The Arbitration and Conciliation Act, 1996
THE ARBITRATION AND
CONCILIATION ACT, 1996
No.26 of 1996
[16th August, 1996]
An Act to
consolidate and amend the law relating to domestic arbitration, international
commercial arbitration and enforcement of foreign arbitral awards as also to
define the law relating to conciliation and for matters connected therewith or
incidental thereto.
WHEREAS the United
Nations Commission on International Trade Law (UNCITRAL) has adopted the
UNCITRAL Model Law on International Commercial Arbitration in 1985:
AND WHEREAS the General Assembly
of the United Nations has recommended that all countries give due consideration
to the said Model Law, in view of the desirability of uniformity of the law of arbitral
procedures and the specific needs of international commercial arbitration
practice;
AND WHEREAS the
UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980;
AND WHEREAS the
General Assembly of the United Nations has recommended the use of the said
Rules in cases where a dispute arises in the context of international
commercial relations and the parties seek an amicable settlement of that
dispute by recourse to conciliation;
AND WHEREAS the
said Model Law and Rules make significant contribution to the establishment of
a unified legal framework for the fair and efficient settlement of disputes
arising in international commercial relations;
AND WHEREAS it is
expedient to make law respecting arbitration and conciliation, taking into
account the aforesaid Model Law and Rules;
BE
it enacted by Parliament in the Forty-seventh Year of the Republic of India as
follows:-
PRELIMINARY
1. Short title,
extent and commencement.-
(1) This Act may be called the Arbitration and Conciliation Act, 1996.
(2)
It extends to the whole of India: Provided that Parts, I, III and IV shall
extend to the State of Jammu and Kashmir only in so far as they relate to
international commercial arbitration or, as the case may be, international
commercial conciliation.
Explanation.-
In this sub-section, the expression "international commercial
conciliation" shall have the same meaning as the expression
"international commercial arbitration" in clause (f) of sub-section
(1) of section 2, subject to the modification that for the word
"arbitration" occurring therein, the word "conciliation"
shall be substituted.
(3)
It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.
PART
I
ARBITRATION
CHAPTER
I
General
provisions
2. Definitions.- (1) In this Part, unless the
context otherwise requires,-
(a)
"arbitration" means any arbitration whether or not administered by
permanent arbitral institution;
(b)
"arbitration agreement" means an agreement referred to in section 7;
(c)
"arbitral award" includes an interim award;
(d)
"arbitral tribunal" means a sole arbitrator or a panel of
arbitrators;
(e)
"Court" means the principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary original
civil jurisdiction, having jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been the subject-matter of a
suit, but does not include any civil court of a grade inferior to such
principal Civil Court, or any Court of Small Causes;
(f)
"international commercial arbitration" means an arbitration relating
to disputes arising out of legal relationships, whether contractual or not,
considered as commercial under the law in force in India and where at least one
of the parties is-
(i)
an individual who is a national of, or habitually resident in, any country
other than India; or
(ii)
a body corporate which is incorporated in any country other than India; or
(iii)
a company or an association or a body of individuals whose central management
and control is exercised in any country other than India; or
(iv)
the Government of a foreign country;
(g)
"legal representative" means a person who in law represents the
estate of a deceased person, and includes any person who intermeddles with the
estate of the deceased, and, where a party acts in a representative character,
the person on whom the estate devolves on the death of the party so acting;
(h)
"party" means a party to an arbitration agreement.
(2)
This Part shall apply where the place of arbitration is in India.
(3)
This Part shall not affect any other law for the time being in force by virtue
of which certain disputes may not be submitted to arbitration.
(4)
This Part except sub-section (1) of section 40, sections 41 and 43 shall apply
to every arbitration under any other enactment for the time being in force, as
if the arbitration were pursuant to an arbitration agreement and as if that
other enactment were an arbitration agreement, except in so far as the
provision of this Part are inconsistent with that other enactment or with any
rules made there under;
(5)
Subject to the provisions of sub-section (4), and save in so far as is
otherwise provided by any law for the time being in force or in any agreement
in force between India and any other country or countries, this Part shall
apply to all arbitrations and to all proceedings relating thereto.
(6)
Where this Part, except section 28, leaves the parties free to determine a
certain issue, that freedom shall include the right of the parties to authorise
any person including an institution, to determine that issue.
(7)
An arbitral award made under this Part shall be considered domestic award.
(8)
Where this Part-
(a)
refers to the fact that the parties have agreed or that they may agree, or
(b)
in any other way refers to an agreement of the parties, that agreement shall
include any arbitration rules referred to in that agreement.
(9)
Where this Part, other than clause (a) of section 25 or clause (a) of
sub-section (2) of section 32, refers to a claim, it shall also apply to a
counterclaim, and where it refers to a defence, it shall also apply to a
defence to that counterclaim.
3. Receipt of
written communications.-
(1) Unless otherwise agreed by the parties,-
(a)
any written communication is deemed to have been received if it is delivered to
the addressee personally or at his place of business, habitual residence or
mailing address, and
(b)
if none of the places referred to in clause (a) can be found after making a
reasonable inquiry, a written communication is deemed to have been received if
it is sent to the addressee's last known place of business, habitual residence
or mailing address by registered letter or by any other means which provides a
record of the attempt to deliver it.
(2)
The communication is deemed to have been received on the day it is so
delivered.
(3)
This section does not apply to written communications in respect of proceedings
of any judicial authority.
4. Waiver of
right to object.-
A party who knows that-
(a)
any provision of this Part from which the parties may derogate, or
(b)
any requirement under the arbitration agreement, has not been complied with and
yet proceeds with the arbitration without stating his objection to such
non-compliance without undue delay or, if a time limit is provided for stating
that objection, within that period of time, shall be deemed to have waived his
right to so object.
5. Extent of
judicial intervention.-
Notwithstanding anything contained in any other law for the time being in
force, in matters governed by this Part, no judicial authority shall intervene
except where so provided in this Part.
6. Administrative
assistance.-
In order to facilitate the conduct of the arbitral proceedings, the parties, or
the arbitral tribunal with the consent of the parties, may arrange for
administrative assistance by a suitable institution or person.
CHAPTER II
Arbitration agreement
7. Arbitration agreement.- (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2)
An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.
(3)
An arbitration agreement shall be in writing.
(4)
An arbitration agreement is in writing if it is contained in-
(a)
a document signed by the parties;
(b)
an exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement; or
(c)
an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.
(5)
The reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement if the contract is in writing and the
reference is such as to make that arbitration clause part of the contract.
8. Power to
refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before
which an action is brought in a matter which is the subject of an arbitration
agreement shall, if a party so applies not later than when submitting his first
statement on the substance of the dispute, refer the parties to arbitration.
(2)
The application referred to in sub-section (1) shall not be entertained unless
it is accompanied by the original arbitration agreement or a duly certified
copy thereof.
(3)
Notwithstanding that an application has been made under sub-section (1) and
that the issue is pending before the judicial authority, an arbitration may be
commenced or continued and an arbitral award made.
