• Arbitration And Conciliation

  • Domestic & International

    Before A Sole Arbitrator & Arbitral Tribunal

    Arbitration is a mode of settling the disputes by referring them to the Arbitrator, who decides the issue before him in a quasi judicial manner. The Conciliation however is the process of amicable settlement of disputes by the parties with the assistance of conciliators. Whereas the Arbitrator is an extra judicial court of the parties own choice, the conciliator acts merely as a facilitator.  

    The law in regard to Arbitration and conciliation is codified in the Arbitration And Conciliation Act, 1996 [For short the Act], which provides for DOMESTIC as well as INTERNATIONAL commercial arbitration. The Act is on the line of the UNCITRAL [United Nations Commission On International Trade Law] Model law of International Commercial Arbitration & UNCITRAL Conciliation Rules. It provides for greater autonomy in the arbitral process while at the same time limits the role of judiciary. The Act places India’s dispute resolving mechanism at par with International standards.

    The Act also provides for enforcement of foreign awards- New York Convention Awards and Geneva Convention Awards.

    The parties can themselves decide on the terms of appointment of the Arbitrator or the Conciliator. In the event of any dispute on the issue of appointment, the Court appoints them. The highlights of the Act are as under:-

    • Arbitral Tribunal may be constituted of sole arbitrator or more than one arbitrator.
    • Arbitrator got to impartial and he must be a person of integrity & intelligence.
    • Arbitrator may of any nationality. However, in case of international commercial arbitration, he must not belong to the country of either party before him.   
    • No suit lies in the Court of law during the existence of the ‘arbitration clause’.
    • Arbitrator and the Court, both, are fully empowered to protect the interest the party/ parties before them by passing interim order during the pendency of the Case before them.
    • All the orders passed by the Arbitrator and the Court can be challenged in Appeal.
    • Arbitral Award is itself enforceable as a decree of the Court, normally after three (3) months from the date on which it was received by the parties.
    • An Application for setting aside an arbitral award may be filed before the Court by an aggrieved party within three (3) months of receipt of the Award.     

    Conciliation differs from Arbitration in the sense that while in Arbitration the Award is the decision of the Arbitral Tribunal, in case of Conciliation the decision is of the parties arrived at with the mediation of the Conciliator. A Conciliator only assists the parties in an independent and impartial manner. He is guided by the principles of objectivity, fairness and justice. He only makes proposals for a settlement of the dispute, the parties before him are however free to accede to his request or reject his proposal. A conciliator is barred from:

    • Acting as an arbitrator in respect of the same dispute in which he was a conciliator.
    • Acting as a Representative of either of the parties in any arbitral or judicial proceeding in respect of the same dispute.
    • Acting as a witness in any arbitral or judicial proceeding in respect of the same dispute in which he was a conciliator.

    Alternative dispute resolution has expanded over the last several years and has become an vitally important component of the dispute resolution process. Hello Counsel’s Legal Team is providing alternative dispute resolution services in India and abroad. We assist clients with resolution of disputes in all areas of general and special practices in a broad range of industrial sectors- International Finance, International Investments, Intellectual Property, Information Technology, Telecommunications, Construction and Infrastructure, Real Estate, Banking and Finance, Aviation, Insurance and Reinsurance, Oil and Gas, Power, Mining, Entertainment and Media, etc.

    We have a significant experience in both international and domestic arbitration and other forms of Alternative Dispute Resolution (ADR) such as conciliation and mediation. We advise clients on strategies, potential disputes and mediations and are actively engaged in Alternative Dispute Resolution [ADR] processes such as Arbitration, Conciliation & Mediation. Our Legal Team has acted as counsels and arbitrators in high stake arbitrations providing best advice and support in resolving disputes. We have a dedicated team of lawyers with specific expertise to meet our client's requirements and handle arbitration matters involving complex financial issues both in India and abroad. Services provided by Hello Counsel include the following amongst various others:

    • Conducting domestic arbitration under the Arbitration and Conciliation Act. 1996 and ICA rules.
    • Conducting international arbitration under UNCITRAL and ICC Rules
    • Rendering mediation services to clients.
    • Enforcing and challenging enforcement of Arbitral Awards
    • Representing clients before High Courts and Supreme Court in arbitration petitions
    • Advising clients on the appropriate venue of arbitration and choice of procedural and substantive law.
    • Appointment of arbitrator through High Court of Delhi and Supreme Court of India
    • Representing clients before arbitral tribunals with regard to disputes arising out of agreements containing arbitration clause.
    • Applying to stay proceedings brought in breach of arbitration clauses.
    • Draft arbitration agreements and clauses.
    • Advising clients and handling arbitration cases related to Commercial Contracts, Collaboration Disputes, Contractual Disputes, Construction Agreements, Service Agreements, Joint Venture Agreements, Supply Contracts, Marketing Agreements, Sale Agreements, etc.
    • Advising clients on conciliation and mediation matters.
    • Advising clients on alternative dispute resolution laws and procedures
    • Representing our Clients in Lok Adalats conducted by legal services authorities.

