Analysis Of Section 11 Of Arbitration And Conciliation Act 1996

INTRODUCTION

Generally, the evolution of alternative dispute redressal also techniques can be traced back to ancient times. There are two types of legal systems which are followed to dispense justice to provide adequate dispute-resolution mechanisms to every individual in society. These two systems are used to deter offences and settle disputes in a speedier and more convenient manner or known as ‘Adversarial’&‘Inquisitorial’ legal systems.

The judges in the adversarial system play a primary enthusiastic role in examining the evidence raising arguments and attaining justice for the victims.

However, the judges, play a secondary role in the inquisitorial system where the burden of proof to be proved beyond reasonable doubt lies upon the prosecution against the defence and this simultaneously is a task which is taken up by the lawyers hired by the clients so looking up to the facts, issues, evidence of the case and the groundwork; it is prominently done by the lawyers whereas examining the evidence and dispute, the judgement considering the law is given by the judge.

Hence a dispute necessarily need not be settled by taking the case to a court whereas, it can also be settled by involving a neutral third party in a dispute containing the two parties through Alternative Dispute Resolution techniques which will be inclusive of arbitration, mediation and conciliation.

The Principles of ADR techniques of ‘justice, equity and speedy trial’ as rendered under ‘Article 39 (A)’ of the Indian constitution.

SIGNIFICANCE OF SECTION 11 OF ARBITRATION AND CONCILIATION ACT 1996

‘Section 11’ of the ‘Arbitration and Conciliation Act 1996’ is subjected to various interpretations along the line of appointment of arbitrators with stipulated amendments made in the coming years.

It gives assent to a valid arbitration agreement between two parties, binding two parties in the eyes of law. In case of a dispute arising between two parties, the respective parties can seek redressal in a court of law under this arbitration agreement.

The subjectivity of settling disputes rests with the court however, the parties can intend to claim redressal only under Alternative Dispute Redressal Mechanisms as they gave their assent to such an agreement before.

‘Section 11’ of the ‘Arbitration and Conciliation Act’ 1996 emphasise the appointment of arbitrators who shall be designated to the parties owing to their dispute.

The Arbitrator may be of any nationality on less the parties decide upon the nationality of the Arbitrator whom they wish to recruit as a neutral third party assisting and resolving their dispute. Further, the procedure of the arbitrators may also be decided by the parties themselves.

If the parties fail to decide upon the respective appointment of the arbitrator then each party under sub-section 3 in response to 2 can appoint one Arbitrator and the two arbitrators appointed by the respective parties will decide upon the final arbitrator to be appointed for the case.

However, the contentions applying to the same are as follows under sub-section 4 :

• A party fails to appoint an arbitrator within 30 days from the assent of the request made by the other party.
• in case the two arbitrators appointed by the respective parties fail to come together on the same note of appointing a third arbitrator within 30 days from the date of their appointment by the parties.

Then, the appointment shall be made by the respective court designated whether it be the Supreme Court, High Court or District Court which is been further embarked under sub-section (5). The parties can also approach the courts for the appointment of the arbitrator if the arbitration agreement cites any other means to be used for the appointment procedure of the arbitrator.

If the parties fail to come to a common conclusion with the two appointed arbitrators and failed to follow the required procedure prescribed then the respective parties inclusive of an institution can make a request to the Chief Justice or Institution that has delegated the designation unless and until there is another means of appointment provided within the Arbitration Agreement for ensuring the appointment of arbitrators.

The arbitrator appointed must be independent and impartial.

With regard to the appointment of the third arbitrator in International Commercial Arbitration and the Chief Justice of India or the person or institution who is delegated the designation may appoint the arbitrator of a nationality which is not a prerequisite nationality of either of the parties. A Scheme may also be implemented considering sub-section (4),(5) & (6) in dealing with the matters as mentioned under subsection 10 of ‘section 11’ of the ‘Arbitration and Conciliation act‘1996.

In case there are multiple requests made to the Chief Justice of different High courts then the request made to the first chief justice shall be considered and have the subsequent competency to decide on the request made.

But in the case of International Commercial Arbitration, The reference made to the Chief Justice shall be considered to the ‘Chief Justice of India.’ However, the chief Justice of the High Court will persist local limits considering to the principle of civil court in dealing with the matters with reference to the Chief Justice of the High Court.

The ‘law of arbitration’ and its cases were resolved through the arbitration dispute redressal mechanisms under three acts but considering the objectives of industry, economy and society, the ‘United Nations’ initiated ‘International and Municipal legislations’ to assert the Model Law on ‘International Arbitration & Conciliation’ in 1985.

‘Domestic Commercial Arbitration & Conciliation’ minimised the jurisprudence of the courts and contemplated ‘Arbitral Awards’ to deter misconduct. The ‘Arbitral Awards’ granted to two parties over the resolution of the dispute is assented under ‘section 36 (Domestic Act)’ and ‘section 47( foreign act)’ that can demonstrate the ‘Final Award’ which is enforceable in courts under Section 36(1) of the ‘Arbitration and Conciliation Act’ 1996.

Alternative Dispute Redressal Mechanisms are ‘Conventional Modes’ of negotiation that are cheaper convenient and less stressful from going to court as it’s time effective and facilitates effective and efficient work.