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1. Discuss the concept & need of alternative Dispute resolution System.
a. Alternative dispute resolution (ADR) typically denotes a wide range of dispute resolution processes and
techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a
collective term for the ways that parties can settle disputes, with the help of a third party. However, ADR is
also increasingly being adopted as a tool to help settle disputes alongside the court system itself.
b. Benefits of ADR over litigation to resolve disputes:
a. Flexibility and control​: Parties can set terms in their arbitration contract governing how the
process will work. This includes establishing rules regarding discovery, hearings, time limitations
and other matters. In addition, parties can schedule hearings and deadlines to accommodate
their needs.
b. Speed​: According to statistics of the American Arbitration Association, on average, U.S. District
Court cases took 12-16 months longer to get to trial than cases using arbitration.
c. Low cost​: Less time spent to resolve a dispute means lower costs for attorneys’ fees. In addition,
discovery is much more limited in arbitration, and appeals are very limited, so those costs are all
saved.
d. Simplified rules of evidence and discovery​: Typically, there are limits on the nature and scope of
discovery and time limits on how long the process can take. Issues are handled through phone
calls rather than multiple hearings, subpoenas, depositions, interrogatories and the like. And, the
strict rules of evidence don’t apply.
e. Privacy and confidentiality​: Arbitrations are private with only designated parties in attendance and
the proceedings are strictly confidential. In contrast, litigation is open to the public.
f. Arbitrator selection​: Parties can choose an arbitrator with subject matter expertise as opposed to
being assigned a judge randomly. This is particularly important in complex cases requiring
specialized knowledge.
g. Finality. Appeal rights are very limited in arbitration, so disputes are finally resolved more quickly.
c. Need of ADR in India:
a. To deal with the situation of pendency of cases in courts of India, ADR plays a significant role in
India by its diverse techniques. Alternative Dispute Resolution mechanism provides scientifically
developed techniques to Indian judiciary which helps in reducing the burden on the courts. ADR
provides various modes of settlement including arbitration, conciliation, mediation, negotiation
and Lok Adalat. Here, negotiation means self-counseling between the parties to resolve their
dispute but it doesn’t have any statutory recognition in India.
2. What are the various constitutional provisions relating to legal Aid?
a. Legal aid is a constitutional right under Articles 21 and 39-A of the Constitution.
b. “Article - 21: Protection of life and personal liberty – No person shall be deprived of his life or personal
liberty except according to procedure established by law.
c. “Article - 39A: Equal justice and free legal aid - The state shall secure that the operation of the legal system
promotes Justice on a basis, of equal opportunity, and shall in particular, provide free legal, aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing Justice are not denied
to any citizen by reason of economic or other disabilities”.
d. Article 21 is a fundamental right conferred under Part III of the Constitution. Whereas Article 39-A is one of
the directive principles of the State Policy under Part IV of the Constitution. It has been held by the
Constitution Bench of Supreme Court in Chandra Bhavan Boarding and Lodging, Bangalore VS. State of
Mysore, AIR 1970 SC 2042 at 2050, para 13 that “While rights conferred under Part III are fundamental, the
directives given under part IV are fundamental in the governance of the country. There is no conflict on the
whole between the provisions contained in Part III and Part IV. They are complementary and
supplementary to each other.
e. In Centre for Legal Research v. State of Kerala, AIR 1986 SC 1322. It has been suggested that in order to
achieve the objective of Article 39A, the State must encourage and support the participation of voluntary
organisation and social action groups in operating the legal aid programme. The Government should set up
a “suitors fund” to meet the cost of defending a poor or indigent. The Court held that although the mandate
in Article 39A is addressed to the legislature and the Executive, yet the Courts too are bound by the
mandate contained therein. The Court ruled that it cannot issue a writ of mandamus to enforce Article 39A
and the social obligation of equal justice and free legal aid has to be implemented by suitable legislation or
by formulating schemes for free legal aid. In pursuance of this suggestion, Parliament passed the Legal
Services Authorities Act, 1987.
