ARBITRATION AND CONCILIATION ACT, 1996

The
The law
law rela
relati
ting
ng to Arbi
Arbitr
trat
atio
ion
n is cont
contai
aine
ned
d in the
the Arbi
Arbitr
trat
atio
ion
n and
and
Conciliation Act, 1996. It came into force on the 25 th day of January 1996. This
Act is of consolidating and amending nature and is not exhaustive. But it goes
much
much beyo
beyond
nd the
the scope
scope of its
its prede
predece
cess
ssor,
or, the
the 1940
1940 Act.
Act. It provi
provide
des
s for
for
domestic Arbitration and also enforcement of foreign arbitral awards. It also
contains the new feature on conciliation. It proceeds on the basis of the UN
Model Law so as to make our law accord with the Law adopted by the United
Nations Commission on International Trade Law (UNICITRAL).
The main objectives of the Act are:
1. to com
compreh
prehe
ensively cover internat
national comm
ommerci
rcial arbi
rbitration and
conciliation as also domestic arbitration and conciliation.
2. to make
ake prov
provis
isio
ion
n for
for an arbi
arbittral
ral proc
proced
edur
ure
e whic
which
h is fair,
air, eff
efficie
icient
nt and
and
capable of meeting the needs of the specific arbitration
3. to provi
provide
de that
that the
the Arbi
Arbitr
tral
al tri
tribu
bunal
nal gives
gives reaso
reasons
ns for
for its
its arbit
arbitra
rall awa
award.
rd.
4. to ensure that the Arbitral tribunal remains within the limits of its
jurisdiction.
5. to mini
minimi
mize
ze the
the sup
superv
ervis
isor
ory
y rol
role
e of
of cou
court
rts
s in
in the
the arbi
arbitr
tral
al proce
process
ss..
6. to perm
ermit an Arbi
rbitral Tribunal to use mediation conciliation or other
her
proce
procedur
dure
e duri
during
ng the
the arbi
arbitr
tral
al proc
procee
eedi
ding
ngs
s to encour
encourag
age
e the
the sett
settle
leme
ment
nt of
disputes.
7. to pro
provi
vide
de tha
thatt ever
every
y fina
finall arbit
arbitra
rall awar
award
d is enfo
enforc
rced
ed in
in the
the same
same man
manne
nerr
as if it were the decree of the court.
8. to provi
provide
de that
that a sett
settle
leme
ment
nt agre
agreem
emen
entt reach
reached
ed by the
the part
parties
ies as a resul
resultt
of conciliation proceedings will have the same status and effect as an arbitree
award on agreed terms on the substance of the dispute rendered by an Arbitral
Tribunal; and
9. to provide that, for purposes of enforcement of foreign awards, every
arbitral award made in a country to which one of the two international
conventions relating to foreign arbitral awards to which India is a party applies
will be treated as a foreign award.
Meaning of Arbitration [ S 2(1) ]