9. Interim
measures etc. by Court.- A
party may, before, or during arbitral proceedings or at any time after the
making of the arbitral award but before it is enforced in accordance with
section 36, apply to a court-
(i)
for the appointment of a guardian for a minor or person of unsound mind for the
purposes of arbitral proceedings; or
(ii)
for an interim measure or protection in respect of any of the following
matters, namely:-
(a)
the preservation, interim custody or sale of any goods which are the
subject-matter of the arbitration agreement;
(b)
securing the amount in dispute in the arbitration;
(c)
the detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute in arbitration, or as to which any question may
arise therein and authorising for any of the aforesaid purposes any person to
enter upon any land or building in the possession of any party or authorising
any samples to be taken or any observation to be made, or experiment to be
tried, which may be necessary or expedient for the purpose of obtaining full
information or evidence;
(d)
interim injunction or the appointment of a receiver;
(e)
such other interim measure of protection as may appear to the Court to be just
and convenient, and the Court shall have the same power for making orders as it
has for the purpose of, and in relation to, any proceedings before it.
CHAPTER III
Composition of arbitral tribunal
10. Number of arbitrators.- (1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
(2)
Failing the determination referred to in sub-section (1), the arbitral tribunal
shall consist of a sole arbitrator.
11. Appointment
of arbitrators.-
(1) A person of any nationality may be an arbitrator, unless otherwise agreed
by the parties.
(2)
Subject to sub-section (6), the parties are free to agree on a procedure for
appointing the arbitrator or arbitrators.
(3)
Failing any agreement referred to in sub-section (2), in an arbitration with
three arbitrators, each party shall appoint one arbitrator, and the two
appointed arbitrators shall appoint the third arbitrator who shall act as the
presiding arbitrator.
(4)
If the appointment procedure in sub-section (3) applies and-
(a)
a party fails to appoint an arbitrator within thirty days from the receipt of a
request to do so from the other party; or
(b)
the two appointed arbitrators fail to agree on the third arbitrator within
thirty days from the date of their appointment, the appointment shall be made,
upon request of a party, by the Chief Justice or any person or institution
designated by him.
(5)
Failing any agreement referred to in sub-section (2), in an arbitration with a
sole arbitrator, if the parties fail to agree on the arbitrator within thirty
days from receipt of a request by one party from the other party to so agree
the appointment shall be made, upon request of a party, by the Chief Justice or
any person or institution designated by him.
(6)
Where, under an appointment procedure agreed upon by the parties,-
(a)
a party fails to act as required under that procedure; or
(b)
the parties, or the two appointed arbitrators, fail to reach an agreement
expected of them under that procedure; or
(c)
a person, including an institution, fails to perform any function entrusted to
him or it under that procedure, a party may request the Chief Justice or any
person or institution designated by him to take the necessary measure, unless
the agreement on the appointment procedure provides other means for securing
the appointment.
(7)
A decision on a matter entrusted by sub-section (4) or sub-section (5) or
sub-section (6) to the Chief Justice or the person or institution designated by
him is final.
(8)
The Chief Justice or the person or institution designated by him, in appointing
an arbitrator, shall have due regard to- (a) any qualifications required of the
arbitrator by the agreement of the parties and (b) other considerations as are
likely to secure the appointment of an independent and impartial arbitrator.
(9)
In the case of appointment of sole or third arbitrator in an international
commercial arbitration, the Chief Justice of India or the person or institution
designated by him may appoint an arbitrator of a nationality other than the
nationalities of the parties where the parties belong to different
nationalities.
(10)
The Chief Justice may make such scheme as he may deem appropriate for dealing
with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6)
to him.
(11)
Where more than one request has been made under sub-section (4) or sub-section
(5) or sub-section (6) to the Chief Justices of different High Courts or their
designates, the Chief Justice or his designate to whom the request has been
first made under the relevant sub-section shall alone be competent to decide on
the request.
(12)
(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and
(10) arise in an international commercial arbitration the reference to "Chief
Justice" in those sub-sections shall be construed as a reference to the
"Chief Justice of India".
(b)
Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10)
arise in any other arbitration, the reference to "Chief Justice" in
those sub-section shall be construed as a reference to, the Chief Justice of
the High Court within whose local limits the principal Civil Court referred to
in clause (e) of sub-section (1) of section 2 is situate and, where the High
Court itself is the "Court referred to in that clause, to the Chief
Justice of that High Court.
12. Grounds for
challenge.-
(1) When a person is approached in connection with his possible appointment as
an arbitrator, he shall disclose in writing any circumstances likely to give rise
to justifiable doubts as to his independence or impartiality.
(2)
An arbitrator, from the time of his appointment and throughout the arbitral
proceedings, shall, without delay, disclose to the parties in writing any
circumstances referred to in sub-section (1) unless they have already been
informed of them by him.
(3)
An arbitrator may be challenged only if-
(a)
circumstances exist that give rise to justifiable doubts as to his independence
or impartiality, or
(b)
he does not possess the qualifications agreed to by the parties.
(4)
A party may challenge an arbitrator appointed by him, or in whose appointment
he has participated, only for reasons of which he becomes aware after the
appointment has been made.
13. Challenge
procedure.-
(1) Subject to sub-section (4), the parties are free to agree on a procedure
for challenging an arbitrator.
(2)
Failing any agreement referred to in sub-section (1), a party who intends to
challenge an arbitrator shall, within fifteen days becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any
circumstances referred to in sub-section (3) of section 12, send a written
statement of the reasons for the challenge to the arbitral tribunal.
(3)
Unless the arbitrator challenged under sub-section (2) withdraws from his
office or the other party agrees to the challenge, the arbitral tribunal shall
decide on the challenge.
(4)
If a challenge under any procedure agreed upon by the parties or under the
procedure under sub-section (2) is not successful, the arbitral tribunal shall
continue the arbitral proceedings and make an arbitral award.
(5)
Where an arbitral award is made under sub-section (4), the party challenging
the arbitrator may make an application for setting aside such an arbitral award
in accordance with section 34.
(6)
Where an arbitral award is set aside on an application made under sub-section
(5), the Court may decide as to whether the arbitrator who is challenged is
entitled to any fees.
14. Failure or
impossibility to act.-
(1) The mandate of an arbitrator shall terminate if---
(a)
he becomes de jure or de facto unable to perform his functions or for other
reasons fails to act without undue delay; and
(b)
he withdraws from his office or the parties agree to the termination of his
mandate.
(2)
If a controversy remains concerning any of the grounds referred to in clause
(a) of sub-section (1), a party may, unless otherwise agreed by the parties,
apply to the Court to decide on the termination of the mandate.
(3)
If, under this section or sub-section (3) of section 13, an arbitrator
withdraws from his office or a party agrees to the termination of the mandate
of an arbitrator, it shall not imply acceptance of the validity of any ground
referred to in this section or sub-section (3) of section 12.
15. Termination
of mandate and substitution of arbitrator.- (1) In addition to the
circumstances referred to in section 13 or section 14, the mandate of an
arbitrator shall terminate----
(a)
where he withdraws from office for any reason; or
(b)
by or pursuant to agreement of the parties.
(2)
Where the mandate of an arbitrator terminates, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced.
