Arbitration can be considered as a form of dispute resolution. If one party is desired to solve the dispute with the help of arbitration law but the other party does not want to go with the process of arbitration, it cannot be done. The mutual and free consent of both parties is a must for the arbitration.
There are many arbitral tribunals that help people to resolve disputes. They have their arbitrators which are well educated and experienced in specific fields. That means, the parties can hire the arbitrator who is the master to solve the problems related to their disputes. We are going to discuss the arbitrator, working, and legality of arbitral awards.
What is arbitration?
According to the arbitration definition, arbitration is a technique given under the statute for the resolution of disputes out of the court where the parties choose their one or more arbitrator with free consent and bind themselves with the decision of the arbitration tribunal. There will be an arbitration agreement to do the process of arbitration.
Arbitration is a remedy to a dispute where the parties of the dispute settle their dispute outside the court through an independent person (the arbitrator) appointed with their free consent.
There are various characteristics of the arbitration, such as:
Arbitration is Consensual
In the arbitration process, when the parties come into any types of contracts, they make the arbitration agreement with their free consent. This agreement is made to settle any types of disputes arising from the business with the help of an arbitrator. The name or the qualification of the arbitrator can also be added to the arbitration agreement. The party that agreed to the arbitration cannot withdraw the consent.
Right to choose the arbitrator
The parties have the full right to choose the arbitrator or arbitrators for the dispute arising from their business or contract. The parties can add the name or qualifications at the time of making the arbitration agreement or when the dispute arises. If the parties fail to appoint the arbitrator, they can ask the court to appoint the arbitrator.
An arbitrator is an independent person. Each party has the full right to choose the person as an arbitrator who will be neutral in the case. It means, the person should not be favouring one party. He should not be in the relation of the party. But if the parties agree that there is no problem with such relations, then it will not disallow him to be the arbitrator in the dispute.
Arbitrators are experts
The parties are free to choose the arbitrator. It means they can choose the arbitrator who is more experienced and expert in his field. The dispute can be solved in an easy way if the arbitrator has knowledge of the issue arising in the dispute. There are various law firms providing arbitrators who are well educated and experts in their fields. Also, if the parties fail to appoint the arbitrator for the dispute, they can take the help of the court for the appointment of the arbitrator.
Arbitration is totally confidential
The law provides the confidentiality of the arbitration proceedings. The arbitrator is not allowed to discuss the case problem with any other person who is not involved in the case. It is the best remedy for businessmen who do not want to share their company ideas with any other person. In the court proceedings, it is much possible to make the secrecy of the proceedings.
The choice to choose procedure and venue
The parties of the dispute are free to choose the procedure and the arbitral tribunal venue as they want. The parties can also choose the language of the court. This process helps the parties to express their views more conveniently to the arbitrator of the case.
The decision is final and easy to enforce
The decision or the arbitral award is binding for both parties. In the arbitral agreement, the parties already bind themselves that the decision given by the arbitrator shall be binding for us without any delay. It is a fast remedy and the decision is easy to enforce. There are very limited circumstances that can set aside the arbitral award.
Advantages of Arbitration
There are many advantages of signing an Arbitration Agreement, so let us discuss each of them:
- It is more flexible than simple court proceedings. The arbitration laws are not complicated as litigations. The parties can choose the procedure for the arbitral proceedings.
- The Arbitration is a fast remedy whereas the court took more time to give the judgement in the case as the courts are already overburdened due to lots of cases.
- These are less expensive and time-saving.
- An arbitrator is an expert in the field of that specific case. He can deal with the case with more experience as compared to the normal judge. The arbitrators are professionals of their fields and it builds the confidence of the parties to the case.
- There is no need to go for further appeal after the arbitral award as this is binding for both parties.
- The decision of the arbitrator is unbiased.
- It provides the confidentiality of the case and related oral and documentary evidence of the case.
What is the arbitration agreement?
The arbitration agreement is the agreement between the parties where they add the clause of arbitration. Now, with this agreement, all future disputes shall be resolved with the process of arbitration. The parties are allowed to add the basic conditions in the agreement related to the arbitrator or arbitration proceedings such as:
- Parties are allowed to add the name or qualification of the arbitrator
- They can fix the numbers of arbitrators in the case
- Parties can add the language of the court
- Right to choose procedure and venue of for arbitration proceedings
The arbitration agreement binds the parties in the contract and the arbitral award shall be binding for both parties.