In the terms of sub-section (1) (a), arbitration means “any arbitration

whether or not administered by permanent arbitral institution”. Law encourages
parties as far as possible, to settle their differences privately either by mutual
concessions or by the mediation of a third person. When the parties agree to
have their disputes decided with the mediation of a third person, but with all the
formality of a judicial adjudication, that may be speaking broadly, called as
arbitration. An arbitration, therefore, means the submission by two or more
parties of their dispute to the judgment of a third person called the “arbitrator”,
and who is to decide the controversy in a judicial manner. “Arbitration” is thus
defined by Romilly M R in the well-known case of Collins v Collins:
“An Arbitration is a reference to the decision of one or more persons,
either with or, without an umpire of a particular matter in difference between the
parties.”
Arbitration requires a dispute. An agreement to refer future disputes to
arbitration is only an agreement, and not arbitration. Even where a dispute has
arisen and the parties agree to have it decided by a third person that may not be
arbitration unless that person is to act judicially.
Thus the usual features of arbitration are the existence of dispute between the
parties and their agreement to refer it to the decision of a third person with the
intention that he shall act judicially.
Whatever be the type of dispute, the matter in dispute must be of a civil
nature. Matters of criminal nature cannot be referred to arbitration. In most
cases, reference to
arbitration shuts out the jurisdiction of the courts, except as provided in the Act
and since criminal courts cannot be deprived of their jurisdiction to try criminals,
no criminal matter can be referred to arbitration.
The second important feature of arbitration is the agreement between the
parties to a dispute to refer the matter to arbitration. The word ‘reference’ was
defined in Section (2) (e) of the now repeated Arbitration Act, 1940, this way:
‘reference’ means reference to Arbitration.
The Supreme Court has passed the following observation on why
arbitration should be preferred. “Arbitration is considered to be an important
alternative dispute redressal process which is to be encouraged because of high
pendency of cases in the courts and cost of litigation. Arbitration has to be
looked up to with all earnestness so that the litigant has faith in the speedy
process of resolving their disputes”.
Arbitration agreement
Section (7) (1) of the Arbitration and Conciliation Act, 1996, defines ‘an
arbitration agreement as an agreement by parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not. The section requires
that the dispute must be in respect of a defined legal relationship whether
contractual or not. It follows that the discipline must be of a legal nature. The
word ‘defined’ would signify the known categories of legal relationships and also
the upcoming categories. If the matter or transaction is outside the known
categories of relations under which legal rights or liabilities are likely to be
created, it would not be an arbitrable matter. [ ICICI Ltd., v East Coast Boat
Builders and Engineers Ltd., (1998) 9 SCC 728].
Disputes which can be referred to arbitration are (a) present or future
disputes which are (b) in respect of a defined legal relationship, whether
contractual or not. All matters with a civil nature, with a few exceptions, whether
they relate to present or future disputes may form the subject of reference but
not the dispute arising from and
founded on an illegal transaction. If the agreement relates to a present dispute it
will generally amount to a reference, but if it has been entered into merely to
provide for any future dispute, it is an arbitrational clause.
No prescribed form of agreement:
Section 7 (2) says that an arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement. Section
7(5) clearly provides that the reference in a contract to a document containing an
arbitration clause constitutes an arbitration agreement if the contract is in writing
and the reference is such as to make the arbitration clause as a part of the
contract.
Therefore no formal from of agreement has been prescribed. In
Rukmanibai Gupta v Collector, Jabalpur, the Supreme Court has laid down that
an Arbitration clause is not required to be stated in any particular form. If the
intention of the parties to refer the dispute to arbitration can be clearly
ascertained from the terms of the agreement, it is immaterial whether or not the
expression ‘arbitration’ or 'arbitrator' has been used. Nor is it necessary that it
should be contained in the same contract document. Hence, the whole thing
turns upon the intention of the parties.
Agreement to be in writing:
Section 7 (3) most emphatically prescribes that ‘an arbitration agreement
shall be in writing’. An oral agreement to submit a dispute to arbitration is not
binding. If the agreement is in writing it will bind, even if some of its details are
filled in by oral understanding. The Act recognizes in Section 7(4) some three
methods of arriving at a written agreement. Section 7(4) provides that an
arbitration agreement is in writing if it is contained in a document signed by the
parties; or in exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement or in an exchange
of statement of claim and defence in which the existence of the agreement is
alleged by one party and not denied by another.
Effect of Arbitration Agreement: Stay of suits (S8)(shall)
The Arbitration and Conciliation Act, 1996 is intended to help the parties
to settle their differences privately by conciliation or by arbitration and thereby to
spare themselves of wasteful and vexation litigations. In recognition of this
principle S.8(1) of the act provides that if any party to an arbitration agreement
brings before a judicial authority the matter covered by the agreement, the other
party may apply for stay of the suit and for order of reference to arbitration. A
judicial authority before which an action is sought shall refer the parties to
arbitration. The only condition is that the application shall be accompanied with
the original arbitration agreement or a duly certified copy thereof.
Under the 1940 Act, the court should stay such proceedings if it found
that there were no sufficient reason why the matter should not be referred in
accordance with the agreement. But now under the 1996 Act, S.8 is a mandatory
form under S.34 of the erstwhile 1940 Act the court has the discretion in the
matter either to stay the suit or bring about arbitration or to permit the suit to go
on. Under the 1996 Act (S.8) the word uses is ‘shall’. The effect is that the court
has no choice or discretion in the matter and is bound to refer the parties to
arbitration.
In Printers, Mysore Ltd., v Pathan Joseph the Supreme Court took the
opportunity to emphasize that the power to stay a legal proceeding under S.34 of
the 1940 Act was discretionary and the party making such an application could
not as of right claim of stay. The discretionary element in the power of the court
is not applicable in the 1996 Act. Under the new provisions (S.8) of the 1996 Act,
the requirements of stay application and of an order for reference to arbitration
were stated by the Supreme Court in P Anand Gajapati Raju v PVG Raju as
follows:
1. there must be an arbitration agreement
2. a party to an agreement brings an action to the court against the other
party,
3. the subject matter of the action is the same as the subject matter of the
arbitration agreement.
4. the other party moves the court for referring the parties to arbitration
before submitting the first statement on the substance of the dispute.
 The court continued to say that the last mentioned requirement creates a
right in the person bringing the action to have the dispute adjudicated by the
court once the other party has submitted his first statement of defence. But, if the
party, ever after making the statement of defence, prays that the matter be
referred to arbitration and the other party has no objection, there is no bar on the
court referring the parties to arbitration. The court was of the view that the
phrase ‘which is the subject matter of an arbitration agreement’ does not
necessarily require that the agreement must already be in existence before the
action is brought in the court. The phrase would also cover the situation where
the arbitration agreement is brought into existence while the action is pending.

