Alternative Dispute Resolution -PPT on Important Sections

1. FIFTY CASES ON SECTIONS-7, 8, 9, 17, 34, 61-80
OF ARBITRATION AND CONCILIATION ACT,
1996

2.  1 Introduction
 2 History
 3 Definition
 4 Advantages of ADR
 5 Arbitration Agreement (Section – 7, 8, 9)
 6 Interim Measures ordered by Arbitral Tribunal (Section – 17)
 7 Aplication for Setting Aside Arbitral Award (Section – 34)
 8 Conciliation (Section 61-81)
 9 Conclusion

3. Introduction
 The Arbitration and Conciliation Act, 1996 ("Arbitration Act") has been
enacted in order 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. The
legislative intent and essence of the Arbitration Act is to bring domestic as
well as international commercial arbitration in consonance with the
UNCITRAL (United Nations Commission on International Trade Law)Model
Rules, the New York Convention and the Geneva Convention.
 Arbitration can be distinguished from conciliation on the basis of that its
decision is binding on the parties and its different approach and spirit. The
main objectives of arbitration are adjudication. Moreover, arbitration
produces justice and fair approach to a dispute. So, it is more judicial in
character than conciliation.
 The main objective of the Arbitration Act is to make provision for an arbitral
procedure which is fair, efficient and capable of meeting the needs of the
specific arbitration and to minimize the supervisory role of the courts in the
arbitral process and to permit an arbitral tribunal to use mediation,
conciliation or other procedures during the arbitral proceedings in settlement
of the disputes.

4.  There are various avenues where ADR systems have been in use since time
immemorial:
Panchayats :- Panchayats hear the
matter of two parties and tries to settle
them. Mostly, panchayats are used in
rural areas.
Gathering or family council:- If there any
dispute in family then the older members
of the family hear the matter of the family
and come to a conclusion.
Adhikrita & Nripa (courts appointed by
kings):- Kings of states used to select the
courts and in that court the matters were
heard to fix the problems.
Muslim period:- Judge, known as Kazee,
used to follow Hedaya (meaning
guidance) to try to guide the two parties
to resolve the matter.

5.  Australian Securities and Investment Commission – Complaints Resolution
Schemes (6th January 2009) at the wayback machine:-
 ADR typically denotes a wide range of dispute resolution processes and
techniques that act as a means for disagreeing parties to come to an
agreement short of litigation: a collective term for the ways that parties can
settle disputes, with the help of a third party.
Advantages of ADR
 The main advantages of ADR are:
Speedy relief
Economical
Simple mode of operation
More co-operative and less
competitive

6.  SECTION 7: ARBITRATION AGREEMENT
Definition:- Section 2 (b)
 Means an agreement referred to in Section 7
 (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 [including
communication through electronic means] which provide a record of the agreement; or
› (c) an exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not denied by the other.
 (5) The reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement if the contract is in writing and the reference is
such as to make that arbitration clause part of the contract.

7.  ON ISSUES OF EXISTENCE, VALIDITY, ARBITRABILITY
Formal Validity of Arbitration Agreement—Written Form Requirement
 Mahanagar Telephone Nigam Limited V. Canara Bank and others, 2019 SCC
OnLine SC 995,
 Reckitt Benckiser (India) Private Limited V. Reynders Label Printing India
Private Limited & Anr., (2019) 7 SCC 62
 Inspira I.T. Products Pvt. Ltd. V. Tata Consultancy Services Ltd., 2019
SCConline bom. 2716
 Caravel Shipping Services Private Limited V. Premier Sea Foods Exim Private
Limited, (2019) 11 SCC 461
 Mother Boon Foods Pvt Ltd v. Mindscape One Marketing Pvt Ltd O.M.P.
(COMM) 136/2017
 Cheran Properties Ltd. V. Kasturi and Sons Ltd. & Ors. (Civil Appeal
10025/2017),
 South Delhi Municipal Corporation V. SMS AAMW Tollways Private Limited,
(2019) 11 SCC 776
 Purushottam S/o Tulsiram Badwaik V. Anil & Ors. (Civil Appeal No. 4664 of
2018),
 Ameet Lalchand Shah & Ors. V. Rishabh Enterprises & Anr. - AIR 2018 SC 3041

