Arbitration and Concilation

Arbitration in India

Arbitration is an Alternative Dispute Resolution process whereby a person chosen as a arbitrator settles disputes between parties. Arbitration is similar to a court trial, with several exceptions

The arbitrator makes the decision called an 'arbitration award'
The arbitration does not take place in a courtroom
The arbitration award is binding. With rare exceptions, there is no right to appeal
Arbitration is not a matter of public record. It is private and confidential
There is no court reporter or written transcripts
Lawyers generally prepare their cases in an extremely limited manner
The rules of evidence are relaxed so that the parties have a broader scope, more expanded opportunity to tell their stories to present their cases
With very few exceptions, it is much less expensive than legal litigation
An arbitration time frame is substantially less than that of litigation and going to trial
no jury. The Arbitrator(s) maintains neutrality and adjudicate the conflicts of interests
Generally, all paperwork and evidence presented is destroyed after the arbitration
The arbitration and arbitration award does not have to adhere to Judicial Case precedent nor formality of traditional court proceedings

In India, Arbitration is one of the most effective and trusted proceedings in regard to private dispute settlement and is guided by the Arbitration & Conciliation Act, 1996.

The following matters cannot be referred to Indian arbitration:

1. Matrimonial matters
2. Guardianship of a minor or any other person under disability
3. Testamentary matters
4. Insolvency proceedings
5. Criminal proceedings
6. Questions relating to charity or charitable trusts
7. Matters relating to anti-trust or competition law
8. Dissolution or winding up of a company

The Indian Arbitration Act follows the guideline of:

The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927
The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards
The Geneva Protocol on Arbitration Clauses of 1923

Compulsory Licenses and Assignments

Section 2(3) provides that the provisions in Part I (applicable to Indian Arbitration) will not affect any other law presently in force , by virtue of which certain disputes may not be submitted to arbitration

Section 16 provides that the arbitral tribunal is competent to rule on its own jurisdiction. The existence of an arbitration agreement is a mandatory requirement for the referral of the dispute to arbitration

Where arbitration is concerned the parties exclude the jurisdiction of the courts in India but only to the extent that is permissible by law