Arbitration is a process of determining quarrels without moving to court. At times, a lawyer will mention arbitration to a client as the finest method to settle a claim. In arbitration, the disagreement is presented to a third side (the arbitrator) who determines the disagreement after examining a demonstration by both sides. The exhibition may be just papers presented to the arbitrator by each party. Every so often, in an addendum to the details presented, each party will render a verbal reasoning one to one. Generally, each party will have a lawyer to render the verbal justification for them. Now and then the demonstration also contains eyewitnesses who give evidence. In total, arbitration is an unbelievably valuable instrument for settling disagreements, but cautious contemplation has to be offered as to whether it is relevant to or superior in a specific disagreement.
Setting Aside the Award
It brings three kinds of resolutions against arbitral decisions, in particular, adjustment, lessening, and abdication of the Arbitral Award. Nevertheless, the current situation is dissimilar in the way that now the solutions have been grouped into two. Furthermore, the Arbitral Tribunal under 1996 cannot examine an Award on its own, the distressed side who got agonized on the reason of the Arbitral Award is required to challenge it in significance to the Law specified, and if the distressed side collapses to concern under Section 34 for setting aside the Award, then a de novo inquiry is not certain to result from on its own. The Court is conferred with the authority to maintain a watch on the Arbitrator’s activities. Upholding this intention in estimation the law recommends detailed cures against the Arbitral Awards. Section 34 of the Act affords the Court or the Judiciary the ability to get involved in the Arbitration system for the plan to abdicate the Award proposed by the Arbitration Tribunal. This section is involved with the approach for the submission and also the justifications for abandoning the arbitral settlement. Furthermore, a time limit has also been placed within which the request has to be recorded with the Court.
The reasons, stated in section 34(2) under which one of the sides can request the court to abdicate an award are as follows:
When one of the sides providing the submission was debilitated to come into the settlement. The arbitration arrangement, to which the sides are imperilled, is not legally binding under the law. Appropriate notification of selection of arbitrators or the arbitral tribunal was not presented to the side producing the submission. An arbitral award is concerned with a disagreement not considered by the sides or away from the duration of application. The structure of the Arbitral Award was not in harmony with the pact of the sides. The issue of disagreement is not adept at resolution by arbitration under the law. The arbitral settlement disagrees with the public policy of the nation.
When a proposal of abdicating the arbitral award is chosen under section 34, the executing court has no authority to impose the award, until and unless the submission under section 34 is terminated or declined. This is a witnessed retreat from even the common rule under the Code of Civil Procedure, 1908 where an executing court can implement the ruling if there is no stay by the court of appeals. In the view of the author, this ought not to have been the stance under the latest Act. Implementation of the verdict should be allowed if not there is a deferment by the court examining a submission under section 34.
The Legitimacy of Section 34
In TPI Ltd Vs Union of India, in a writ petition, it was opposed by the requester that a claim to contest an arbitral verdict on facts should be imparted, and in the dearth of the same, section 34 would be illegitimate. The court terminated the writ petition and asserted that the issue in question was not linked to judicial review of a panel decision established under any law or any administrative action. The arbitration is an alternative forum for reparation of disagreements and is chosen by the sides of their own accord and they approve to the arbitrator’s ruling by way of a reciprocal arrangement or agreement, which provides a way to the usual judicial forum or else access to the sides. There is no pressure or burden by any law obliging the sides to help arbitration if a disagreement occurs.
When the sides have selected the forum of arbitration and the arbitrator of their preference, it is not required to create a condition for request against the verdict provided by the arbitrator. The legislature has the authority to give the reasons and foundations on which a verdict can be contested, and it would be acceptable for the side to contest the verdict only on those foundations. If it were permitted for the law court to re-assess the accuracy of the verdict or decision, the complete measures taken would result in a pointless procedure.
The doctrine of Public Policy
The doctrine of ‘Public Policy’ is to some extent unlatched and variable, and this elasticity has been the root of judicial criticism of the principle. There is a broad arrangement that the law courts may expand in effect ‘Public Policy’ to new-found circumstances and the disparity stuck between stretching on current tenet as resisted to establishing a fresh one will frequently be thin. ‘Public Policy’ is not absolute. Regulations that lie on the groundwork of ‘Public Policy,’ not being regulations which be appropriate to the permanent Customary Law, are adept at the appropriate circumstance, of development or change varying upon events. In the greater assessment, the policy of “Public Policy” is equal to the “Policy of Law,” whatsoever primes to the impediment of impartiality or violation of a law or is in contradiction of the decent ethics when the focus of contract would be in contradiction of ‘Public Policy of India” and being annulled, would not be vulnerable to implementation.
Deciphering the principle of “Public Policy of India” in its wider stance, law courts may interfere allowing remedy against an arbitral verdict focused on the misconduct of a kind which the law court believes has triggered or will affect considerable unfairness to the claimant. Risky cases where the arbitral tribunal has gone so incorrect in its behavior of arbitration that fairness demands for it to be modified may arguably fall inside the realm of the principle of ‘Public Policy of India” to allow the law of courts in India to interfere under section 34 of the 1996 Act authorizing remedy against the arbitral verdict.
The key objective of ratifying the rule of Arbitration is to reduce the interference of law courts and delivers an unconventional system to settle the business disagreements which will lessen period and delivers swift redressal structure. The modifications have taken in by way of the modified act of 2015 and consequently by Amendment Act of 2019 have solved all the potential problems. Though on one side, the sides settle to solve their arguments with the benefit of Arbitrator(s) without any interference of law court but on the other side to safeguard the transfer of valid award, the judicial watch is also essential to monitor on Arbitrator’s acts and consequently, the Section 34 apparatus does not deliver the comprehensive parting from the judicial apparatus but go together with inadequate dispersion of judiciary.
- Preamble and Statement of Objects and Reasons to the Arbitration Act.
- (2018) 6 SCC 287
Student, Chanakya National Law University Patna
Nitisha Bhardwaj is a writer, speaker, and researcher. She has an affinity for International Aviation and Corporate Law. She is a creative thinker and seeks for balance. For any Clarifications, feedback, and suggestion, you can reach her at Nitishabhardwaj1@gmail.com