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f. The Madhya Pradesh High Courtin P.N.B. V. Laxmichand Rai, AIR 2000 MP 301. Has held the award
passed by Lok Adalat constituted under the Legal Services Authorities Act, 1987, final and said that no
appeal would lie against it in any court.
g. In State of Maharashtra v. Manubhai Pragaji Vashi, AIR 1996 SC 1. The Supreme Court held that Article 21
read with Article 39A mandated or cast a duty on the State to extend the grant-in-aid scheme to all
Government recognised private Law Colleges on the same criteria as such grants were given to other
faculties, to enable such Colleges to function effectively and in a meaningful manner and turn out sufficient
number of well trained or properly trained law graduates. That would in turn enable the State to provide free
legal aid.
3. Discuss the object and importance of Legal Service Authority Act 1987. Also discuss who are entitled to
claim free legal Services.
a. In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes
throughout the country on a uniform pattern. This Act was finally enforced on 9th of November, 1995 after
certain amendments were introduced therein by the Amendment Act of 1994. Hon. Mr. Justice R.N. Mishra
the then Chief Justice of India played a key role in the enforcement of the Act.
b. The principal objective of NALSA is to provide free and competent legal services to the weaker sections of
the society and to ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities, and to organize Lok Adalats for amicable settlement of disputes.
c. Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the
eligible persons. Section 12 of the Act reads as under:-
d. Every person who has to file or defend a case shall be entitled to legal services under this Act if that person
is -
a. a member of a Scheduled Caste or Scheduled Tribe;
b. a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
c. a woman or a child;
d. a mentally ill or otherwise disabled person;
e. a person under circumstances of undeserved want such as being a victim of a mass disaster,
ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
f. an industrial workman; or
g. in custody, including custody in a protective home within the meaning of clause (g) of section 2 of
the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the
meaning of clause.
h. of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or
psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act,
1987 (14 of 1987); or
i. in receipt of annual income less than rupees nine thousand or such other higher amount as may
be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and
less than rupees twelve thousand or such other higher amount as may be prescribed by the
Central Govt., if the case is before the Supreme Court."(Rules have already been amended to
enhance this income ceiling).
4. What is the meaning of legal service? Discuss the constitution and functions of National Legal Services
Authority and State Legal Service Authority.
a. Literally, legal service means help or assistance or free service in the field of law. The honorable SC has
categorically stated in its various decisions that legal aid is not charity but it is a duty of a welfare state.
b. The definition of legal service has been given under section 2 (1) (c) of The Legal Services Authorities Act,
1987, which is as under:
a. 'Legal Service' includes the rendering of any service in the conduct of any case or other legal
proceeding before any court or other Authority or tribunal and the giving of advice on any legal
matter.
c. Towards fulfilling the Preambular promise of securing to all the citizens, Justice – social, economic and
political, Article 39 A of the Constitution of India provides for free legal aid to the poor and weaker sections
of the society, to promote justice on the basis of equal opportunity. Articles 14 and 22(1) of the Constitution
also make it obligatory for the State to ensure equality before law. In 1987, the Legal Services Authorities
Act was enacted by the Parliament, which came into force on 9th November, 1995 to establish a nationwide
uniform network for providing free and competent legal services to the weaker sections of the society.
d. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities
Act, 1987 to provide free Legal Services to the weaker sections of the society. The Chief Justice of India is
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the Patron-in-Chief and the Senior most Hon'ble Judge, Supreme Court of India is the Executive Chairman
of the Authority.
e. National Legal Services Authority has following members:
a. Chief Justice of India as the Patron-in-chief.
b. A judge of the Supreme Court nominated by the President as the executive chairman.
c. Other members nominated by the Government in consultation with the CJI.
