Written by - Anushka Pandey
Designation - Member, MediateGuru
Arbitration, a form of alternative dispute resolution, is a way to resolve disputes outside the judiciary courts. It is a way in which a dispute is decided by private individuals appointed and not the judicial officers appointed to the courts and tribunals of the country directly. These private individuals are called arbitrators.
Whenever a dispute arises between two parties and they decide to resolve the dispute through arbitration, an arbitral tribunal is to be set up. An arbitral tribunal or arbitration tribunal is a panel of impartial adjudicators who are convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include a chairperson or an umpire. Members selected to serve on an arbitration panel are typically professionals with expertise in both law and in friendly dispute resolution (mediation). Their task is to adjudicate and resolve the dispute and to provide an arbitral award.
Composition of Arbitral Tribunal
Chapter-III of the Arbitration and Conciliation Act, 1996 talks about the composition of the arbitral tribunal.
Chairperson and Umpire
The tribunal consists of an odd number of arbitrators, one of them may be designated as the umpire or chairperson. When an arbitrator is "chairperson", then they will not usually exercise any special or additional powers, and merely have a presidential function as the tribunal member who sets the agenda. Where a member of the tribunal is an umpire, they usually do not exercise any influence on proceedings, unless the other arbitrators are unable to agree — in such cases, then the umpire steps in and makes the decision alone.
Number of Arbitrators in an Arbitral tribunal-
Section 10 of the Act mentions the number of arbitrators that shall be a part of the arbitral tribunal. According to clause (1) of the Section, the parties to the dispute are free to mutually decide the number of arbitrators that shall constitute the arbitral tribunal to adjudicate the dispute. The number of arbitrators should be odd and not even. It helps in determining the clear majority of the tribunal. Section 10 also stated that if the parties are unable to decide the number of arbitrators, in that case only one arbitrator shall be appointed.
Composition of the Arbitration Council of India
It consists of a chairperson who is either:
· A judge of the Supreme Court
· A judge of a High Court
· Chief Justice of a High Court
· An eminent person with expert knowledge in the conduct of arbitration.
Other members will include an eminent arbitration practitioner, an academician with experience in arbitration, and government appointees.
Appointment of Arbitrators
Appointments will usually be made on the following basis:
· If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than (for example) 28 days after service of a request in writing by either party to do so.
If the tribunal is to consist of three arbitrators:
· each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
· The two so appointed shall forthwith appoint a third arbitrator as the chairperson of the tribunal.
If the tribunal is to consist of two arbitrators and an umpire-
· each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
· the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.
The Arbitrators should be chosen carefully as he should be able to keep the environment clear at the tribunal and he must give attention to the facts in dispute placed before him and his decision should be practical and unbiased and in the best interest of justice.
Jurisdiction of Arbitral Tribunal
There is no inherent jurisdiction in an arbitral tribunal. The arbitral tribunal takes its jurisdiction to decide a particular dispute from the agreement between the parties. An arbitral tribunal does not get its jurisdiction from any legislation. Under the theory of party autonomy, if two parties have the legal right to settle a dispute between themselves, then they can give jurisdiction to a third party to settle it for them.
The Arbitration and Conciliation Act, 1996 also specifically mentions the jurisdiction to determine explicit matters in Section 17 of the Act.
· Appointment of a guardian for a person who is of unsound mind or minor age in between the process of arbitration.
· Safety/Security/ Confinement/ provisional injunction of the subject matter of the arbitration.
Conclusion
The arbitration started as a procedure to avoid the troubles of civil litigation. The dispute resolving system of arbitration is proving to be very handy in the domestic as well as international regions as the delay caused by the conventional court procedure are very time taking and hectic. Most of the matters of civil nature are now being dealt by the way of arbitration with the permission and the will of the parties, and this is helping to resolve the matters in a much more attainable manner.
In India Arbitration was spread by British Government. The Arbitration Act, 1940 focused to systematise the procedure of arbitration in India, Later the Arbitration and Conciliation Act of 1996 amended this act. The tribunal determines its own jurisdiction to adjust the needs of the parties. The arbitral agreement mainly regulates the ambit of jurisdiction of the arbitral tribunal.
Let’s hope that the problem gets solved, and that the situation gets better with time and the justice delivery system becomes much more efficient and effective with these alternative ways of doing the same.
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