Drafting of Arbitration Agreements:
Normally parties do not give adequate importance for drafting of a complete arbitration agreement. Many of the parties use templates available in the web, which are risky and may lead to unnecessary litigations. If arbitration agreement is drafted properly that will help the parties to avoid going to courts and help smooth conduct of the arbitration proceedings. Normally a domestic arbitration clause should specifically state the number of arbitrators, procedure for appointment of arbitrators, qualification of the arbitrator, language of arbitration, place of arbitration, name and address of the arbitral institution, exclusions if any, limitations if any, jurisdiction of the courts, preconditions to the arbitral proceeding etc. The firm helps the parties to have a customised and complete arbitration class taking into consideration all the details of the project.
Interim Orders Under S.9 of The 1996 Act:
As per the act parties can approach the supervising court either before or after the arbitration proceedings seeking some interim protection or interim orders by filing an application under section 9 of the Arbitration and Conciliation Act, 1996.In those applications the applicant should able to demonstrate the urgency, potential damageor injury, by pleading relevant facts supported by documentary proof. In case of an application seeking injunction restraining a Bank Guarantee, it is necessary to have pleadings alleging fraud or irreparable loss and injury. The firm has strong experience in drafting and arguing applications seeking interim orders under section 9 of the act.
Reference Orders Under S.8 of The 1996 Act
When there is an arbitration clause in a contract there is a bar to approach the court seeking remedy for the disputes arising out of the contract, unless those issues are not covered by the arbitration agreement. If any party to the contract ignoring the arbitration agreement, approaches the court seeking resolution of disputes arising out of the contract then the other party can approach the same court and file an application under section 8 of the act seeking reference of the matter to arbitration. The firm has elaborate experience in handling contentions with regard to waiver of the arbitration clause, contentions with regard to arbitrability of the issues and contentions with regard to limitation and has succeed in various cases.
Applications Seeking Appointment of Arbitrators Under S.11:
With regard to the procedure for appointment of arbitrators the supremacy of the mandate of the parties is fully respected by the courts in India. In case if there is no procedure prescribed in the contract for appointment of arbitrators or one of the party is not a exercising its right to appoint an arbitrator or both the arbitrators appointed by parties are not able to jointly select a chairman of the tribunal, parties can move the high court and apply for appointment of arbitrator by filing and application under Section 11 of the act. Since India also recognizes Competenz-Competenz the existence and validity of the arbitral agreement is first decided by the arbitrators. The Firm has handled many applications seeking to appoint arbitrators in various cases before High Courts and Supreme Court of India.
Challenge to Appointment of Arbitrators Under S.13:
The procedure to appoint the arbitrators is normally incorporated into the arbitration clause, after negotiation between the parties. But in cases of Government Contracts and Public sector contracts there is very less scope for negotiation and modification since they insist the contractors to follow their pre-drafted agreements. In such contracts there may be a provision which prescribes appointment of an arbitrator by the government itself, which may lead to a biased decision. As per the Act, even party nominated arbitrators are expected to be independent and impartial. But if any one party has justifiable reasons to believe that an appointed arbitrator may not be independent and impartial, then that party may move an application under S.13 before the arbitrator listing out the reasons for his apprehension and seeking withdrawal. If the arbitrator withdraws form the proceedings after hearing the application, then a new arbitrator will take over and if the application is rejected the aid party can include the same issue incase if he challenges the final award passed by the arbitrator. The firm has handled many such applications challenging the appointment of an arbitrator.
Preparation of Claims, Pleadings and Replies:
Preparation of pleadings for an arbitration proceeding is a complex job and has to be done keeping full understanding of facts, underlying technologies, disputes and corresponding legal issues. In contracts involving Engineering, technology or industry specific issues the firm follows the practice of taking a technical person into the drafting team so that no important aspects of the pleadings are left out. Moreover parties should not file unnecessary documents and irrelevant facts which will dilute the importance of the main points. The clients appreciate the drafting ability of the partners of the firm, even in complex construction contracts with a lot of complex technical submissions. The firm has mastered the art of simplifying the technical details and in making a claim-oriented pleadings, which helps the parties to succeed in the proceedings.
Enforcement of Arbitral Awards:
As per Section 36 of the Act, an arbitral award becomes final on completion of 90 days from the date of service of the award to the parties to arbitration. If the losing party files the application under S.34 seeking to set aside the arbitral award, on disposal of that application the award becomes final. On completion of 90 days from the date of service or after the disposal of the challenge proceedings the arbitral award can be enforced like a court decree. The award can be enforced in a civil court having jurisdiction over the judgement debtor. The firm has large experience in enforcing the arbitral awards in various states of India. Since the firm has associate offices in 18 states of India, the firm can enforce the arbitral awards effectively using the local expertise.
Application Seeking to Set-Aside Arbitral Award Under S.34:
If a party to the arbitration is aggrieved by an arbitral award, it can challenge the said award within 90 days from the date of service of the award on the grounds mentioned in Section 34 of the Act. Arbitration being a special dispute resolution process, chosen by the parties, their right to appeal against the award is limited. Hence the drafting of petition seeking to set aside the arbitral award should be disclosing the grounds covering the grounds mentioned in Section 34 of the Act. The firm has strong experience in drafting and handling of such matters. Even International arbitral awards, passed in an International arbitration having its seat in India can be challenged by an application under S.34 of the Act. The firm has large experience and expertise in handling such applications.
Appeal to Supreme Court of India
Normally applications seeking to set aside the arbitral award and respective appeals get decided and attain finality in the respective High Court itself. A few cases, where there are important questions of law of public importance, are taken to Supreme Court also by the aggrieved parties, by way of Special Leave Petitions filed under Article 136 of the Constitution of India. Sometimes even the orders passed by the High courts in a petition filed under S.9 seeking some interim protections or interim injunctions and section 11 seeking to appoint arbitrators also reach Supreme Court of India, if there are arguable points. All advocates are not permitted to file the petitions in the Supreme Court of India. Only the limited lawyers who got qualified in an examination conducted by the Supreme Court of India are permitted to file cases there. Two of the senior partners of our Firm are qualified Advocates on Record and hence the Firm can ensure best services in the Supreme Court of India also.
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