Arbitration and Conciliation Act, 1996  

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Arbitration and Conciliation act 1996

Preliminary

Part 1 – Arbitration

Chapter I – General provisions
Chapter II – Arbitration agreement
Chapter III – Composition of arbitral tribunal
Chapter IV – Jurisdiction of arbitral tribunals
Chapter V – Conduct of arbitral proceedings
Chapter VI – Making of arbitral award and termination of proceedings
Chapter VII – Recourse against Arbitral Award
Chapter VIII – Finality and Enforcement of Arbitral Awards
Chapter IX – Appeals
Chapter X – Miscellaneous

Part 2-Enforcement of certain Foreign Awards[44-60]

Chapter I – New York Convention Awards
Chapter II – Geneva Convention Awards

Part 3-Conciliation [61-82]

Part 4- Supplementary Provisions

THE FIRST SCHEDULE-THE SECOND SCHEDULE-THE THIRD SCHEDULE-THE -FOURTH SCHEDULE –THE FIFTH SCHEDULE-THE SIXTH SCHEDULE-THE SEVENTH SCHEDULE

The Appointment of Arbitrators by the CJI Scheme 1996

The Arbitration and Conciliation Act, 1996 (“Act”) has been amended by the Arbitration and Conciliation (Amendment) Ordinance, 2015 (“Ordinance”), promulgated by the President of India on October 23, 2015.

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The Arbitration and Conciliation Act, 1996 [ ALL SECTIONS WITH NOTES ] 

[16th August, 1996]

BE it enacted by Parliament in the Forty-seventh Year of the Republic of India as follows:

An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.

Preamble.—WHEREAS the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985; 

AND WHEREAS the General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice; 

AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980; 

AND WHEREAS the General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation; AND WHEREAS the said Model Law and Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations; 

AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law and Rules;

COMMENT- UNCITRAL was created in 1996 by the UN General Assembly.Since inception it has produced the following documents .

♥ The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of the United Nations system in the field of international trade law, with a mandate to further the progressive harmonization and unification of the law of international trade.

The New York Convention was prepared by the United Nations prior to the establishment of UNCITRAL in 1969. Nevertheless, promotion of the New York Convention is an integral part of the Commission’s programme of work.

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PRELIMINARY

1. Short title, extent and commencement.

(1) This Act may be called the Arbitration and Conciliation Act, 1996.

(2) It extends to the whole of India:

Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.

Explanation—In this sub-section, the expression “international commercial conciliation” shall have the same meaning as the expression “international commercial arbitration” in clause (f) of sub-section (1) of section 2, subject to the modification that for the word “arbitration” occurring therein, the word “conciliation” shall be substituted.

(3)It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

COMMENT – Part 2 (NYCA and GCA)  and International arbitration have full application to the State of Jammu & Kashmir, and for this, no additional amendment has been required to the Constitution of Jammu and Kashmir u/s 147  of it.

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Part I

 Arbitration Chapter I General provisions

2. Definitions.—

(1) In this Part, unless the context otherwise requires,

(a)“arbitration” means any arbitration whether or not administered by permanent arbitral institution;

(b)“arbitration agreement” means an agreement referred to in section 7;

(c)“arbitral award” includes an interim award;

(d)“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;

(e)“Court” means—(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;

(f)“International commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is—(i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country;

(g)“legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;

(h)“party” means a party to an arbitration agreement.


Scope

(2) This Part shall apply where the place of arbitration is in India:

Provided that subject to an agreement to the contrary, the provisions of sections 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act. 

(3)This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.

(4)This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.

(5)Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.


Construction of reference

(6)Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.

(7)An arbitral award made under this Part shall be considered as a domestic award.

(8)Where this Part—(a)refers to the fact that the parties have agreed or that they may agree, or (b)in any other way refers to an agreement of the parties,that agreement shall include any arbitration rules referred to in that agreement.

(9)Where this Part, other than clause (a) of section 25 or clause (a) of sub-section (2) of section 32, refers to a claim, it shall also apply to a counterclaim, and where it refers to a defense, it shall also apply to a defense to that counterclaim.

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.

COMMENT: Written communication is the seed of the constitution of any arbitration tribunal and Arbitration proceeding starts with u/s 21 of the Act. U/S 29A an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice.

