A & C Act 1996 – Came into force on 22nd August 1996 Section 7: Arbitration Agreement: arbitrators;

New York Convention Awards – 11th day of October 1960 ; • According to Section 7(1), Arbitration Agreement means, • the differences are on the appointment or appointments
Geneva Convention Awards – 28th day of July 1924 an Agreement between the Parties to submit all or certain of arbitrators.
Objectives of the Arbitration and Conciliation disputes which have arisen or which may arise between Section 19: Determination of rules of procedure
1. To cover International Commercial Arbitration and them, to Arbitration, in respect of a defined legal (1) The arbitral tribunal shall not be bound by the Code of
Conciliation comprehensively. relationship, whether contractual or not Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act,
2. To make provisions for the fair and efficient Arbitral • Section 7 (2) Arbitration Agreement may be in the form of 1872 (1 of 1872).
Procedure which is capable of dealing with the specific an Arbitration clause in a Contract or in the form of a (2) Subject to this Part, the parties are free to agree on the
Arbitration. separate Agreement procedure to be followed by the arbitral tribunal in
3. To provide for the Arbitral Tribunal, to give reasons for its • Section 7 (3) an Arbitration Agreement should be in writing conducting its proceedings.
Arbitral Award, ESSENTIAL INGREDIENTS (VWIDP) (3) Failing any agreement referred to in in sub-section (2),
4. To ensure that, the Arbitral Tribunal remains within the • Validity: Parties must be legally competent to enter into the arbitral tribunal may, subject to this Part, conduct the
limits of its jurisdiction, contract; Consent of the Parties must be free, The object proceedings in the manner it considers appropriate.
5. To minimize the supervisory role of Courts in the Arbitral of the contract must be lawful (4) The power of the arbitral tribunal under sub-section (3)
process. • Writing: An Arbitration Agreement must be in writing. includes the power to determine the admissibility,
6. To permit an Arbitral Tribunal to use Mediation, • Intention: There should be a clear intention on the Part of relevance, materiality and weight of any evidence.
Conciliation or other procedures to encourage settlement the Parties to dispute, to refer the dispute to Arbitration Hindustan Shipyard Ltd. v. Essar Oil Ltd and Ors., 2005, An
of disputes. • Dispute: The Arbitration Agreement can be in respect of award cannot be set aside on the grounds that the
7. To provide for the enforcement of every' final Award as present or future dispute. Such dispute must arise out of appropriate procedure was not followed unless there has
the decree of the Court. the defined legal relationship been a breach of natural justice, equity or fair play between
8. To provide that, "If a Settlement Agreement is reached • Parties to dispute must be legally competent to enter into the parties
between the Parties to dispute in a Conciliation contract. Parties include the Parties in representative Qualification of an Arbitrator
proceedings”, then the Settlement Agreement will have capacity • There are no essentially mentioned statutory
the same status and same effect as that of an Arbitral K. K. MODI V/S. K.N. MODI [1998] requirements to become an arbitrator. Under the common
Award, on agreed terms made by the Arbitral Tribunal. S.4 Waiver of right to object: A party who knows that any law, one 1. who is not a minor 2. who is of sound mind, can
Such Arbitral Award must have been made on the provision of, or requirement under, this Law has not been qualify as an arbitrator. The panel of experts in arbitral
substance of the dispute. complied with and yet proceeds with the arbitration without institutions appoints arbitrators on their understanding.
9. To provide that, "for the purpose of the Enforcement of stating his objection to such non-compliance promptly or, if a • Must not possess any disqualification as mentioned in
Foreign Awards”, every' Award made in the Country to time-limit is provided therefor in this Law, within such period Arbitration Agreement
which one of the two International Convention applies, time shall be deemed to have waived his right to object • He must be a person of the general reputation of fairness,
must be treated as Foreign Award, With these main If a party to arbitration intentionally abstains from raising integrity, and capable of applying objectivity in arriving at
objectives, the Arbitration and Conciliation Act, 1996, was objection within reasonable time, it amounts to waiver of his settlement in the dispute.
enacted right to do so • The arbitrator should be free from any bias
Salient features of Arbitration & Conciliation Act, 1996 Section 8 of the Act. Under Indian law, the kinds of disputes • He must be free from any connection with parties and the
• Replacement of three old statutes (The Arbitration Act, that can't be resolved by arbitration include: subject matter.
