Arbitration Procedure in Kolkata
Advocate Shaw represents clients at every stage of arbitration:
Pre-Arbitration Stage:
- Invocation of Arbitration: Sending a notice invoking the arbitration clause, identifying the disputes, and proposing arbitrator(s).
- Appointment of Arbitrator: If the parties cannot agree on an arbitrator, an application under Section 11 can be filed before the Calcutta High Court for appointment.
Interim Measures (Section 9 & Section 17):
- Before or during arbitration, a party can seek interim measures — attachment of property, preservation of evidence, injunction — from the court under Section 9 or from the tribunal under Section 17.
Conduct of Arbitration:
- Pleadings: Statement of claim, statement of defence, and (if permitted) counterclaims.
- Discovery and Inspection: Exchange of documents.
- Evidence: Oral hearings, examination and cross-examination of witnesses, expert evidence.
- Arguments: Oral and written submissions.
- Award: The tribunal delivers its award — a reasoned decision on all issues.
Post-Award Stage:
- Correction/Interpretation (Section 33): Rectifying typographical or computational errors.
- Challenge (Section 34): Setting aside the award on limited grounds within 3 months (extendable by 30 days).
- Enforcement (Section 36): The award is enforced as if it were a court decree.
Setting Aside an Arbitral Award (Section 34)
An arbitral award can be challenged under Section 34 of the Act on the following grounds:
Incapacity of a Party: A party was under some incapacity.
Invalid Arbitration Agreement: The arbitration agreement is not valid under the law.
Lack of Proper Notice: The party challenging the award was not given proper notice of the appointment of the arbitrator or of the proceedings.
Beyond Scope: The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.
Improper Composition: The composition of the tribunal or the procedure was not in accordance with the agreement.
Not Arbitrable: The subject matter of the dispute is not capable of settlement by arbitration.
Public Policy: The award is in conflict with the public policy of India — meaning it is vitiated by fraud or corruption, it contravenes fundamental policy of Indian law, or it conflicts with basic notions of morality or justice. The 2015 amendment clarified that 'patent illegality' is also a ground (for domestic awards), but an award cannot be set aside merely on the ground of an erroneous application of law or on reappreciation of evidence.
Advocate Shaw has argued numerous Section 34 petitions before the Calcutta High Court, both to challenge and to defend awards.
Interim Measures — Section 9 Applications
Section 9 of the Act empowers the court to grant interim measures before, during, or after the arbitral proceedings (but before enforcement). Advocate Shaw frequently files Section 9 applications for:
Preservation, Interim Custody, or Sale of Goods: In disputes involving goods (construction materials, machinery, commodities).
Securing the Amount in Dispute: Attachment of bank accounts or other assets to secure the potential award.
Injunction: Restraining a party from doing an act (e.g., invoking a bank guarantee, alienating property, terminating a contract).
Appointment of Receiver: For managing property or business pending the arbitration.
Preservation of Evidence: Sealing or securing documents or other evidence.
After the constitution of the tribunal, these interim measures can also be sought from the tribunal under Section 17.
Institutional vs. Ad Hoc Arbitration
Advocate Shaw is experienced in both:
Institutional Arbitration: The parties agree to arbitration under the rules of an institution (e.g., ICA — Indian Council of Arbitration, MCIA — Mumbai Centre for International Arbitration, SIAC — Singapore International Arbitration Centre, ICC — International Chamber of Commerce). The institution administers the arbitration, including appointment of arbitrators, fee determination, and procedural management. Institutional arbitration is more structured but more expensive.
Ad Hoc Arbitration: The parties manage the arbitration themselves, agreeing on the procedure, the arbitrators, and the fees. Ad hoc arbitration is more flexible and less expensive but requires greater cooperation.
Advocate Shaw advises clients on the best model based on the nature of the dispute, the amount involved, the relationship between the parties, and the terms of the arbitration clause.