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.

5. Extent of judicial intervention.

Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

 6. Administrative assistance.

In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

 

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Chapter II

Arbitration agreement

 7. Arbitration agreement.

(1)In this Part, “arbitration agreement” means an agreement by the 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. (2)An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3)An arbitration agreement shall be in writing.

(4)An arbitration agreement is 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 including communication through electronic means which provide a record of the agreement; or (c)an exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other.

(5)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 that arbitration clause part of the contract.

8. Power to refer parties to arbitration where there is an arbitration agreement.
(1)A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:

Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.

(3)Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

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9. Interim measures, etc., by Court.

(1)A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court— (i)for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii)for an interim measure of protection in respect of any of the following matters, namely

(a)the preservation, interim custody or sale of any goods which are the subject-matter     of   the arbitration agreement; 

(b)securing the amount in dispute in the arbitration;

(c)the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d)interim injunction or the appointment of a receiver;

(e)such other interim measure of protection as may appear to the Court to be just and convenient,and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

(2)Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

(3)Once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.

COMMENT – The Court has limited jurisdiction u/s 7(3) to entertain an application if any special or exceptional circumstances beyond the control of section 17 has not been established. U/S 17 the arbitral tribunal is competent to provide interim measures to an aggrieved party. This section shall be read with section 5 of the act.

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Chapter III

Composition of arbitral tribunal

 10. Number of arbitrators.—

(1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number. (2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.

11. Appointment of arbitrators.—

(1)A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

 (2)Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3)Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

(4)If the appointment procedure in sub-section (3) applies and—(a)a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b)the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court;

(5)Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court.

(6) Where, under an appointment procedure agreed upon by the parties,—(a)a party fails to act as required under that procedure; or (b)the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c)a person, including an institution, fails to perform any function entrusted to him or it under that procedure,a party may request the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(6A)The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall,   notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.

(6B)The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.

(7)A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision.

(8)The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to—(a)any qualifications required for the arbitrator by the agreement of the parties; and(b)the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

(9)In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Supreme Court or the person or institution designated by that Court may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

(10)The Supreme Court or, as the case may be, the High Court, may make such scheme as the said Court may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6), to it.

(11)Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, different High Courts or their designates, the High Court or its designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.

(12)(a)Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in an international commercial arbitration, the reference to the “Supreme Court or, as the case may be, the High Court” in those sub-sections shall be construed as a reference to the “Supreme Court”; and(b)Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other arbitration, the reference to “the Supreme Court or, as the case may be, the High Court” in those sub-sections shall be construed as a reference to the “High Court” within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate, and where the High Court itself is the Court referred to in that clause, to that High Court.

(13)An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or the person or institution designated by such Court, as the case may be, as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

(14)For the purpose of determination of the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal, the High Court may frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.

Explanation.—For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) in case where parties have agreed for determination of fees as per the rules of an arbitral institution.

 11A. Power of Central Government to amend Fourth Schedule.—

(1)If the Central Government Government is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, amend the Fourth Schedule and thereupon the Fourth Schedule shall be deemed to have been amended accordingly.

(2)A copy of every notification proposed to be issued under sub-section (1), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the both Houses of Parliament.

 12. Grounds for challenge (of the appointment of arbitrator)

(1)When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,(a)such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and(b)which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.

 Explanation 1.—The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.

Explanation 2.—The disclosure shall be made by such person in the form specified in the Sixth Schedule.

(2)An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.

(3)An arbitrator may be challenged only if—(a)circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or(b)he does not possess the qualifications agreed to by the parties.

(4)A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

(5)Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:

Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.

13. Challenge procedure-( challenge to be made before the tribunal only)

(1)Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.

(2)Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.

(3)Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(4)If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.

(5)Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.

(6)Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.

COMMENT A party failed to challenge the appointment of the Arbitrator before the same tribunal can challenge the Award passed by it U/S 34.

14. Failure or impossibility to act.

(1)The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if(a)he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and (b)he withdraws from his office or the parties agree to the termination of his mandate.

(2)If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.

(3)If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.


15. Termination of mandate and substitution of arbitrator—

(1)In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate

(a)where he withdraws from office for any reason; or (b) by or pursuant to agreement of the parties.

