UNICTRAL AND ARBITRATION AND CONCILIATION ACT, 1996 SIMILARITIES AND DIFFERENCES

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DISSERTATION FOR P.G. DIPLOMA


UNICTRAL AND ARBITRATION AND CONCILIATION ACT, 1996
SIMILARITIES AND DIFFERENCES
February 16, 2016SHWETA IYENGARUNIVERSITY OF MUMBAIFebruary 16, 2016SHWETA IYENGARUNIVERSITY OF MUMBAI
February 16, 2016
SHWETA IYENGAR
UNIVERSITY OF MUMBAI
February 16, 2016
SHWETA IYENGAR
UNIVERSITY OF MUMBAI


UNICTRAL AND ARBITRATION AND CONCILIATION ACT, 1996
A study of the similarities and differences between UNICTRAL Model law and Arbitration and Conciliation Act, 1996






Submitted to: University of Mumbai
Submitted by: Shweta. M. Iyengar
Student, Post Graduate Diploma in Alternative Dispute Resolution, University of Mumbai.


INDEX
SR.NO
PARTICULARS
Pg. no
1
Introduction

2
Aims and Objectives

3
Significance of Research

4
Research Methodology

5
Types of Sources

6
Type of Research

7
Hypothesis/ Research Question

8
Scheme of Chapterisation

9
Bibliography








INTRODUCTION
The Arbitration Act of 1940 contained general laws on Arbitration, and it became outdated due to changes in trade and commerce, WTO regime etc. Hence, need was felt to enact a law which can meet the necessities of Modern time. That necessity gave birth to Arbitration and Conciliation Act, 1996.
The Arbitration Act of 1940 does not provide for Conciliation as a method of Alternate Dispute Resolution mechanisms. The present Act of 1996 provides for conciliation proceedings as an Alternate Dispute Resolution mechanisms which will enable the disputant parties to arrive at a compromise settlement without loss of time with cost benefit.
Arbitration Act of 1940 was shaped as a limited adjunct of the British Economic system, consonance with its imperial decisions curtailing the expansion of India's external commerce and freedom to Courts to exercise substantial supervision over the course of the Arbitral process and with partly vide powers of judicial interference with Arbitration Award.
The Arbitration and Conciliation Act, 1996 provides an immense lee-way for the Arbitral Award. The Arbitral Awards are decrees of Court and cannot be challenged on merits. Challenge to the Award can be initiated due to procedural irregularities or reasons of bias.
The Act 1996 for Arbitration provides for unified legal framework based on the modified version of UNCITRAL MODEL (Arbitration) LAW besides some additional provisions for resolution of all arbitral disputes in India. This Act of 1996 is applicable to either domestic Arbitration or International Arbitration. In UNCITRAL LAW it is termed as international Arbitration and non-international Arbitration.
In short the Arbitration and Conciliation Act, 1996 embodies the mature vision of a modern Nation. It has been prepared based on conceptual thinking and of much debate and consultation, and with transparency as a statutory feature of Arbitral process.










AIMS AND OBJECTIVES
With the spread of ADR programs in the developed and developing world, creative uses for and designs for ADR systems are proliferating. Successful programs are improving the lives of individuals and meeting broad societal goals. There is a critical mass of ADR experience, revealing important lessons as to whether, when and how to implement ADR projects. It is against this backdrop, that this research paper intends to discuss the various ADR mechanisms, the provisions present in India and the World over, and its peculiarity, implementation and problems in the Indian context. The various remedies to the situation have also been discussed.
This report intends to review the functioning of the Arbitration and Conciliation Act, 1996, in view of the various shortcomings observed in its provisions and certain representations. The Report considers the representations which pointed out that the UNCITRAL Model (on the basis of which the Arbitration and Conciliation Act, 1996 was enacted) was mainly intended to enable various countries to have a common model for 'International Commercial Arbitration' but the Act of 1996 had made provisions of such a Model law applicable also to cases of purely domestic arbitration between Indian nationals. This did give rise to some difficulties in the implementation of the Act. Meanwhile there were also conflicting judgments of the High Courts in regard to certain provision of the 1996 Act.
The purpose of this comment is to provide a general picture of international commercial arbitration and the rules it abides by, to offer a context of the forces underlying India's adoption of the 1996 Act, to compare the Model UNICTRAL and the Arbitration and Conciliation Act, 1996 and to explore the contemporary problems under the 1996 Act, while providing suggestions where possible for resolving those problems.












SIGNIFICANCE OF THE STUDY
Object of present study is whether arbitration law in India is satisfactory in its working after getting influenced from the various 11 protocols conventions, treaties, regulations, rules and Acts etc. in the form present enactment, the Arbitration and Conciliation Act, 1996 Act. The working of the Arbitration and Conciliation Act,1996 is the result of UNCITRAL Model Law which provides provisions to fulfill the need of the present world scenario is perfect in its self or it need to be amended so it can cater the demands of International Trade disputes Resolutions smoothly.