(3)
Unless otherwise agreed by the parties, where an arbitrator is replaced under
sub-section (2) , any hearings previously held may be repeated at the
discretion of the arbitral tribunal.
(4)
Unless otherwise agreed by the parties, an order or ruling of the arbitral
tribunal made prior to the replacement of an arbitrator under this section
shall not b invalid solely because there has been a change in the composition
of the arbitral tribunal.
CHAPTER 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 other 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
he 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) or
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).
CHAPTER 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 winners, 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 is 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 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 of these particulars, unless the parties have otherwise
agreed as to the required elements of those statements.
(2)
The parties may submit with their statements 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. Hearings 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 an other materials;
Provided
that the arbitral tribunal shall hold 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 fails 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 fails 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 expert shall, after delivery of
his written or oral report, participate on 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 the 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 an 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 or ordering that the evidence be provided
directly to the arbitral tribunal.
(4)
The Court may, while making or order under sub-section (3), issue the same
processes to witnesses as it may issue in suits tried before it.
(5)
Persons failing to attend in accordance with such process, or making any other
fault, 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 is 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.
CHAPTER 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 decided 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 clause (a) 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 matter 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,
(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 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 electrical 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 and 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 so 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.
CHAPTER VII
Recourse against arbitral award
34.Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2)
An arbitral award may be set aside by the Court only if---
(a)
the party making the application furnishes proof that-----
(i)
a party was under some incapacity, or
(ii)
the arbitration agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law for the time
being in force; or
(iii)
the party making the application was not given proper notice of the appointment
of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
(iv)
the arbitral award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions on
matter beyond the scope of the submission to arbitration:
Provided
that, if the decisions on matters submitted to arbitration can be separated from
those not so submitted, only that part of the arbitral award which contains
decisions on matters not submitted to arbitration may be set aside; or
(v)
the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in
conflict with a provision of this Part from which the parties cannot derogate,
or, failing such agreement, was not in accordance with this Past; or
(b)
the Court finds that------
(i)
the subject-matter of the dispute is not capable of settlement by arbitration
under the law for the time being in force, or
(ii)
the arbitral award is in conflict with the public policy of India.
Explanation.---Without
prejudice to the generality of sub-clause (ii), it is hereby declared , for the
avoidance of any doubt, that an award is in conflict with the public policy of
India if the making of the award was induced of affected by fraud or corruption
or was in violation of section 75 or section 81.
(3)
An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had received
the arbitral award, or, if a request had been made under section 33, from the
date on which that request had been disposed of by the arbitral tribunal:
Provided
that if the Court is satisfied that the applicant was prevented by sufficient
cause from making the application within the said period of three months if may
entertain the application within a further period of thirty days, but not
thereafter.
(4)
On receipt of an application under sub-section (1), the Court may, where it is
appropriate and it is so requested by a party, adjourn the proceedings for a
period of time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such other action as
in the opinion of arbitral tribunal will eliminate the grounds for setting
aside the arbitral award.
CHAPTER VIII
Finality and enforcement of arbitral awards
35. Finality of arbitral awards.- Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.
36.Enforcement.- Where the time for making an
application to set aside the arbitral award under award shall be endorsed under
the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were
a decree of the Court.
CHAPTER IX
Appeals
37.Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:--- (a) granting or refusing to grant any measure under section 9:
(b)
setting aside or refusing to set aside an arbitral award under section 34.
(2)
Appeal shall also lie to a court from an order of the arbitral tribunal----
(a)
accepting the plea referred to in sub-section (2) or sub-section (3) of section
16; or
(b)
granting or refusing to grant an interim measure under section 17.
(3)
No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or taken away any right to appeal to
the Supreme Court.
CHAPTER X
Miscellaneous
38. Deposits.- (1) The arbitral tribunal may fix the amount of the deposit or supplementary deposit, on the case may be, as an advance for the costs referred to in sub-section (8) of section 31, which it expects will be incurred in respect of the claim submitted to it: Provided that where, apart from the claim, a counter-claim has been submitted to the arbitral tribunal, it may fix separate amount of deposit for the claim and counter-claim.
(2)
The deposit referred to in sub-section (1) shall be payable in equal shares by
the parties:
Provided
that where one party fails to pay his share of the deposit, the other party may
pay that share:
Provided
further that where the other party also does not pay the aforesaid share in
respect of the claim or the counter-claim, the arbitral tribunal may suspend or
terminate the arbitral proceedings in respect of such claim or counter-claim,
as the case may be.
(3)
Upon termination of the arbitral proceedings, the arbitral tribunal shall
render an accounting to the parties of the deposits received and shall return
any unexpended balance to the party or parties, as the case may be.
39.Lien on
arbitral award and deposits as to costs.- (1) Subject to the provisions of sub-section (2)
and to any provision to the contrary in the arbitration, agreement, the
arbitral tribunal shall have a lien on the arbitral award for any unpaid costs
of the arbitration.
(2)
If in any case an arbitral tribunal refuses to deliver its award except on
payment of the costs demanded by it, the Court may, on an application in this
behalf, order that the arbitral tribunal shall deliver the arbitral award to
the applicant on payment into Court by the applicant of the costs demanded, and
shall, after such inquiry, in any, as it thinks, fit, further order that out of
the money so paid into Court there shall be paid to the arbitral tribunal by
way of costs such sum as the Court may consider reasonable and that the balance
of the money, if any, shall be refunded to the applicant.
(3)
An application under sub-section (2) may be made by any party unless the fees
demanded have been fixed by written agreement between him and the arbitral
tribunal, and the arbitral tribunal shall be entitled to appear and be heard on
any such application.
(4)
The Court may make such orders as it thinks fit respecting the costs of the
arbitration where any question arises respecting such costs and the arbitral
award contains no sufficient provision concerning them.
40.Arbitration
agreement not to be discharged by death of party thereto.- (1) An arbitration agreement
shall not be discharged by the death of any party thereto either as respects
the deceased or as respects any other party, but shall in such event by
enforceable by or against the legal representative of the deceased.
(2)
The mandate of an arbitrator shall not be terminated by the death of any party
by whom he was appointed.
(3)
Nothing in this section shall affect the operation of any law by virtue of
which any right of action is extinguished by the death of a person.
41. Provisions
in case of insolvency. - (1)
Where it is provided by a term in a contract to which an insolvent is a party
that any dispute arising there out or in connection therewith shall be
submitted to arbitration, the said term shall, if the receiver adopts the
contract, be enforceable by or against him so far as it relates to any such
dispute.
(2)
Where a person who has been adjudged an insolvent had, before the commencement
of the insolvency proceedings, become a party to a arbitration agreement, and
any matter to which the agreement applies is required to be determined in
connection with, or for the purposes of, the insolvency proceedings. then, if
the case is one to which sub-section (1) does not apply, any other party or the
receiver may apply to the judicial authority having jurisdiction in the
insolvency proceedings for an order directing that the matter in question shall
be submitted to arbitration in accordance with the arbitration agreement , and
the judicial authority may, if it is of opinion that, having regard to all the
circumstances of the case, the matter ought to be determined by arbitration,
make an order accordingly.
(3)
In this section the expression "receiver" includes an Official
Assignee.
