OPPORTUNITIES IN THE FIELD OF ARBITRATION AND CONCILIATION IN INDIA (original) (raw)
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IOSR Journal of Humanities and Social Science, 2017
Choice of law, Commercial Disputes, Conflict of law, Procedural law, Seat of arbitration, etc. In International trade and commerce, every commercial activity is generally preceded by a contract fixing the obligations of the parties to avoid legal disputes. But in this, No matter how carefully a contract is drafted, one party to the contract may understand his right and obligations in a different way. Often international trade involves traders belonging to different countries whose legal systems may differ in many ways to that of the other, presenting complicated and even conflicting features. The law courts of each country have jurisdiction only within the territorial limits of the concerned country. Therefore, arbitration came to be preferred as an effective means of resolving disputes between the parties belonging to different nations. A disputes resolution system, which is commercial in nature and involving an international element, it gets termed as "International Commercial Arbitration". Meaning thereby, in International Commercial Arbitration, one of the party is a resident of any country other than India or a body corporate which is incorporated in any country other than India or a Company or an Association or a body of an individuals whose central management and control is exercised in any country other than India or the Government of a foreign country and when any dispute which is arises from commercial relations amongst these parties, if such disputes are referred for settlement through Arbitration, it is known as International Commercial Arbitration.
India is a large and a diverse country. It had opened its market in the early 1990s and has embraced the good and the bad of the globalisation process. The globalisation trends as well as the large population exert tremendous pressure on India?s resources and Institutions including the Judicial System. In this scenario the ADR mechanism especially arbitration has proved to be a success resort to dispute resolution. India has acknowledged this fact and has a specific legislation governing the arbitration regime called the Arbitration and Conciliation Act, 1996 which is based upon the UNCITRAL Model Law. India is also a signatory to the New York convention on Recognition and Enforcement of arbitral awards. Acutely conscious of the pace which India should have at international counterparts, it has amended the Arbitration and Conciliation Act, 2015. The amendments were much needed as India was at a cross road, pushing forward a permissive party autonomy regime where courts were to play a minimum interventionist role with a frame work of making, challenging and enforcing awards. Theoretically the system was workable but on a practical front it had become cumbersome. The changes brought by the new legislation are heartening and intents to make India a desired destination for International Commercial Arbitration. The Article will cover the major pro-arbitration changes brought in by the new amended legislation and a critical review of the gaps still left. The article would also try to analyse what efforts are yet to be undertaken to reach to the desired platform which is the shift from Ad-hocism towards Institutionalisation.
International Commercial Arbitration- India
With the advent of globalisation, the world has become a global village. Business organisations have expanded themselves beyond borders and hence, there has been a real time increase in cross-border transactions. Agreements and contracts executed between commercial organisations many a times go ugly, thus, giving rise to disputes which are not within the confines of municipal law of a particular country, because the transactions are ‘cross-border’ in nature. Adjudication of cross-border business disputes demand expertise of a different sort, especially when the organisations in dispute hail from nations following different legal systems, as for example common law system and civil law system. In situations like these, redressal of disputes qua 'arbitration' is the most plausible and non-arbitrary solution. If India is to progress in the area of International Commercial Arbitration, the law as laid down by the Parliament and the interpretation given to it by the Apex Court, must coincide. If such a thing doesn’t happen, cross-border investments (FDI) in India will continue to decline, with the countries world over doubting our international integrity, finding India, not “fine-tuning” but rather “musical-chairing” with the ‘interpretative skills’ in regards to legislation enacted; to arbitrarily promote what suits best to its national entities. That said, what else needs to be seen is that, there is no re-circulation back to the days of the 1940 Act, in regards to which the Supreme Court once observed, ‘let not arbitral proceedings be done in a way that will make the lawyers laugh and legal philosophers weep’.
2014
The international commercial arbitration system has many advantages, such as respecting party autonomy, flexibility and simplicity, and is favored by the parties in the field of commercial contract disputes in practice. An effective and enforceable arbitration agreement is the basis for the smooth conduct of the arbitration proceedings. In fact, in daily international commercial practice, there are usually arbitration agreements that do not meet standards. Some of these arbitration agreements lack the necessary effective elements, so that this type of arbitration agreement is considered to be null and void, while some just lack of enforceability, which is regarded as pathological arbitration agreement. In practice, however, it is complex to identify the pathological agreement and make a distinction between it and other international commercial agreements. Only through analyzing and summarizing the elements of pathological arbitration agreement can we better discuss the remedy methods of it and finally approach such kind of disputes.
Arbitration & Conciliation (Amendment) Bill 2019 - an Opinion Vis-À-Vis International Arbitration
2020
The article is a legislative comment on the Arbitration & Conciliation (Amendment) Bill introduced in 2019 keeping in mind Arbitration in the International context and comparing it with the Amendment Act and the Legislature in Indian context. <br> The new 2019 amendment, envisages major changes which will be discussed in this Article vis-à-vis International Arbitration. The article critically analyzes some of its provisions to understand if it is indeed a step in the right direction for India to become a hub for international arbitration. The analysis and comments in this article are solely and exclusively from the standpoint of international<br> arbitration. <br> Thus, the Arbitration and Conciliation Act in India needs to be looked at in reference to both international and principles of Indian law. The uncertainty would arise mainly in context of the rules which the parties frame in the course of arbitration, which have not been codified. Thus, this practice must...