INDIAN TRUST ACT

ARBITRATION AND CONCILIATION LAW : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 1 www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS ARBITRATION AND CONCILIATION LAW AFTERSCHO?OL – DEVELOPING CHANGE MAKERS CENTRE FOR SOCIAL ENTREPRENEURSHIP PGPSE PROGRAMME – World’ Most Comprehensive programme in social entrepreneurship & spiritual entrepreneurship OPEN FOR ALL FREE FOR ALL

ARBITRATION AND CONCILIATION LAW : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 2 www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS ARBITRATION AND CONCILIATION LAW Dr. T.K. Jain. AFTERSCHO?OL Centre for social entrepreneurship Bikaner M: 9414430763 tkjainbkn@yahoo.co.in www.afterschool.tk, www.afterschoool.tk

WHAT IS ARBITRATION? : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 3 WHAT IS ARBITRATION? Halsbury’s Law of England (vol ii, 4th ed.) It is the reference of dispute or differences between not less than 2 parties for determining after hearing both sides in judicial manner by a person or persons other than a court of competent jurisdiction.

Present law : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 4 Present law It was enacted in 1996 (arbitration and conciliation act 1996) after repealing arbitration act 1940 The act is divided in 4 parts.

Parts of arbitration law : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 5 Parts of arbitration law (a) Part I - Domestic arbitration. (b) Part II - Enforcement of foreign awards. (c) Part III - Conciliation procedures. (d) Part IV - Supplementary provisions. (e) First Schedule - Convention on recognition and enforcement of foreign arbitral award as per New York convention (f) Second Schedule - Protocol on Arbitration clauses (g) Third Schedule - Convention on the execution of foreign arbitral awards as per Geneva Convention

Objectives of the law… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 6 Objectives of the law… To comprehensively cover domestic and international arbitration and conciliation To ensure that arbitral award is enforced in similar manner as decree of the court To ensure that settlement agreements of parties will have the same status as that of awards or decrees. To ensure that supervisory and intervensionary rules of the courts are minimised

Arbitral tribunal : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 7 Arbitral tribunal He is the sole arbitrator or a panel of arbitrators (sec. 2 (1) d)

The matters that cannot be arbitrated… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 8 The matters that cannot be arbitrated… Suits for divorce or restitution of conjugal rights Taxation Non-payment of admitted liability Criminal matters.

Arbitration agreement : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 9 Arbitration agreement Arbitration provision has be inserted at the time of making any agreement. Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. The arbitration agreement can be by exchange of letters, document, telex, telegram etc.

Court to refer the matter to the arbitrator : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 10 Court to refer the matter to the arbitrator If inspite of arbitration agreement, one party approaches court, the other party may raise objection and the court shall refer the matter to the arbitrator. However, such objection must be raised before submitting his first statement on the substance of dispute. Such objection must be accompanied by the original arbitration agreement or its certified copy. On such application the judicial authority shall refer the parties to arbitration. Since the word used is “shall”, it is mandatory for judicial authority to refer the matter to arbitration. However, once first statement to court is already made by the opposite party, the matter has to continue in the court. [section 8].

Appointment of arbitrator : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 11 Appointment of arbitrator The parties can agree on a procedure for appointing the arbitrator or arbitrators. If they are unable to agree, each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator who will act as a presiding arbitrator. [section 11(3)]. (arbitrator can be of any nationality (11(1))

Appointment by chief justice : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 12 Appointment by chief justice If one of the party does not appoint an arbitrator within 30 days, or if two appointed arbitrators do not appoint third arbitrator within 30 days, the party can request Chief Justice to appoint an arbitrator. [section 11(4) ]

Appointment by chief justice : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 13 Appointment by chief justice The Chief Justice can authorise any person or institution to appoint an arbitrator. [Some High Courts have authorised District Judge to appoint an arbitrator]. In case of international commercial dispute, the application for appointment of arbitrator has to be made to Chief Justice of India. In case of other domestic disputes, application has to be made to Chief Justice of High Court within whose jurisdiction the parties are situated. [section 11(12)]

Independence of arbitrator : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 14 Independence of arbitrator An arbitrator is expected to be independent and impartial. If there are some circumstances due to which his independence or impartiality can be challenged, he must disclose the circumstances before his appointment. [section 12(1)]

Challenge to appointment of arbitrator : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 15 Challenge to appointment of arbitrator (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality (b) He does not possess the qualifications agreed to by the parties. [section 12(3)]. In such case, application for setting aside arbitral award can be made to Court. If the court agrees to the challenge, the arbitral award can be set aside. [section 13(6)]

Tribunal to decide the procedure : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 16 Tribunal to decide the procedure The Arbitral Tribunal should treat the parties equally and each party should be given full opportunity to present his case. [section 18]. The Arbitral Tribunal is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. [section 19(1)]. The parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal / or the tribunal may decide the course of action.

