The globally recognized foundation of arbitration is “party autonomy” because parties come forward to waive off their rights to approach the national courts. Party autonomy is not a simple decorative phrase; it is almost absolute in nature.
India has amended its procedural law, Arbitration and Conciliation Act,1996 by an amending Act, Arbitration and Conciliation (Amendment) Act,2015 with effect from 23rd October 2015.
2015 Amendment Act to the Arbitration and Conciliation Act,1996 brought in many changes to ensure impartiality and independence of the Arbitrators. The above said Amendment Act, came into force on 23rd October 2015.
In India Arbitration and Conciliation felids are governed by Arbitration and Conciliation Act,1996 (The Act). The said Act determines the procedural aspect of Arbitration and Conciliation proceedings seated in India including the confidentiality of the documents.
In a recent Judgment Union of India Vs Vodafone Group PLC United Kingdom (2017) SCC Online Delhi 9930 dated 22nd August 2017, Delhi High Court granted injunction restraining Vodafone Group PLC United Kingdom from taking any action in furtherance of the notice dated 15th June 2015 and notice of Arbitration dated 24th January 2017, investment arbitration initiated under India-UK Bilateral Investment Protection Agreement between Republic of India and United Kingdom.
Even though the courts in India have consistently held that the Arbitrator is the final judge relating to finding of facts and relating to the interpretation of the terms of the contract. It is also have been a standard view that while exercising the powers under S.34 of the Arbitration and Conciliation Act,1996, the courts are discharging their duties as supervising courts as provided under the Act and they are not sitting on an appeal over the Arbitration award.
One of the frequently encountered issue in arbitration proceedings is missing out of a claim and parties seeking remedy by way of an amendment to the award or by way of an additional award. Normally the scope of correction of the award under S.33 of Arbitration and Conciliation Act,1996 is limited to errors and if both the parties agree, an interpretation of an issue.
Drafting of Arbitration clauses require expertise to avoid unnecessary litigations relating to interpretation of those clauses when disputes arise between parties. While drafting domestic Arbitration clauses it is necessary to include the place/seat of Arbitration, number of Arbitrators, Qualifications of Arbitrators (if any), procedure to appoint Arbitrators, language of Arbitration and Arbitral Institution etc.,
All over the world, the supervising courts refrain themselves from interfering in an Arbitration award, for any other reason except those specified in the procedural law. Most of the Arbitration laws are similar to UNCITRAL Model law and hence the grounds are same. Courts also consistently have held that the verdict of an arbitrator with respect to facts of the case, is final.
Arbitration, even though is a private dispute resolution mechanism, the arbitration system provides for supervising courts to avoid any major miscarriage of justice. Even though Arbitrator is the final fact finding authority and his decisions on questions of fact are final and binding on the parties, it is essential that there must be a reasoned determination by the arbitrator.
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