f. Functions of the National Legal Services Authority:
a. Lay down policies and principles for fulfilling the provisions of the Legal Services Act.
b. Frame the most economic schemes for providing legal aid to the poor.
c. Utilize funds at their disposal to be given to the State and District authorities.
d. Organize Legal Aid camps in rural and slum areas.
e. Undertake and promote research in the field of Legal aid, with special emphasis on providing
legal aid to the poor.
f. To do all things necessary for the fulfillment of fundamental duties given under Part IV-A of the
Constitution.
g. Develop in consultation with the Bar Council of India, programs for clinical legal education.
h. Take appropriate measures for spreading legal literacy and legal awareness amongst the people
and, in particular, to educate weaker sections of society.
i. Make special efforts to enlist the support of voluntary social welfare institutions working at the
grass-root level.
j. Coordinate and monitor the functions of State Authorities, District Authorities, Supreme Court
Legal Services Committee, High Court Legal Services Committees, Taluk Legal Services
Committees and voluntary social service Institutions and other legal services organizations and
give general directions for the proper implementation of the program.
k. Provide grants and aids for various schemes and social service institutions.
g. State Legal Services Authority has following members:
a. Chief justice of the High court as the patron-in-chief.
b. A judge of the High Court nominated by the governor as the executive chairman.
c. Other members nominated by the state government in consultation with Chief Justice of High
Court.
h. The state authority has the responsibility to give effect to the directions issued by the Central authority. It
provides legal services like the central authority and also conducts Lok Adalats. Besides this the authority
also has other functions as follow:
a. Give legal services to persons who satisfy the criteria under the act.
b. Conduct Lok Adalats for all types of cases.
c. Undertake preventive and strategic Legal Aid programs.
d. Perform other functions as notified by the central authority to the state authority from time to time.
5. What is the Lok Adalat? Explain the advantages and disadvantages of Lok Adalat.
a. Lok Adalat (People’s Court) is one of India’s alternate dispute resolution mechanisms. It is where the cases
that are pending or at the pre-litigation stage in a court of law are settled. This system, based on Gandhian
principles, aims to settle disputes through arbitration at the grass-root level.
b. Advantages of Lok Adalat:
a. It is a court that provides free justice. If the case is already filed in the regular court, the fee paid
will be refunded if the disputes are settled via Lok Adalat. This is in consideration to the
economically weaker section of the society.
b. It allows for amicable settlement for parties as they can directly interact with the judge even if
they are represented by their lawyer. These parties can explain their stand in the dispute, which
is impossible in the normal courts.
c. It reduces unwanted delays by doing away with the long winded legal procedures and formalities
and aims for mutual settlements to reduce the chances for the further need for appeals.
d. The procedure followed by Lok Adalat is simple, flexible, non-technical and informal. There is no
need for strict procedural laws like the Civil Procedure Code and Evidence Act while determining
the claims of the parties.
e. The lawyers are not essential during the conciliation process of Lok Adalat. However, they can
assist the proceedings by helping parties understand contentious issues and available
alternatives and persuade them to arrive at a dispute settlement.
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f. It disposes of cases via collaborative and participatory efforts of lawyers, social workers,
administrative authorities etc., who are actively involved in the dispute resolutions.
g. It significantly reduces the burden of the formal judiciary so that the latter can deal with more
serious cases.
h. This mechanism helps spread awareness at the grass-root level about the fundamental rights
and duties mentioned in the numerous social and welfare legislation.
i. It brings justice to the doorsteps of people by organising at various places like villages, slums,
industrial areas, labour colonies etc.
j. There is neither a victor nor a vanquished and both the contestants are gainers and winners.
k. This mechanism promotes local unity and secures substantial equity and social justice.
c. Limitations of Lok Adalats:
a. Complexity: The biggest disadvantage with Lok Adalats is that repeated sittings at short intervals
with the same judge are almost not possible which breaks the continuity of the deliberations.
