SVKM’S NMIMS

SCHOOL OF LAW, MUMBAI

AN ASSIGNMENT SUBMITTED ON

COURSE: INTRODUCTION TO ARBITRATOIN

CANDIDATE NO: A016
ASSIGNMENT: 1
“POWERS OF THE ARBITRATOR”
WORD COUNT: 1386
NO OF PAGES: 8
COURSE DATE: 12 JAUNARY 2018 (NMIMS, MUMBAI)
DATE OF SUBMISSION: 15/01/18

SUBMITTED BY:
NAME- VARUN DWIVEDI
COURSE NAME – B.A LL.B (HONS)
ACADEMIC YEAR- 2017-2018
ROLL NO- A016
 INTRODUCTION

The researcher in this project has discussed the difference between the mandatory power
of the arbitrator and the power available to the arbitrator unless agreed otherwise by the
parties.

ARBITRATION

Arbitration has become the preferred dispute settlement method for private
parties engaged in international commercial transactions. It offers parties the
possibility of a more efficient, confidential and neutral process, with easy and
effective disposal of case.1
As arbitration is based on the consent of the parties, it also allows for flexibility
over a wide range of matters, including choice of substantive and procedural
law.
ARBITRATOR
An arbitrator is person selected by mutual consent of the parties to settle the
matters in controversy between them. A person appointed to adjudicate the
difference is called an arbitrator. An arbitrator is a tribunal chosen by the
consent of the parties.
An arbitrator should be a person who stands indifferent between the parties. He
should have no interest direct or remote in the subject-matter of the
controversy or in the parties.2
QUALITIES OF GOOD ARBITRATOR
 Communication Skills
A good arbitrator displays effective communication skills by being patient, understanding,
flexible and a good listener.

1 what is arbitration? www.ciarb.org, http://www.ciarb.org/dispute-appointment-service/arbitration/what-is-

arbitration (last visited Jan 13, 2018)

2 Arbitrator, Cambridge dictionary (3rd ed.)

  Competent
An arbitrator should have knowledge and expertise in the matters over which he presides.

 Objective
An objective and impartial arbitrator lends credence and integrity to the process.

 Discreet
Unlike litigation, arbitration is private and confidential and a good arbitrator understands the
need to maintain discretion throughout the proceedings and in the decision.

MANDATORY POWERS OF ARBITRATOR

Mandatory rules are laws that purport to apply irrespective of a contract’s proper law or the
procedural regime selected by the parties. In this sense, whether they are ‘mandatory’ does
not depend on whether they will ultimately end up applying via the relevant conflict of laws
analysis, but only on how the law itself defines its sphere of application.

THERE ARE SOME IMPLIED AND INCIDENTAL POWERS, SUCH AS:

a) Power to obtain legal assistance.
b) Power to delegate authority limited to the performance of acts of ministerial character
c) Power to award interest
d) Power to award costs
e) Power to allow payment by installments
f) Power to allow amendment of the plaint.

Section 16 (1) of the Arbitration and Conciliation Act3 states that the Arbitral Tribunal may
rule on its own jurisdiction, including ruling on any objection with respect to the existence or
validity of the arbitration agreement.
Section 16 of the Arbitration and Conciliation Act incorporates the principle of competence-
competence. It has two aspects: first, that the tribunal may decide on its jurisdiction without
support from the courts and secondly, that the courts are prevented from determining this
issue before the tribunal has made a determination on this issue.

3 Section 16 (1) of the Arbitration and Conciliation Act, 1996

Section 27(1) of Arbitration and Conciliation Act4 The arbitral tribunal or a party with the
approval of the arbitral tribunal may apply to the court for assistance in taking evidence. The
application has to specify the particulars as stated in section 27. Although the obtaining of
evidence may be regarded as being strictly a matter of the parties, the involvement of the
arbitral tribunal would be conducive to preventing dilatory tactics of a party. The court may,
within its competence and according to its rules on taking evidence, execute the request by
ordering that the evidence be provided directly to the arbitral tribunal, thereby limiting the
involvement of the court to exerting compulsion.

Terminate proceeding under section 32(2)(c) Arbitration and Conciliation Act5 of the the
arbitral tribunal finds that the continuation of the proceedings has for any other reason
become unnecessary or impossible.

To impose interest and deposits under section 38 of Arbitration and Conciliation Act6 the act
empowers the arbitrator or the arbitration tribunal to fix the amount of the deposit or
supplementary deposit as an advance for the costs referred to in sub-section (8) of section
31, which it expects will be incurred in respect of the claim submitted to it which will be
payable in equal shares by the parties. If one party does not pay the deposit then the other
has to pay the deposit and if both fail to deposit the money they tribunal has the power to
terminate the proceeding. This is again a mandatory power given to the arbitrator and can be
exercised by him irrespective of any agreement between the parties to the contrary.