42. Jurisdiction.- Notwithstanding anything
contained elsewhere in this Part or in any other law for the time being in
force, where with respect to an arbitration agreement any application under
this Part has been made in a Court, that Court alone shall have jurisdiction
over the arbitral proceedings and all subsequent applications arising out of
that agreement and the arbitral proceedings shall be made in that Court and in
no other Court.
43. Limitations.- (1) The Limitation Act, 1963 (36
of 1963), shall, apply to arbitrations as it applies to proceedings in court.
(2)
For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an
arbitration shall be deemed to have commenced on the date referred in section
21.
(3)
Where an arbitration agreement to submit further disputes to arbitration
provides that any claim to which the agreement applies shall be barred unless
some step to commence arbitral proceedings is taken within a time fixed by the
agreement, and a dispute arises to which the agreement applies the Court, if it
is of opinion that in the circumstances of the case undue hardship would
otherwise be caused, and notwithstanding that the time so fixed has expired,
may on such terms, if any, as the justice of the case may require, extend the
time for such period as it thinks proper.
(4)
Where the Court orders that an arbitral award be set aside, the period between
the commencement of the arbitration and the date of the order of the Court
shall be excluded in computing the time prescribed by the Limitation Act, 1963
(36 of 1963), for the commencement of the proceedings (including arbitration)
with respect to the dispute so submitted.
PART II –
ENFORCEMENT OF CERTAIN FOREIGN AWARDS –
CHAPTER I
New York Convention Awards
44. Definition.- In this Chapter, unless the
context otherwise requires, "foreign award" means an arbitral award
on differences between persons arising out of legal relationships, whether
contractual or not, considered as commercial under the law in force in India,
made on or after the 11th day of October, 1960-
(a)
in pursuance of an agreement in writing for arbitration to which the Convention
set forth in the First Schedule applies, and
(b)
in one of such territories as the Central Government, being satisfied that
reciprocal provisions have been made may, by notification in the Official
Gazette, declare to be territories to which the said Convention applies.
45.Power of
judicial authority to refer parties to arbitration.- Notwithstanding anything
contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a
judicial authority, when seized of an action in a matter in respect of which
the parties have made an agreement referred to in section 44, shall, at the
request of one of the parties or any person claiming through or under him,
refer the parties to arbitration, unless it finds that the said agreement is
null and void, inoperative or incapable of being performed.
46. When foreign
award binding.-
Any foreign award which would be enforceable under this Chapter shall be
treated as binding for all purposes on the persons as between whom it was made,
and may accordingly be relied on by any of those persons by way of defence, set
off or otherwise in any legal proceedings in India and any references in this
Chapter to enforcing a foreign award shall be construed as including references
to relying on an award.
47. Evidence.- (1) The party applying for the
enforcement of a foreign award shall, at the time of the application, produce
before the court----
(a)
the original award or a copy thereof, duly authenticated in the manner required
by the law of the country in which it was made;
(b)
the original agreement for arbitration or a duly certified copy thereof; and
(c)
such evidence as may be necessary to prove that the award is a foreign award.
(2)
If the award or agreement to be produced under sub-section (1) is in a foreign
language, the party seeking to enforce the award shall produce a translation
into English certified as correct by a diplomatic or consular agent of the
country to which that party belongs or certified as correct in such other
manner as may be sufficient according to the law in force in India.
Explanation.---In
this section and all the following sections of this Chapter, "Court"
means the principal Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction over the subject-matter of the award if the
same had been the subject-matter of a suit, but does not include any civil
court of a grade inferior to such principal Civil Court, or any Court of Small
Causes.
48. Conditions
for enforcement of foreign awards.- (1) Enforcement of a foreign award may be refused,
at the request of the party against whom it is invoked, only if that party
furnishes to the court proof that----
(a)
the parties to the agreement referred to in section 44 were, under the law
applicable to them, under some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made; or
(b)
the party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
(c)
the award deals with a difference not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration. Provided that, if the
decisions on matters submitted to arbitration can be separated from those not so
submitted, that part of the award which contains decisions on matters submitted
to arbitration may be enforced; or
(d)
the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place
; or
(e)
the award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made.
(2)
Enforcement of an arbitral award may also be refused if the court finds that-
(a)
the subject -matter of the difference is not capable of settlement by
arbitration under the law of India; or
(b)
the enforcement of the award would be contrary to the public policy of India.
Explanation.----Without
prejudice to the generality of clause (b), it is hereby declared, for the
avoidance of any doubt, that an award is in conflict with the public policy of
India if the making of the award was induced or affected by fraud or
corruption.
(3)
If an application for the setting aside or suspension of the award has been
made to a competent authority referred to in clause (e) of sub-section (1) the
Court may, if it considers it proper, adjourn the decision on the enforcement
of the award and may also, on the application of the party claiming enforcement
of the award, order the other party to give suitable security.
49. Enforcement
of foreign awards.-
Where the Court is satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of that Court.
50. Appealable
orders. -
(1) An appeal shall lie from the order refusing to---
(a)
refer the parties to arbitration under section 45;
(b)
enforce a foreign award under section 48, to the court authorised by law to
hear appeals from such order.
(2)
No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or take away any right to appeal to
the Supreme Court.
51. Saving.- Nothing in this Chapter shall
prejudice any rights which any person would have had of enforcing in India of
any award or of availing himself in India of any award or of availing himself
in India of any award if this Chapter had not been enacted.
52. Chapter II
not to apply.-
Chapter II of this Part shall not apply in relation to foreign awards to which
this Chapter applies.
CHAPTER II
Geneva Convention Awards
53.Interpretation.- In this Chapter "foreign award" means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924,---
(a)
in pursuance of an agreement for arbitration to which the Protocol set forth in
the Second Schedule applies, and
(b)
between persons of whom one is subject to the jurisdiction of some one of such
Powers as the Central Government, being satisfied that reciprocal provisions
have been made, may, by notification in the Official Gazette, declare to be
parties to the Convention set forth in the Third Schedule, and of whom the
other is subject to the jurisdiction of some other of the Powers aforesaid, and
(c)
in one of such territories as the Central Government, being satisfied that
reciprocal provisions have been made, may, by like notification, declare to be
territories to which the said Convention applies, and for the purposes of this
Chapter an award shall not be deemed to be final if any proceedings for the
purpose of contesting the validity of the award are pending in the country in
which it was made.
54.Power of
judicial authority to refer parties to arbitration.- Notwithstanding anything
contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a
judicial authority, on being seized of a dispute regarding a contract made
between persons to whom section 53 applies and including an arbitration
agreement, whether referring to present or further differences, which is valid
under that section and capable of being carried into effect, shall refer the
parties on the application of either of them or any person claiming through or
under him to the decision of the arbitrators and such reference shall not
prejudice the competence of the judicial authority in case the agreement or the
arbitration cannot proceed or becomes inoperative.
55. Foreign
awards when binding.-
Any foreign award which would be enforceable under this Chapter shall be
treated as binding for all purposes on the persons as between whom it was made,
and may accordingly be relied on by any of those persons by way of defence, set
off or otherwise in any legal proceedings in India and any references in this
Chapter to enforcing a foreign award shall be construed as including references
to relying on an award.