1940, The Arbitration (Protocol and Convention) Act, 1937, • Criminal offences. Termination of the Arbitrator: (Because of his failure to act)
The Foreign Awards (Recognition and Enforcement) Act, • Matrimonial disputes. Section 14: On the Unanimous decision of Parties to remove
1961) • Guardianship matters. the arbitrator, if he becomes de jure or de facto unable to
• Necessity of Arbitration Agreement • Insolvency petitions. perform his function or fails to act. ‘De Jure’ refers to an
• Application to Domestic & International Arbitration • Testamentary suits. arbitrator’s legal incapacity to perform his functions. Example:
• Procedural Advantage (More effective) • Trust disputes. becomes bankrupt or convicted for a criminal offence, unable
• Party Autonomy - (Umpire System was abolished) • Labour and industrial disputes. to adjudicate the case. De Facto - refers to factual inability - if
• Minimal Interference by Judiciary • Tenancy and eviction matters governed by rent control the arbitrator falls seriously ill or has some physical incapacity
• Arbitral Award / Reasoned Award statutes. Misconduct of Arbitrator: (Improper behaviour) eg. Personal
• Enforceability of Award Write short note on Arbitration / Arbitrator Interest, bribing Case Law: Cochin Shipyard and Apeejay
• Over-Riding Effect of the Act Arbitration is a process of dispute resolution in which a Shipping
• Applicability of the Limitation Act neutral third party (called the arbitrator) renders a decision Powers of a Arbitrator:
• Aligning Procedure with the UNCITRAL Model Law after a hearing at which both parties have an opportunity to • To make awards
• Clear Distinction between Arbitration & Conciliation be heard. Chapter III of A&C Act, 1996 (Sec. 10 to 15) - • To take assistance
• Conciliation Section 10 - Number of Arbitrators • To rule on its Jurisdiction
Types of Arbitrators (Kinds of arbitrations): (Minimum 1 and Maximum any odd Number can be • To pass Interim relief
1. Domestic Arbitration: When there is a dispute among two appointed) • To determine Procedures
parties sharing a legal relationship whereby both of them S. 10 (1): The parties to the dispute are free to determine the • To decide on the official language of the Proceedings
are residing or located in India number of arbitrators, provided that such number shall not be • To appoint an expert
2. International Arbitration: When one of the parties an even number. • To seek the Courts assistance for evidence
belongs to countries other than India and the dispute is S. 10(2): Failing the determination referred to in sub-section • To terminate the proceedings
being resolved through arbitration as per Indian laws (1), the arbitral tribunal shall consist of a sole arbitrator • To impose interest and deposit
3. Foreign Arbitration: When one of the parties is Indian and Section 11: Appointment of arbitrators Section 21 to 27: Commencement of Arbitration Proceeding:
they have mutually agreed to follow rules of a foreign land (1) a person of any nationality may be an arbitrator unless • Arbitration Clause
through arbitration while dealing with legal disputes, it is otherwise agreed by the parties. • Arbitration Notice
called foreign arbitration (2) Subject to sub-section (6), the parties are free to agree on • Appointment of Arbitration
4. Ad-hoc Arbitration: When there is no contractual a procedure for appointing the arbitrator or arbitrators • Language to be used during Arbitration (Section 22)
compulsion and parties agree for deciding matters via (3) if parties fail to appoint arbitrator as specified in Section • Statement of Claims and defence (Section 23)
arbitration through mutual consent 10 clause 2, then each party shall appoint (01) Arbitrator • Hearing and Written Proceeding of Parties (Section 24)
5. Institutional Arbitration: Types of arbitration include (within 30 days) and the two appointed arbitrators shall • Default by party (Section 25)
when there is a particular institution selected by the appoint the third arbitrator (Within 30 days) who shall act as • Expert appointed by Arbitral Tribunal (Section 26)
parties to contract in the arbitration clause, such an the presiding arbitrator. • Court Assistance in taking evidence (Section 27)
institution is responsible for dispute resolution through (4) If the third Arbitrators is not appointed within (30 days) – Section 28 to 39: Making of Arbitral Award and Termination
arbitration then on Application by Party, appointment will be made by Arbitral Award:
6. Contractual Arbitration: A contract is an official document either Supreme Court (For International Arbitration) / High An arbitration award is an instrument embodying the decision
in which several terms are agreed upon by the parties. Court (For Domestic)/ or any person or institution designated of the arbitral tribunal, given after determination of dispute
Sometimes, parties to a contract include an arbitration by the Court. between two or more parties, referred in pursuance of valid
clause which clarifies referring any dispute to arbitration In ICICI Ltd. v. East Coast Boat Builders & Engineers Ltd.(1998) written arbitration agreement between them.
before heading towards the courts 9 SCC 728, two arbitrators were appointed by respective Essentials of Arbitration Award: Section 31
7. Statutory Arbitration: Some laws or statutes which specify parties, but they did not agree on the name of the third 1. Award shall be made in writing and shall be signed by the
dispute resolution through arbitration only. While dealing arbitrator. The petitioner made an application for members of the arbitral tribunal.
with legal relationships under such laws, arbitration is the appointment of the third arbitrator by the court under s.11 of 2. If more than one arbitrator, to be signed by majority of all
way out for settling the disputes the Act. The court accepted the prayer and appointed the the members of arbitral tribunal with reasons
8. Fast Track Arbitration: Section 29B of Arbitration and third arbitrator 3. arbitral award shall state the reasons upon which it is
Conciliation Act, 1996, is the process whereby the Section 12: Ground for appointment of Arbitrator by the based unless the parties have agreed that no reasons are
arbitration procedure is mandated to be wrapped up Court to be given
within six months. The provisions placed in the act dealt Section 11 only confers power on the High Court to appoint 4. Shall state its date and the place of arbitration and the
only with written pleadings and did not make any an arbitrator or presiding arbitrator in following conditions: award shall be deemed to have been made at that place
accommodations for oral proceedings • where there is a valid arbitration agreement; 5. A signed copy shall be delivered to each party
9. International Commercial Arbitration System: • the agreement contains for the appointment of one or 6. make an interim arbitral award on any matter with respect
International commercial arbitration is an alternative more arbitrators; to which it may make a final arbitral
method of resolving disputes between private parties • the appointment of the arbitrator is to be made by mutual 7. A sum directed to be paid by an arbitral award shall, unless
arising out of commercial transactions conducted across consent of all the parties to the dispute. the award otherwise directs, carry interest at the rate of
national boundaries that allows the parties to avoid • differences have arisen between the parties to the eighteen per centum per annum from the date of the
litigation in national courts arbitration agreement; or between the appointed award to the date of payment

1
8. Unless otherwise agreed by the parties, the costs of an appointment of arbitrator, etc. Arbitration Act allows international trade, commerce, investment, etc.