    Important Subject Matters Of Mediation & Conciliation

    • Commercial Mediation in India
    • Need for Healthcare Mediation in India
    • Mediation versus Arbitration in India
    • Mediation as a Profession in India
    • Mediation Ethics in India
    • Mediation in Criminal Disputes in India.

    Leading Judgments- Arbitration, an alternative dispute resolution (ADR) mechanism

    1. Associate Builders vs DDA (2015) 3 SCC 49.
    2. Centrotrade Mineral and Metals Incorporated vs Hindustan Copper Limited (2006) 11 SCC 245.
    3. Food Corporation of India vs Indian Council of Arbitration & Others (2003) 6 SCC 564.
    4. Fuerst Day Lawson Limited vs Jindal Exports Limited (2011) 8 SCC 333.
    5. Guru Nanak Foundation vs Rattan Singh & Sons (1981) 4 SCC 634.
    6. Indian Oil Corporation Ltd & Others vs Raja Transport Private Limited (2009) 8 SCC  520.
    7. McDermott International Incorporated vs Burns Standard Company Limited & Others (2006) 11 SCC 181.
    8. National Aluminium Co. Ltd. vs Pressteel & Fabrications (P) Ltd. (2004) 1 SCC 540.
    9. Numaligarh Refinery Limited vs Daelim Industrial Company Limited (2007) 8 SCC 466.
    10. ONGC vs Saw Pipes Limited (2003) 5 SCC 705.
    11. Union of India & Others vs Uttar Pradesh State Bridge Corporation Limited (2015) 2  SCC 52.

    Vital Features Of Domestic & International Arbitration

    • Arbitration Agreement
    • Reference Of  Parties To Arbitration 
    • Injunction & Stay By Court & Arbitrator 
    • Appointment Of Arbitrator Or Composition of Arbitral Tribunal 
    • Challenge To Appointment Of Arbitrator 
    • Seat/ Place Of Arbitration 
    • Arbitration Award 
    • Setting Aside Arbitral Award 
    • Appeals
    • Jurisdiction 
    • Limitation 
    • International Commercial Arbitration
    • New York Convention Award 
    • Geneva Convention Award
    • Conciliation & Conciliators 
    • Settlement Agreement by Conciliators 
    • Arbitral Or Judicial Proceedings During Conciliation Proceedings. 

    Legal Provisions Governing The Arbitration & Conciliation Issues

    Arbitration and Conciliation Act, 1996


    CHAPTER I : General provisions

    • Section-2. Definitions.

    CHAPTER II : Arbitration agreement

    • Section-7. Arbitration agreement.
    • Section-8. Power to refer parties to arbitration where there is an arbitration agreement.  
    • Section-9. Interim measures etc. by Court.

    CHAPTER III: Composition of arbitral tribunal

    • Section-10. Number of arbitrators.
    • Section-11. Appointment of arbitrators.  
    • Section-12. Grounds for challenge.
    • Section-13. Challenge procedure.
    • Section-14. Failure or impossibility to act.
    • Section-15. Termination of mandate and substitution of arbitrator.

    CHAPTER IV: Jurisdiction of Arbitral Tribunals

    • Section-16. Competence of arbitral tribunal to rule on its jurisdiction.
    • Section-17. Interim measures ordered by arbitral tribunal.

    CHAPTER V: Conduct of arbitral proceedings

    • Section-18. Equal treatment of parties.
    • Section-19. Determination of rules of procedure.
    • Section-20. Place of arbitration.
    • Section-21. Commencement of arbitral proceedings.
    • Section-23. Statements of claim and defence.
    • Section-24. Hearings and written proceedings
    • Section-25. Default of a party. 
    • Section-26. Expert appointed by arbitral tribunal.
    • Section-27. Court assistance in taking evidence.

    CHAPTER VI: Making of arbitral award and termination of proceedings

    • Section-28. Rules applicable to substance of dispute.
    • Section-29. Decision making by panel of arbitrators.
    • Section-30. Settlement.
    • Section-32. Termination of proceedings.
    • Section-33. Correction and interpretation of award; additional award.

    CHAPTER VII: Recourse against arbitral award

    • Section-34. Application for setting aside arbitral award.