b. Lack of confidentiality: Lok Adalat proceedings are held in the open court and any member of
public may witness these proceedings. Thus, the element of confidentiality is also lacking. This
also impedes the process of exploration of various resolution options and ultimately the success
rate in matters where parties desire confidentiality.
c. Forced injustice: Lok Adalats are fora where voluntary efforts intended to bring about settlement
of disputes between the parties are made through conciliatory and persuasive efforts. Many times
victims are forced to settle at lower compensation.
d. Diminished party autonomy: It cannot be said that the parties remain in absolute control of the
proceedings in contradistinction to what happens in mediation.
e. Needs consent of both the parties: The most important factor to be considered while deciding the
cases at the Lok Adalat is the consent of both the parties. It cannot be forced on any party that
the matter has to be decided by the Lok Adalat.
6. Discuss the aim & object of Arbitration and Conciliation Act, 1996.
a. main object of the Act is to consolidate and amend the law relating to:
a. domestic arbitration;
b. international commercial and business arbitration;
c. enforcement and implementation of foreign arbitral awards;
d. and to define the laws relating to conciliation and matters that are connected therewith or
incidental thereto.
b. Some of the other objects, as provided in the Statement of Objects and Reasons for the Arbitration and
Conciliation Bill, 1995 are as follows:
a. to comprehensively cover disputes relating to international, commercial issues and to come to a
resolution through the process of arbitration and conciliation .
b. to make provisions for a process of carrying out the arbitration proceedings which is fair, efficient
and has the capacity to bring the parties to dispute to an amicable resolution
c. to make provision that the arbitral tribunal gives reasons as its decision for its arbitral award;
d. to make sure that the arbitral tribunal works within the boundaries of its jurisdiction;
e. to reduce the supervision of the courts in the process of arbitration;
f. to allow an arbitral tribunal to apply mediation, conciliation or other dispute resolution processes
during the arbitral proceedings to come to a settlement of disputes;
g. to ensure that every award by an arbitral tribunal is enforced in a way as if it were a decree of a
court of law;
h. to provide for the implementation of foreign awards and the procedure for implementation.
7. Discuss the techniques of ADR.
a. Arbitration:
a. Arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to
the emergence of the dispute. As per Section 7 of Arbitration and Conciliation Act, 1996, such an
agreement must be in writing. The contract, regarding which the dispute exists, must either
contain an arbitration clause or must refer to a separate document signed by the parties
containing the arbitration agreement. The existence of an arbitration agreement can also be
inferred by written correspondence such as letters, telex, or telegrams which provide a record of
the agreement. An exchange of statement of claim and defence in which existence of an
arbitration agreement is alleged by one party and not denied by other is also considered as valid
written arbitration agreement.
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b. Any party to the dispute can start the process of appointing arbitrator and if the other party does
not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator.
There are only two grounds upon which a party can challenge the appointment of an arbitrator –
reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the
arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so
appointed constitute the Arbitration Tribunal.
c. Except for some interim measures, there is very little scope for judicial intervention in the
arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a
party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the
tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach
a court after the tribunal makes an award. Section 34 provides certain grounds upon which a
party can appeal to the principal civil court of original jurisdiction for setting aside the award.
d. Once the period for filing an appeal for setting aside an award is over, or if such an appeal is
rejected, the award is binding on the parties and is considered as a decree of the court.
b. Conciliation
a. Conciliation is a less formal form of arbitration. This process does not require an existence of any
prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is
preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a
party rejects an offer to conciliate, there can be no conciliation.
b. Parties may submit statements to the conciliator describing the general nature of the dispute and
the points at issue. Each party sends a copy of the statement to the other. The conciliator may
request further details, may ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
c. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of
settlement and send it to the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both.
d. Note that in USA, this process is similar to Mediation. However, in India, Mediation is different
from Conciliation and is a completely informal type of ADR mechanism.
c. Mediation
a. Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution", aims
to assist two (or more) disputants in reaching an agreement. The parties themselves determine
the conditions of any settlements reached— rather than accepting something imposed by a third
party. The disputes may involve (as parties) states, organizations, communities, individuals or
other representatives with a vested interest in the outcome.
b. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between
disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed
matter. Normally, all parties must view the mediator as impartial.
c. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic,
workplace, community and family matters.
d. A third-party representative may contract and mediate between (say) unions and corporations.