arbitration shall be fixed by the arbitral tribunal setting aside of the award • Where at least one of the parties to arbitration agreement
9. It must be certain. If it is uncertain, it cannot be enforced. 4. Subject matter extent to the scope of Arbitration is a foreign national
10. It must follow the agreement, outside matters should be Agreement: While formulating an agreement, the parties In the case of Serajuddin V Michael Golodetz the Calcutta High
considered. describe as to what all can be enclosed in the subject Court laid down the essentials of a foreign award;
11. It must be final. matter and what are the disputes that are enclosed under • The arbitration should be held in foreign lands
Section 29A - Time Limit for Arbitral Award the arbitration agreement. Consequently, only those • The arbitration should be held by foreign arbitrators
The provides that an arbitration award shall be passed within subject matters can be referred to an arbitral tribunal to • The arbitration should be done by applying foreign laws
12 months from the date when the arbitral tribunal enters resolve the dispute, not any other. If the tribunal acts ultra • When a party of foreign national is involved
upon the reference. This duration can be extended by 6 vires to the agreement, the party affected may file an What is UNCITRAL?
months with the consent of both the parties application in the court and challenge such award. • The United Nations Commission on International Trade
Section 30: Settlement Award / Consent Award 5. Formation of the Tribunal not as per the Agreement: In Law is a subsidiary body of the United Nations General
(1) In order to arrive at an amicable settlement, the arbitral case the Arbitrator is not appointed as per the agreed Assembly established in 1966 and is headquartered in New
tribunal may mediation, conciliation or other procedures terms of the agreement or by the parties which has not York.
at any time during the arbitral proceedings to encourage been followed or any other bureaucratic aspect that was • The official function of UNCITRAL is to modernize and
settlement. decided earlier in the agreement by the parties has not harmonize the rules of international business
(2) If, during arbitral proceedings, the parties settle the been followed all the way through, then such affected • plays a key role in developing that framework in pursuit of
dispute, the arbitral tribunal shall terminate the party may challenge the award in the court to set aside the its mandate to further the progressive harmonization and
proceedings and, if requested by the parties and not award. modernization of the law of international trade.
objected to by the arbitral tribunal, record the 6. Surpassing the Scope of Arbitration: There are certain • UNCITRAL does this by preparing and promoting the use
settlement in the form of an arbitral award on agreed types of matters that are not arbitral in nature like and adoption of legislative and non-legislative instruments
terms. criminal, insolvency or any other public matters. These in a number of key areas of commercial law.
(3) An arbitral award on agreed terms shall be made in matters have been unambiguously barred under the • UNCITRAL contains ad hoc arbitration rules, whose
accordance with section 31 and shall state that it is an purview of arbitration. application is recommended for resolution of disputes that
arbitral award. 7. Award in conflict with the Public Policy of India: arise out of international commercial relations.
(4) An arbitral award on agreed terms shall have the same • Award through deception or dishonesty. • The Indian Arbitration And Conciliation Act 1996, has
status and effect as any other arbitral award on the • In contravention to fundamental policy of India. adapted the provisions of the UNICITRAL Model Law on
substance of the dispute. • In disagreement with ethics or integrity. International Commission Arbitration in [Part 1] of the Act,
Section 32: Termination of Arbitral Proceedings In a recent judgment of the Supreme Court in Haryana it is the Model Law on Arbitration.
According to Section 32(1) of the Act termination of Arbitral Tourism Limited vs. Kandhari Beverages Limited (2022), it was New York Conventions
proceedings takes place once the final award declared by the held that an arbitration award can be set aside only if the The Convention on the Recognition and Enforcement of
arbitral tribunal. The other three grounds of termination of award is against the public policy of India Foreign Arbitral Awards, done in New York, 10 June 1958 (the
arbitral proceedings are given under Sub-section 2 of Section Section 35: Finality of Arbitral Award New York Convention), is described as the most successful
32. Subject to this Part an arbitral award shall be final and binding treaty in private international law. It is adhered to by more
To terminate the arbitration proceedings arbitral tribunal on the parties and persons claiming under them respectively. than 160 nations. Sections 44 to 52 of the Arbitration and
shall issue an order: Section 36:Enforcement of Award Conciliation (Amendment) Act, 2015 deals with foreign
• The parties themselves agree to terminate the “Where the time for making an application to set aside the awards passed under the New York Convention. In its simplest
proceedings. arbitration award under section 34 has expired, or such terms, the Convention incorporated two radical principles
• If the arbitral tribunal finds that the continuation of the application having been made, it has been refused, the award which, at that time, revolutionized the resolution of disputes
proceedings is either unnecessary or impossible for any shall be enforced under the Code of Civil Procedure, 1908 in with international elements, namely, enforcement of
other reason. the same manner as if it were a decree of the Court.” arbitration agreements and enforcement of foreign arbitral
• the plaintiff withdraws their claim. It can also be Section 39: Lien on Arbitral Award: Empowers the Arbitral awards. Whilst the former provision upholds the principle of
terminated if the respondent objects to the arbitral award. Tribunal to have lien of the arbitral award for party autonomy by requiring national courts to refer the
Looking at which the arbitral tribunal come to a conclusion 1) The tribunal shall have lien on the arbitral award for parties to arbitration, the latter incorporates a system of
that it has a legitimate interest in obtaining a final securing the payment of any unpaid costs of the arbitration. recognition of foreign arbitral awards in States bound by the
settlement. 2) The tribunal can refuse to deliver the award unless the Convention subject to limited exceptions.
