By Nihal Raj, pursuing Law from IFIM Law School Bangalore
Arbitration is an alternative to litigation and any dispute that is civil in nature can be adjudicated through it. However, the independence to refer issues to arbitration is somewhat limited in India because the legislature has pre-existing institutions where issues are to be handled. For instance, Telecom Dispute Settlement Appellate Tribunal (TDSAT) passed an order barring arbitration in matters of telecom and broadcasting as there was no scope for it under the Telecom Regulatory Authority of India act, 1997. Surprisingly the English law has not expressly defined Arbitrability in its act and this lack of definition makes it difficult to understand the concept as to which disputes are arbitrable and which in fact are not. However, the definitions extracted from various case laws state that Arbitrability depends on the civil nature of the suit and capability for legal determination and that prior agreement that dispute be referred for arbitration must exist between the parties to the dispute. Therefore, there is a very thin line of difference between arbitration in India and UK, and a comparative analysis of the two would be beneficial.
Even though arbitration was known to the Indian legal and business community, only the ad hoc form found credence while the concept of institutional arbitration is relatively new. In an institutional arbitration, the arbitration agreement designates an arbitral institution to administer the arbitration. The parties then submit their disputes to the institution that intervenes and administers the arbitral process as provided by the rules of that institution. These rules and procedures are more likely to produce consistent and predictable results because of the institution’s experience and assets, providing greater resources to facilitate the arbitration. It was the Indian Arbitration and Conciliation Act, 1996 which infused a fresh lease of life into this concept and with a constrained ambit of public policy, its scope in the nation is bound to be infinitude.
Settlement of disputes through reference to a third party is a part of the volkgiest of India since times immemorial. It has undergone a phenomenal metamorphosis, growing from the stage of village elders sitting under a banyan tree and resolving disputes to the stage of gaining a statutory recognition. India has put in place a progressive piece of legislation which is essentially based on the Model Law and the UNCITRAL Arbitration Rules. The Parliament enacted the Arbitration and Conciliation Act of 1996 with a view to making arbitration less technical and more useful and effective, which not only removes many serious defects of the earlier arbitration law, but also incorporates modern concepts of arbitration. What it now needs is inculcation of the culture of arbitration within the bar, the bench and the arbitral community.
By Swati Duggal, UILS, Punjab University Editor’s Note: Arbitration is a form of alternate dispute resolution where the parties to a dispute settle the dispute
By Aditi, WBNUJS Editor’s Note:This paper seeks to identify the significance as well as challenges of the doctrine of religious arbitration from its western experience,