Arbitration and Conciliation Act- Conduct of Arbitral Proceedings

Introduction

Chapter V of the Part I of Arbitration and Conciliation Act provides for how to conduct arbitral proceedings.

This chapter also provides for some care to be taken by Arbitrator, his powers etc. It discusses about place of arbitration, language of proceeding among others.

Provision

Section 18-Equal treatment to parties

Arbitral Tribunal or arbitrator will treat both the parties on par. He is not supposed to go on a drink with one party only. It will give rise to the doubt about partiality.

Section 19- What should be rules of arbitral proceedings

• If parties have agreed for any procedure, then such procedure will be followed
• Arbitration Proceedings will not be bound by Civil Procedure Code,1908 as well evidence law also will NOT be applicable(Indian Evidence Act)
• If there is no agreement between parties as to procedure, then arbitrator will determine the procedure which will be suitable for both the parties, and which arbitrator thinks awesome!
• Arbitrator has some powers of civil court like to determine whether evidence is admissible, whether evidence is relevant and weight of any evidence

Section 20-Where should be proceeding carried out (Place)

Place of the arbitration could

• As agreed and decided by parties. (Theatre for example!)
• If there is no agreement between the parties, then arbitrator will decided as per convenience of the parties
• They can also meet at any appropriate place for hearing witness, experts or the parties.

Section 21- Starting of arbitration proceedings

Arbitrator should start arbitration proceedings without any delay. If parties don't have any provision as to when to start proceedings, then it should start immediately when one of the party like it to start.

Section 22- What language should be used ?

• There could be provision by parties for usage of language.
• If parties haven't decided earlier, Arbitrator or arbitral tribunal should decide language to be used.
• If there is documentary evidence in language other than language decided by parties, such documents should be translated

Section 23- Claim and Defence Submission

Now let's take the example of dispute between Nirav and Vijay. Nirav is buyer and Vijay is seller who agreed to sell 100 beers daily to Nirav, and there is contract between them.

In dispute, Nirav is claimant and Vijay is respondent or defender. Issue is, Nirav thinks that Vijay didn't deliver beers and he suffered a loss because of this.

This section provide that within agreed time, Nirav should submit in written what he want, what is the issue, what should be damages given to him by Vijay. In response to this Vijay also has to submit any defence.

Then parties should submit the relevant documents for claims as well as defence.

Claims can be changed later also during proceedings. For example if Nirav thinks that he should be compensated with 1 Lakh Rs, after some days he could say that he deserves 1.5 Lakh with valid reasons.

Section 24- Hearing and written proceedings

Parties can decide how should they carry out proceeding. Whether there should be oral hearing or written proceedings. (Like Reply-notice, question answer etc)

If parties haven't agreed for any particular type of proceedings then Arbitral Tribunal should decide

1. Whether to carry out oral hearing
2. Or proceedings to be conducted on the basis of documents and other material

Also Arbitral Tribunal should not grant unnecessary adjournments and "tarikh pe tarikh"  dates. If it appears to tribunals that any party is causing delay, then it can impose the cost on it.

Tribunal should grant sufficient notice to other party with related to any hearing or proceedings

This section also provides that whatever documents, evidence are presented by one party should be communicated to another party.

Section 25- Default by party

This section provides the available recourse to Arbitral tribunal in case of default by a parties. For example Nirav claims damages from Vijay, and Vijay didn't respond then what ? Arbitral tribunal is empowered to act and give ex-parte award.

Below are some examples

• If claimant fails to communicate his claims, then tribunal can terminate the proceedings
• If defendant fails to respond withing stipulated time, tribunal may grant an award in favour of claimant
• If any party fails to appear for oral hearing, or didn't submit documentary evidence , tribunal can go ahead and pronounce an award.

Section 26- Appointment of expert

Arbitration tribunal can appoint an expert when there is a need. For example dispute is related to some software deal, and arbitrator is lawyer, then some expert in software technology can be appointed.

Such appointed expert can take part in oral hearing when other party have questions.

If some documents, goods or property was given to expert to prepare his report, such things should be returned by an expert to the parties

Section 27- Assistance by Court

Arbitration tribunal can take a help of a court.

For example, if tribunal want some person say Nirav to be brought in before it. Then tribunal can ask court to ask Nirav to be present before a tribunal.

Court will then issue summons or orders. 

Conclusion

In short arbitration tribunals or arbitrators are conferred with certain powers.It can be summarised as below

1) Claimant files a request or submit dispute for damages or compensation.

2) Defendant has to present his case, with documents and other necessary evidence

3) Language, place can be decided by parties, if undecided can be decided by tribunal

4) Rules for proceedings can be decided by parties, if undecided can be decided by tribunal

5) Tribunal  have powers like appointment of expert in case of complex cases

6) Tribunal can pass an award if parties default or absent in hearing.

7) Tribunal can take a help of court for issuing summons etc.

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