Section 33: Additional Award cost demanded by it is paid. In such case, an application for Two pre-requisites for enforcement of foreign awards under
1) In the absence of any contrary Agreement between the delivery of the award can be made to the Court. New York Convention. These are:
Parties, a Party within a period of thirty days from the Section 43: Limitations: 1. The country must be a signatory to the New York
date on which he receives the Arbitral Award, may (1) The Limitation Act, 1963 (36 of 1963), shall apply to Convention.
request the Arbitral Tribunal to make an Additional arbitrations as it applies to proceedings in court. 2. The award shall be made in the territory of another
Award for the claims made by him in the Arbitral Section 17 and Section 9 of the Act deal with matters of contracting state which is a reciprocating territory and
proceedings, if such claims were omitted in the Arbitral interim measures notified as such by the Central Government.
Award by the Arbitral Tribunal. A notice should be sent According to Section 9 and Section 17 of the Act, party may, Requirements for the enforcement of foreign awards
to the other Party informing him that, a request to make before or during arbitral proceedings or at any time after the • Original copy or certified copy of award given by Arbitral
an Additional Award has been made to the Arbitral making of the arbitral award but before it is enforced in tribunal.
Tribunal. [Section 33 (4)]. accordance with section 36, apply to a court for interim • Original or certified copy of the agreement.
2) If the Arbitral Tribunal is satisfied that, the request made measures, viz: • Evidence needs to prove the existence of a foreign award.
under Section 33 (4) is justified, then it shall make an 1) Appointment of guardian for a party suffering from any Geneva Conventions - (Section 53 to 60)
Additional Award within a period of sixty' days, from the legal disability. The Arbitration and Conciliation (Amendment) Act, 2015
date on which the Arbitral Tribunal receives such request 2) The subject matter is to be when preserved, kept in interim contains provisions relating to foreign awards passed under
to make an Additional Award. [Section 33 (5)]. custody, or had to be sold. the Geneva Convention. The conditions for enforcement are:
3) The Arbitral Tribunal may extend the statutory time 3) Depositing of the amount in court with respect to which 1. the award has been made in pursuance of a submission
period of sixty days within which it has to make an dispute has arisen. to arbitration which is valid under the law applicable thereto;
Additional Award. [Section 33 (6)]. 4) Detention, preservation, and inspection of any immovable 2. the subject-matter of the award is capable of settlement
4) The provisions of Section 31, as to the form and contents property. by arbitration under the law of India;
of Arbitral Award, shall be applicable to the Additional 5) Allow any person to enter upon any land or building in 3. the award has been made by the arbitral tribunal
Award made under Section 33. [Section 33 (7)]. possession of any party for collection of samples, provided for in the submission to arbitration or constituted in
Section 34: Setting aside of Arbitration Award conducting experiments, or making observations. the manner agreed upon by the parties and in conformity with
In order to set aside the Arbitration award, individual needs 6) Interim injunctions. the law governing the arbitration procedure;
to file an application in Principal Civil Court of Original 7) Appointment of receiver 4. the award has become final in the country in which it has
Jurisdiction within 3 months from the date of receipt of final Companies Act v. Mr. Ashok Khurana (2014), the Bombay High been made, in the sense that it will not be considered as such
award of arbitration. The Courts generally accepts the Court held that the parties who are not parties to an if it is open to opposition or appeal or if it is proved that any
application, if it comes under the ambit of Section 34 arbitration agreement can still file an application under proceedings for the purpose of contesting the validity of the
Prior to filing an application in the court to set aside the Section 9 if they are likely to be affected by the reliefs claimed award are pending;
award, the party filing the application has to hand over a therein the enforcement of the award is not contrary to the public
notice of such filing to the opposite party When award is considered as foreign award policy or the law of India.
Ground for setting aside the Arbitral Award: S.44: If the award is made in accordance with the foreign law Settlement Agreement
1. Incapacity of the parties: The parties to a contract should The New York Convention defines foreign awards an arbitral Section 73: When the conciliator sees the possibility of
be capable of entering a contract. If the legal capacity to award on differences between persons arising out of legal settlement of dispute, the settlement process takes place.
contract is challenged, the same applies to the incapacity relationships, whether contractual or not, considered as Generally, decision of the conciliation proceedings are not
for arbitration agreement as well. The incapacity commercial under the law in force in India, made on or after binding on the parties but if the parties resort to settlement
mentioned here could be minority, unsoundness of mind, the 11th day of October, 1960 of award under this section then the settlement agreement
etc. Part II of the Act deals with foreign awards based on New York becomes binding on the parties.
