Arbitration
Act 1940
Preamble
Preliminary
Section 1
Short Title, Extent And
Commencement.
Part I
Arbitration
Chapter i
General Provisions
Section
2
Definitions.
Section 3
Receipt of written
communications.
Section 4
Waiver of right to object.
Section 5
Extent of Judicial
Intervention.
Section 6
Administrative Assistance.
Chapter ii
Section 7
Arbitration Agreement.
Section 8
Power of Refer Parties to Arbitration where
there is an Arbitration Agreement
Section 9
Interim Measures Etc. By
Court.
Chapter iii
Composition Of Arbitral Tribunal
Section 10
Number Of Arbitrators.
Section 11
Appointment of Arbitrators.
Section 12
Grounds For Challenge.
Section 13
Challenge Procedure.
Section 14
Failure Or Impossibility To
Act.
Section 15
Termination of Mandate And Substitution of
Arbitrator.
Chapter
iv
Jurisdiction Of Arbitral
Tribunals
Section 16
Competence of Arbitral Tribunal to rule on its
Jurisdiction.
Section 17
Interim measures ordered by Arbitral
Tribunal.
Chapter
v
Conduct Of Arbitral
Proceedings
Section 18
Equal treatment of parties.
Section 19
Determination of rules of
procedure.
Section 20
Place of Arbitration.
Section 21
Commencement of Arbitral
Proceedings.
Section 22
Language.
Section 23
Statements of Claim And
Defence.
Section 24
Hearings and Written
Proceedings.
Section 25
Default of a party.
Section 26
Expert appointment by Arbitral
Tribunal.
Section 27
Court Assistance in taking
evidence.
Chapter vi
Making of Arbitral Award and Termination of Proceedings
Section 28
Rules applicable to substance of
dispute.
Section 29
Decision making by Panel Of
Arbitrators.
Section 30
Settlement.
Section 31
Form and contents Of Arbitral
Award.
Section 32
Termination of Proceedings.
Section 33
Correction and Interpretation of Award;
Additional Award.
Chapter
vii
Recourse Against Arbitral
Award
Section 34
Application for setting aside Arbitral
Award.
Chapter
viii
Finality and Enforcement of
Arbitral Awards
Section 35
Finality of Arbitral Awards.
Section 36
Enforcement.
Chapter
ix
Appeals
Section 37
Appealable orders.
Chapter
x
Miscellaneous
Section 38
Deposits.
Section 39
Lien on Arbitral Award And Deposits as to
costs.
Section 40
Arbitration Agreement not to be discharged by
death of party thereto.
Section 41
Provisions in case of
insolvency.
Section 42
Jurisdiction.
Section 43
Limitations.
Part ii
Enforcement of Certain Foreign Awards
Chapter i
New York Convention Awards
Section 44
Definition.
Section 45
Power of Judicial Authority to refer parties to
Arbitration.
Section 46
When Foreign Award Binding.
Section 47
Evidence.
Section 48
Conditions for enforcement of Foreign
Awards.
Section 49
Enforcement of Foreign
Awards.
Section 50
Appealable orders.
Section 51
Saving.
Section 52
Not to apply.
Chapter ii
Geneva Convention Awards
Section 53
Interpretation.
Section 54
Power of Judicial Authority to refer parties to
Arbitration.
Section 55
Foreign Awards when binding.
Section 56
Evidence.
Section 57
Conditions for enforcement of Foreign
Awards.
Section 58
Enforcement of Foreign
Awards.
Section 59
Appealable Orders.
Section 60
Saving.
Part iii
Conciliation
Section 61
Application and scope.
Section 62
Commencement of conciliation
proceedings.
Section 63
Number of conciliators.
Section 64
Appointment of conciliators.
Section 65
Submission of statements to
conciliator.
Section 66
Conciliator not bound by certain
enactments.
Section 67
Role of Conciliator.
Section 68
Administrative assistance.
Section 69
Communication between conciliator and
parties.
Section 70
Disclosure of information.
Section 71
Co-operation of parties with
conciliator.