8.  United India Insurance Co. Ltd. & Anr. V. Hyundai Engineering and
Construction Co. Ltd. & Ors. - AIR 2018 SC 3932
 M/s. Inox Wind Ltd. V. M/s. Thermocables Ltd., 2018 SCC OnLine SC 3
 M/S. Centrotrade Minerals And Metal Inc. V. Hindustan Copper Ltd., AIR 2017
SC 185 ON 20 July 2017
 Hema Khattar V. Shiv Khera – (2017) 7 SCC 716
INTERNATIONAL COURTS JUDGMENTS
 Lamps Plus, Inc. V. Varela, 139 S. Ct. 1407 (2019),
 GE Energy Power Conversion France SAS, Corp V. Outokumpu Stainless USA,
LLC,

9.  [(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 to the arbitration
agreement or any person claiming through or under him, so applies not later
than the date of submitting his first statement on the substance of the
dispute, then, notwithstanding any judgment, decree or order of the
Supreme Court or any Court, refer the parties to arbitration unless it finds that
prima facie no valid arbitration agreement exists.]
 (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: 2 [Provided that where the original arbitration
agreement or a certified copy thereof is not available with the party
applying for reference to arbitration under sub-section (1), and the said
agreement or certified copy is retained by the other party to that
agreement, then, the party so applying shall file such application along with
a copy of the arbitration agreement and a petition praying the Court to call
upon the other party to produce the original arbitration agreement or its duly
certified copy before that Court.]
 (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.

10. Referring Parties to Arbitration has serious civil consequences
 Kerala State Electricity Board and Anr. v. Kurien E. Kathilal- Civil Appeal
Nos.3164-3165 of 2017
Whether Arbitration Clause can oust the jurisdiction of consumer forums?
 M/S Emaar MGF Land Limited & Anr. V. Aftab Singh, 2018 SCC Online SC 2771
 Greaves Cotton Limited V. United Machinery and Appliances - (2017) 2 SCC
268
 Ananthesh Bhakta & Ors. V. Nayana S. Bhakta-- (2017) 5 SCC 185
 Rashid Raza V. Sadaf Akhtar, (2019) 8 SCC 710
 Himangni Enterprises V. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706
 Zenith Drugs & Allied Agencies Pvt. Ltd. v/s. Nicholas Piramal India Ltd. - 2019
SCC OnLine SC 946

11.  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.

12. What are the pre requisites for passing an Order u/s 9?
 Avantha Holdings Limited v. Vistra ITCL India Limited [judgment dated
14.08.2020 in O.M.P.(I) (COMM.) 177/2020]
 Avitel Post Studioz Ltd & Ors v. HSBC PI Holdings (Mauritius) Ltd., 2020 SCC
OnLine SC 656, decided on 19.08.2020
Whether the Court under Section 9, at a pre-arbitration stage, can assume the
jurisdiction of the arbitral tribunal?
 Avantha Holdings Limited v. Vistra Itcl India Limited [Judgment dated
14.08.2020]
Whether an applicant has to demonstrate intention to refer the matter to
arbitration before Section 9 petition can be entertained?
 Jindal Steel & Power Limited v. State Tradings Corporation of India Limited &
Ors. [Judgment dated 29.04.2020]
Whether the court under Section 9 can issue interim directions against a third
party?
 Blue Coast Infrastructure Development Pvt. Ltd. v. Blue Coast Hotels Ltd. &
Anr. [Judgment dated 10.06.2020]

13.  Parsoli Motor Works (P) Ltd. v. BMW India P Ltd. 2018 SCC Online Del 6556
 IREP Credit Capital Pvt. Ltd. v. Tapaswi Mercantile Pvt. Ltd. and another, 2019
SCC OnLine Bom 5719, by G.S. Patel J sitting singly (decided on 20
December 2019).
INTERNATIONAL CASES:
 City of Almaty, Kazakhstan and BTA Bank JSC v Felix Sater, et al.
Southern District of New York, Decided on:- 6 Dec 2019
Stage:- Compel arbitration
INDUSTRY: Investigative & litigation assistance
 Broumand v. Abbot; No. 655954/2018, 2019 WL 4899058;
New York Supreme Court, Decided on:- 4 Oct 2019
Stage:- Compel arbitration
› INDUSTRY: Shareholder dispute

14.  M/s. Shakti International Pvt. Ltd. V. M/s. Excel Metal Processors Pvt. Ltd.-
(2017) 3 ABR 388
 Yusuf Khan V. Prajita Developers Pvt. Ltd., 2019 SCC OnLine Bom 505
 Nandini Bhatia v. Navil Ratish Kadwadkar [Judgment dated 18.06.2020]