(2)Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3)Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4)Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

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Chapter IV

Jurisdiction of arbitral tribunals

 16. Competence of arbitral tribunal to rule on its jurisdiction.

(1)The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,—(a)an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b)a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

 (2)A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3)A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4)The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified.

(5)The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

(6)A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

COMMENT– The tribunal shall decide its own jurisdiction and the party failed in the question of jurisdiction may challenge the Award u/s 34 for setting aside.


17. Interim measures ordered by arbitral tribunal.

(1)A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to the arbitral tribunal

(i)for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii)for an interim measure of protection in respect of any of the following matters, namely:

(a)the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b)securing the amount in dispute in the arbitration;

(c)the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d)interim injunction or the appointment of a receiver;

(e)such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient,and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

(2)Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court.

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Chapter V

Conduct of arbitral proceedings [CLICK]

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Chapter VI

Making of arbitral award and termination of proceedings

28. Rules applicable to substance of dispute.

(1)Where the place of arbitration is situate in India,—(a)in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;

(b)in international commercial arbitration—

(i)the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute;

(ii)any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;

(iii)failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

(2)The arbitral tribunal shall decide ex aequo et bono(from equity and conscience) or as amiable compositeur(equity) only if the parties have expressly authorised it to do so.

(3)While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms of the contract and trade usages applicable to the transaction.

COMMENT – The concept of amiable compositeur has its historical origins in French law, namely in amicabilis compositor of canon law, who acted rather as conciliator than decision-maker in a dispute, and in dispute settlement through the arbitrator which developed in the second half of the 17th century and who was not bound to apply strict rules of civil procedure and substantive law (ex aequo et bono). The concept was first enacted in the Code Napoleon and the French Code of Civil Procedure of 1806

An arbitrator acting as amiable compositeur is deciding the dispute before him according to law and legal principles, nevertheless is authorized to modify the effect of certain nonmandatory legal provisions. Ex aequo et bono is a dispute settlement out of law, according to moral principles. An arbitrator deciding as ex aequo et bono is allowed to disregard not only the non-mandatory rules, but also the mandatory provisions of law, as long as they respect international public policy (Bühring-Uhle, Ch.: Arbitration and Mediation in International Business, The Netherlands: Kluwer Law Internaitonal, 2006, p. 40 )

However to avoid subjectivity of the arbitrator in the application of equity, the parties may make use of their right to provide the arbitrators with specific criteria for their decision – either by reference to amiable composition developed in a particular legal system, or by referring to some broad notion of fairness, or by including a set of concrete standards to guide the arbitrators in reaching their decisions. This way the arbitrator is guided by what the parties consider to be fair and equitable.

29. Decision making by panel of arbitrators.—

(1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members.

(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by the presiding arbitrator.

29A. Time limit for arbitral award.—

(1)The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference.

Explanation.—For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.

(2)If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.

(3)The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.

(4)If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period:Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.

(5)The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.

(6)While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.

(7)In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.

(8)It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section.

(9)An application filed under sub-section  (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

29B. Fast track procedure (more speedy procedure within the procedure)

(1)Notwithstanding anything contained in this Act, the parties to an arbitration agreement, may, at any stage either before or at the time of appointment of the arbitral tribunal, agree in writing to have their dispute resolved by fast track procedure specified in sub-section (3).

(2)The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be chosen by the parties.

(3)The arbitral tribunal shall follow the following procedure while conducting arbitration proceedings under sub-section (1):—

(a)The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing;

(b)The arbitral tribunal shall have power to call for any further information or clarification from the parties in addition to the pleadings and documents filed by them;

(c)An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues;

(d)The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and adopt such procedure as deemed appropriate for expeditious disposal of the case.

(4)The award under this section shall be made within a period of six months from the date the arbitral tribunal enters upon the reference.

(5)If the award is not made within the period specified in sub-section (4), the provisions of sub-sections (3) to (9) of section 29A shall apply to the proceedings.

(6)The fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties.

30. Settlement.—

(1)It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

(2)If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(3)An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award.

(4)An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.

31. Form and contents of arbitral award.—

(1)An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.

(2)For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated.

(3)The arbitral award shall state the reasons upon which it is based, unless—(a)the parties have agreed that no reasons are to be given, or(b)the award is an arbitral award on agreed terms under section 30.