56. Evidence.- (1) The party applying for the
enforcement of a foreign award shall, at the time of application procedure
before the Court----
(a)
the original award or a copy thereof duly authenticated in the manner required
by the law of the country in which it was made;
(b)
evidence proving that the award has become final; and
(c)
such evidence as may be necessary to prove that the conditions mentioned in
clauses (a) and (c) of sub-section (1) of section 57 are satisfied.
(2)
Where any document requiring to be produced under sub-section (1) is in a
foreign language, the party seeking to enforce the award shall produce a
translation into English certified as correct by a diplomatic or consular agent
of the country to which that party belongs or certified as correct in such
other manner as may be sufficient according to the law in force in India.
Explanation
---In this section and all the following sections of this Chapter,
"Court" means the principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary original
civil jurisdiction, having jurisdiction over the subject-matter of the award if
the same had been the subject matter of a suit, but does not include any civil
court of a grade inferior to such principal Civil Court, or any Court of Small
Causes.
57.Conditions
for enforcement of foreign awards.- (1) In order that a foreign award may be
enforceable under this Chapter, it shall be necessary that---
(a)
the award has been made in pursuance of a submission to arbitration which is
valid under the law applicable thereto;
(b)
the subject-matter of the award is capable of settlement by arbitration under
the law of India;
(c)
the award has been made by the arbitral tribunal provided for in the submission
to arbitration or constituted in the manner agreed upon by the parties and in
conformity with the law governing the arbitration procedure;
(d)
the award has become final in the country in which it has been made, in the
sense that it will not be considered as such if it is open to opposition or
appeal or if it is proved that any proceedings for the purpose of contesting
the validity of the award the pending;
(e)
the enforcement of the award is not contrary to the public policy or the law of
India.
Explanation.---Without
prejudice to the generality of clause (e), it is hereby declared, for the
avoidance, of any doubt, that an award is in conflict with the public policy of
India if the making of the award was induced or affected by fraud or
corruption.
(2)
Even if the conditions laid down in sub-section (1) are fulfilled, enforcement
of the award shall be refused if the Court is satisfied that---
(a)
the award has been annulled in the country in which it was made;
(b)
the party against whom it is sought to use the award was not given notice of
the arbitration proceedings in sufficient time to enable him to present his
case; or that, being under a legal incapacity, he was not properly represented;
(c)
the award does not deal with the differences contemplated by or falling within
the terms of the submission to arbitration or that it contains decisions on
matters beyond the scope for the submission or arbitration;
Provided
that if the award has not covered all the differences submitted to the arbitral
tribunal, the Court may, if it thinks fit, postpone such enforcement or grant
it subject to such guarantee as the Court may decide.
(3)
If the party against whom the award has been made proves that under the law
governing the arbitration procedure there is a ground, other than the grounds
referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c)
of sub-section (2) entitling him to contest the validity of the award, the
Court may, if it thinks fit, either refuse enforcement of the award or adjourn
the consideration thereof, giving such party a reasonable time within which to
have the award annulled by the competent tribunal.
58. Enforcement
of foreign awards.-
Where the Court is satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of the Court.
59. Appealable
orders.- (1)
An appeal shall lie from the order refusing----
(a)
to refer the parties to arbitration under section 54: and
(b)
to enforce a foreign award under section 57,
(2)
No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or take away any right to appeal to
the Supreme Court.
60. Saving.- Nothing in this Chapter shall
prejudice any rights which any person would have had of enforcing in India of
any award or of availing himself in India of any award if this Chapter had not
been enacted.
61. Application
and scope.-
(1) Save as otherwise provided by any law for the time being in force and
unless the parties have otherwise agreed, this Part shall apply to conciliation
of disputes arising out of legal relationship, whether contractual or not and
to all proceedings relating thereto.
(2)
This Part shall not apply where by virtue of any law for the time being in
force certain disputes may not be submitted to conciliation.
62. Commencement
of conciliation proceedings.-
(1) The party initiating conciliation shall send to the other party a written
invitation to conciliate under this Part, briefly identifying the subject of
the dispute.
(2)
Conciliation proceedings shall commence when the other party accepts in writing
the invitation to conciliate.
(3)
If the other party rejects the invitation, there will be no conciliation
proceedings.
(4)
If the party initiating conciliation does not receive a reply within thirty
days from the date on which he sends the invitation, or within such other
period of time as specified in the invitation, be may elect to treat this as a
rejection of the invitation to conciliate and if he so elects, he shall inform
in writing the other party accordingly.
63. Number of
conciliators.-
(1) There shall be one conciliator unless the parties agree that there shall be
two or three conciliators.
(2)
Where there is more than one conciliator, they ought, as a general rule, to act
jointly.
64. Appointment
of conciliators.-
(1) Subject to sub-section (2)---
(a)
in conciliation proceedings with one conciliator, the parties may agree on the
name of a sole conciliator;
(b)
in conciliation proceedings with two conciliators, each party may appoint one
conciliator;
(c)
in conciliation proceedings with three conciliators, each party may appoint one
conciliator and the parties may agree on the name of the third conciliator who
shall act as the presiding conciliator.
(2)
Parties may enlist the assistance of a suitable institution or person in
connection with the appointment of conciliators and in particular,----
(a)
a party may request such an institution or person to recommend the names of
suitable individuals to act as conciliator; or
(b)
the parties may agree that the appointment of one or more conciliators be made
directly by such an institution or person;
Provided
that in recommending or appointing individuals to act as conciliator, the
institution or person shall have regard to such considerations as are likely to
secure the appointment of an independent and impartial conciliator and, with
respect to a sole or third conciliator, shall take into account the
advisability of appointing a conciliator of a nationality other than the
nationalities of the parties.
65. Submission
of statements to conciliator.-
(1) The conciliator, upon his appointment, may request each party to submit to
him a brief written statement of his position and the facts and grounds in
support thereof, supplement by any documents and other evidence that such party
deems appropriate. The party shall send a copy of such statement, documents and
other evidence to the other party.
(2)
The Conciliator may request each party to submit to him a further written
statement of his position and the facts and grounds in support thereof,
supplemented by any documents and other evidence that such party deems
appropriate. The party shall send a copy of such statement, documents and other
evidence to the other party.
(3)
At an stage of the conciliation proceedings, the conciliator may request a
party to submit to him such additional information as he deems appropriate.
Explanation.----In
this section and all the following sections of this Part, the term
"conciliator" applies to a sole conciliator, to or three conciliators
as the case may be.
66. Conciliator
not bound by certain enactments.-
The conciliator is not bound by the Code of Civil Procedure, 1908 (5 of 1908)or
the Indian Evidence Act, 1872 (1 of 1872).
67. Role of
conciliator.-
(1) The conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement of their dispute.
(2)
The conciliator shall be guided by principles of objectivity, fairness and justice,
giving consideration to, among other things, the rights and obligations of the
parties, the usages of the trade concerned and the circumstances surrounding
the dispute, including any previous business practices between the parties.
(3)
The conciliator may conduct the conciliation proceedings in such a manner as he
considers appropriate, taking into account the circumstances of the case, the
wishes the parties may express, including any request by a party that the
conciliator hear oral statements, and the need for a speedy settlement of the
dispute.