When a workers’ union goes on strike, a dispute takes place, and the corporation hires a third
party to intervene in attempt to settle a contract or agreement between the union and the
corporation.
d. Negotiation
a. Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of
action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various
interests. It is the primary method of alternative dispute resolution.
b. Negotiation occurs in business, non-profit organizations, government branches, legal
proceedings, among nations and in personal situations such as marriage, divorce, parenting, and
everyday life. The study of the subject is called negotiation theory. Those who work in negotiation
professionally are called negotiators. Professional negotiators are often specialized, such as
union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may
work under other titles, such as diplomats, legislators or brokers.
e. "Good offices" implies a more discreet action, limited to initiating direct negotiations between the parties
concerned without active participation, whereas a mediator generally takes a more active part in the
discussion and is often expected to suggest some solutions to the problem.
8. What is the conciliation? Discuss the role of conciliation in arriving at amicable settlement of dispute.
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a. Conciliation is defined as an alternative dispute resolution mechanism that is designed to resolve a dispute
among the parties through a non-adjudicatory and non- Antagonistic way. It involves the neutral third party
who makes the disputant parties arrive at a conclusion and a satisfactory dispute settlement. ADR plays a
crucial role in overcoming the drawback of the conventional mechanism of dispute resolution that is court
proceedings. It also helps in dealing with the condition of the pendency of cases in the Indian Judiciary. The
various modes of dispute resolution under the ADR mechanism are Mediation, Conciliation, Arbitration,
Negotiation, and Lok Adalat. ADR has many advantages over the courtroom proceeding such as it is less
time consuming, cost-effective, free from the technicalities of courts, no fear of court of law, efficient and
effective, helps in maintaining good relationships between the parties. The main motive of ADR is to
promote socio-economic and political justice which have been enshrined in the preamble of the Constitution
of India.
b. Conciliation is a voluntary mechanism and the conciliator who makes the parties resolve the dispute cannot
force the parties to come to an end of the dispute with a solution. The parties are not bound to follow the
solution and advice given by the conciliator. The decision of the conciliator cannot be pressurized upon the
parties to the dispute. Conciliation is a less formal and comparatively easy process from old conventional
methods and other alternative dispute resolution processes. The conciliator provides the parties with an
appropriate solution in order to resolve the dispute efficiently and effectively. This process is less time
consuming and cost-effective as no legal procedures are to be followed and no formal technicalities are
involved in this dispute resolution process. The solutions provided by the third neutral party to the dispute is
always kept in mind that it is best suitable for the interest and priorities of the disputant parties. Usually, all
the matters of civil nature are appropriate for conciliation and it is an affordable mechanism under
alternative dispute resolution mechanisms other than the conventional process of litigation in courtrooms.
c. The process of conciliation begins with the acceptance to choose to resolve the dispute through the
process of conciliation. One party who initiates to resolve the dispute by the process of conciliation has to
send a written agreement to the other party stating the subject matter of the dispute. The commencement
of the process of conciliation begins when the other party to whom the one party has notified to conciliate
the disputing matter. Ordinarily, there is one conciliator in the process until and unless parties agree for two
or three. The conciliator has an option to seek a written draft from the disputant parties which describes the
point of dispute and its nature. There is an instant need to recognize the utility of the ADR mechanism and
observe its benefits in order to resolve the disputes between the parties.