2. Invalidity of Arbitration Agreement: If the contract is and Geneva conventions. An arbitral award is said to be a Parties have the option of either drawing up the terms
unlawful, then the arbitration agreement will also be held foreign award if it has a foreign element in it or has one or settlement agreement by themselves or take the assistance of
to be invalid. All the essential elements of a contract have more of the following factors: conciliator and at last the agreement is signed by both the
to accomplish in order for it to become enforceable. • If the award is made in a foreign country parties and authenticated by the conciliator. Such agreement
3. Lack of Proper Notice: If one of the parties has not been • If the subject matter of the arbitration agreement involves reached is called settlement agreement.
served with proper notice of the arbitration proceedings, international transaction that, is it is related to Section 30: The settlement agreement shall have the same

2
status and effect as if it is an arbitral award on agreed terms Difference between Conciliation and Arbitration 1. COMMENCEMENT; The Arbitral proceedings commence
on the substance of the dispute rendered by an arbitral Conciliation Arbitration on the date on which, a request by one of the Party to the
tribunal Conciliation may be resorted to In Case of arbitration, a prior dispute to refer the dispute to Arbitration is received by
Conciliation / Conciliator without the existence of prior ‘agreement in writing’ is the other Party to the dispute. But the Parties to the
Conciliator is an impartial third person who assists the parties agreement. necessary. dispute may agree on the particular date on which the
to a dispute in reaching a mutually agreed settlement. The role of Conciliator is to The Arbitrator also actively Arbitral proceedings will commence. The purpose of
(Process known as conciliation. help and assist the parties to arbitrates and resolves the determining the date of commencement of the Arbitral
Conciliation Procedure (Section 62 to 76) reach an amicable disputes by making proceedings is for the provisions of “Limitations”. [Section
Section 62: Commencement of Conciliation: settlement of their dispute. an arbitral award. 21].
(1) The party initiating conciliation shall send to the other A Party may require the The information given by a 2. Equal Treatment of Parties: Section 18 of the Act has two
party a written invitation to conciliate by identifying the conciliator to keep the ‘factual party is subjected to scrutiny fundamental principles. Firstly, it provides that the parties
subject of the dispute. information’ confidential. by the other party. to an arbitration proceeding shall be treated with equality
(2) Conciliation proceedings, shall commence when the A Settlement agreement may An Arbitration award on the and secondly, that each party shall be given a full
other party accepts in writing the invitation to conciliate. be made by the parties other hand, is a judgment opportunity to present their case. This section is a
(3) If the other party rejects the invitation, there will be no themselves and the conciliator duly signed by the mandatory provision and the arbitral tribunal has to
conciliation proceedings. shall authenticate the same. Arbitrator. comply with it. The tribunal has to act in an impartial
(4) If the party initiating conciliation does not receive a The Conciliation proceedings Arbitration proceedings manner to the parties and no party has to be given an
reply within (30 days) from the date on which he sends the may be unilaterally terminated cannot be so terminated. advantage over the other.
invitation, he may elect to treat this as a rejection of the by a written declaration by a 3. Procedure of Arbitral Proceedings: Section 19 of the Act
invitation to conciliate and if he so elects, he shall inform in party to the other party. recognises the right of the parties to agree on the
writing the other party accordingly. procedural rules which are applicable in conducting the
Conciliator is subjected to No such disabilities imposed
Section 63: Number of Conciliator certain disabilities under on an arbitrator or parties to arbitral proceedings. This provision establishes the
1) As per Act only (01) Conciliator unless parties agree that Section 80 of the Act and he arbitral proceedings. procedural autonomy of the parties.
there shall be (02) or (03) Conciliator 4. Place of Arbitration: Section 20 of the Act provides that
cannot act as arbitrator or as a
2) More than (1) Conciliator, all shall act jointly. the parties are free to agree on the place of arbitration and
counsel or as a witness in any
Section 64: Appointment of Conciliator arbitral or judicial proceedings. if they fail to agree then the arbitral tribunal has to
(1) Subject to sub-section (2)— determine the place of arbitration in a judicial manner,
The Conciliation proceedings The arbitration proceedings
(a) For conciliation with (01) conciliator, the parties may considering the circumstances of the case and
cannot be used as evidence in or awards may be used as
agree on name of a sole conciliator; convenience of the parties. It determines the substantive
any arbitral or judicial evidence in any judicial
(b) For conciliation with two conciliators, each party may laws for the time being in force in India.
proceedings. proceedings.
appoint one conciliator; 5. Language to be used in Arbitral Proceedings: Section 22:
A Conciliator can conciliate An Arbitrator has to decide
(c) For conciliation with three conciliators, each party may The parties to the arbitration agreement are free to choose
irrespective of law according to law.
appoint (01) conciliator & the parties may agree on the name the language or languages which have to be used in the
Explain the Role of Mediator: (Mediation)
of the third conciliator who shall act as the presiding arbitral proceedings. In cases where the parties fail to
conciliator. Mediation is a voluntary process where the disputing people arrive at such an agreement arbitral tribunal to determine
decide to mutually find a solution to their legal problem by
(2) Parties may enlist the assistance of a suitable institution or the language or languages to be used in the arbitral
entering into a written contract and appointing a mediator.
person in connection with the appointment of conciliators for proceedings. The language shall also apply to any written
‘Mediator’ is one who is requested to mediate or intervene
their disputes. statement by a party, any hearing and any arbitral award,
Section 65: Submission of Statement (WS) between the parties, as a friend, to bring about a settlement. decision or other communication by the arbitral tribunal.
The Settlement brought about by him is not an award within
• The conciliator may request each party to submit to him When the arbitral tribunal agrees on the language to be
the meaning of the Act.
brief Written Statement, and a copy to the other party. used in arbitral proceedings, it may order that any
• The Party to submit to him WS of his position and the facts
Role of Mediator: documentary evidence shall be accompanied by a
The mediator is a facilitator and not a decision-maker
and grounds in its support. translation into the language agreed. The arbitral tribunal
• Rule: To conduct the mediation in accordance with FINRA
• Documentary Evidence in support of claims must be must ensure that all the parties are able to follow and
procedures, the Code of Mediation Procedure and the
submitted to him as well to the other party understand the proceedings.
