Powers And Functions Of The Arbitrator Under The Arbitration And Conciliation Act, 1996

Coverage of this Article

Introduction

-The United Nations Commission on International Trade Law (UNCITRAL), which passed the UNCITRAL Model Law in 1985, was a major factor in India's adoption of The Arbitration and Conciliation Act, 1996.

Who are arbitrators

-The arbitrator is a qualified individual who supports the disputing parties in reaching a final, amicable settlement or agreement. The arbitrator may alternatively be referred to as a "referee" or an "Umpire."

Appointment of an arbitrator

-According to Section 10 of this Act, the parties may choose the number of arbitrators, but they must not choose an even number. However, Section 11 states that the arbitration agreement's parties are free to choose the process for appointing an arbitrator or arbitrators

Powers of an arbitrator under the proceeding

-The Arbitration and Conciliation Act of 1996 gives the arbitrator numerous authorities to determine the arbitral judgement because he will be the one to make it.

The authority to take the parties and witnesses' oaths

-The oath might be given to the parties and witnesses by the arbitrator. If he felt it was essential, he could also send the parties interrogatories. The Arbitration and Conciliation Act of 1966 does not explicitly mention granting that power. However, term is impliedly attributed to the fact that he functions in arbitration as a quasi-judicial authority.

Ability to proceed ex-parte

-when the claimant violates Section 23(1) of the Act by failing to submit his statement of claim.

The authority to select experts

-In accordance with Section 26 of the Act, the arbitrator may, in any event, select one or more experts to provide him with a report on a particular subject. The arbitrator also has the authority to provide the expert with any pertinent data, papers, or items for his scrutiny. If required, the arbitrator may also name the expert as a witness at a hearing, but in order for the expert to be chosen, he must first persuade the parties that he is knowledgeable about the issues at hand.

Ability to grant awards

-In cases involving international commercial arbitration, the arbitral dispute must be resolved in accordance with the rules of procedure determined by the parties; however, if they are unable to agree, the arbitrator will determine the rules that will apply.

Functions of an arbitrator

-At the time of nomination in arbitration, the parties may place certain obligations on the arbitrator. The arbitrator's general responsibilities in all forms of arbitration are as follows:

Independent and unbiased duties

-The Arbitration and Conciliation Act, 1996's Sections 12 and 18 established a significant obligation on the arbitrator, requiring him to act independently and impartially during any arbitration hearing.

Choose the arbitration's date, time, and location

-If the parties are unable to agree on a time and location for the arbitration, the arbitrator must do so in accordance with Section 20 of this Act.

Obligation to disclose

-According to Section 12 of this Act, an arbitrator has a duty to reveal any material information that both parties are required to be aware of at the time of his initial meeting with them.

Resolve the dispute

-An effective decision-making process should be required of the arbitrator.

Obligation to interpret or amend the award

-In accordance with Section 33 of this Act, the arbitrator has an obligation to interpret or correct the award he or she has rendered within 30 days of receipt:

Conclusion

-In addition to these fundamental authority and responsibilities, an arbitrator must also create a checklist based on the specific obligations set forth in the agreement in order to conduct fair arbitration proceedings.

Introduction

The United Nations Commission on International Trade Law (UNCITRAL), which passed the UNCITRAL Model Law in 1985, was a major factor in India's adoption of The Arbitration and Conciliation Act, 1996. For the purpose of ensuring legal consistency with regard to international commercial arbitration and conciliation, the United Nations General Assembly had proposed that all nations adopt the Model Law. India passed The Arbitration and Conciliation Act, 1996 in this purpose.

Who are arbitrators

The arbitrator is a qualified individual who supports the disputing parties in reaching a final, amicable settlement or agreement. The arbitrator may alternatively be referred to as a "referee" or an "Umpire."

Appointment of an arbitrator

According to Section 10 of this Act, the parties may choose the number of arbitrators, but they must not choose an even number. However, Section 11 states that the arbitration agreement's parties are free to choose the process for appointing an arbitrator or arbitrators. If no such process is chosen, each party is required to choose one arbitrator, and the two arbitrators who are chosen must then choose a third arbitrator. Any party may seek the Chief Justice to select an arbitrator for them if the parties fail to appoint the arbitrator in accordance with the aforementioned procedure within 30 days of the date the request was filed or the arbitrators designated are unable to agree on a single individual. However, the Chief Justice will choose an arbitrator at the desire of one of the parties, if the parties are unable to agree on the process for choosing an arbitrator or do not do so within 30 days of receiving a request from another party. However, if the parties have agreed on an appointment process but fail to follow it, one party may ask the Chief Justice to choose an arbitrator, and the Chief Justice's choice is then binding.

Powers of an arbitrator under the proceeding

The Arbitration and Conciliation Act of 1996 gives the arbitrator numerous authorities to determine the arbitral judgement because he will be the one to make it.

