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 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) of
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.
17.
Interim measures ordered by arbitral tribunal
(1)
Unless otherwise agreed by the parties the arbitral tribunal may at the request
of a party order a party to take any interim measure of protection as the
arbitral tribunal may consider necessary in respect of the subject-matter of
the dispute.
(2) The
arbitral tribunal may require a party to provide appropriate security in
connection with a measure ordered under sub-section (1).
V. CONDUCT OF ARBITRAL PROCEEDINGS
18.
Equal treatment of parties
The
parties shall be treated with equality and each party shall be given a full
opportunity to present his case.
19.
Determination of rules of procedure
(1) The
arbitral tribunal shall not be bound by the Code of Civil Procedure 1908 or the
Indian Evidence Act 1872.
(2)
Subject to this Part the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting its proceedings.
(3)
Failing any agreement referred to in sub-section (2) the arbitral tribunal may
subject to this Part conduct the proceedings in the manner it considers
appropriate.
(4) The
power of the arbitral tribunal under sub-section (3) includes the power to
determine the admissibility relevance materiality and weight of any evidence.
20.
Place of arbitration
(1) The
parties are free to agree on the place of arbitration.
(2)
Failing any agreement referred to in sub-section (1) the place of arbitration
shall be determined by the arbitral tribunal having regard to the circumstances
of the case including the convenience of the parties.
(3)
Notwithstanding sub-section (1) or sub-section (2) the arbitral tribunal may
unless otherwise agreed by the parties meet at any place it considers appropriate
for consultation among its members for hearing witnesses experts or the parties
or for inspection of documents goods or other property.
21.
Commencement of arbitral proceedings
Unless
otherwise agreed by the parties the arbitral proceedings in respect of a
particular dispute commence on the date on which a request for that dispute to
be referred to arbitration is received by the respondent.
22.
Language
(1) The
parties are free to agree upon the language or languages to be used in the
arbitral proceedings.
(2)
Failing any agreement referred to in sub-section (1) the arbitral tribunal
shall determine the language or languages to be used in the arbitral proceedings.
(3) The
agreement or determination unless otherwise specified shall apply to any
written statement by a party any hearing and any arbitral award decision or
other communication by the arbitral tribunal.
(4) The
arbitral tribunal may order that any documentary evidence shall be accompanied
by a translation into the language or languages agreed upon by the parties or
determined by the arbitral tribunal.
23.
Statements of claim and defence
(1)
Within the period of time agreed upon by the parties or determined by the
arbitral tribunal the claimant shall state the facts supporting his claim the
points at issue and the relief or remedy sought and the respondent shall state
his defence in respect these particulars unless the parties have otherwise
agreed as to the required elements of those statements.
(2) The
parties may submit with their statement all documents they consider to be
relevant or may add a reference to the documents or other evidence they will
submit
(3)
Unless otherwise agreed by the parties either party may amend or supplement his
claim or defence during the course of the arbitral proceedings unless the
arbitral tribunal considers it inappropriate to allow the amendment or
supplement having regard to the delay in making it.
24.
Hearing and written proceedings
(1)
Unless otherwise agreed by the parties the arbitral tribunal shall decide
whether to hold oral hearings for the presentation of evidence or for oral
argument or whether the proceedings shall be conducted on the basis of
documents and other materials :
Provided
that the arbitral tribunal shall hold oral hearings at an appropriate stage of
the proceedings on a request by a party unless the parties have agreed that no
oral hearing shall be held.
(2) The
parties shall be given sufficient advance notice of any hearing and of any
meeting of the arbitral tribunal for the purposes of inspection of documents
goods or other property.
(3) All
statements documents or other information supplied to or applications made to
the arbitral tribunal by one party shall be communicated to the other party and
any expert report or evidentiary document on which the arbitral tribunal may
rely in making its decision shall be communicated to the parties.
25.
Default of a party
Unless
otherwise agreed by the parties where without showing sufficient cause -
(a) the
claimant fail to communicate his statement of claim in accordance with
sub-section (1) of section 23 the arbitral tribunal shall terminate the
proceedings;
(b) the
respondent fail to communicate his statement of defence in accordance with
sub-section (1) of section 23 the arbitral tribunal shall continue the
proceedings without treating that failure in itself as an admission of the
allegations by the claimant;
(c) a
party fails to appear at an oral hearing or to produce documentary evidence the
arbitral tribunal may continue the proceedings and make the arbitral award on
the evidence before it.
26.
Expert appointed by arbitral tribunal
(1)
Unless otherwise agreed by the parties the arbitral tribunal may -
(a)
appoint one or more experts to report to it on specific issues to be determined
by the arbitral tribunal and
(b)
require a party to give the expert any relevant information or to produce or to
provide access to any relevant documents goods or other property for his
inspection.
(2)
Unless otherwise agreed by the parties if a party so requests or if the
arbitral tribunal considers it necessary the export shall after delivery of his
written or oral report participate in
an oral hearing where the parties have the opportunity to put questions to him
and to present expert witnesses in order to testify on the points at issue.
(3)
Unless otherwise agreed by the parties the expert shall on the request of a
party make available to that party for examination all documents goods or other
property in the possession of the expert with which he was provided in order to
prepare his report.
27.
Court assistance in taking evidence
(1) The
arbitral tribunal or a party with the approval of the arbitral tribunal may
apply to the court for assistance in taking evidence.
(2) The
application shall specify -
(a) the
names and addresses of the parties and the arbitrators;
(b) the
general nature of the claim and the relief sought;
(c) the
evidence to be obtained in particular -
(i) the
name and address of any person to be heard as witness or expert witness and a
statement of the subject-matter of the testimony required;
(ii)
the description of any document to be produced or property to be inspected.
(3) The
court may within its competence and according to its rules on taking evidence
execute the request by ordering that the evidence be provided directly to the
arbitral tribunal.
(5)
Persons failing to attend in accordance with such processes or making any other
default or refusing to give their evidence or guilty of any contempt to the
arbitral tribunal during the conduct of arbitral proceedings shall be subject
to the like disadvantages penalties and punishments by order of the court on
the representation of the arbitral tribunal as they would incur for the like
offences in suits tried before the court.
(6) In
this section the expression "processes" includes summonses and
commissions for the examination of witnesses and summonses to produce
documents.
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 sub-clause (ii) 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 or as amiable compositeur only
if the parties have expressly authorised it to do so.
(3) In
all cases the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to
the transaction.
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.
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 mater 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 eighteen per centum per annum from the
date of the award to the date of payment.
(8)
Unless otherwise agreed by the parties -
(a) the
costs of an arbitration shall be fixed by the arbitral tribunal;
(b) the
arbitral tribunal shall specify -
(i) the
party entitled to costs
(ii)
the party who shall pay the costs
(iii)
the amount of costs or method of determining that amount and
(iv)
the manner in which the costs shall be paid.
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.
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.