Description - Law of Arbitration and Conciliation by Avtar Singh
Arbitration is a method of settlement of disputes by way of an alternative to the normal judicial method which is activated by instituting legal proceedings. Hence, arbitration is a method of alternative dispute resolution (ADR). Of all forms of other alternative dispute resolution mechanisms, like conciliation, mediation, negotiations, etc, arbitration has become the most dominant form of ADR. It is more firmly established in its utility and importance. The reason for its phenomenal popularity is that it is the only real alternative to judicial adjudication. The Act of 1996 has converted arbitration into an adjudication by a quasi-judicial tribunal. The role and interference of the courts in the process of arbitration has been minimised. The new Act confers a complete power on the arbitral tribunal for full and final disposal of the matter presented before it by the parties to the dispute. The Act has tried to make arbitration as a complete and self-contained alternative. It is for this purpose that judicial interference has been kept to the minimum. Yet the flow of cases before the courts emerging from arbitrations is more than it used to be before.
This might show that the role of the courts has not become really minimised. The growing number of cases is an affirmation of the fact that the courts cannot be simply excluded. After all, the arbitral tribunal has to function within the framework of the Act and the parties' agreement which itself has to be within the framework of the contract. The functioning of the arbitral tribunal is a statutory functioning and such functioning does require judicial supervision. Another reason for the increasing number of court cases seems to be that the new Act requires interpretation of its innovative special provisions. Under the preceding enactments, the power of appointing an arbitrator was vested in the courts. Under the new Act, it is vested in the Chief Justice. How the Chief Justice is to function whether judicially, quasi-judicially or simply in an administrative capacity required explanation. A puisne judge of the same High Court sits to examine the decision of the Chief Justice. Because of this un-naturality, the courts started saying that the Chief Justice was functioning only in an administrative capacity in the performance of that role. But the matter did not seem to end there.
A number of judicial pronouncements were attracted by this aspect. And now a seven-Judge Bench of the Supreme Court has expressed the majority opinion (6 against 1) that it is a power of judicial nature. Another area of the Act which has generated a crop of litigation is the power of the court to provide interim reliefs. Because of some gap in the statutory provisions the power has became exercisable even before there is any arbitration proceeding in existence. The growing number of cases is not due to anything wrong with the Act. It seems to be wholly due to the fact that arbitration as an institution has started attracting, by virtue of the new Act, a much greater number of references than it did before. The approach to judicial authorities is, therefore, proportionally more. It has become almost an accepted practice to include an arbitration clause in all commercial and contractual relations. The greatest number of cases are to be found in the remedy of last resort, that is, setting aside. The emphasis of the new Act is that during the course of proceedings there should be no intervention.
All points of aggrievement should better be exercised at the stage of the lender of last resort, which is setting aside. How damages are to be assessed for breach of contract has attracted a number of judicial pronouncements. All such case law developments have been collected from relevant sources and absorbed into this Edition.
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