Power to refer parties to arbitration where there is an arbitration agreement
Interim measures by court
CHAPTER III COMPOSITION OF ARBITRAL TRIBUNAL
Number of arbitrators
Appointment of arbitrators
Grounds for challenge
Failure or impossibility to act
Termination of mandate and substitution of arbitrator
CHAPTER IV JURISDICTION OF ARBITRAL TRIBUNALS
Competence of arbitral tribunal to rule on its jurisdiction
Interim measures ordered by arbitral tribunal
CHAPTER V CONDUCT OF ARBITRAL PROCEEDINGS
Equal treatment of parties
Determination of rules of procedure
Place of arbitration
Commencement of arbitral proceedings
Statements of claim and defence
Hearings and written proceedings
Default of a party
Expert appointment by arbitral tribunal
Court assistance in taking evidence
CHAPTER VI MAKING OF ARBITRAL AWARD AND TERMINATION OFPROCEEDINGS
Rules applicable to substance of dispute
Decision making by panel of arbitrators
Form and contents of arbitral award
Termination of proceedings
Correction and interpretation of award; additional award
CHAPTER VII RECOURSE AGAINST ARBITRAL AWARD
34. Application for setting aside arbitral award
CHAPTER VIII FINALITY AND ENFORCEMENT OF ARBITRAT AWARDS
Finality of arbitral awards.
CHAPTER IX APPEALS
37. Appealable orders
CHAPTER X MISCELLANEOUS
Lien on arbitral award and deposits as to costs
Arbitration agreement not to be discharged by death of party thereto
Provisions in case of insolvency
PART II ENFORCEMENT OF CERTAIN FOREIGN AWARDS CHAPTER I NEW YORK CONVENTION AWARDS
Power of judicial authority to refer parties to arbitration
When foreign award binding
Conditions for enforcement of foreign awards
Enforcement of foreign awards
Chapter 11 not to apply
GENEVA CONVENTION AWARDS
Power of judicial authority to refer parties to arbitration
Foreign awards when binding
Conditions for enforcement of foreign awards
Enforcement of foreign awards
Application and scope
Commencement of conciliation proceedings
Number of conciliators
Appointment of conciliators
Submission of statements to conciliator
Conciliator not bound by certain enactments
Role of conciliator
Communication between conciliator and parties
Disclosure of information
Co-operation of parties with conciliator
Suggestions by parties for settlement of dispute
Status and effect of settlement agreement
Termination of conciliation proceedings
Resort to arbitral or judicial proceedings
Role of conciliator in other proceedings
Admissibility of evidence in other proceedings
Power of High Court to make rules
Removal of difficulties
Power to make rules
Repeal and saving
Repeal and saving
THE FIRST SCHEDULE
THE SECOND SCHEDULE
THE THIRD SCHEDULE
THE ARBITRATION AND CONCILIATION ACT, 1996
(No. 26 of 1996)
[16th August 1996]
An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto.
WHERE AS the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985;
AND WHEREAS the General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international Commercial arbitration practice;
AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980;
AND WHEREAS the General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation;
AND WHEREAS the said Model Law and Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations;
AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law and Rules;
BE it enacted by Parliament in the forty-seventh year of the Republic as follows:
1. Short title, extent and-commencement. –
This Act maybe called the Arbitration and Conciliation Act, 1996.
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 be deemed come into force on the 25th day of January 1996.
PART I ARBITRATION CHAPTER I GENERAL PROVISIONS
(1) In this Part, unless the context otherwise requires, -
“Arbitration” means any arbitration whether or not administered by permanent arbitral institution;
“Arbitration agreement” means an agreement referred to in section 7;
“Arbitral award” includes an interim award;
“Arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
“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;
“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
An individual who is a national of, or habitually resident in, any country other than India; or
A body corporate which is in corporate in any on n try other than India; or
(iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India; or
(iv). The Government of a foreign country;
“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;
“Party” means a party to an arbitration agreement.
This Part shall apply where the place of arbitration is in India.
This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.
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 that other enactment or with any rules made thereunder.
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.
Construction of references
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.
An arbitral award made under this Part shall be considered as a domestic award.
Where this Part-
Refers to the fact that the parties have agreed or that they may agree, or
In any other way refers to an agreement of the parties,
That agreement shall include any arbitration rules referred to in that agreement.
(9) Where this Part, other than clause (a) of section 25 or clause (a) of subsection (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 counter-claim.
3. Receipt of written communications. –
Unless otherwise agreed by the parties, -
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
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.