The authority to take the parties and witnesses' oaths

The oath might be given to the parties and witnesses by the arbitrator. If he felt it was essential, he could also send the parties interrogatories. The Arbitration and Conciliation Act of 1966 does not explicitly mention granting that power. However, term is impliedly attributed to the fact that he functions in arbitration as a quasi-judicial authority.

Ability to proceed ex-parte

If another party violates any provision of this Act, the arbitrator has the authority to proceed ex-parte, or in favour of one party, in any arbitration action. According to Section 25, the court may issue an ex- parte award under the following three circumstances:

when the claimant violates Section 23(1) of the Act by failing to submit his statement of claim.

when the respondent violates Section 23(1) of the Act by failing to submit his statement of claim.

whenever a party fails to provide the requested documentation or show up for an oral hearing.

However, the court will not take action ex parte against any party without first notifying that party in writing and setting a precise date, time, and location for the action to take place.

The authority to select experts

In accordance with Section 26 of the Act, the arbitrator may, in any event, select one or more experts to provide him with a report on a particular subject. The arbitrator also has the authority to provide the expert with any pertinent data, papers, or items for his scrutiny. If required, the arbitrator may also name the expert as a witness at a hearing, but in order for the expert to be chosen, he must first persuade the parties that he is knowledgeable about the issues at hand.

Ability to grant awards

The most significant authority granted to arbitrators by The Arbitration and Conciliation Act, 1996, is the authority to make awards. However, the following guidelines apply during an arbitration proceeding:

• In cases involving international commercial arbitration, the arbitral dispute must be resolved in accordance with the rules of procedure determined by the parties; however, if they are unable to agree, the arbitrator will determine the rules that will apply.
• The arbitral tribunal must make decisions that are consistent with substantive law in other cases.

However, with the aforementioned authority, the arbitrator also has an obligation to take the following important factors into account when rendering such an award:

• who pays the cost; who is entitled to reimbursement for charges;
• how much and how those expenditures were calculated;
• the method of payment for the expenses;
• The price of the arbitration process or any additional costs determined by the arbitral tribunal

If there are more than one arbitrators, then the majority of them, or all of them, must sign the decision in order for it to be valid.

Functions of an arbitrator

At the time of nomination in arbitration, the parties may place certain obligations on the arbitrator. The arbitrator's general responsibilities in all forms of arbitration are as follows:

Independent and unbiased duties

The Arbitration and Conciliation Act, 1996's Sections 12 and 18 established a significant obligation on the arbitrator, requiring him to act independently and impartially during any arbitration hearing. Being impartial means that the arbitrator should treat both parties equally and should not have any personal or professional ties to either party that could influence the outcome of the arbitration. Being independent means that the arbitrator will not have any relationships with either party that could influence the outcome of the arbitration.

Choose the arbitration's date, time, and location

If the parties are unable to agree on a time and location for the arbitration, the arbitrator must do so in accordance with Section 20 of this Act. But before making a decision, the arbitrator must take into account all the facts, including the parties' convenience. The arbitrator may choose other locations for the hearing of the witness or expert or for an inspection of papers, goods, and other property, unless the parties have agreed otherwise.

Obligation to disclose

According to Section 12 of this Act, an arbitrator has a duty to reveal any material information that both parties are required to be aware of at the time of his initial meeting with them.

In the 2016 case of Steel Authority of India v. British Marine, the court ruled that the arbitrator was required to reveal any information that could compromise their objectivity or give the impression that they are biased.

Resolve the dispute

An effective decision-making process should be required of the arbitrator. Nevertheless, the Act does not provide for any guidelines regarding wrongdoing; instead, its application is left up to each individual circumstance. The following actions by the arbitrator are typically viewed as improper behaviour:

• a failure to abide by conditions that have been given, either directly or implicitly;
• making prizes that go against the law;
• being compromised or bought off;
• Infringe on the natural fairness principle.

To ascertain the technique to be followed

Section 19 states that no procedural rules apply to the arbitration process. The arbitration tribunal may follow any procedure that the parties have previously agreed upon; however, if there has been no prior agreement on this matter, the arbitrator shall have complete discretion to determine the appropriate course of action. This authority includes the authority to assess the weight, relevance, admissibility, and materiality of any evidence.

Obligation to interpret or amend the award

In accordance with Section 33 of this Act, the arbitrator has an obligation to interpret or correct the award he or she has rendered within 30 days of receipt:

• A party with notice to another party may ask the arbitration tribunal to interpret any particular part or parts of the award. A party with notice to another party may ask the arbitration tribunal to correct any error, such as any typographical, computational, clerical, or other error of a similar nature.
• In accordance with this clause, the court may also fix any award-related mistakes on its own initiative within 30 days of the arbitration award date.

Conclusion

In addition to these fundamental authority and responsibilities, an arbitrator must also create a checklist based on the specific obligations set forth in the agreement in order to conduct fair arbitration proceedings. These responsibilities vary from case to case and are therefore highly important in every situation.