9. Discuss the provisions relating with jurisdiction of Arbitral tribunal under Arbitration and Conciliation
Act, 1996
a. Arbitration is a form of Alternate Dispute Resolution (ADR). It refers to amicably settling disputes between
two or more parties instead of going into litigation.
b. It is a process in which an independent person who is appointed as an arbitrator to make an official
decision that ends a legal disagreement between parties without the need for it tobe dragged into court.
c. In India, the process of Arbitration is regulated under the Arbitration and Conciliation Act, 1996. It is based
on the UNCITRAL model law to ensure uniformity. It was enacted by the Parliament of India in 1996 and
was recently amended by introducing the Arbitration and Conciliation (Amendment) Bill, 2015.
d. Provisions under the Arbitration and Conciliation Act, 1996:
a. Chapter IV of the Act contains Sections 16 and 17 that deal with the jurisdiction of an arbitral
tribunal. Section 16 of the Act deals with Competence of arbitral tribunal to rule on its own
jurisdiction and conveys that the arbitral tribunal has the independence of choosing its own
jurisdiction and freedom from the interference of courts regarding any matter related to
arbitration.
b. Section 16– Competence of arbitral tribunal to rule on its jurisdiction:
c. The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with
respect to the existence or validity of the arbitration agreement and for this purpose,
d. (a) an arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract when it’s validity is challenged before the tribunal.
e. (b) a decision by the arbitral tribunal that the contract is null and void shall not mean that the
arbitration clause invalid.
e. If there is a plea that the arbitral tribunal does not have jurisdiction, it cannot be raised after the submission
of the statement of defence. Even an arbitrator may raise such a plea. However, if there is any delay and if
such a delay is justified, the arbitral tribunal may admit a later plea according to sub section 4 of section 16
of the Act.
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f. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter
alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal
shall decide on a plea referred to above and, where the arbitral tribunal takes a decision rejecting the plea,
it shall continue with the arbitral proceedings and make an arbitral award. A party aggrieved by such an
arbitral award may make an application for setting aside such an arbitral award in accordance with section
34 of the Act which deals with ‘Application for setting aside arbitral award’.
g. In the case of Union of India vs. M/s. East Coast Boat Builders & Engineers Ltd[i], it was held that,
a. “From the scheme of the Act it is apparent that the legislature did not provide appeal against the
order under section 16(5) where the arbitral tribunal takes a decision rejecting the plea that the
arbitral tribunal has no jurisdiction. The intention appears to be that in such case, the arbitral
tribunal shall continue with the arbitral proceedings and make an award without delay and without
being interfered in the arbitral process at that stage by any court in their supervisory role.”
h. In the case of Saurashtra Chemicals Ltd. vs Hon’Ble Mr. Justice K[ii], the party aggrieved by an arbitral
award filed a writ petition under Article 226 of the Indian Constitution, the Court held as follows;
a. “Considering the statement and object of the Arbitration Act of 1996 and Section 16 of the
Arbitration Act of 1996 when the Arbitral Tribunal has decided about its own jurisdiction in an
application under Section 16 of the Act, in that case the Arbitral Tribunal has to proceed further
with the arbitral proceedings and to declare the award which can be challenged only at the stage
of Section 34 of the Arbitration Act of 1996, and therefore the petition under Article 226 of the
Constitution of India against the order passed by the Arbitral Tribunal under Section 16 of the Act
is not required to be entertained and the party has to wait up to conclusion of proceedings under
Section 34 of the Arbitration Act”
i. Section 17– Interim measures ordered by arbitral tribunal:
a. A party may, during the arbitral proceedings or at any time after the making of the arbitral award
but before it is enforced apply to the arbitral tribunal for the appointment of a guardian for a minor
or person of unsound mind for the purposes of arbitral proceedings or as an interim measure of
protection in any of the following matters;
b. (a) the preservation, interim custody or sale of any goods which are the subject-matter of the
arbitration agreement;
c. (b) securing the amount in dispute in the arbitration;
d. (c) the detention, preservation or inspection of any property or thing which is the subject-matter of
the dispute in arbitration, or as to which any question may arise therein and authorising for any of
the aforesaid purposes any person to enter upon any land or building in the possession of any
party, or authorising any samples to be taken, or any observation to be made, or experiment to
be tried, which may be necessary or expedient for the purpose of obtaining full information or
evidence;
e. (d) interim injunction or the appointment of a receiver;
f. (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and
convenient.