The communication is deemed to have been received on the day it is so delivered.
This section does not apply to written communications in respect of proceedings of any judicial authority.
4. Waiver of right to object. -A party who knows that
Any provision of this Part from which the parties may derogate, or
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 the limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object
Extent of judicial intervention. -Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part.
Administrative assistance. -In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.
CHAPTER II ARBITRATION AGREEMENT
7. Arbitration agreement. –
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.
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
An arbitration agreement shall be in writing.
An arbitration agreement is in writing if it is contained in
A document signed by the parties;
An exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
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.
There reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
8. Power to refer parties to arbitration where there is an arbitration agreement. -
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.
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.
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 arbitrat award made.
9. Interim measures, etc. by court. -A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court:
For the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
For an interim measure of protection in respect of any of the following matters, namely:
The preservation, interim custody or sale of any goods, which are the subject matter of the arbitration agreement;
Securing the amount in dispute in the arbitration;
The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples
to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
Interim injunction or the appointment of a receiver;
Such other interim measure of protection as may appear to the court to be just and convenient,
And the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
CHAPTER III COMPOSITION OF ARBITRAL TRIBUNAL
10. Number of arbitrators. –
The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.
Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.
11. Appointment of arbitrators. –
A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
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.
If the appointment procedure in sub-section (3) applies and
A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,
The appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
Where, under an appointment procedure agreed upon by the parties,
A party fails to act as required under that procedure; or
The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
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.
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.
The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to
Any qualifications required of the arbitrator by the agreement of the parties; and
Other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
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.
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 subsection (6) to him.
Where more than one request has been made under sub-section (4) or subsection (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 subsection shall alone be competent to decide on the request.
(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 subsections 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.
12. Grounds for challenge. -
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.
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.
An arbitrator may be challenged only if
Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
He does not possess the qualifications agreed to by the parties.
A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
13. Challenge procedure. –
Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.
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.
Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitrat tribunal shall decide on the challenge.
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.
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.
Where an arbitral award is set aside on an application made under subsection (5), the court may decide as to whether the arbitrator who is challenged is entitled to any fees.
14. Failure or impossibility to act. –
The mandate of an arbitrator shall terminate if
He becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and
He withdraws from his office or the parties agree to the termination of his mandate.
If a controversy remains concerning any of the grounds refer-red 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.
If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.
15. Termination of mandate and substitution of arbitrator. -
In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate
Where he withdraws from office for any reason; or
By or pursuant to agreement of the parties.
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.
Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.
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.
JURISDICTION OF ARBITRAL TRIBUNALS
16. Competence of arbitral tribunal to rule on its jurisdictional. -
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,
An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
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.
A plea that the arbitral tribunal is exceeding the scope of its authority shall be raise as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
The arbitral tribunal may, in either of the cases referred to in sub-section
(2) or subsection (3), admit a later plea if it considers the delay justified.
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.
A party aggrieved by such an arbitral award may make an application forgetting aside such an arbitral award in accordance with section 34.
17. Interim measures ordered by arbitral tribunal. –
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.
The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).
CHAPTER V CONDUCT OF ARBITRAL PROCEEDINGS
Equal treatment of parties. –The parties shall be treated with equality and each party shall be given a full opportunity to present his case.
Determination of rules of procedure. –
The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (I of 1872).
Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
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.
The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
Place of arbitration. –
The parties are free to agree on the place of arbitration.
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.
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.
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.
The parties are free to agree upon the language or languages to be used in the arbitral proceedings.
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.
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.
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.
Statements of claim and defence. -
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.
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.
Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral
proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.
24. Hearings and written proceedings. –
(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for or a argument, or whether the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitrat tribunal shall hold oral hearings, at an appropriate state of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.
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
All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
25. Default of a party. -Unless otherwise agreed by the parties, where, without showing sufficient cause,
The claimant fails to communicate his statement of claim in accordance with subsection (1) of section (2), the arbitral tribunal shall terminate the proceedings;
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 alienations by the claimant;
A party fails to appear a tan oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitrat award on the evidence before it.
26. Expert appointment by arbitral tribunal. –
Unless otherwise agreed by the parties, the arbitral tribunal may
Appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and
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.
Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.
Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.
27. Court assistance in taking evidence. –
The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence.
The application shall specify
The names and addresses of the parties and the arbitrators;
The general nature of the claim and the relief sought;
The evidence to be obtained, in particular,
The name and address of any person to be beard as witness or expert witness and a statement of the subject-matter of the testimony required;
The description of any document to be produced or property to be inspected.
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.
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.
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.
In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents.