Arbitration Agreements
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The document discusses various aspects of arbitration agreements in construction contracts, emphasizing the prevalence of ad hoc arbitrations and the role of clauses dictating arbitration procedures. Key points include the parties' autonomy in selecting arbitrators and the jurisdiction for arbitration, with examples of specific arbitration clauses and relevant legal cases. Additionally, it highlights issues related to the appointment of arbitrators and the enforceability of arbitration awards.
Arbitration Agreements
- 1. ARBITRATION AGREEMENTS S Ravi Shankar International and Domestic Arbitration lawyer Lawsenate Law Firm – New Delhi & Mumbai
- 2. CONSTRUCTION ARBITRATION CLAUSES Most of them are adhoc arbitrations Many of them are three memberAdhoc arbitrations A few of them are InstitutionAdministeredArbitrations Many of them have modified FIDIC dispute resolution clauses Claims are mostly Delay related issues, Liquidated damages, Bonus, Idling, termination and escalation of price related issues.
- 3. ARBITRATION CLAUSE “All disputes or Differences whatsoever arising between the parties out of, or relating to, the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in India through the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of ICA. If either party is in disagreement with the arbitration result in India, either party will have the right to appeal to a second arbitration in London, UK in accordance with the Rules of Conciliation and arbitration of the International Chamber of Commerce in effect on the date hereof and the result of this second arbitration will be binding on both the parties. Judgment upon the award may be entered in any court in jurisdiction. “ (2016) SCC Online SC 1482 Centro trade Minerals & Metals IncVs
- 4. ARBITRATION CLAUSE Arbitration clause: The parties to the contract will try to solve the matters amicably by joint meetings or by way of Mediation.The jurisdiction will be with Courts in Delhi. Dispute Resolution clause: Any dispute arising out of the contract will be resolved by way of Arbitration.
- 5. PARTY AUTONOMY IN ARBITRATION Parties have the authority, autonomy & supremacy to choose Who will be the Arbitrator, qualifications if any Number of Arbitrators & Appointment Procedure Arbitration Procedure Law Governing the arbitration Place of Arbitration & Supervising Courts Matters left to the scope of Arbitration That is why there is no full appeal against the Arbitration award
- 6. CONTENTS OF AN ARBITRATION CLAUSE Intention to resolve the disputes by way of Arbitration Number of Arbitrators Special Qualifications of Arbitrators Procedure to appoint arbitrators Language of Arbitration Seat / Place of Arbitration Excepted Matters GM Northern RailwayVs Sarvesh Chopra (2002) 4 SCC 45 Name and Address of the Administering Arbitration Institution (ICA, ICC, SIAC, IDAC India ) with a statement about the applicable Rules
- 7. ARBITRATION AGREEMENT (INTERNATIONAL) Arbitration Clause: In case of disputes between the parties, parties shall resolve them by way of Adhoc Arbitration seated in Beijing. The laws of China will be the applicable laws. Arbitration shall be conducted under ICC Arbitration Rules. Arbitration Clause: In case of Disputes between the parties, the parties shall resolve them by way of an arbitration under SIAC Rules.
- 8. INTERNATIONAL ARBITRATION AGREEMENTS Intention to resolve the disputes by Arbitration Seat of Arbitration (Seat &Venue) Enercon IndiaVs Enercon GMBH Applicable Laws (Procedural, substantive, law governing arbitration agreement) Number of Arbitrators & Appointment procedure Arbitration Institution Language of Arbitration Exclusions
- 9. ART OF CHOOSING A SEAT Choosing an Arbitration Institution does not give you default seat always Understand the Procedural law of the Seat of Arbitration (UNCITRAL model law) Understand the supportive & consistent nature of Supervising Courts Estimate the Costs of the arbitration and connected Litigations Check the enforceability of awards passed in the seats in all the countries where you may have to enforce your potential award Check the permissibility of Foreign party representatives in the Arbitration Proceedings
- 10. ARBITRATION AGREEMENTS WITH SPECIAL CONDITIONS Multi tiered Dispute Resolution clauses Multi tiered Arbitration Clauses Pre Conditions to Arbitration Mediation Dispute Resolution Board Expert Determination Joint Meeting
- 11. ISSUES RELATINGTO ARBITRATION AGREEMENTS Delegation of powers to appoint the Arbitrator to one of the parties to the contract Legal -(2008) 8 SCC 151 Datar SwitchesVsTata Finance Appointing a person who was involved in a project as an arbitrator is not sustainable S.12 (2009) 2 SCC 337 BSNLVs Motorola Power to appoint an arbitrator expires, if the opposite party approaches the court, after deadline (2012) 2 SCC 759 & (2006) 2 SCC 638 If objection against an appointment of arbitrator is not raised before filing of the defense statement, then it will amount to waiver of right (2014) 11 SCC 366 Union of IndiaVs PAM Development Any Party to the contract has to invoke the arbitration clause within 3 months from the date of final bill (hit by S.28 of the Contract Act.)
- 12. ISSUES RELATINGTO ARBITRATION AGREEMENTS An arbitration agreement need not be stamped ( 2010) 1SCC 181 Geo Group Communications LtdVs IOL Broad band Parties can enter into an Arbitration agreement even while the Civil court proceeding is pending (2000) 4 SCC 539 P Anand Gajapathi RajuVs PVG Raju
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