Section
72
Suggestions by parties for settlement of dispute.
[ACT NO. 26 OF 1996]
RECEIVED THE ASSENT OF THE PRESIDENT ON THE 16TH AUGUST,
1996, AND IS HEREBY PUBLISHED FOR GENERAL INFORMATION :-
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 of 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 :-
Section 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.
vide G.S.R. 375
(E) , dated 22nd August, 1996.
Section 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 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 Party shall apply where the place of arbitration is
in India.
(3) This Part shall not affect 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 provisions of this
Part are inconsistent with the 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 as a 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 of
clause (a) 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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 if the contract is in
writing and the reference is such as to make that arbitration clause
part of the contact.
Section 8
POWER OF 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.
Section 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 of 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 part 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.
Section 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.
Section 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 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 partly 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 qualification 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-sections 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.
Section 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.
Section 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 after 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.
Section 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.
Section 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 be invalid solely because
there has been a change in the composition of the arbitral
tribunal.
Section 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 be 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.
Section 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).
Section 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.
Section 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.
Section 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 witnesses, experts or the parties, or for
inspection of documents, goods or other property.
Section 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.
Section 22
LANGUAGE.
(1) The parties are free to agree upon the languages to be
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 language or
languages agreed upon by the parties or determined by the arbitral
tribunal.
Section 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.
Section 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 and other
materials :
Provided that the arbitral tribunal shall hold oral 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.
Section 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.
Section 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
Section 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 be 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 any document to the produced or
property to be inspected.
(3) The Court may, within its competence and according to its
rules on taking evidence, execute the request by ordering that the
evidence be provided directly to the arbitral tribunal.
(4) The Court may, while making an 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 default, 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 in 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.
Section 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 decide 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.
Section 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 decide 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.
Section 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.
Section 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.
Section 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,
(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.
Comment: Thus,
the law on the award, as governed by the new Act, is other way about
of the preexisting law; it mandates that the award should state the
reasons upon which it is based. In other words, 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 of the New
Act, the award should state the reasons in support of determination
of the liability/non-liability. Thereby, legislature has not
accepted the ratio of the Constitution Bench in the Chokhamal
Contractor's case (AIR 1990 SC 1426), that the award, being in the
private law field, need not be a speaking award even where the award
relates to the contract of private parties or between person and the
Government or public sector undertakings. The principle is the same,
namely the award is governed by Section 31(3). T.N. Electricity Board v. M/s.
Bridge Tunnel Constructions, AIR 1997 SUPREME COURT 1376
Section
32
TERMINATION OF PROCEEDINGS
The arbitral proceedings shall be terminated by the final
arbitral award or by an order of the arbitral tribunal under
sub-section (2
The arbitral tribunal shall issue an order for the
termination of the arbitral proceedings where –
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,
the parties
agree on the termination of the proceedings, or
the arbitral tribunal finds that the continuation of the
proceedings has for any other reason become unnecessary or
impossible.
Subject to section 33 and sub-section (4) of section 34, the
mandate of the arbitral tribunal shall terminate with the
termination of the arbitral proceedings.
Section
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 clerical 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 any 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 to 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 made under this section.
Section 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 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, 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 Part; 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 or 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 it 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 request 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 take action as in the opinion
of arbitral tribunal will eliminate the grounds for setting aside
the arbitral award.
Section 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.
Section 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 in the same manner as if it were a decree of the
Court.
Section 37
APPEALABLE ORDERS.
(1)An appeal shall lie from the following orders (and from no
others) to the Court authorised by law 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 away
any right to appeal to the Supreme Court.
Section 38
DEPOSITS.
(1) The arbitral tribunal may fix the amount of the deposit
or supplementary deposit, as 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.
Section 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, if 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.
Section 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 be enforceable by
or against the legal represented 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.
Section 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 thereout or in
connection therewith shall be submitted to arbitration, the said
term shall, if the receiver adopts the contract, be enforecable by
or against him so far it as 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 an arbitration agreement, and any matter to which the
agreement applies is required to be determine 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.