Comparison S.34 of the 1940 Act v S.8 of the 1996 Act

Both the provisions deal with a situation where there is an existing
arbitration agreement with respect to a dispute which is the subject matter of a
suit before the judicial authority. Though the two provisions are somewhat
similar, there are the following vital differences between them:
(i) While S.34 of the old Act, provided for staying the judicial proceedings,
S.8 of the new Act provides for referring the parties to arbitration.
(ii) While S.34 of the old Act conferred a discretionary power on the
judicial authority to stay the proceedings, S.8 of the new Act imposes
a mandatory duty on the judicial authority to refer the parties to
arbitration.
(iii) The application of stay under S.34of the old Act was required to be
made before filing of the written statement or the taking of any other
step in the proceedings, the application under S.8 of the new Act is
required to made by a party not later than when submitting the first
statement on the substance of the dispute.
(iv) While S.34 of the old Act, required that the party making the
application was ready and willing to do the things necessary to the proper
conduct of the arbitration both the time when the judicial proceedings were
 commenced and when the application was made, there is no such
requirement under S.8 of the new Act.

The Act of 1940 used the word difference but in the new Act in place of
difference the word dispute has been used. However, the word ‘Dispute’ has not
been defined in the new Act of 1996. The word dispute under ordinary
parameters implies an assertion of right by one party and repudiation by another
party. The word ‘difference’ has a wider meaning but the word ‘dispute’ is more
positive and the difference between the parties when assumed a definite and
concrete form they became dispute. The pre-existence of dispute and difference
between the parties is very essential at the time when the matter is referred to
arbitration. In the absence of dispute between the parties the award made by the
arbitrators or the umpire is a nullity in the eyes of law.

Dalip Construction Co. v Hindustan Steels Ltd.

It was held that the existence of a dispute was essential before a matter
could be referred to arbitration. Hence, the jurisdiction of an arbitrator depends
upon the existence of the claim or the accrual of any course of action, but upon
the existence of a dispute.

Provision of Interim Relief by Courts .

S.9 provides for the making of orders for interim measures to provide interim
relief to the parties in respect of arbitrations before it becomes a decree. The
power of the court include an order in respect of the following matters.

i. The preservation, interim custody or sale of any goods which are the
subject matter of the reference.

ii. Securing the amount in dispute in the reference.

iii. The detention, preservation or inspection of any property or thing which is

the subject of the reference or as to which any question may arise therein
and authorising for any of the aforesaid purposes any person to enter upon
or into any land or building in the possession of any party to the reference.

iv. Interim injunction or the appointment of a receiver.

 v. The appointment of a guardian for a minor or person of unsound mind for
the purposes of arbitral proceedings.

vi. Such other interim measure of protection as may appear to the court to be
just and convenient.

Under S.41(b) of the old Act, an application for interim relief could be moved only
if some arbitration proceeding was pending and not otherwise. But under S.9 of
the present Act such an application can be made -

(i) before arbitration proceedings have commenced or

(ii) during arbitral proceedings or
(iii) at any time after making of th arbitral award but before it is
enforced in accordance with S.36.

The Supreme Court in Sundaram Finance Ltd. vs NEPC India Ltd. (1999)
has expressed the view that relief can be provided in such cases through arbitral
proceedings have not been commenced provided there is proof of the fact that
the party does not put at rest the rights of the parties.

Effect of Interim measures.

An interim measure does not put to rest the rights of the parties. The rights
of th parties are required to be adjudicated finally when a reference is made. The
court has the authority and jurisdiction to pass interim orders for protection and
preservation of rights of the parties during the arbitration proceedings but that
does not necessarily mean that if a party has availed of a benefit under this
jurisdiction, the other party cannot put his claim in the main proceeding which is
before th arbitrator. The interim arrangement made by the court has to be given
the interim status.

Conciliation.

Part III of the Arbitration and Conciliation Act 1996 deals with conciliation.
Conciliation means “the settling of disputes without litigation. Conciliation is a
process by which discussion before parties is kept going through the participation
of a conciliator. The main difference before arbitration and conciliation is that in
arbitration proceedings the award is the decision of the Arbitral Tribunal while in
the case of conciliation the decision is that of the parties arrived at with the
assistance of the conciliator.