Section 66: Conciliator not bound by certain enactment: The provisions of the Standards of Conduct for Mediators. 6. Statement of Claim and Defence : Section 23 of the Act
• Setting Conducive Environment: To create a set-up in
conciliator is not bound by the CPC, 1908 or the Indian provides for pleadings of the parties before the arbitral
which parties before him are facilitated towards resolving
Evidence Act, 1872 tribunal. After the arbitral tribunal has been established,
the dispute in a purely voluntary and amicable manner.
Section 69(1), 67(3) – Conduct of Conciliation Proceeding: the usual practice is to exchange and file their pleadings
• Communication: He has to open up communication
The Conciliator may invite parties to meet him, He may before the tribunal. The claimant states the facts and other
between the parties and himself and act as a guiding force
communicate with the parties either together or separately. relevant matters, while the respondent opposes the facts
while assisting them to reach a solution.
He may conduct them in such manner as he may consider and the averments made in the claim statement and
• Meeting with party: It is the mediator who first initiates a
appropriate, taking into account the express wishes of the contests the relief claimed by the claimant. The contents
meeting, discusses the problem and then assists the
parties. of pleading may vary from case to case depending upon
conflicting parties in finding possible solutions.
Section 68: Administrative Assistance with consent of the facts and circumstances of each case. Within six
• Planning of Mediation: To provide structure, focus, and
parties. months of the appointment of the arbitral tribunal, the
Section 67: Principle and Procedure assistance with communication to the parties in dispute. statement of claim and defence has to be completed under
• Important role is to draw out the disputing parties from
Section 67(1) – Independence & Impartiality Section 67(2) – this section.
their defensive shell and make them reveal the truth.
Fairness and Justice 7. Hearing and written proceedings: Section 24 of the Act
• Control: He has to control the process of negotiation and
Section 75, 70 (Proviso) - Confidentiality Section 70 – discusses the manner in which arbitral proceedings are to
act as a catalyst between the conflicting parties.
Disclosure of Information be conducted. In the absence of any prior agreement
• Confidentiality: It is the mediator’s job to keep the party
Section 71 - Mutual Co-operation of parties between the parties relating to this matter, the arbitral
reassured that the secrets revealed in his presence shall be
Section 67(4), 72 , 73 – Settlement of dispute: tribunal has the power to decide whether the proceedings
• The role of the conciliator is to assist the parties to reach
kept completely off the records. shall be held orally or on the basis of documents and other
• No Person Opinion: The mediator is not allowed to give his
an amicable settlement of the dispute. materials.
personal opinions on the case.
• He may at any stage of the conciliation proceedings make 8. Default of Party: Section 25 of the Act deals with three
• Unbiased: The Mediator has to be completely unbiased all
proposals for the settlement of the disputes. situations where the parties are at default. Firstly, the
• Such proposal need not be in writing and need not be
the time while he is resolving a case. arbitral tribunal terminates the proceedings when the
• Reveal Consequence: To inform what consequences might
accompanied by a statement of reasons claimant without showing sufficient cause, fails to
be if the said case is taken to court…..thus fulfilling the dual
Section 76: Termination of Conciliation communicate his statement of claim in accordance with
The conciliation proceedings shall be terminated— role of being facilitative and evaluative. Section 23(1). Secondly, the arbitral tribunal continues the
• Settlement: The mediator should bring and drawn the
(a) by the signing of the settlement agreement by the proceeding when the respondent fails to communicate his
party for the final settlement of their dispute.
parties, on the date of the agreement; or statement of defence in accordance with Section 23(1).
• Conflict of Interest: The Mediator has to avoid a conflict of
(b) by a written declaration of conciliator, after consultation Thirdly, if there is sufficient cause then the termination is
with parties, that further efforts at conciliation are no longer interest during and after a mediation; recalled and proceeding gets restored.
Explain - Negotiation is the process of dispute resolution
justified. 9. Appointment of Experts: Section 26 of the Act gives the
Negotiation is an informal method of dispute resolution
(c) by a written declaration of the parties, that the arbitral tribunal power to appoint one or more experts
whereby a dispute between two individuals or groups is
conciliation proceedings are terminated, on the date of the based on the requirement or request of the parties. It
declaration; or settled amicably by an impartial third person called as a requires the parties to provide relevant information to the
negotiator. The negotiator uses various communication
(d) by a written declaration of a party to the other party and experts. Also, the arbitral tribunal cannot appoint experts
methods to bring the parties of the dispute to a settlement.
the conciliator, accordingly. and delegate the duty of determination of the dispute.
Sec. 80: Role of Conciliator in other proceeding The main features of negotiation are as follows: 10.Court Assistance: Section 27 of the Act provides the
• Since it is an informal process, it is relatively flexible.
(a) Shall not act as an arbitrator / representative or counsel arbitral tribunal with the power to apply for the court
• Quick resolutions as compared to litigation.
of a party in any arbitral or judicial proceeding in respect of a assistance in taking evidence. Persons can also be held
• Helps to maintain healthy relationship amongst parties.
dispute that is the subject of the conciliation proceedings; guilty and tried before the court, if they refuse to give
• Takes place in a private environment
the conciliator shall not be presented by the parties as a evidence or do not cooperate.