    CHAPTER VIII: Finality and enforcement of arbitral awards

    • Section-35. Finality of arbitral awards.
    • Section-36. Enforcement.

    CHAPTER IX: Appeals

    CHAPTER X: Miscellaneous

    • Section-40. Arbitration agreement not to be discharged by death of party thereto.
    • Section-41. Provisions in case of insolvency.
    • Section-42. Jurisdiction.
    • Section-43. Limitations.

    CHAPTER I : New York Convention Awards

    • Section-44. Definition.
    • Section-45. Power of judicial authority to refer parties to arbitration.
    • Section-46. When foreign award binding.
    • Section-47. Evidence.
    • Section-48. Conditions for enforcement of foreign awards.
    • Section-49. Enforcement of foreign awards.
    • Section-50. Appealable orders.
    • Section-51. Saving.
    • Section-52. Chapter II not to apply.

    CHAPTER II: Geneva Convention Awards

    • Section-54. Power of judicial authority to refer parties to arbitration.
    • Section-55. Foreign awards when binding.
    • Section-56. Evidence.
    • Section-Section-57. Conditions for enforcement of foreign awards.
    • Section-58. Enforcement of foreign awards.
    • Section-59. Appealable orders.
    • Section-60. Saving.


    • Section-61. Application and scope.
    • Section-62. Commencement of conciliation proceedings.
    • Section-63. Number of conciliators.
    • Section-64. Appointment of conciliators.
    • Section-65. Submission of statements to conciliator.
    • Section-66. Conciliator not bound by certain enactments.
    • Section-67. Role of conciliator.
    • Section-69. Communication between conciliator and parties
    • Section-70. Disclosure of information.  
    • Section-71. Co-operation of parties with conciliator.
    • Section-72. Suggestions by parties for settlement of dispute.
    • Section-73. Settlement agreement.
    • Section-74. Status and effect of settlement agreement.
    • Section-75. Confidentiality.
    • Section-76. Termination of conciliation proceedings  
    • Section-77. Resort to arbitral or judicial proceedings.
    • Section-80. Role of conciliator in other proceedings
    • Section-81. Admissibility of evidence in other proceedings.


    • Section-82. Power of High Court to make rules.
    • Section-83. Removal of difficulties.
    • Section-84. Power to make rules
    • Section-85. Repeal and savings.






    [See section 53]