(4)The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.

(5)After the arbitral award is made, a signed copy shall be delivered to each party.

(6)The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award.

(7)(a)Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.(b)A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two per cent. higher than the current rate of interest prevalent on the date of award, from the date of award to the date of payment.

Explanation.—The expression “current rate of interest” shall have the same meaning as assigned to it under clause (b) of section 2 of the Interest Act, 1978 (14 of 1978).

(8)The costs of an arbitration shall be fixed by the arbitral tribunal in accordance with section 31A.

Explanation—For the purpose of clause (a), “costs” means reasonable costs relating to—(i)the fees and expenses of the arbitrators and witnesses,(ii)legal fees and expenses,(iii)any administration fees of the institution supervising the arbitration, and(iv)any other expenses incurred in connection with the arbitral proceedings and the arbitral award.

31A- Regime for costs—

(1)In relation to any arbitration proceeding or a proceeding under any of the provisions of this Act pertaining to the arbitration, the Court or arbitral tribunal, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), shall have the discretion to determine—(a)whether costs are payable by one party to another;(b)the amount of such costs; and(c)when such costs are to be paid.Explanation.—For the purpose of this sub-section, “costs” means reasonable costs relating to—(i)the fees and expenses of the arbitrators, Courts and witnesses;(ii)legal fees and expenses;(iii)any administration fees of the institution supervising the arbitration; and(iv)any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral award.

(2)If the Court or arbitral tribunal decides to make an order as to payment of costs,—(a)the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party; or(b)the Court or arbitral tribunal may make a different order for reasons to be recorded in writing.

(3)In determining the costs, the Court or arbitral tribunal shall have regard to all the circumstances, including—(a)the conduct of all the parties;(b)whether a party has succeeded partly in the case;(c)whether the party had made a frivolous counterclaim leading to delay in the disposal of the arbitral proceedings; and(d)whether any reasonable offer to settle the dispute is made by a party and refused by the other party.

(4)The Court or arbitral tribunal may make any order under this section including the order that a party shall pay—(a)a proportion of another party’s costs;(b)a stated amount in respect of another party’s costs;(c)costs from or until a certain date only;(d)costs incurred before proceedings have begun;(e)costs relating to particular steps taken in the proceedings;(f)costs relating only to a distinct part of the proceedings; and(g)interest on costs from or until a certain date.

(5)An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event shall be only valid if such agreement is made after the dispute in question has arisen.


32. Termination of proceedings.

(1)The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

(2)The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where—(a)the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,(b)the parties agree on the termination of the proceedings, or(c)the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3)Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

33. Correction and interpretation of award; additional award.

(1)Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties(a)a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;(b)if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

(2)If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.

(3)The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.

(4)Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.

(5)If the arbitral tribunal considers the request made under sub-section(4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.

(6)The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section(5).

(7)Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.

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Chapter VII

Recourse against Arbitral Award

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Chapter VIII

Finality and Enforcement of Arbitral Awards

35. Finality of arbitral awards.

Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.


36. Enforcement.

(1)Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

(2)Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

(3)Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

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Chapter IX

Appeals

37. Appealable orders.

(1)An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:

(a)refusing to refer the parties to arbitration under section 8;

(b)granting or refusing to grant any measure under section 9;

(c)setting aside or refusing to set aside an arbitral award under section 34.

(2)Appeal shall also lie to a court from an order of the arbitral tribunal—

(a)accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b)granting or refusing to grant an interim measure under section 17.

(3)No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

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Chapter X

Miscellaneous

38. Deposits.—

(1)The arbitral tribunal may fix the amount of the deposit or supplementary deposit, as the case may be, as an advance for the costs referred to in sub-section (8) of section 31, which it expects will be incurred in respect of the claim submitted to it:Provided that where, apart from the claim, a counter-claim has been submitted to the arbitral tribunal, it may fix separate amount of deposit for the claim and counter-claim.(2)The deposit referred to in sub-section (1) shall be payable in equal shares by the parties:Provided that where one party fails to pay his share of the deposit, the other party may pay that share:Provided further that where the other party also does not pay the aforesaid share in respect of the claim or the counter-claim, the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claim or counter-claim, as the case may be.(3)Upon termination of the arbitral proceedings, the arbitral tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties, as the case may be.