Composition of Arbitral Tribunal
witness in any arbitral or judicial proceedings. 11.Termination: The arbitral proceedings are terminated
The provisions regarding the conduct of Arbitral Proceedings
either by the final arbitral award or by an order of the
are incorporated under Section 19 to Section 27 of the arbitral tribunal terminating the arbitral proceedings. The
Arbitration and Conciliation Act, 1996.
arbitral tribunal terminates the arbitral proceedings in any
The Arbitral Proceedings are conducted as under
3
 of these cases where: the claimant withdraws the claim Chairman of the State Authority. TRIBUNAL COURT
and respondent does not object to it, both parties are in 9) No act or proceeding of a State Authority shall be invalid Decision Awards Judgement, decree,
consensus and agree to terminate the arbitral merely on the ground of the existence of any vacancy in, or conviction or acquittal
proceedings, or the continuation of the arbitral any defect in the constitution of the State Authority.
proceedings has become impossible or irrelevant Deals Specific cases Variety of cases
Types of services that LSA provides with
considering the present facts of the case. Also, the Free legal aid is the provision of free legal services in civil and
termination of the arbitral proceedings terminates the Party A tribunal may be a Court judges are impartial
criminal matters for those poor and marginalized people who
mandate of the arbitral tribunal and the arbitral tribunal party to the dispute. arbitrator and not a party.
cannot afford the services of a lawyer for the conduct of a case
becomes functus officio. The term “functus officio” means or a legal proceeding in any Court, Tribunal or Authority. Headed Chairperson and other Judge, panel of judges or
no longer holding office or having official authority once a These services are governed by Legal Services Authorities Act, by judicial members magistrate
decision is rendered. 1987 and headed by the National Legal Services Authority. Code of No such code of It has to follow the code
What is status of award of Lok-Adalat? Procedure procedure. of procedure strictly.
Provision of free legal aid may include:
"Lok Adalat" means 'People's Court. Lok Adalats have been
a) Representation by an Advocate in legal proceedings. INTRODUCTION
given statutory status under the Legal Services Authorities
b) Payment of process fees, expenses of witnesses and all Mediation is the process of settling the dispute between the
Act, 1987.
other charges payable or incurred in connection with any legal disputing parties with the assistance of a impartial third party
The object of Lok Adalat
proceedings in appropriate cases; i.e. mediator. For this, there is a chain/stages of mediation
• To settle the disputes by counseling and discussions, etc.
c) Preparation of pleadings, memo of appeal, paper book process which has to be followed by the mediator for the
• To provide Justice with mutual & free consent of the
including printing and translation of documents in legal settlement.
parties. To reduce burden on the Courts
proceedings; STAGES OF MEDIATION
Features of Lok Adalat
There are four functional stages of mediation process :-
• No Court fee is payable d) Drafting of legal documents, special leave petition etc.
Stage 1 : At the starting of the mediation, the mediator shall
• It is one of the most effective (ADR) systems e) Supply of certified copies of judgments, orders, notes of
ensure that parties with their counsel are present.
• Lok Adalat is deemed to be Civil Court for certain purposes. evidence and other documents in legal proceedings. INTRODUCTION AND OPENING STATEMENT
Award passed is deemed to be decree of a civil Court Free Legal Services also include provision of aid and advice to • The mediator introduces himself by giving the information
• Code of CPC and Indian Evidence Act are not applicable the beneficiaries to access the benefits under the welfare such as his name and qualification.
Proceeding of Lok Adalat is considered to be judicial statutes and schemes framed by the Central Government or • The mediator requests the parties and their counsels to
proceedings the State Government and to ensure access to justice in any introduce themselves .
Types of Cases dealt by the Lok Adalat other manner. • The mediator expresses the hope that the matter would be
• Any Post-Litigative Civil Cases – bought before them. According to Section 2(c) of the Legal Services Authorities Act, amicably resolve, in order to get the trust and confidence
• Any disputes pertaining to Contractual Agreement 1987, “legal services” includes any service in the conduct of of each party.
• Suo-Moto Cases referred to the Lok Adalat by the Court any case or other legal proceeding before any court or other • In the opening statement, the mediator explain to the
• Any case or matter of offence, which is not compoundable authority or tribunal and the giving of advice on any legal parties the concept, process, advantages & stages of
Powers of Lok Adalat matter. mediation. Also , the ground rules of the mediation are told
• Similar powers of a Civil Court and CPC 1908.
Types of Lok Adalat • Finally the mediator confirms that process is cleared by
• Power to Summon and Enforce Attendance of a witness
The Legal Services Authorities Act of 1987 grants Lok Adalat both the parties and shall give them opportunity to get the
• To order the discovery and production of document
statutory status. Various types of Lok Adalat in India. doubts clarified.
• To receive evidence on affidavits and on any case matters
1. National Lok Adalat: It is held at regular intervals. It is Stage 2 : JOINT SESSION
• Power to follow its own procedure for any disputes
being held on a specific subject matter every month. • The objective of this , is to gather information , understand
• To ask for any public record from any court or office
2. Permanent Lok Adalat: It is a permanent body with a facts and issues and also the obstacles and possibilities.
• Award of Lok Adalat can be executed in a court of law.