Who is an arbitrator?
The arbitrator is assigned to the arbitration proceedings by the parties to solve their dispute. There is no qualifications are given for the arbitrator in the act, any person who is sound of mind can be the arbitrator. The reason behind this is that the parties who are facing the issue are appointing the arbitrator with their free consent.
The arbitrators must be in odd numbers. People usually choose one or three arbitrators for the resolution of disputes. The reason for this is to make the decision more powerful and correct. Suppose there are two arbitrators and both are giving different decisions, the dispute can never be resolved. But in the case, if there are 3 arbitrators, where the decision of 2 arbitrators is the same that decision will consider as the final decision of the arbitral tribunal.
The parties are free to add the name and qualifications of the arbitrator for the disputes. But if the parties fail to appoint the same arbitrator at the time of the conflicts, due to any reasons, the parties can ask the court for the appointment of an arbitrator for the case. The court will provide the arbitrator who will be well educated and experienced in the specific field of the case. For instance, if the case is related to money, the court may appoint a person who is an expert in the financial area.
Setting aside the arbitral award
The arbitration award can be set aside on some grounds which are:
Incapacity of party
If either of the party to the dispute is not capable of any reason, the arbitration award will be set aside. For example, in the case of a minor or a person who is not a sound mind.
The arbitration agreement is not valid
If the arbitration agreement was not valid, either party can challenge the arbitral award.
Notice to the parties
If either of the Party not given proper notice of arbitral proceedings, the party which has not given the notice can ask for the set aside the arbitral award.
Nature of dispute
During the time, of the arbitration agreement, the parties may specify the cases in which they will take the help of arbitration. But, If the nature of the dispute is not falling within the terms of arbitration the award will be set aside. For example, the murder case cannot be solved in the arbitration tribunal.
If the arbitral procedure was not according to the procedure mentioned by the parties in the agreement or at the time of the appointment of the arbitrator, the award can also be set aside on the basis that the procedure was not in accordance with the agreement.
Conflict with the public policy
If the award given by the arbitrator is conflicting with the public policies, the award can be set aside.
These are some important points on which the arbitral award can be set aside.
FAQ related to the arbitration law
What is Arbitral tribunal?
The arbitral tribunal or the arbitration tribunal is penalised of one or more arbitrators who are used to settle the dispute by the arbitration. There must be an odd number of arbitrators in the tribunal. The members selected for the arbitration tribunals are chosen by the parties to the dispute.
What is the work of the arbitrator?
The arbitration has to solve the dispute by hearing both the parties and their witnesses and finally pass the arbitral award which is suitable for the dispute. An arbitrator is an independent person appointed by the parties to the dispute who has similar powers as the judge in his case. He can ask for the pieces of evidence and collect the pieces of evidence and can also serve the summons for witnesses.
What is the procedure for arbitration?
The process of arbitration tribunal begins as other tribunals or as provided by the parties. In the process, the penal take the evidence and hear the parties and their witnesses and also cross-examine the parties and witness with documents presented as evidence. The arbitration process is faster than simple courts. Generally, the arbitrator passes the award within one year or depends upon the case to case.
Is a decision passed by the arbitrator legally enforceable?
The decision passed by the arbitrator is known as arbitral award and it is binding for both the parties of the dispute as it is passed by the judge of the court. No party can challenge the arbitral award unless on the grounds given under section 34 of the arbitration and conciliation act.
The arbitration law provides the remedies for the parties to solve their disputes besides the court of law. The arbitral courts are semi courts that are used to solve the civil case between parties. The arbitration agreement binds the parties to solve their dispute with the help of arbitration.
The arbitrator is assigned to the arbitration proceedings by the parties which help the parties to solve their dispute, He has the power of the service of summons to the parties and asks them to produce oral and documentary evidences which are necessary for the case. His decision is considered as the arbitral award which shall be binding for both parties.
There are many advantages of the arbitration proceeding which helps the parties to save their money and time. The arbitration proceedings are faster than courts and the arbitrator is more capable to give the decision in the court as he is a specialist in the particular field.