39. Lien on arbitral award and deposits as to costs.—

(1)Subject to the provisions of sub-section (2) and to any provision to the contrary in the arbitration agreement, the arbitral tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.

(2)If in any case an arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it, the Court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into Court by the applicant of the costs demanded, and shall, after such inquiry, if any, as it thinks fit, further order that out of the money so paid into Court there shall be paid to the arbitral tribunal by way of costs such sum as the Court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant.

(3)An application under sub-section(2) may be made by any party unless the fees demanded have been fixed by written agreement between him and the arbitral tribunal, and the arbitral tribunal shall be entitled to appear and be heard on any such application.

(4)The Court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting such costs and the arbitral award contains no sufficient provision concerning them.

40. Arbitration agreement not to be discharged by death of party thereto.—

(1)An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased.

(2)The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.

(3)Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

41. Provisions in case of insolvency.—

(1)Where it is provided by a term in a contract to which an insolvent is a party that any dispute arising thereout or in connection therewith shall be submitted to arbitration, the said term shall, if the receiver adopts the contract, be enforceable by or against him so far as it relates to any such dispute.

(2)Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, become a party to an arbitration agreement, and any matter to which the agreement applies is required to be determined in connection with, or for the purposes of, the insolvency proceedings, then, if the case is one to which sub-section (1) does not apply, any other party or the receiver may apply to the judicial authority having jurisdiction in the insolvency proceedings for an order directing that the matter in question shall be submitted to arbitration in accordance with the arbitration agreement, and the judicial authority may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly.

(3)In this section the expression “receiver” includes an Official Assignee.


42. Jurisdiction.

Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.

43. Limitations.

(1)The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to  proceedings in court.

(2)For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred to in section 21.

(3)Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4)Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.

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Part 2-Enforcement of certain Foreign Awards[44-60]

Chapter I – New York Convention Awards
Chapter II – Geneva Convention Awards

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Part III of The Arbitration And Conciliation Act, 1996 [sec 61 t0 81]

Law of Conciliation

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Part IV

 Supplementary Provisions

82. Power of High Court to make rules.

The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act.

83. Removal of difficulties.

(1)If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:Provided that no such order shall made be after the expiry of a period of two years from the date of commencement of this Act.

(2)Every order made under this section shall, as soon as may be after it is made, be laid before each Houses of Parliament.

84. Power to make rules.

(1)The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2)Every rule made by the Central Government under this Act shall be laid, as soon as may be, after it is made before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

85. Repeal and savings.

(1)The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.(2)Notwithstanding such repeal,(a)the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;(b)all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.

86. Repeal and saving.

(1)The Arbitration and Conciliation (Third) Ordinance, 1996 (Ord. 27 of 1996) is hereby repealed.(2)Notwithstanding such repeal, any order, rule, notification or scheme made or anything done or any action taken in pursuance of any provision of the said Ordinance shall be deemed to have been made, done or taken under the corresponding provisions of this Act.

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THE FOURTH SCHEDULE

See section 11(14)     

Sum in dispute Model fee
Up to Rs. 5,00,000 Rs. 45,000
Above Rs. 5,00,000 and up to Rs. 20,00,000 Rs. 45,000 plus 3.5 per cent. of the claim amount over and above Rs. 5,00,000
Above Rs. 20,00,000 and up to Rs. 1,00,00,000 Rs. 97,500 plus 3 per cent. of the claim amount over and above Rs. 20,00,000
Above Rs. 1,00,00,000 and up to Rs. 10,00,00,000 Rs. 3,37,500 plus 1 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 10,00,00,000 and up to Rs. 20,00,00,000 Rs. 12,37,500 plus 0.75 per cent. of the claim amount over and above Rs. 1,00,00,000
Above Rs. 20,00,00,000 Rs. 19,87,500 plus 0.5 per cent. of the claim amount over and above Rs. 20,00,00,000 with a ceiling of Rs. 30,00,000

Note:- In the event, the arbitral tribunal is a sole arbitrator, he shall be entitled to an additional amount of twenty-five per cent. on the fee payable as per the table set out above.