Section 42
JURISDICTION.
Notwithstanding anything contained elsewhere in this Part or
in 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 in no other Court.
Section 43
LIMITATIONS.
(1) The Limitation Act, 1963, shall, apply to arbitrations as
it applies to proceedings in court.
(2) For the purposes of this section and the Limitation
Act,1963, an arbitration shall be deemed to have commenced on the
date referred in section 21.
(3) Where an arbitration agreement to submit future 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, for the
Commencement of the proceedings (including arbitration) with respect
to the dispute so submitted.
Section 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 said Convention applies.
Section 45
POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO
ARBITRATION.
Notwithstanding anything contained in Part I or in the Code
of Civil Procedure, 1908 a judicial authority, when seized of an
action in a matter in respect of which the parties have made
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.
Section 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.
Section 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.
Section 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
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.
Section 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.
Section 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.
Section 51
SAVING.
Nothing in this Chapter shall prejudice any right 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.
Section 52
CHAPTER II NOT TO APPLY.
Chapter II of this Part shall not apply in relation to
foreign awards to which this Chapter applies.
Section 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.
Section 54
POWER OF JUDICIAL AUTHORITY TO REFER PARTIES TO
ARBITRATION.
Notwithstanding anything contained in Part I or in the Code
of Civil Procedure, 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 future 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.
Section 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 relaying on an award.
Section 56
EVIDENCE
(1) The party applying for the enforcement of a foreign award
shall, at the time of 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) 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.
Section 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
are pending;
(e) the enforcement of the award is not country 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 of the
submission to arbitration :
Provided that if the award has not covered all the
differences submitted to the arbitral tribunal, to 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.
Section 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.
Section 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, 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.
Section 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.
Section 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.
Section 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, he 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.
Section 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.
Section 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.
Section 65
SUBMISSION OF STATEMENTS TO CONCILIATOR.
(1) The conciliator, upon his appointment, may request each
party to submit to him a brief written statement describing the
general nature of the dispute and the points at issue. Each party
shall send a copy of such statement to 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 any 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,
two or three conciliators as the case may be.
Section 66
CONCILIATOR NOT BOUND BY CERTAIN ENACTMENTS.
The conciliator is not bound by the Code of Civil
procedure,1908 or the Indian Evidence Act, 1872.
Section 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 principle 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 conciliator 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 conciliator
proceedings, make proposals for a settlement of the dispute. Such
proposals need not be in writing and need not be accompanied by a
statement of the reasons therefor.
Section 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.
Section 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.
Section 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, the conciliator shall not disclose that information to
the other party.
Section 71
CO-OPERATION OF PARTIES WITH CONCILIATOR.
The parties shall in good faith co-operate with the
conciliation and, in particular, shall endeavor to comply with
requests by the conciliator to submit written materials, provide
evidence and attend meetings.
Section 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.
Section 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.
Section 74
STATUS OF EFFECT OF SETTLEMENT AGREEMENT.
The settlement agreement shall have the same status 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.
CONFIDENTIALITY.
Notwithstanding anything contained in any other law for the
time being in force, the conciliator and the parties shall keep
confidential all matters 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.
Section 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
consulation with the parties, to 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.
Section 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.
Section 78
COSTS.
(1) Upon termination of the conciliation proceedings, the
conciliator shall fix the costs of the conciliation and give written
notice thereof to the parties.
(2) For the purpose of sub-section (1), "costs" means
reasonable costs relating to –
(a) the fee the 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 apportionment. All
other expenses incurred by a party shall be borne by that
party.
Section 79
DEPOSITS
(1) The conciliator may direct each party to deposit an equal
amount as an advance for the costs referred to in sub-section (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 deposit 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 any unexpended balance to the
parties.
Section 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
proceedings 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.
Section 81
ADMISSIBILITY OF EVIDENCE IN OTHER PROCEEDINGS.
The parties shall not rely on or introduce as evidence in
arbitral 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 his
willingness to accept a proposal for settlement made by the
conciliator.
Section 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.
Section 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 made 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 House of Parliament.