15.  Grounds of Setting Aside an Award-
 want of proper notice and hearing, contravention of composition and procedure
 The grounds for setting aside an award rendered in India (in a domestic or international
arbitration) are provided for under Section 34 of the Act. These are materially the same
as in Article 34 of the Model Law for challenging an enforcement application. An award
can be set aside if:

 a party was under some incapacity; or
 the arbitration agreement was not valid under the governing law; or
 a party was not given proper notice of the appointment of the arbitrator or on the
arbitral proceedings; or
 the award deals with a dispute not contemplated by or not falling within the terms of
submissions to arbitration or it contains decisions beyond the scope of the submissions; or
 the composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties; or
 the subject matter of the dispute is not capable of settlement by arbitration; or
 the arbitral award is in conflict with the public policy of India. A challenge to an award is
to be made within three months from the date of receipt of the same. The courts may,
however, condone a delay of maximum 30 days on evidence of sufficient cause.
Subject to any challenge to an award, the same is final and binding on the parties and
enforceable as a decree of the Court. Considerable controversy has been generated
as to whether an award is liable to be challenged under Section 34 on merits.

16.  Fermenta Biotech Limited V. K.R. Patel in Arbitration Petition No.545 of 2017
delivered on 11th October 2018
Whether the Court has power to remand the proceedings back to the Arbitral
Tribunal once the award is set-aside under section 34
 Kinnari Mullick & Anr. V. Ghanshyam Das Damani – AIR 2017 SC 2785
 State of Bihar & Ors. V. Bihar Rajya Bhumi Vikas Bank Samiti-(2018) 9 SCC 472
 Global Aviation Services Private Limited V. Airport Authority of India – 2018
SCC OnLine Bom 233.
 Emkay Global Financial Services Ltd. V. Girdhar Sondhi- 2018 (9) SCC 49
 M/s. Canara Nidhi Limited V. M. Shashikala & Ors. 2019 SCC OnLine SC 1244
 Patel Engineering Ltd. v. NEEPCO [Judgment dated 22.05.2020]
 Gammon India Ltd. & Anr v. NHAI [Judgment dated 23.06.2020]
 Union Of India vs Bharat Biotech International Ltd [Judgment dated
24.02.2020]
 South East Asia Marine Engineering and Constructions Ltd. v. Oil India Limited
 [Judgment dated 11.05.2020 in Civil Appeal No. 673 of 2012]
 Mohan Steels Limited v. Steel Authority of India [Judgment dated 04.03.2020]
 Salar Jung Museum & Anr v. Design Team Consultants Pvt Ltd [Judgment
dated 21.05.2020]
 The State of Bihar and Ors V. Bihar Rajya Bhumi Vikas Bank Samiti, AIR 2018 SC
3862

17.  Parsa Kente Collieries Limited V. Rajasthan Rajya Vidyut Utpadan Nigam
Limited, (2019) 7 SCC 236
 Simplex Infrastructure Limited V. Union of India, (2019) 2 SCC 455
 MMTC Limited V. Vedanta Limited, (2019) 4 SCC 163
 Jaiprakash Associates Ltd. v/s. Tehri Hydro Development Corporation India
Ltd., 2019 SCC OnLine SC 143
 National Highways Authority of India and Anr. v/s. Subhash Bindlish and Ors.
dated 14th August, 2019 in Special Leave Petition (Civil) Diary No. 17812 of
2019
 Oriental Insurance Co. Ltd. V. M/s Tejparas Associates & Exports Pvt. Ltd., 2019
SCC OnLine SC 1281,
 Northern Railway V. Pioneer Publicity Corpn. (P) Ltd. (2017) 11 SCC 234
 P. Radha Bai & Ors. V. P. Ashok Kumar & Anr., (2019) 13 SCC 445
 Star Track Fasteners Private Limited V. Union of India, 2019 SCC OnLine Bom
1453
 Ssangyong Engineering & Construction Co. Ltd. v/s. National Highways
Authority of India, 2019 SCC OnLine SC 677
 Hindustan Petroleum Corporation Ltd. v. M3nergy Sdn. Bhd., 2019 SCC
OnLine Bom 2915,

18.  The State of Jharkhand and others V. M/s HSS Integrated SDN and another,
Special Leave to Appeal (sic Special Leave Petition) (C) No. 13117 of 2019,
 Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd., 2019 SCC OnLine SC
1656,
 Kinnari Mullick v. Ghanshyam Das Damani, (2018) 11 SCC 328
 Vinod Bhaiyalal Jain V. Wadhwani Parmeshwari Cold Storage Pvt. Ltd., Civil
Appeal No.6960 of 2011 dated 24 July 2019

19.  Conciliation is one of the non-binding procedures where an impartial third
party, known as the conciliator, assists the parties to a dispute in reaching a
mutually agreed settlement of the dispute.

