Awards
[10.3.1] Internal appeals from arbitral awards
[10.3.2] Awards in foreign currency
[10.3.3] Foreign arbitral awards – conventions and treaties
[10.4] Judicial assistance and intervention
[10.5] Conciliation
[10.5.1] The statutory provisions
[10.5.2] Corresponding amendments in other laws
[11] APPENDICES (on CD)
[11.1] The Arbitration and Conciliation Act, 1996
[11.2] Rules of Arbitration of the Indian Council of Arbitration (as
amended on March 1, 1998)
[11.3] The ICADR (The International Centre for Alternative Dispute
Resolution) Arbitration Rules, 1996
Fali S. Nariman, is a Senior Advocate of the Supreme Court of India, and President of the Bar Association of India. He was Vice-Chair of the International Court of Arbitration of the ICC, Paris and was Chair of ICCA (International Council for Commercial Arbitration) for two successive terms from 1994. Since May 2002 he is an honorary Chair of ICCA.