S.61 points out that the process of conciliation extends to disputes,

whether contracted or not. But the disputes must arise out of the legal
relationship. It means that the dispute must be such as to give one party the right
to sue and the other party the liability to be sued.

S.63 fixes the number of conciliators which may be one,two or three. Sub-
section (i) of S.64 provides three rules for the appointment of conciliators.
 (i) If there is one conciliator in a conciliation proceeding, the
parties may agree on the name of a sole conciliator.

(ii) If there are two conciliators in a conciliation proceedings, each

party may appoint one conciliator.

(iii) If there are three conciliators in a conciliation proceedings each

party may appoint one conciliator and the parties may agree on the name of
the third conciliator who shall act as a presiding conciliator.

Principles of Procedure.

The following are the principles of the procedure which are to be abided in
a conciliation proceedings.

(i) The conciliator should be independent and impartial (S.67 (1)

(ii) The conciliator should be guided by the principles of objectivity

fairness and justice (S.67(2).

(iii) The conciliator and the parties are duty bound to keep
confidential all matters relating to the conciliation proceedings.
Similarly, when a party gives an information to the conciliator on the
condition that it be kept confidential, the conciliator should not
disclose that information to the other party.
(Ss75, 7D, Proviso).

(iv) When the conciliator receives any information about any fact
that relating to the dispute from a party, he should disclose
the substance of that information to the other party (S.70)
(v) The parties should in good faith cooperate with the
conciliator. (S.71)

(vi) The conciliator is not bound by the rules contained in the

code of Civil Procedure, 1908, or the Indian Evidence Act, 1872 (S.66).
However, he should not ignore the principles of natural justice.

(vii) The parties have freedom to fix by their agreement the place
where meetings with the conciliator are to be held (S.69(2)).

(viii) The conciliator may invite the parties to meet him or may
communicate with them orally or in writing (S.69(1)).

Procedure of conciliation.

Commencement of Conciliation Proceedings : S.62.

 The Conciliation Proceedings are initiated by one party sending a written
invitation to the other party to conciliate. The invitation should identify the subject
of the dispute. Conciliation proceedings are commenced when the other party
accepts the invitation to conciliate in writing. If the other party rejects the
invitation there will be no conciliation proceedings.

Submission of statement to Conciliator : S.65.

The conciliator may request party to submit to him a brief written

statement. The statement should describe the general nature of the dispute and
the points at issue. Each party should send a copy of such statement to the other
party. The conciliator may require each party to submit to him a further written
statement of his position and facts and grounds in its support. It may be
supplemented by appropriate document and evidence.

Conduct of Conciliation Proceedings : S.69 (1) 67(3).

The conciliator may invite the parties to meet him. He may communicate
with the parties orally or in writing. He may meet or communicate with the parties
together or separately. The conciliator may conduct the proceedings in such a
manner as he may consider appropriate.

Administrative Assistance : S.68

The parties and the conciliator may seek administrative assistance by a

suitable institution or the person with the consent of the parties.

Settlement (Ss.67(4), 72,73)

The role of the conciliator is to assist the parties to reach an amicable

settlement of the dispute. He may at anys tage of the conciliation proceedings
make proposals for the settlement of the dispute. Such proposals need not be in
writing and need not be accompanied by a statement of reasons. When it
appears to the conciliator that there exist elements of settlement likely to be
accepted by the parties, he shall formulate the terms of a possible settlement and
submit them to the parties for their observation. After receiving the observations
of the parties, the conciliator may formulate the terms of a possible settlement in
the light of such observations. When the parties have signed the settlement
agreement, it becomes final and binding on the parties and persons claiming
under them respectively.

S.74 provides that the settlement agreement shall have the same status
and effect as an arbitral award on agreed terms under S.30. This means that it
shall be treated as a decree of the court and shall be enforceable as such.

Termination of Conciliation Proceedings.

 S.76 lays down four ways of the termination of conciliation proceedings.
These are -

(i) The conciliation proceedings terminate with the signing of the

settlement agreement by the parties.

(ii) The conciliation proceedings stand terminated when the conciliator

declares in writing that further efforts at conciliation are no longer justified.

(iii) The conciliation proceedings are terminated by written

declaration of the parties addressed to the conciliator to the effect that the
conciliation proceedings are terminated.

(iv) The conciliation proceedings are terminated when a party declares

in writing to the other party and the conciliator that conciliation proceedings are
terminated.

As a general rule, the parties cannot initiate arbitral or judicial proceedings

during the conciliation proceedings in respect of a dispute which is the subject
matter of the conciliation proceedings.
_______________

Recommended Reading- Arbitration and Conciliation Act 1996.