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THE FIFTH SCHEDULE

(See section 12 (1)(b)

The following grounds give rise to justifiable doubts as to the independence or impartiality of arbitrators :Arbitrator’s relationship with the parties or counsel(1)The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.(2)The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.(3)The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.(4)The arbitrator is a lawyer in the same law firm which is representing one of the parties.(5)The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.(6)The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.(7)The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.(8)The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom.(9)The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.(10)A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.(11)The arbitrator is a legal representative of an entity that is a party in the arbitration.(12)The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.(13)The arbitrator has a significant financial interest in one of the parties or the outcome of the case.(14)The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.Relationship of the arbitrator to the dispute(15)The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.(16)The arbitrator has previous involvement in the case.Arbitrator’s direct or indirect interest in the dispute(17)The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.(18)A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.(19)The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.Previous services for one of the parties or other involvement in the case(20)The arbitrator has within the past three years served as counsel for one of the parties or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter, but the arbitrator and the party or the affiliate of the party have no ongoing relationship.(21)The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter.(22)The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties.(23)The arbitrator’s law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.(24)The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties.Relationship between an arbitrator and another arbitrator or counsel(25)The arbitrator and another arbitrator are lawyers in the same law firm.(26)The arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the same arbitration.(27)A lawyer in the arbitrator’s law firm is an arbitrator in another dispute involving the same party or parties or an affiliate of one of the parties.(28)A close family member of the arbitrator is a partner or employee of the law firm representing one of the parties, but is not assisting with the dispute.(29)The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm.Relationship between arbitrator and party and others involved in the arbitration(30)The arbitrator’s law firm is currently acting adverse to one of the parties or an affiliate of one of the parties.(31)The arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in a professional capacity, such as a former employee or partner.Other circumstances(32)The arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a material holding in one of the parties or an affiliate of one of the parties that is publicly listed.(33)The arbitrator holds a position in an arbitration institution with appointing authority over the dispute.(34)The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the arbitration.

Explanation 1.– The term “close family member” refers to a spouse, sibling, child, parent or life partner.

Explanation 2.– The term “affiliate” encompasses all companies in one group of companies including the parent company.

Explanation 3.– For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.

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THE SIXTH SCHEDULE

(See section 12 (1)(b)

NAME:CONTACT DETAILS:PRIOR EXPERIENCE (INCLUDING EXPERIENCE WITH ARBITRATIONS):NUMBER OF ONGOING ARBITRATIONS:CIRCUMSTANCES DISCLOSING ANY PAST OR PRESENT RELATIONSHIP WITH OR INTEREST IN ANY OF THE PARTIES OR IN RELATION TO THE SUBJECT-MATTER IN DISPUTE, WHETHER FINANCIAL, BUSINESS, PROFESSIONAL OR OTHER KIND, WHICH IS LIKELY TO GIVE RISE TO JUSTIFIABLE DOUBTS AS TO YOUR INDEPENDENCE OR IMPARTIALITY (LIST OUT):CIRCUMSTANCES WHICH ARE LIKELY TO AFFECT YOUR ABILITY TO DEVOTE SUFFICIENT TIME TO THE ARBITRATION AND IN PARTICULAR YOUR ABILITY TO FINISH THE ENTIRE ARBITRATION WITHIN TWELVE MONTHS (LIST OUT):

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THE SEVENTH SCHEDULE

(See section 12 (5)

Arbitrator’s relationship with the parties or counsel(1)The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.(2)The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.(3)The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.(4)The arbitrator is a lawyer in the same law firm which is representing one of the parties.(5)The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.(6)The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.(7)The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.(8)The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom.(9)The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.(10)A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.(11)The arbitrator is a legal representative of an entity that is a party in the arbitration.(12)The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.(13)The arbitrator has a significant financial interest in one of the parties or the outcome of the case.(14)The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.Relationship of the arbitrator to the dispute(15)The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.(16)The arbitrator has previous involvement in the case.Arbitrator’s direct or indirect interest in the dispute(17)The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.(18)A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.(19)The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.Explanation 1.– The term “close family member” refers to a spouse, sibling, child, parent or life partner.Explanation 2.– The term “affiliate” encompasses all companies in one group of companies including the parent company.Explanation 3.– For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.

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Model Adjudication

U/S 11(6)- GORKHA SECURITY SERVICES versus SCHOOL OF PLANNING & ARCHITECTURE (2017)

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