(4)
The conciliator-may, at any stage of the conciliation proceedings, make
proposals for a settlement of the dispute. Such proposals need not be writing
and need not be accompanied by a statement of the reasons there for.
68. Administrative
assistance.-
In order to facilitate the conduct of the conciliation proceedings, the
parties, or the conciliator with the consent of the parties, may arrange for
administrative assistance by a suitable institution or person.
69. Communication
between conciliator and parties.-
(1) The conciliator may invite the parties to meet him or may communicate with
them orally or in writing. He may meet or communicate with the parties together
or with each of them separately.
(2)
Unless the parties have agreed upon the place where meetings with the
conciliator are to be held, such place shall be determined by the conciliator,
after consultation with the parties, having regard to the circumstances of the
conciliation proceedings.
70.Disclosure of
information.-
When the conciliator receives factual information concerning the dispute from a
party, he shall disclose the substance of that information to the other party
in order that the other party may have the opportunity to present any
explanation which he considers appropriate: Provided that when a party gives
any information to the conciliator subject to a specific condition that it be
kept confidential, con conciliator shall not disclose that information to the
other party.
71.Co-operation
of parties with conciliator.-
The parties shall in good faith co-operate with the conciliator and, in
particular, shall endeavour to comply with requests by the conciliator to
submit written materials, provide evidence and attend meetings.
72. Suggestions
by parties for settlement of dispute.- Each party may, on his own initiative or at the
invitation of the conciliator, submit to the conciliator suggestions for the
settlement of the dispute.
73. Settlement
agreement.-
(1) When it appears to the conciliator that there exist elements of a
settlement which may be acceptable to the parties, he shall formulate the terms
of a possible settlement and submit them to the parties for their observations.
After receiving the observations of the parties, the conciliator may
reformulate the terms of a possible settlement in the light of such
observations.
(2)
If the parties reach agreement on a settlement of the dispute, they may draw up
and sign a written settlement agreement. If requested by the parties, the
conciliator may draw up, or assist the parties in drawing up, the settlement
agreement.
(3)
When the parties sign the settlement agreement, it shall be final and binding
on the parties and persons claiming under them respectively.
(4)
The conciliator shall authenticate the settlement agreement and furnish a copy
thereof to each of the parties.
74.Status and
effect of settlement agreement.-
The settlement agreement shall have the and effect as if it is an arbitral
award on agreed terms on the substance of the dispute rendered by an arbitral
tribunal under section 30.
75. Confidentiality.
-
Notwithstanding anything contained in any other law for the time being in
force, the conciliator and the parties shall keep confidential all matter
relating to the conciliation proceedings. Confidentiality shall extend also to
the settlement agreement, except where its disclosure is necessary for purposes
of implementation and enforcement.
76. Termination
of conciliation proceedings.-
The conciliation proceedings shall be terminated
(a)
by the signing of the settlement agreement by the parties; on the date of the
agreement; or
(b)
by a written declaration of the conciliator, after consultation with the
parties, in the effect that further efforts at conciliation are no longer
justified, on the date of the declaration; or
(c)
by a written declaration of the parties addressed to the conciliator to the
effect that the conciliation proceedings are terminated , on the date of the
declaration; or
(d)
by a written declaration of a party to the other party and the conciliator, if
appointed, to the effect that the conciliation proceedings are terminated, on
the date of the declaration.
77.Resort to
arbitral or judicial proceedings.-
The parties shall not initiate, during the conciliation proceedings, any
arbitral or judicial proceedings in respect of a dispute that is the subject-
matter of the conciliation proceedings except that a party may initiate
arbitral or judicial proceedings, where, in his opinion, such proceedings are
necessary for preserving his rights.
78.Costs.- (1) Upon termination of the
conciliation proceedings, the conciliator shall fix the costs of the
conciliation and given written notice thereof to the parties.
(2)
For the purpose of sub-section (1) , "costs" means reasonable costs
relating to---
(a)
the fee and expenses of the conciliator and witnesses requested by the
conciliator, with the consent of the parties;
(b)
any expert advice requested by the conciliator with the consent of the parties;
(c)
any assistance provided pursuant to clause (b) of sub-section (2) of section 64
and section 68.
(d)
any other expenses incurred in connection with the conciliation proceedings and
the settlement agreement.
(3)
The costs shall be borne equally by the parties unless the settlement agreement
provides for a different appointment. All other expenses incurred by a party
shall be borne by that party.
79. Deposits.- (1) The conciliator may direct
each party to deposit an equal amount as an advance for the costs referred to
in subsection (2) of section 78 which he expects will be incurred.
(2)
During the course of the conciliation proceedings, the conciliator may direct
supplementary deposits in an equal amount from each party.
(3)
If the required deposits under sub-sections (1) and (2) are not paid in full by
both parties within thirty days, the conciliator may suspend the proceedings or
may make a written declaration of termination of the proceedings to the
parties, effective on the date of that declaration.
(4) Upon termination of the conciliation
proceedings the conciliator shall render an accounting to the parties of the
deposits received and shall return and expended balance to the parties.
80. Role of
conciliator in other proceedings. - Unless otherwise agreed by the parties:----
(a)
the conciliator shall not act as an arbitrator or as a representative or
counsel of a party in any arbitral or judicial proceeding in respect of a
dispute that is the subject of the conciliation proceedings;
(b)
the conciliator shall not be presented by the parties as a witness in any
arbitral or judicial proceedings.
81. Admissibility
of evidence in other proceedings.-
The parties shall not rely on or introduce as evidence in arbitral or judicial
proceedings, whether or not such proceedings relate to the dispute that is the
subject of the conciliation proceedings,-
(a)
views expressed or suggestions made by the other party in respect of a possible
settlement of the dispute;
(b)
admissions made by the other party in the course of the conciliation
proceedings;
(c)
proposals made by the conciliator;
(d)
the fact that the other party had indicated to accept a proposal for settlement
made by the conciliator.
PART IV –
SUPPLEMENTARY PROVISIONS
82. Power of High Court to make rules.- The High court may make rules consistent with this Act as to all proceedings before the court under this Act.
83. Removal of
difficulties.-
(1) If any difficulty arises in giving effect to the provisions of this Act,
the central Government may, by order published in the Official Gazette, make
such provisions, not inconsistent with the provisions of this Act as appear to
it to be necessary or expedient for removing the difficulty: Provided that no
such order shall be after the expiry of a period of two years from the date of
commencement of this Act.
(2)
Every order made under this section shall, as soon as may be after it is made,
be laid before each Houses of Parliament.
84. Power to
make rules.-
(1) The Central Government may, by notification in the Official Gazette, make
rules for carrying out the provisions of this Act.
(2)
Every rule made by the Central Government under this Act shall be laid, as soon
as may be, after it is made before each House of Parliament while it is in
session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid,
both Houses agree in making may modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity
of anything previously done under that rule.