Section 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 any 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.
Section 85
REPEAL AND SAVINGS.
(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of
1937), the Arbitration Act, 1940 (10 of 1940) and Foreign Awards
(Recognition and Enforcement) Act, 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 be extent to which they are not repugnant
to this Act, be deemed respectively to have been made or issued
under this Act.
Section 86
REPEAL OF ORDINANCE 27 OF 1996 AND SAVING.
(1) The Arbitration and Conciliation (Third) Ordinance, 1996
is hereby repealed.
(2) Notwithstanding such repeal, any order, rule,
notification or scheme made or anything done or anything 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.
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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, any 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 under the national law of the State making such
declaration.
Sch. I Article II
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
1. Each Contracting State shall recognise an agreement in
writing under which the parties undertake 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 it finds that
the said agreement is null and void, inoperative or incapable of
being performed.
Sch. I Article III
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
Each Contracting State shall recognize arbitral awards as
binding and enforce 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 highest fees or
charges on the recognition of enforcement of arbitral awards to
which this Convention applies than are imposed on the recognition or
enforcement of domestic arbitral awards.
Sch. I Article IV
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
1. To obtain the recognition and enforcement mentioned in the
preceding 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.
Sch. I Article V
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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 is not valid under the law to which the parties
have subjected it or, falling 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.
Sch. I Article VI
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
If an application for the setting aside or suspension of the
award has been made to a competent authority referred to in
articleV(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.
Sch. I Article VII
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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 shallcease to have effect between Contracting States on their
becoming boundand to the extent that they become bound by this
Convention.
Sch. I Article VIII
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
1. This Convention shall be open 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.
Sch. I Article IX
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
1. This Convention shall be open 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.
Sch. I Article X
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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 notification, 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.
Sch. I Article XI
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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
provisions which are not, under the constitutional system of the
federation, bound to take legislative action, the federal Government
shall bring such articles with a favorable recommendation to the
notice of the appropriate authorities of constituent States or
provinces at the earliest possible moment;
(c) a federal State Party of 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.
Sch. I Article XII
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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.
Sch. I Article XIII
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
1. Any Contracting State may denounce this Convention by a
written notification to the Secretary-General of the United Nations.
Denunciations 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.
Sch. I Article XIV
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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.
Sch. I Article XV
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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.
Sch. I Article XVI
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
#
THE FIRST SCHEDULE
(See section 44)
#
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 States contemplated in
article XIII.
Sch. II
PROTOCOL ON ARBITRATION CLAUSES
#
THE SECOND SCHEDULE
(See section 53)
#
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 facilities all steps in the
procedure which require to be take 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 'ensure the execution
by its' authorities and in accordance with the provisions of its
national laws of arbitral awards made in its own territory under the
proceeding articles.
4. The Tribunals of the Contracting Parties, on being seized
of a dispute regarding a contract made between persons to whom
Article 1 applies and including an Arbitration Agreement whether
referring to present or future differences which 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 the 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 States, 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 one 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.
Sch. III Article 1
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
(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 to 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.
Sch. III Article 2
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
Even if the conditions laid down in Article 1 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 decision 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.
Sch. III Article 3
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article 4
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
THE THIRD SCHEDULE
(See section 53)
#
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 to 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 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.
Sch. III Article 5
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
The provisions of the above articles shall 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.
Sch. III Article 6
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article 7
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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 shall have been 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.
Sch. III Article
8
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article
8
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article
8
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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
Sch. III Article
9
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
The present Convention may be denounced on behalf of any
Member of the League of 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 be
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.
Sch. III Article 10
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article 10
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
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.
Sch. III Article 11
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
A certified copy of the present Convention shall be
transmitted by the Secretary-General of the League of Nations to
every Member of the League of Nations and to every Non-Member State
which signs the same.
Sch. III Article 11
CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
#
THE THIRD SCHEDULE
(See section 53)
#
A certified copy of the present Convention shall be
transmitted by the Secretary-General of the League of Nations to
every Member of the League of Nations and to every Non-Member State
which signs the same.