j. The arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and
in relation to, any proceedings before it.
k. Under sub-section 2 of the section, if there are any orders passed in an appeal under section 37 of the Act
titled ‘Appealable orders’, any order issued by the arbitral tribunal under this section shall be deemed to be
an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 in
the same manner as if it were an order of the Court.
10. Discuss the provision relating to enforcement of Foreign Award.
a. The Arbitration and Conciliation Act 1996 (hereinafter referred to as The Act) specifically provides for the
manner in which a Foreign Award is to be dealt with for the purposes of its enforcement. The Act of 1940
had no such provision.
b. The Foreign Awards are to be dealt with separately under the New York Convention and the Geneva
Convention both of which are dealt with under Chapter I and II of Part II of the Act.
c. According to Section 44 of Chapter I of the Arbitration and Conciliation Act 1996, Foreign Awards means an
arbitral Award on differences between persons arising out of legal relationships, whether contractual or not,
considered as commercial under the law in force in India, made on or after 11th October 1960 in pursuance
of an Agreement in writing for Arbitration. The Award has to be passed in one such territory with which India
has a reciprocal treaty. Similar conditions are specified under Section 53 for the Geneva Convention
Awards. The said Awards can be executed as if it was a decree passed by the Civil Court of original
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jurisdiction in India as envisaged under Section 36 of the Act. For execution of the Award the format laid
down in Order 21 Rule 11 (2) of the Code of civil Procedure 1908 for execution of decree is required to be
followed.
d. Under Section 48, the Executing Court shall enforce the Award only after it is satisfied that the parties were
not under some incapacity, were given proper notice and that the disputes submitted to arbitration were not
beyond the scope of Arbitration Agreement.
e. Section 57 lays down some more conditions while dealing with the Geneva Convention Award, that the
Executing Court shall enforce the Award only after it is satisfied that folllowing conditions are fulfilled.
a. (a) the award has been made in pursuance of a submission to arbitration which is valid under the
law applicable thereto;
b. (b) the subject- matter of the award is capable of settlement by arbitration under the law of India;
c. (c) the award has been made by the arbitral tribunal provided for in the submission to arbitration
or constituted in the manner agreed upon by the parties and in conformity with the law governing
the arbitration procedure;
d. (d) the award has become final in the country in which it has been made, in the sense that it will
not be considered as such if it is open to opposition or appeal or if it is proved that any
proceedings for the purpose of contesting the validity of the award are pending;
e. (e) The enforcement of the award is not contrary to the public policy or the law of India. Without
prejudice to the generality of clause an award is in conflict with the public policy of India if the
making of the award was induced or affected by fraud or corruption.
f. The Party enforcing the Award has to show beyond doubt that the Award has become final in the country in
which it was passed.
g. However, for Awards falling under both the conventions some rules are generally applicable, one of them
being that there is no need to take out separate proceedings in the nature of an application for seeking an
order from the Court that the Foreign Award can be enforced as a decree of the court and a separate one
for execution. The Hon'ble Supreme Court in the case of M/s Fuerst Day Lawson Ltd. Vs. Jindal Exports
Ltd. AIR 2001 SC 2293 observed that In our opinion, for enforcement of foreign Award there is no need to
take separate proceedings , one for deciding the enforceability of the Award to make rule of the Court or
decree and the other to take up execution thereafter. In one proceeding , as already above, the Court
enforcing the Foreign Award can deal with the entire matter.