Chairman and two members that provides a mandatory • The mediator invites to both the parties to present their
Essentials of the person who will qualify for legal aid.
pre-litigation mechanism for conciliation and settlement of case. First, the plaintiff is given opportunity to state the
Legal Services Authorities Act, 1987 Section 12 of the Act case in his own words, followed by his counsel, who can
enumerates the categories of persons who are entitled to cases involving Public Utility Services such as
transportation, postal, and telegraph, among others. present and state the legal issues involved in the case.
legal services. These are as follows – Likewise, the defendant is given opportunity , followed by
1. A person who is a member of Scheduled Caste. or 3. Mobile Lok Adalat: It is located in various parts of the
his counsel.
Scheduled Tribe; country and travels from one location to another to
• The mediator shall identify the area of agreement and
resolve disputes in order to facilitate the resolution of
2. A victim of trafficking in human beings or beggar; disagreement between the parties and should encourage
disputes.
3. A woman or a child; the communication , to get additional information .
4. Mega Lok Adalat: It is held on a single day in all the courts
4. A person who is disabled as defined in Section 2(i) of the • At the completion of joint session , the mediator may meet
on the state level.
Persons with Disabilities each party with their counsel.
5. Daily Lok Adalat: It is held every day. Stage 3: SEPARATE SESSION
5. A victim of a mass disaster, ethnic violence, flood, drought,
6. Continuous Lok Adalat: It is organized for a number of • The objective of this session is to understand the dispute
earthquake or industrial disaster;
days continuously. at deep level ,to encourage parties to generate options and
6. an industrial workman;
Permanent Lok Adalat. find terms that are mutually acceptable.
7. Those persons who have an annual income of less than the
• The other type of Lok Adalat is the Permanent Lok Adalat, • The mediator and each of the party , would talk the
amount prescribed by the respective State Government, if the
organized under Section 22-B of The Legal Services mediation in confidence.
case is before any court other than the Supreme Court, and
Authorities Act, 1987. • Then, the mediator gathers further information by
less than Rs. 5 Lakhs, if the case is before the Supreme Court,
are eligible for free legal aid. • Permanent Lok Adalats have been set up as permanent identifying each party's differential priorities or the
bodies with a Chairman and two members for providing differential aspects of the disputes.
In addition to the above, legal services may also be granted in • The mediator in order to move the process forward ,
cases of great public importance and in special cases which compulsory pre-litigative mechanism for conciliation and
settlement of cases relating to Public Utility Services like engage in reality testing , in which the mediator assists the
are considered deserving of legal services.
transport, postal, telegraph etc. parties to understand the reality of their case and shift the
Composition at state level. focus on problem solving.
• Here, even if the parties fail to reach to a settlement, the
A) Constitution/Composition of State Legal Services Authority • Then, the mediator offers options which he feels serve the
Permanent Lok Adalat gets jurisdiction to decide the
(Section 6) common and maximum interest of each party .
dispute, provided, the dispute does not relate to any
1) Every State Government shall constitute a body to be Stage 4 : REACHING A STATEMENT
offence.
called the Legal Services Authority for the State to exercise the • The mediator can conduct as many as separate session as
• Further, the Award of the Permanent Lok Adalat is final
powers and perform the functions conferred on or assigned necessary and may even conduct the sub session with the
and binding on all the parties.
to, a State Authority under this Act. counsels , if required.
2) A State Authority shall consist of - • The jurisdiction of the Permanent Lok Adalats is upto Rs. • The parties negotiated through the mediation for a
Ten Lakhs. Here if the parties fail to reach to a settlement, mutually settlement .
a) Patron-in-Chief: The Chief Justice of the High Court;
the Permanent Lok Adalat has the jurisdiction to decide • The mediator directs the parties to a option which he feel
b) Executive Chairman: a serving or retired Judge of the High the case.
Court, to be nominated by the Governor, in consultation with serve the best interest of both the parties.
• The award of the Permanent Lok Adalat is final and binding • However , if the negotiation fails and settlement cannot be
the CJ HC
upon the parties. reached the case is returned to referal court
c) Member-Secretary of the State Authority: Higher Judicial
• The Lok Adalat may conduct the proceedings in such a Stage 5 : CLOSING : Where there is a settlement:-
Service not lower in rank than that of a District Judge
manner as it considers appropriate, taking into account the • The parties are reassembled. The mediator orally confirms
d). Other Members: The State Authority may appoint number
circumstances of the case, wishes of the parties like the terms and reduced them to writing.
of officers and other employees may be prescribed by the
requests to hear oral statements, speedy settlement of • The agreement is signed by the parties , also, the mediator
State Government, in consultation with the Chief Justice of
dispute etc. may affix his signed on the signed agreement.
the High Court, for the efficient discharge of its functions
Difference between Arbitral Tribunal and Court • In the closing statement , the mediator thanks the parties
under this Act.
TRIBUNAL COURT for their participation and help in reaching the solution.
7) The administrative expenses of the State Authority, When there is no settlement:-
including the salaries, allowances and pensions payable to the Meaning Tribunals can be Court refers to a part of • The case would be returned to the 'referral court' merely
Member-Secretary, officers and other employees of the State described as minor legal system which are mentioning 'Not Settled'.
Authority shall be defrayed out of the Consolidated Fund of courts, that established to give their • The statements made during the mediation will be kept
the State. adjudicates disputes decisions on civil and confidential and should not be disclosed by any party or
8) All orders and decisions of the State Authority shall be arising in special criminal cases. advocate or the mediator to the court or outside the court.
authenticated by the Member-Secretary or any other officer cases.
of the State Authority duly authorized by the Executive
4