This title includes: Arbitration Agreement; ADR; Appointment; Proceedings; Institutional Arbitration; Damages; Jurisdiction; Awards; and much more.
Arbitration is a well recognized mode for resolving disputes arising out of commercial transactions.
This is equally true for international commercial transactions.
The Arbitration Act, 1940 (in short the '1940 Act') consolidated and amended the law relating to arbitration as contained in the Indian Arbitration Act, 1899 and the Second Schedule to the Code of Civil Procedure, 1908.
It was also largely based on the English Arbitration Act, 1934.
The successor Act is Arbitration and Conciliation Act, 1996.
The object of the said statute is to consolidate and amend the law relating to domestic arbitration international commercial arbitration, and the enforcement of foreign arbitral awards.
The said Act repealed the three earlier Acts, namely 1937 Act, 1940 Act and 1961 Act.
Arbitration is no longer an Alternate Dispute Resolution ('ADR') mechanism.
It is the forum of choice for resolving disputes arising out of international and domestic commercial contracts. It gives an opportunity to the parties to resolve conflict of laws and select substantive and procedural laws and rules in keeping with the spirit of the contractual provisions, and parties' perception of the strengths of various legal sub-systems.
The ADR movement has led to growth of arbitral institutions in India including some specialized sector specific arbitral institutions like those for the construction industry, shipping industry, etc.
The Author, who worked as Executive Director and General Counsel of one the largest Public Sector Undertaking in India has used his professional expertise to pen this Book.
He has highlighted the positive as well as weak aspects of the law relating to Arbitration.
According to him, the parties together, with assistance from the Arbitral Tribunal, can make the process less time consuming and more transparent.
This will also lay to rest the trend that has developed in India to challenge every arbitral award.
Institutional arbitrations obviously are better than 'ad-hoc' ones.
In institutional arbitration, a neutral institution oversees the process, thus lending it credibility through fair and impartial conduct. The institution can fast track the process to see that it is quickly and efficiently carried forward, and exercises great influence on the parties and the arbitrator.
It can also find out ways of keeping the costs down.
It is widely assumed that many parties select arbitration to resolve their disputes at least in part because an arbitral award offers an effective and early end to the dispute in a way that a court judgment does not.
Increased finality, so the argument goes, brings with it corresponding advantages in speed and cost savings.
However, speed and finality come at a price: "The sacrifice that arbitration entails in terms of legal precision is recognized", (see Sobel v.
Hertz, Warner & Co. 469 F.2d.1211). As a result, however desirable it may seem at first, finality can be a universally positive quality in dispute resolution only if one of two basic assumptions is true.
First finality would always be an asset if arbitrators, unlike distinguished judges, never make mistakes.
Even the most avid proponent of arbitration is unlikely to make such a claim (per William H.
Knull III and Noah D. Rubins). There are many credible arbitral institutions in India, and author has taken a look at the rules followed by them.
The efficacy of these institutions can be accessed from their actual performance, but obviously there is much more to be done by them.
Also the mindset of the parties must evolve from that of adversarial litigants to co-operative commercial partners.
The book has been very well written keeping in view the priorities of the users of this dispute resolution mechanism.
The areas where the law gives freedom to the parties to lay down their own procedure have been clearly identified, and the parties can examine the bye-laws of the different institutions to see whether these are helpful in creating a fair and credible process.
I am sure this book will be an invaluable companion to the users of the process as well as to arbitrators and practitioners.