h. In the case of Noy Velessina Engineering Spa Vs. Jindal Drugs Ltd., 2006 (4) Bom CR 155, the Hon'ble
Court while considering the observations of the Hon'ble Supreme Court in the case of M/s Fuerst Day
Lawson held that From the observations of the Supreme Court quoted above , it is clear that it is not
necessary for the person who has foreign Award in his favour to apply for recognition of the Award by the
Court separately, he could make application for execution of the Award and in that Application a request for
inquiry by the Court as required by the statute to find out whether the Award is enforceable is implicit and
the Court in that application can make an inquiry as to the enforceability of the Award and the Court after
recording its satisfaction that the Award is enforceable can proceed to execute that Award as if the Award is
a decree made by that Court.
i. No notice is required to be issued to the Judgement Debtor in case the execution /enforcement has been
proceeded with within 2 years of the passing of the Award in terms of Order 21 Rule 22 Code of Civil
Procedure.
j. For the New York Convention Awards, incorporated in Section 48 (2) of the Act, enforcement of Arbitral
Award may be refused on two grounds:
a. a)That the subject matter of the difference is not capable of settlement by Arbitration under the
law of India, or
b. b) The enforcement of the Award would be contrary to the public policy of India, which means
that the making of the Award was induced by fraud or corruption
k. As per Section 57 (2) of the Act, for the Geneva Convention Awards, the executing Court may refuse to
enforce the Award in case:
a. a)the award has been annulled in the country in which it was made, or
b. b)the party against whom it is sought to use the award was not given notice of the arbitration
proceedings in sufficient time to enable him to present his case, or
c. c) that, being under a legal incapacity, he was not properly represented or
d. d) the award does not deal with the differences contemplated by or falling within the terms of the
submission to arbitration or that it contains decisions on matters beyond the scope of the
submission to arbitration,
 Pg. 9
l. Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court
may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may
decide.
m. The Courts can though intervene only to limited extents as stated above and shall not be entitled to go into
the merits of the case as the same has not been provided in the scheme of the Act. Some recent
judgements as that of ONGC Vs. Saw Pipes (AIR 2003 SC 2629) have held that the Award can be
challenged only in case it is contrary to the Public Policy of India which would mean that the Award is
against the
a. (a) fundamental policy of Indian law;
b. (b) the interest of India; or
c. (c) justice or morality, or
d. (d) if it is patently illegal.
n. In case of a refusal for enforcement an appeal would lie only to the Supreme Court under Article 136 on
very limited grounds. This means that no appeal shall lie if the Executing Court approves of the
enforcement. Such decisions by the Courts to limit intervention while executing Foreign Awards and
scheme of the Act to make foreign Awards enforceable without much glitches only goes on to affirm what
Lord Mustill & Stewart C. Stated in Boyd QC's "Commercial Arbitration" 2001. "Mutual recognition of awards
is the glue which holds the international arbitrating community together, and this will only be strong if the
enforcing court is willing to trust, as the convention assumes that they will trust, the supervising authorities
of the chosen venue. Therefore for filing of execution for enforcement of foreign Awards passed in a
Country with which India has a reciprocal treaty, the procedure is as follows:
a. File an execution application in the format provided for under the Code of Civil Procedure before
the Court of competent Pecuniary jurisdiction
b. Accompany the same with the certified authenticated copy of the Award. An English translation
would be required in case it is in some other language.
c. An application/affidavit required to be filed along with the Execution Application seeking the
executing Court to certify that the Award is enforceable in India.
d. Once the Court certifies and is satisfied that the Award is enforceable in India, it shall make the
Award a decree of the Court and shall issue warrants of attachment/execution.
e. In cases of execution of such Awards which are not passed in Countries with whom India has a
reciprocal treaty, the Award has to be filed as a regular civil suit and the proceedings would be
the same as are applicable to a civil suit filed in India.