Section 39 of Arbitration and Conciliation Act7: Lien on arbitral award and deposits as to
costs. The arbitral tribunal shall have in lien an arbitral award for the unpaid cost of
arbitration.
The arbitral tribunal refuse to deliver its award until the cost demanded by it is paid. On
application in this matter the court order arbitral tribunal to deliver the award on payment of
cost demanded into the court and than the court out of the money paid by the applicant

4 Section 27 (1) of the Arbitration and Conciliation Act, 1996

5 Section 32 (2)(C) of the Arbitration and Conciliation Act, 1996
6 Section 38 of the Arbitration and Conciliation Act, 1996
7 Section 39 of the Arbitration and Conciliation Act, 1996
decided the amount to be paid to arbitral tribunal by the way of cost as may consider
reasonable.

POWERS OF ARBITRATOR AS AGREED UPON BY THE PARTIES:

Section 17 of Arbitration and Conciliation Act8: Interim measures ordered by arbitral

tribunal.

Section 19 of Arbitration and Conciliation Act9: Determination of rules of procedure in this

section the parties are free to agree on the procedure to be followed by the arbitral tribunal
in conducting its proceedings.

Section 20 of Arbitration and Conciliation Act10: Place of arbitration in this section the party are
free to decide on the place of arbitration.

Section 22 of Arbitration and Conciliation Act11: Language in this section the party are free to
decide upon the language to be used in the proceeding.

Section 23 of Arbitration and Conciliation Act12: Statements of claim and defence where
parties have right to decide apart from the tribunal to state statement of facts, issues or
prayer in the claim etc.

Section 24 of Arbitration and Conciliation Act13: Hearings and written proceedings unless
agreed the arbitrator can have oral or documentary hearing in the case.

Section 26 of Arbitration and Conciliation Act14: Expert appointed by arbitral tribunal in this
section arbitral tribunal may appoint expert to report to it on specific issue.

8 Section 17 of the Arbitration and Conciliation Act, 1996

9 Section 19 of the Arbitration and Conciliation Act, 1996
10 Section 20 of the Arbitration and Conciliation Act, 1996
11 Section 22 of the Arbitration and Conciliation Act, 1996
12 Section 23 of the Arbitration and Conciliation Act, 1996
13 Section 24 of the Arbitration and Conciliation Act, 1996
14 Section 26 of the Arbitration and Conciliation Act, 1996
 CONCLUSION

The researcher through this project want to conclude that he found section 16 as one of the
most important section because the main motive of arbitral proceeding is to lessen the
burden of the court so for this section 16 has played the most important role as There was no
provision under the Arbitration Act of 1940 which allowed the Arbitral Tribunal to make a
decision on its own jurisdiction and it was the job of the court to decide on the jurisdiction of
the arbitral tribunal. But under Section 16 of the Arbitration and Conciliation Act, 1996 the
Arbitral Tribunal has been granted the power to make a ruling on its own jurisdiction. Section
16 (1) of the Arbitration and Conciliation Act states that the Arbitral Tribunal may rule on its
own jurisdiction, including ruling on any objection with respect to the existence or validity of
the arbitration agreement.

Section 16 of the Arbitration and Conciliation Act incorporates the principle of competence-
competence. It has two aspects: first, that the tribunal may decide on its jurisdiction without
support from the courts and secondly, that the courts are prevented from determining this
issue before the tribunal has made a determination on this issue.
 DIFFERENCE BETWEEN DECREE AND ORDER
DECREE
It contains conclusive determination of a
right
May be final, preliminary, or partly final
It general, there can only be one decree
or at the most one preliminary and one
final decree in a suit.
Every decree is appealable unless an
appeal is expressly barred.
A second appeal may lie against a decree
to a high court on certain grounds
A decree is the official proclamation of
the adjudication by the judge explaining
the rights of the parties concerned with
respect to the suit.
DIFFERENCE BETWEEN ORDER AND AWARD
ORDER
An order is the official announcement of
the decision taken by the court, defining
the relationship of the parties, in the
proceedings.
Procedural legal rights of the parties
A document that mentions the
relationship of parties.
ORDER
May or may not finally determine a right.
Cannot be a preliminary order.
There can be any number of the orders in
a suit.
Only those order which are specified as
appealable in the code are appealable.
There is no second appeal for orders.
An order is the official announcement of
the decision taken by the court, defining
the relationship of the parties, in the
proceedings.
AWARD
The decision of an arbitrator or
commissioner (or any non-judicial arbiter)
of a controversy.
To give a judgment of money to a party
to a lawsuit, arbitration, or administrative
claim.
A document that memorializes the
determination reached in a dispute.