bus law -arbitration.ppt

8/13/2019 Bus law -Arbitration.ppt

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By : Tejpal Sheth

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THE ARBITRATION ANDCONCILIATION ACT, 1996&Environment Protection Act


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Objectives of Amendment

Minimise the supervisory role of the Courts

Arbitral Tribunal to give reasons for Award

Permit Arb. Tribunal to use Mediation,

Conciliation, other proceduresArbitral Award enforced as if it were a decreeof the court

Conciliation proceedings --same status and

effect as an Arbitral AwardForeign Awards


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Benefits for the Parties

Choose the arbitrator(s);

Choose the issues to be arbitrated;

Choose the place of arbitration;

Choose the substantive law that will control the

merits of the dispute;Choose the procedural rules;

Choose the schedule;

Choose exhibits, witnesses and other evidence to be

adduced including arranging for tests and site visits;Choose the form of relief to be awarded;

Choose the form of the award; and

Agree to facilitate enforcement of the award.


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ADVANTAGES OF ARBITRATION

Technical matter : appropriate specialqualifications of the Arbitrator.

Speedier than a court case

saving in the costsunwanted publicity can be avoided

Convenience of the parties as to time and

placeArb. Can view subject at any reasonable time


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Conduct of arbitrations bypermanent institutions

the International Chamber of Commerce's International Court ofArbitration,

World Intellectual Property Organization (WIPO) ArbitrationCenter,

American Arbitration Association (AAA),

China International Economic and Trade ArbitrationCommission,

Indian Council for Arbitration, or the

International Center for Settlement of Investment Disputes(ICSD),

International Chamber of Commerce (ICC),located in Paris.The American Arbitration Association (AAA)

London Court of International Arbitration

Arbitration Institute of the Stockholm Chamber of Commerce;


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TERMS OF AN ARBITRATIONAGREEMENT

Insert lawful terms as parties wish

terms must be stated with certainty

powers of Arbitrator to be clearly stated

questions to be determined by Arb .

Any matters for exclusion of reference

Any technical or legal bar to the parties

should be insertedComposition of Arbitral Tribunal


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Disputes inappropriate for resolution byarbitration

Matrimonial matters, like divorce or restitution of conjugalrights;matters relating to guardianship of a minor or other personunder disability;testamentary matters, for example, questions about the

validity of a will;insolvency matters, such as adjudication of a person as aninsolvent;criminal proceedings;questions relating to charities or charitable trusts;

matters falling within the purview of the Monopolies andRestrictive Trade Practices Act; dissolution or winding up of acompany.matters involving morality, status and public policy cannot bereferred to arbitration.


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THE ARBITRATION AND CONCILIATION(AMENDMENT) BILL, 2003

to enable the judicial authority to decidejurisdictional issues,

to empower the Courts to make reference toarbitration in case all the parties to a legal

proceeding enter into an arbitration agreementto resolve their disputes during the pendencyof such proceeding before it;to provide for the appointment of arbitrators

by the Chief Justice of the Supreme Court orthe High Court to prevent writ petitions beingfiled on the basis that it is an administrativeorder of the Chief Justice.


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THE ARBITRATION AND CONCILIATION(AMENDMENT) BILL, 2003-2

where the place of arbitration under Part I of isin India, between Indian parties or aninternational arbitration Indian law will apply.

completion of arbitrations within one year; atthe end of one year the Court will fix up a timeschedule for completion of the proceedings untilthe award is passed.

empower the arbitral tribunal to passperemptory orders for implementation ofinterlocutory orders and in case they are notimplemented, to enable the Court to order costsor pass other orders in default.


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Appointment of an Arbitrator

person of any nationality

parties to agree on a procedure for appointmentof Arb.

Failing agreement as in above -- the two Arbshall appoint a third Arb who shall act as thepresiding Arb---Umpire.

30 days

failing which CJ or any person or institutiondesignated by him


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Procedure by Arbitrator

Delivery of points of claim and defence--similar to pleadings

particulars of claim and counterclaimdiscovery and inspection of documents

inspection of property and things by (1)

arbitrator (2) parties

fixing the time and place of hearing


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Procedure

Claimant (or advocate) opens his case ---alsodefence to counterclaim

Claimant calls and examines his witness--who

may be cross -examined by the respondentClaimant may re-examine him

Respondent opens his case

Respondent calls and examines his witness-may be cross examined by the claimant


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1.incapacity of the parties.

2.not valid under law.

3.no proper notice.4. beyond the scope of the matterdecided to be referred to Arb.

5. Composition of the Arb. Tribunaldefective.

When court can set asidearbitration award


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Content of Arb. Awardshall be made in writingsigned by the Arb. Tribunalshall state the reasonsstate date and place

signed copy delivered to each partypayment of money: include in the sum for whichaward is madeprovision of 18% interest from the date of award tothe date of payment unless the award otherwisedirects.

Award does not transfer a property : parties aredirected to execute conveyance or other wise makea transfer of the property in dispute


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Environmental controllegislation

United nation environmental Programee(UNIP)

Ministry of environment & forestshttp://envfor.nic.in

Water pollution Act

Air Pollution Act

Environment (Protection) Act

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http://envfor.nic.in/http://envfor.nic.in/


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Environmental controllegislation

Factories Act Emission of air pollutants, improper handling

of hazardous wastes

Motor vehicles Act Excessive emission of stock/Noise beyond limit

Indian Port Act Throwing rubbish in water

IPC Public nuisance, mischief etc.

Indian Fisheries Act Putting noxious material in water

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Responsibilities of personsunder the Environment Act

Not to exceed standards of pollution Industry or operation shall not discharge or

emit any pollution in excess of limit

Safeguards in handling hazardoussubstances As per prescribed procedure & follow

safeguards of Central Government

Furnishing information of accident Person in charge must take immediate action

to mitigate and inform the authorities.

Expenses can be recovered from person

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Environmental clearance

Government has identified 29 highly polluting industriesEnvironment impact assessment of development projectscompulsoryVarious areas declared as green belt or no industry zone.

Public hearing made mandatory for projects which requirescentral government clearance Application made to State pollution board Summary of project will be available for public inspection Clearance granted will be valid for 5 yrs.

Green, orange & Red industries Green means non-polluting industries Orange means industry permitted with pollution control measure Red means industry not permitted. They have to be closed or

shifted.

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bus law -arbitration.ppt

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