85. Repeal and
savings.-
(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the
Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and
Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2)
Notwithstanding such repeal,-----
(a)
the provisions of the said enactments shall apply in relation to arbitral
proceedings which commenced before this Act came into force unless otherwise
agreed by the parties but this Act shall apply in relation to arbitral
proceedings which commenced on or after this Act comes into force;
(b)
all rules made and notifications published, under the said enactments shall, to
the extent to which they are not repugnant to this Act, be deemed respectively
to have been made or issued under this Act,
86. Repeal of
Ordinance 27 of 1996 and saving.-
(1) The Arbitration and Conciliation (Third) Ordinance, 1996 (Ord.27 of 1996)
is hereby repealed. done or any action taken in pursuance of any provision of
the said Ordinance shall be deemed to have been made, done or taken under the
corresponding provisions of this Act.
THE FIRST SCHEDULE
(See section 44)
CONVENTION ON THE RECOGNITION AND EXPORCEMENT OF FOREIGN ARBITRAL AWARDS
ARTICLE 1
1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
2.
The term "arbitral awards" shall include not only awards made by
arbitrators appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted.
3.When
signing, ratifying or acceding to this Convention, or notifying extension under
article X hereof, and State may on the basis of reciprocity declare that it
will apply the Convention to the recognition and enforcement of awards made
only in the territory of another Contracting State. It may also declare that it
will apply the Convention only to differences arising out of legal
relationships, whether contractual or not, which are considered as commercial
undertaking national law of the State making such declaration.
ARTICLE II
1.Each Contracting State shall recognise an agreement in writing under which the parties undertaking to submit to arbitration all or any differences which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not, concerning a subject-matter capable of settlement by arbitration.
2.
The term "agreement in writing" shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.
3.
The court of a Contracting State, when seized of an action in a matter in
respect of which the parties have made an agreement within the meaning of this
article, shall, at the request of one of the parties, refer the parties to
arbitration, unless in finds that the said agreement is null and void,
inoperative of incapable of being performed.
ARTICLE III
Each Contracting State shall recognize arbitral awards as binding and enforcement them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
ARTICLE IV
1.To obtain the recognition and enforcement mentioned in the proceeding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a)
the duly authenticated original award or a duly certified copy thereof:
(b)
the original agreement referred to in article II or a duly certified copy
thereof.
2.
If the said award or agreement is not made in an official language of the
country in which the award is relied upon, the party applying for recognition
and enforcement of the award shall produce a translation of these documents
into such language. The translation shall be certified by an official or sworn
translator or by a diplomatic or consular agent.
ARTICLE V
1.Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that----
(a)
the parties to the agreement referred to in article II were, under the law
applicable to them, under some incapacity, or the said agreement in not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made; or
(b)
the party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; or
(c)
the award deals with a difference not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration, provided that, if the
decisions on matters submitted to arbitration can be separated from those not
so submitted, that part of the award which contains decisions on matters
submitted to arbitration may be recognised and enforced; or
(d)
the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place;
or
(e)
the award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made.
2.
Recognition and enforcement of an arbitral award may also be refused if the
competent authority in the country where recognition and enforcement is sought
finds that----
(a)
the subject matter of the difference is not capable of settlement by arbitration
under the law of that country; or
(b)
the recognition or enforcement of the award would be contrary to the public
policy of that country.
ARTICLE VI
If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V (1) (e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
ARTICLE VII
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
2.The
Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the
Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between
Contracting States on their becoming bound and to the extent that they become bound
by this Convention.
ARTICLE VIII
1. This Convention shall be upon until 31st December, 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes member of any specialised agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
2.This
Convention shall be ratified and the instrument of ratification shall be
deposited with the Secretary-General of the United Nations.
ARTICLE 1X
1.This Convention shall be upon for accession to all States referred to in article VIII.
2.
Accession shall be effected by the deposit of an instrument of accession with
the Secretary-General of the United Nations.
ARTICLE X
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.
2.
At any time thereafter any such extension shall be made by notification
addressed to the Secretary-General of the United Nations and shall take effect
as from the ninetieth day after the day of receipt by the Secretary-General of
the United Nations of this notifications, or as from the date of entry into
force of the Convention for the State concerned, whichever is the later.
3.With
respect to those territories to which this Convention is not extended at the
time of signature, ratification or accession, each State concerned shall
consider the possibility of taking the necessary steps in order to extend the
application of this Convention to such territories, subject, where necessary
for constitutional reasons, to the consent of the Governments of such
territories.
ARTICLE XI
In the case of a federal or non-unitary State, the following provisions shall apply:---
(a)
with respect of those articles of this Convention that come within the
legislative jurisdiction of the federal authority, the obligations of the
federal Government shall to this extent be the same as those of Contracting
States which are not federal States;
(b)
with respect to those articles of this Convention that come within the
legislative jurisdiction of constituent States or provinces which are not,
under the constitutional system of the federation, bound to take legislative
action, the federal Government shall bring such articles with a favourable
recommendation to the notice of the appropriate authorities of constituent
States or provinces at the earliest possible moment;
(c)
a federal State Party to this Convention shall, at the request of any other
Contracting State transmitted through the Secretary General of the United
Nations, supply a statement of the law and practice of the federation and its
constituent units in regard to any particular provision of this Convention,
showing the extent to which effect has been given to that provision by
legislative or other action.
ARTICLE XII
1.This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession.
2.For
each State ratifying or acceding to this Convention after the deposit of the
third instrument of ratification or accession, this Convention shall enter into
force on the ninetieth day after deposit by such State of its instrument of
ratification or accession.
ARTICLE XIII
1. Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2.
Any State which has made a declaration or notification under article X may, at
any time thereafter, by notification to the Secretary General of the United
Nations, declare that this Convention shall cease to extend to the territory
concerned one year after the date of the receipt of the notification by the
Secretary-General.
3.
This Convention shall continue to be applicable to arbitral awards in respect
of which recognition or enforcement proceedings have been instituted before the
denunciation takes effect.
ARTICLE XIV
A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.
ARTICLE XV
The Secretary General of the United Nations shall notify the States contemplated in article VIII of the following:----
(a)
signatures and ratifications in accordance with article VIII;
(b)
accessions in accordance with article IX;
(c)
declarations and notifications under articles I, X and XI;
(d)
the date upon which this Convention enters into force in accordance with
article XII;
(e)
denunciations and notifications in accordance with article XIII.
ARTICLE XVI
1.This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
2.The
Secretary General of the United Nations shall transmit a certified copy of this
Convention to the State contemplated in article XIII.
THE SECOND SCHEDULE
(See section 53)
PROTOCOL ON ARBITRATION CLAUSES
The undersigned, being duly authorised, declare that they accept, on behalf of the countries which they represent, the following provisions:----
1.Each
of the Contracting States recognises the validity of an agreement whether
relating to existing or future differences between parties subject respectively
to the jurisdiction of different Contracting States by which the parties to a
contract agree to submit to arbitration all or any differences that may arise
in connection with such contract relating to commercial matters or to any other
matter capable of settlement by arbitration, whether or not the arbitration is
to take place in a country to whose jurisdiction none of the parties is
subject. Each Contracting State reserves the right to limit the obligation
mentioned above to contracts which are considered as commercial under its
national law. Any Contracting State which avails itself of this right will
notify the Secretary-General of the League of Nations in order that the other
Contracting States may be so informed.