    Judgments: Arbitration & Conciliation

    Judgments: Arbitration And Conciliation Act, 1996 

    Judgments: Arbitration And Conciliation Act, 1996

    • Bharat Aluminium Co. Versus Kaiser Aluminium Technical Service, Inc., Civil Appeal No.7019 OF 2005, Judgment Dated: 06.09.2012, Bench: S.H.Kapadia, CJI, D.K.Jain, Surinder Singh Nijjar, Ranjana Prakash Desai & Jagdish Singh Khehar, JJ, Supreme Court OF India [Five Judge Constitutional Bench  PDF Judgment] [Residual PDF Judgment of the Constitution Bench Judgment]- Arbitration And Conciliation Act, 1996- Extent & Scope Of The Part-I-International Commercial Arbitration- The Issue which fell for consideration of the Constitutional bench arose out the following arbitration Clause, as contained in an Agreement: “Article 17.1 – Any dispute or claim arising out of or relating to this Agreement shall be in the first instance, endeavour to be settled amicably by negotiation between the parties hereto and failing which the same will be settled by arbitration pursuant to the English Arbitration Law and subsequent amendments thereto. Article 17.2 – The arbitration proceedings shall be carried out by two Arbitrators one appointed by BALCO and one by KATSI chosen freely and without any bias. The court of Arbitration shall be held wholly in London, England and shall use English language in the proceeding. The findings and award of the Court of Arbitration shall be final and binding upon the parties. Article 22 – Governing Law – This agreement will be governed by the prevailing law of India and in case of Arbitration, the English law shall apply.”- Consequently, the arbitration in this case took place in England- Indian courts- District Court, as also the concerned High Court, i.e. the High Court of Judicature at Chattisgarh, Bilaspur declined to entertain the Application seeking setting aside of the award- Held, “198. In view of the above discussion, we are of the considered opinion that the Arbitration Act, 1996 has accepted the territoriality principle which has been adopted in the UNCITRAL Model Law. Section 2(2) makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to International Commercial Arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. In our opinion, the provisions contained in Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.”- Further held, “199....the provision contained in Section 2(2) of the Arbitration Act, 1996 is not in conflict with any of the provisions either in Part I or in Part II of the Arbitration Act, 1996. In a foreign seated international commercial arbitration, no application for interim relief would be maintainable under Section 9 or any other provision, as applicability of Part I of the Arbitration Act, 1996 is limited to all arbitrations which take place in India. Similarly, no suit for interim injunction simplicitor would be maintainable in India, on the basis of an international commercial arbitration with a seat outside India.”- Further held, Part I of the Arbitration Act, 1996 is applicable only to all the arbitrations which take place within the territory of India.- Overruled the three-Judge Bench decisions of this Court in Bhatia International Versus Bulk Trading S.A. and another, (2002) 4 SCC 1052, as also in Venture Global Engineering Vs. Satyam Computer Services Ltd. & Anr., 2008 (4) SCC 190.- Exercising its the power under Article 142 of the Constitution of India, the Constitution Bench however, held that the law declared by it would only operate prospectively. In other words, all agreements executed prior to 06.09.2012 were to be governed by the decision in Bhatia International.- The three Judge Bench held, "the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. Contextually, it may be noted that in the present case, the respondent had invoked the provisions of English law for the purpose of the initiation of the unsettled disputes. It has hence, while interpreting an agreement, to be kept in mind that the parties, intended to avoid impracticable and inconvenient processes and procedures in working out the agreement.  
    • BPTP Ltd. Vs. CPI India Limited- Arb.A. No.8/2015 & OMP No.79 of 2015, Bench-S Murlidhar, J, Delhi High Court, Judgment Dated-03.07.2015- Arbitration and Conciliation Act, 1996- Sections-9, 17 & 37- Scheme, Extent & Scope- Appeal Against Arbitral Award- The scheme of Section 37 of the Act is that an order denying or granting relief under Section-17 of the Act could be challenged by way  of  an  appeal-  While  Section-17  itself  may  not  result  in  an  order enforceable by a Court, once that order is tested and is affirmed in an appeal  under  Section-37  of  the  Act,  the  order  of  the  appellate  Court should  prevail.  Such  interpretation  would  ensure  that  the  exercise  of getting the Arbitral Tribunal (AT) to pass interim orders under Section 17 is not rendered futile. The statutory remedy under Section 17 cannot be allowed to be frustrated  if  the  alternate  dispute  resolution  mechanism  of  arbitration has to be effective and efficacious. Judgments On Appointment Of Arbitrators [S-11].
    • Comed Chemicals Ltd. Versus C.N. Ramchand, Arbitration Petition No. 17/2007, Judgment Dated: 06/11/2008, Bench: C.K. Thakker, J., Supreme Court Of India, Citation: 2009(1) R.A.J. 310: 2009 AIR(SC) 494: 2008(15) SCR 567: 2009(1) SCC 91: 2008(11) JT 547: 2008(13) SCALE 717: 2008(9) SLT 17: 2008(4) ArbLR 207- Arbitration and Conciliation Act, 1996- Sections 11(9), 2(1)(f), (1)(b) & 10- International commercial arbitration- What is; appointment of arbitrator by court, when permissible; existence of arbitration clause, scope- Applicant-company doing business in chemicals in the field of bio-technology- To expand the business it entered into a MOU with respondent for development of products in the field of bio-industries and manufacturing and marketing such products- Respondent appointed as Director (Technical) and allotted 40% equity shares in the subsidiary Company- Over and above that, he was to be paid salary and other benefits in lieu of services rendered by him- MOU providing that respondent will work full time with the company at least for next eight years from the date of signing of agreement- Allegation of company that respondent did not take interest in work and failed to attend Board Meetings and ultimately resigned before completion of work assigned to him in violation of agreement and also instigated other subordinate staff workers to leave the organization- In view of large investment by company, it refused to accept the resignation of respondent- Clause 12 of agreement provides that if there be any dispute pertaining to meaning of this MoU or of any nature, will be solved and decided by appointing an independent Arbitrator acceptable to all the parties and if not solved by him can be referred to court of law and for which the jurisdiction will be Vadodara- Failure of parties to agree on a name of arbitrator- Whether arbitration clause is existing and application for appointment of arbitrator by applicant-company before court is maintainable- Held, on facts, yes- If respondent is engaged by applicant Company to perform functions which are inextricably linked with functions which could be undertaken by a businessman or by a Company and such activities form an integral part of his activities, there is element of `commerce'- In that case, the provisions of Act would clearly apply- In the instant case, it is a case of International commercial arbitration and covered by clause of MOU between parties- Plea that there is no International Commercial Arbitration, unsustainable- Any dispute between the applicant- Company and the respondent would, therefore, be covered by Clause 12 of the Agreement which provides for arbitration- Hence, the contention that respondent was merely an employee and there was no element of business, trade or commerce has no substance and must be rejected- Since there is a dispute between parties, it has to be decided by arbitrator- As relevant clause provide for a sole arbitrator, hence, only one arbitrator to be appointed.- HELD: I find no substance in the preliminary objection raised by the learned counsel for the respondent that there is no arbitration clause in the Agreement. Clause 12 of the agreement which provides for arbitration reads thus;- If there be any dispute pertaining to meaning of this MoU or of any nature, will be solved and decided by appointing an independent Arbitrator acceptable to all the parties and if not solved by him can be referred to court of law and for which the jurisdiction will be Vadodara.- Bare reading of the above clause leaves no room for doubt that it is an `arbitration clause' and expressly declares that any dispute pertaining to MoU would be solved and decided by an arbitrator.- I am also unable to uphold the argument of the learned counsel that there is no International Commercial Arbitration. The learned counsel for the respondent submitted that there is no `commercial' element in the agreement and what was agreed between the parties was to provide `technical know-how' and `expertise' to the applicant-Company for which the respondent was to be paid `fees'.- It has not been disputed by the applicant-Company that if the contract is merely of an employment and the relationship between the parties is of master and servant, the matter cannot be referred to Arbitral Tribunal. But if the respondent is engaged by the applicant Company to perform functions which are inextricably linked with functions which could be undertaken by a businessman or by a Company and such activities form an integral part of his activities, there is element of `commerce'. In that case, the provisions of the Act would clearly apply.- In the instant case, the respondent has been appointed as Director (Technical) and has been allotted 40% equity shares in the subsidiary Company (Comed Bio-Tech Ltd.). Over and above that, he was to be paid salary and other benefits in lieu of services rendered by him. Para 3 of the Agreement required the respondent to undertake certain responsibilities.- Thus, from settled legal position as also from the functions to be performed by the respondent, I hold that the respondent was working in dual or double capacity, i.e. (i) as an employee, and (ii) as a Director. In the later capacity, however, he was the Chief Executive Officer of the subsidiary Company and had to look after all operational matters. The functions to be performed by him were supervisory and related to policy making decisions in the affairs of the Company, as observed by this Court in Ram Pershad. Any dispute between the applicant-Company and the respondent would, therefore, be covered by Clause 12 of the Agreement which provides for arbitration. Hence, the contention of the learned counsel for the respondent that the respondent was merely an employee and there was no element of business, trade or commerce has no substance and must be rejected.- For the foregoing reasons, in my opinion, the application filed by the Company must be allowed by holding that the case is covered by clause (f) of sub-section (1) of Section 2 of the Act. It is a case of International Commercial Arbitration and is covered by Clause 12 of MoU. Since there is a dispute between the parties, it has to be decided by an arbitrator. The clause extracted hereinabove provides for an arbitrator i.e. sole arbitrator and hence only one arbitrator should be appointed. I, therefore, appoint Mr. Madhukar Fanse, retired Judge, City Civil Court, Ahmedabad as the sole arbitrator to decide the dispute between the parties.