 Definition and Meaning of conciliation-
 The simplest meaning of conciliation is the settlement of the disputes outside
the court. It is a process by which the discussion between the parties are kept
going through the participation of a conciliator. Conciliation is one of the
non-binding procedures where an impartial third party, known as the
conciliator, assists the parties to a dispute in reaching a mutually agreed
settlement of the dispute.

 Halsbury Laws of England, conciliation is a process of persuading parties to
reach an agreement.

 Because of its non-judicial character, conciliation is considered to be
fundamentally different from that of litigation. Generally Judges and
Arbitrators decide the case in the form of a judgment or an award which is
binding on the parties while in the procedure of the conciliation, the
conciliator who is often a government official gives its report in the form of
recommendations which is made public.

 Conciliation is typically employed in labour and consumer disputes, Italian
judges encourage conciliation in every type of dispute.

20. Application and Scope-
 Section 61 of the Arbitration and Conciliation Act of 1996 provides for the Application
and Scope of Conciliation. Section 61 points out that the process of conciliation
extends, in the first place, to disputes, whether contractual or not. But the disputes must
arise out of the legal relationship. It means that the dispute must be such as to give one
party the right to sue and to the other party the liability to be sued. The process of
conciliation extends, in the second place, to all proceedings relating to it. But Part III of
the Act does not apply to such disputes as cannot be submitted to conciliation by the
virtue of any law for the time being in force.
 Number and qualification of conciliators-
 Section 63 fixes the number of conciliators. There shall be one conciliator. But the parties
may by their agreement provide for two or three conciliators. Where the number of
conciliator is more than one, they should as general rule act jointly.

 Appointment of conciliators-
 Section 64 deals with the appointment of the conciliators. When the invitation to the
conciliation is accepted by the other party, the parties have to agree on the
composition of the conciliation tribunal. In the absence of any agreement to the
contrary, there shall be only one conciliator. The conciliation proceeding may be
conducted by a sole conciliator to be appointed with the consent of both the parties,
failing to which the same may be conducted by two conciliators (maximum limit is
three), then each party appoints own conciliator ,and the third conciliator is appointed
unanimously by both the parties. The third conciliator so appointed shall be the
presiding conciliator. The parties to the arbitration agreement instead of appointing the
conciliator themselves may enlist the assistance of an institution or person of their choice
for appointment of conciliators. But the institution or the person should keep in view
during appointment that, the conciliator is independent and impartial.


21. 1) Independence and impartiality [Section 67(1)]-
2) Fairness and justice [Section 67(2)]-
3) Confidentiality [Section 70]-
4) Disclosure of the information [Section 70]-
5) Co-operation of the parties with Conciliator [Section 71]-
1) Commencement of the conciliation proceedings [Section 62]-
2) Submission of Statement to Conciliator [Section 65] –
3) Conduct of Conciliation Proceedings [Section 69(1), 67 (3)]-
4) Administrative assistance [S. 68]-

22. Haresh Dayaram Thakur v.
State of Maharashtra and
Ors., AIR 2000 SC 2281;
2000 (6) SCC 179, Civil
Appeal No. 3247 of 2000,
Decided on May 5, 2000
Mysore Cements Ltd. v.
Svedala Barmac Ltd.,
Civil Appeal No. 2321 of
2003,

23.  SECTION-69. Communication between conciliator and parties.—
 SECTION-70. Disclosure of information.—
 SECTION-71. Co-operation of parties with conciliator.—
 SECTION-75. Confidentiality.—
 SECTION-72. Suggestions by parties for settlement of dispute.—
 SECTION-73. Settlement agreement.—
 SECTION-74. Status and effect of settlement agreement.—
 SECTION -77. Resort to arbitral or judicial proceedings.—
 SECTION -78. Costs.—
 SECTION -79. Deposits.—
 SECTION 80: Role of Conciliator in other proceedings
 SECTION 81. Admissibility of evidence in other proceedings.—