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ARBITRATION

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3/13/2017

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VISHAL KUMAR & APOORV JAITLY

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ARBITRATION
Arbitration, a form of alternative dispute resolution (ADR), is a legal
technique for the resolution of disputes outside the courts, wherein the
parties to a dispute refer it to one or more persons (the "arbitrators",
"arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree
to be bound.

It is a settlement technique in which a third party reviews the case and

imposes a decision that is legally binding for both sides. [1] Other forms of ADR
include mediation[2] (a form of settlement negotiation facilitated by a neutral
third party) and non-binding resolution by experts. It is more helpful,
however, simply to classify arbitration as a form of binding dispute resolution,
equivalent to litigation in the courts, and entirely distinct from the other
forms of dispute resolution, such as negotiation, mediation, or determinations
by experts, which are usually non-binding. Arbitration is most commonly used
for the resolution of commercial disputes, particularly in the context of
international commercial transactions.

The use of arbitration is far more controversial in consumer and employment

matters, where arbitration is not voluntary but is instead imposed on
consumers or employees through fine-print contracts, denying individuals of
their right to access the courts.

Arbitration can be either voluntary or mandatory and can be either binding or

non-binding. Non-binding arbitration is, on the surface, similar to mediation.
However, the principal distinction is that whereas a mediator will try to help
the parties find a middle ground on which to compromise, the (non-binding)
arbitrator remains totally removed from the settlement process and will only
give a determination of liability and, if appropriate, an indication of the
quantum of damages payable.

Objectives of the act:-

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
minimized

To make provision for an arbitral procedure which is fair, efficient and

capable of meeting the needs of the specific arbitration.

To ensure that the arbitral tribunal remains within limits of the

jurisdiction.

To permit an arbitral tribunal to use meditation, conciliation or other

procedures during the arbitral proceedings to encourage settlement of
disputes.

To provide that the settlement agreement reached by the parties as a

result of conciliation proceedings will have the same status and effect
as an arbitral award on agreed terms on the substance of the dispute
rendered by an arbitral tribunal.

To provide that, for purposes of enforcement of foreign awards, every

arbitral award made in the country to which one of the two
international conventions relating to the foreign arbitral awards to
which India is a party applies, will be treated as a foreign award.

Essentials of Arbitration Agreement:-

1t must be in writing: Like the old law, the new also requires the
arbitration agreement must be in writing.

An arbitration agreement is in writing, if it is contained in:

A document signed by the parties,

An exchange of letters, telex, telegrams

Or other means of telecommunication, providing a record of

agreement,

Or an exchange of claims and defense in which the existence of the

agreement is alleged by one party and not denied by the other.

The document containing an arbitration clause may be adopted by

"reference", by a contract in writing.

Arbitration Process:

Filing and Initiation

The AAA generally commences administration of an arbitration case when
one party submits a Demand for Arbitration, a copy of the arbitration
provision and the appropriate filing fee to the AAA. From there, the
respondent will be notified by the AAA, and a deadline will be set for an
answer and/or counterclaim. Cases also may commence with a Submission to
Dispute Resolution, the appropriate filing fee to the AAA and the consent of
all parties if no arbitration agreement exists or the AAA is not named as the
resolution provider in the agreement.

Arbitrator Selection

Following the respondent's answer, the AAA works with the parties to identify
and select arbitrators from its roster of neutrals. The parties' criteria are used
to identify neutrals with qualifications that match the needs of the case. Once
parties agree on the neutral, the arbitration proceedings may begin.

Preliminary Hearing

This meeting, conducted by the arbitrator, is the first opportunity for the
parties and the arbitrator to discuss directly the substantive issues of the
case. At this point, procedural matters such as the exchange of information,
witness lists, etc., also will be discussed.

Information Exchange and Preparation

Parties make ready their presentations, and the arbitrator can address any
impasses or challenges related to information sharing. The goal of this stage
is to arrive at the point where evidence and arguments may be presented in
the hearings

Hearings

At this stage, parties have an opportunity to present testimony and evidence

to the arbitrator in order to arrive at resolution.

Post-Hearing Submissions

This stage of the process provides parties with an opportunity to submit

additional documentation, if allowed by the arbitrator. If this stage is
necessary, it usually occurs shortly after hearings.

The Award

The arbitrator closes the record regarding the case and issues a decision,
inclusive of an award.
An Arbitrator's Role

An arbitrator serves as the decision-maker and 'referee' in an arbitration

proceeding, much like a judge during court litigation. The arbitrator is bound
by the rules outlined in the parties' arbitration agreement. If an arbitrator
is a member of a special arbitration organization, such as the American
Arbitration Association, the arbitrator will be bound by the rules of that
organization as well, including a set of ethical rules.

An Arbitrator's Duties:

1. Interprets and applies the rules and laws applicable to the

arbitration.

The rules applicable should be outlined in the arbitration agreement. The

parties may also designate a particular state's law to govern the dispute in
the arbitration agreement.

2. Manages the scope of discovery that can be undertaken by both

parties.

Discovery is a formal process of investigation to determine facts relevant to

the dispute. The investigation can include taking witness statements and
reviewing documents required to be disclosed by the other disputing party.

3. Conducts the arbitration hearing in which both sides of the

dispute may submit testimony, other evidence such as documents,
and arguments.

Each side's position may be summarized in a written document often called

a statement of the case and be submitted to the arbitrator for review as
part of the hearing process.

4. Makes a decision resolving the dispute based on the testimony,

evidence and arguments submitted by both sides of the dispute.