    Judgments- Subject-Wise

    • The Arbitration and Conciliation (Amendment) Bill, 2018- S-11(6-A)-  S-11(3 (i)- Splendid Judicial interpretation- for international commercial arbitrations, appointments of arbitrators were to be made by an institution designated by the Supreme Court and for domestic arbitrations, by an institution designated by the concerned High Court- TRF Limited Vs. Energo Engineering Projects Limited [(2017) 8 SCC 377, 401 paragraph 42,43]- Duro Felguera S.A. v. Gangavaram Port Ltd. [(2017) 9 SCC 729]- Oriental Insurance Company Ltd. v. Nardheram Power and Steel Private Limited [(2018) 6 SCC 534, 547]- United Insurance Company Ltd. v. Hyundai Engineering and Construction Company Ltd. and others [ 2018 SCC OnLine SC 1045]- NCC Ltd. v. Indian Oil Corporation Ltd. (DelHC-ARB.P 115/2018)- Vidya Drolia and others v. Durga Trading Corporation (DelHC- Civil Appeal No. 2402 of 2019)- Himangi Enterprises v. Kamaljeet Singh Ahluwalia [ (2017) 10 SCC 706]- Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. (BomHC- Civil Appeal No. 3631 of 2019 paragraph 25)- Coastal Marine Constructions & Engineering Ltd. v. Garware Wall Ropes Ltd. (BomHC- MANU/MH/0416/2018)- Union of India v. Hansoli Devi and others [ (2002) 7 SCC 273, 281 paragraph 9]-

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