2.
The arbitral procedure, including the constitution of the Arbitral Tribunal,
shall be governed by the will of the parties and by the law of the country in
whose territory the arbitration takes place. The Contracting States agree to
facilitate all steps in the procedure which require to be taken in their own
territories, in accordance with the provisions of their law governing arbitral
procedure applicable to existing differences.
3.
Each Contracting State undertakes to endure the execution by its authorities
and in accordance with the provisions of its national law of arbitral awards
made in its own territory under the preceding articles.
4.
The Tribunals of the Contracting Parties, on being seized of a dispute
regarding a contract made between persons to whom Article I applies and
including an Arbitration Agreement whether referring to present or further
differences with is valid in virtue of the said article and capable of being
carried into effect, shall refer the parties on the application of either of
them to the decision of the Arbitrators. Such reference shall not prejudice the
competence of he judicial tribunals in case the agreement or the arbitration
cannot proceed or becomes inoperative.
5.
The present Protocol, which shall remain open for signature by all States,
shall be ratified. The ratification shall be deposited as soon as possible with
the Secretary, General of the League of Nations, who shall notify such deposit
to all the Signatory States.
6.
The present Protocol will come into force as soon as two ratifications have
been deposited. Thereafter it will take effect, in the case of each Contracting
State, one month after the notification by the Secretary-General of the deposit
of its ratification.
7.
The present Protocol may be denounced by any Contracting State on giving one
year's notice. Denunciation shall be effected by a notification addressed to
the Secretary-General of the League, who will immediately transmit copies of
such notification to all the other Signatory States and inform them of the date
on which it was received. The denunciation shall take effect one year after the
date on which it was notified to the Secretary-General, and shall operate only
in respect of the notifying State.
8.The
Contracting States may declare that their acceptance of the present Protocol
does not include any or all of the under mentioned territories; that is to say,
their colonies, overseas possessions or territories, protectorates or the
territories over which they exercise a mandate. The said States may
subsequently adhere separately on behalf of any territory thus excluded. The
Secretary-General of the League of Nations shall be informed as soon as
possible of such adhesions. He shall notify such adhesions to all Signatory
States. They will take effect on month after the notification by the
Secretary-General to all Signatory states. The Contracting States may also
denounce the Protocol separately on behalf of any of the territories referred
to above. Article 7 applies to such denunciation.
THE THIRD SCHEDULE
(See sections 53)
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
ARTICLE 1
(1) In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement, whether relating the existing or future differences (hereinafter called "a submission to arbitration") covered by the Protocol on arbitration Clauses opened at Geneva on September 24th.1923, shall be recognised as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties.
(2)
To obtain such recognition or enforcement, it shall, further, be necessary:---
(a)
that the award has been made in pursuance of a submission to arbitration which
is valid under the law applicable thereto;
(b)
that the subject-matter of the award is capable of settlement by arbitration
under the law of the country in which the award is sought to be relied upon;
(c)
that the award has been made by the Arbitral Tribunal provided for in the
submission to arbitration or constituted in the manner agreed upon by the
parties and in conformity with the law governing the arbitration procedure;
(d)
that the award has become final in the country in which it has been made, in
the sense that it will not be considered as such if it is open to opposition,
appeal or pourvoi en cassation (in the countries where such forms of procedure
exist) or if it is proved that any proceedings for the purpose of contesting
the validity of the award are pending;
(e)
that the recognition or enforcement of the award is not contrary to the public
policy or to the principles of the law of the country in which it is sought to
be relied upon.
ARTICLE 2
Even if the conditions laid down in Article I hereof are fulfilled, recognition and enforcement of the award shall be refused if the Court is satisfied:---
(a)
that the award has been annulled in the country in which it was made:---
(b) that the party against whom it is sought
to use the award was not given notice of the arbitration proceedings in
sufficient time to enable him to present his case; or that, being under a legal
incapacity, he was not properly represented;
(c)
that the award does not deal with the differences contemplated by or falling
within the terms of the submission to arbitration or that it contains decisions
on matters beyond the scope of the submission to arbitration. If the award has
not covered all the questions submitted to the arbitral tribunal, the competent
authority of the country where recognition or enforcement of the award is
sought can, if it thinks fit, postpone such recognition or enforcement or grant
it subject to such guarantee as that authority may decide.
ARTICLE 3
If the party against whom the award has been made proves that, under the law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1(a) and (c), and Article 2(b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.
ARTICLE 4
The party relying upon an award or claiming its enforcement must supply, in particular:--
(1)
the original award or a copy thereof duly authenticated, according to the
requirements of the law of the country in which it was made;
(2)
documentary or other evidence to prove that the award has become final, in the
sense defined in Article 1 (d), in the country in which it was made;
(3)
when necessary, documentary or other evidence to prove that the conditions laid
down in Article 1, Paragraph (1) and paragraph (2) (a) and (c), have been
fulfilled. A translation of the award and of the award and of the other
documents mentioned in this Article into the official language of the country
where the award is sought to be relied upon may be demanded. Such translations
must be certified correct by a diplomatic or consular agent of the country to
which the party who seeks to rely upon the award belongs or by a sworn
translator of the country where the award is sought to be relied upon.
ARTICLE 5
The provisions of the above articles small not deprive any interested party of the right of availing himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
ARTICLE 6
The present Convention applies only to arbitral awards made after the coming into force of the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923.
ARTICLE 7
The present Convention, which will remain open to the signature of all the signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified. It may be ratified only on behalf of those Members of the League of Nations and Non-member States on whose behalf the Protocol of 1923 on Arbitration Clauses, shall be ratified. Ratification shall be deposited as soon as possible with the Secretary-General of the League of Nations, who will notify such deposit to all the signatories.
ARTICLE 8
The present Convention shall come into force three months after it shall have been ratified on behalf of two High Contracting Parties. Thereafter, it shall take effect, in the case of each High Contracting Party, three months after the deposit of the ratification on its behalf with the Secretary-General of the League of Nations.
ARTICLE 9
The present Convention may be denounced on behalf of any Member of the League or Non-Member State. Denunciation shall be notified in writing to the Secretary-General of the League of Nations, who will immediately send a copy thereof, certified to the in conformity with the notifications, to all the other Contracting Parties, at the same time informing them of the date on which he received it The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary -- General of the League of Nations. The denunciation of the Protocol on Arbitration Clauses shall entail , ipso facto, the denunciation of the present Convention.
ARTICLE 10
The present Convention does not apply to the colonies, protectorates or territories under suzerainty or mandate of any High Contracting Party unless they are specially mentioned. The application of this Convention to one or more of such colonies, protectorates or territories to which the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923, applies, can be effected at any time by means of a declaration addressed to the Secretary-General of the League of Nations by one of the High Contracting Parties. Such declaration shall take effect three months after the deposit thereof. The High Contracting Parties can at any time denounce the Convention for all or any of the colonies, protectorates or territories referred to above. Article 9 hereof applied to such denunciation.
ARTICLE 11
A certified copy of the present Convention
shall be transmitted by the Secretary-General of the league of Nations of every
Member of the league of Nations and to every Non-Member State which sign the
same.
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