Procedure of arbitration…. : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 17 Procedure of arbitration…. Arbitral Tribunal has full powers to decide the procedure to be followed, unless parties agree on the procedure to be followed. [section 19(3)]. The Tribunal also has powers to determine the admissibility, relevance, materiality and weight of any evidence. [section 19(4)]. Place of arbitration will be decided by mutual agreement. However if the parties do not agree to the place, the same will be decided by tribunal. [section 20]

Language … : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 18 Language … language to be used in arbitral proceedings can be mutually agreed. Otherwise, Arbitral Tribunal can decide. [section 22].

Procedure… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 19 Procedure… Arbitral Tribunal can decide whether there will be oral hearing or proceedings can be conducted on the basis of documents and other materials. However, if one of the parties requests, the hearing shall be oral. Sufficient advance notice of hearing should be given to both the parties. [section 24]

Settlement during arbitration… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 20 Settlement during arbitration… It is permissible for parties to arrive at mutual settlement even when arbitration is proceeding. In fact, even the Tribunal can make efforts to encourage mutual settlement. If parties settle the dispute by mutual agreement, the arbitration shall be terminated. However, if both parties and the Arbitral Tribunal agree, the settlement can be recorded in the form of an arbitral award on agreed terms. Such Arbitral Award shall have the same force as any other Arbitral Award. [section 30].

Award.. : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 21 Award.. Decision of Arbitral Tribunal is termed as 'Arbitral Award'. Arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorise him to do so. [section 28(2)]

Award… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 22 Award… The decision of Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. [section 29]. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. [section 31(3)]. The award should be dated and place be mentioned. Copy of award should be given to each party. Tribunal can make interim award also. [section 31(6)]

Cost of arbitrator : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 23 Cost of arbitrator The tribunal can decide the cost and share of each party. [section 31(8)]. If the parties refuse to pay the costs, the Arbitral Tribunal may refuse to deliver its award. In such case, any party can approach Court. The Court will ask for deposit from the parties and on such deposit, the award will be delivered by the Tribunal. Then Court will decide the costs of arbitration and shall pay the same to Arbitrators. Balance, if any, will be refunded to the party. [section 39].

Appeal to court : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 24 Appeal to court Appeal to court is now only on restricted grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers

Conciliation .. : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 25 Conciliation .. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement.

Conciliation.. : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 26 Conciliation.. The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected. [section 62]

International settlements… : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 27 International settlements… They are enforced as under: (a) New York convention award (made after 11th October, 1960) (most popular) (b) Geneva convention award - made after 28th July, 1924, but before the concerned Government signed the New York convention

About AFTERSCHO?OL : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 28 About AFTERSCHO?OL PGPSE - World’s most comprehensive programme on social entrepreneurship – after class 12th Flexible – fast changing to meet the requirements Admission open throughout the year Complete support from beginning to the end – from idea generation to making the project viable.

Branches of AFTERSCHO?OL : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 29 Branches of AFTERSCHO?OL PGPSE programme is open all over the world as free online programme. Those who complete PSPSE have the freedom to start branches of AFTERSCHO?OL A few branches have already started - one such branch is at KOTA (Rajasthan).

Workshop on social entrepreneurship : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 30 Workshop on social entrepreneurship We conduct workshop on social entrepreneurship – all over India and out of India also - in school, college, club, association or any such place - just send us a call and we will come to conduct the workshop on social entrepreeurship. These workshops are great moments of learning, sharing, and commitments.

FREE ONLINE PROGRAMME : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 31 FREE ONLINE PROGRAMME AFTERSCHO?OL is absolutely free programme available online – any person can join it. The programme has four components : 1. case studies – writing and analysing – using latest tools of management 2. articles / reports writing & presentation of them in conferences / seminars 3. Study material / books / ebooks / audio / audio visual material to support the study 4. business plan preparation and presentations of those plans in conferences / seminars

100% placement / entrepreneurship : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 32 100% placement / entrepreneurship AFTERSCHO?OL has the record of 100% placement / entrepreneurship till date Be assured of a bright career – if you join AFTERSCHO?OL

Pursue professional courses along with PGPSE : 

2/6/2009www.afterschoool.tk AFTERSCHO?OL's MATERIAL FOR PGPSE PARTICIPANTS 33 Pursue professional courses along with PGPSE AFTERSCHO?OL permits you to pursue distance education based professional / vocational courses and gives you support for that also. Many students are doing CA / CS/ ICWA / CMA / FRM / CFP / CFA and other courses along with PGPSE. Come and join AFTERSCHO?OL