RESEARCH METHODOLOGY
The various library and Internet facilities available at Mumbai University of Law have been utilized for this purpose. Most of the information is, however, from the Internet


TYPES OF SOURCES
Secondary sources and literature review has been used for the preparation of this report.




TYPE OF RESEARCH
The research methodology adopted for the purpose of this project is the doctrinal method of research.

RESEARCH QUESTION
What are the impact of UNCITRAL Model Law on the Arbitration and Conciliation Act 1996?
What is the overall Impact of globalization on Arbitration and Conciliation Act 1996?












SCHEME OF CHAPTERISATION
The frame work of this research work is to study the working of Arbitration and Conciliation Act 1996, and the MODEL UNICTRAL LAW, the similarities and differences between them. The scheme of research has been divided into following chapters.
Introduction- What is Arbitration, Types of arbitration and application of arbitration according to Arbitration and Conciliation Act, 1996. What is Model UNICTRAL Law and the basis of the formation of the Arbitration and Conciliation Act, 1996.
Commercial Arbitration and UNCITRAL Model Law-this chapter deals with commercial arbitration, need of it and about the various aspects of UNICITRAL Modal Law and how the Indian Law is influenced by it.
Mechanism of commercial arbitration - this chapter deals with the mechanism of commercial arbitration it also deals with various requisition for resolving the disputes through arbitration and about arbitration, arbitration tribunal, arbitration agreement, arbitral award its enforcement its recourses against the arbitral award.
Impact of Globalization on arbitration law in India – this chapter deals with the impact of globalization on the arbitration law in India and what is the need to get influenced from the various law of the world.
Similarities between UNICTRAL and Arbitration and Conciliation Act, 1996- Arbitration and Conciliation Act, 1996 has unified the legal regime surrounding arbitration for both domestic and international arbitration conducted in India. It has improved arbitral efficiency by reducing the need for judicial intervention, enforcing awards as judicial decrees, and granting greater autonomy to arbitral tribunal decisions. The result has been a fairer, efficient, and predictable procedure that is better equipped to handle India's unprecedented rise in international commercial transactions.
Differences between UNICTRAL and Arbitration and Conciliation Act, 1996- Tensions continue in areas that depart from Model Law such as the court's role in granting of interim measures, enforcement and challenge of foreign arbitral awards, arbitrability of disputes, and challenge of biased arbitrators are areas that either depart from or remain in significant tension with the Model Law. This has raised concerns that India's transformation into a dependable forum for international commercial arbitration may still fall short of international standards.
Conclusion- The Act is based on the Model Law (a set of 36 Articles) which was drafted to govern all international arbitrations by a working group of the UN and was finally adopted by the U.N. Commission on International Trade Law (UNCITRAL) on June 21, 1985. The Resolution of the UN General Assembly envisages that all countries should give due consideration to the Model Law, in view of the desirability of uniformity of the law on arbitral procedures and the specific needs of international commercial practice. It is also stated in the Preamble of Act of 1996: "it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law …".













BIBLIOGRAPHY
The researcher has gone through several books, articles, regulation, legislature, Acts and generals etc by using law library of faculty of law, University of Mumbai. The researcher has gone through, "Law of Arbitration in India" by Durga Charan Banerjee from which the researcher has studied regarding the growth of arbitration law in India. The researcher has gone through "The Law of International Commercial Arbitration" by A.K Bansal form which the concept of international commercial arbitration is consulted. Further the researcher has gone through "Arbitration Act" by Rameshwar Dayal frm which the various aspects of Arbitration are consulted. The researcher has further gone through " The Arbitration and Conciliation Act, 1996 and Alternate Dispute Resolution System" by Dr. Tripathi.from which arbitration as alternative dispute resolution system is consulted. The researcher has further consulted "Evidence and Procedure in Arbitration" by H. Gill William to consult what evidence and procedure is adopted in arbitration. P. Gilies and G. Moens book " International Trade Law and Business Law, Policy and Ethics" has been consulted for use of arbitration law to resolve the dispute concerning international trade law and business requirement of arbitration law to deal with disputes. "History and English Law" by Holdsworth is consulted to look the historical background of law. G.K Kwatra's "The new arbitration and conciliation law in India" has been consulted to look the various aspects of arbitration law and implementation of arbitration law in India. "International Commercial Arbitration" by H. Martin and A. Redfern has been consulted for implementation of international commercial arbitration in India. "Law of Arbitration ADR and Contract D.P Mittal has been consulted to see the use of arbitration in India. 16 "Concise Law dictionary" has been used to see the meaning of various legal terms. "International Economics and Trade Law" by Schimithoff and simond has been consulted to see the impact of globalization to enact the new law for dispute resolution . "Law of Arbitration" by S.D Singh is consulted for law of arbitration and various dimensions. "Arbitration Act" by J.P Singhal is consulted for looking into various aspects of arbitration law. "Law of Arbitration and Conciliation Act" by K.K Veenugopal, B.K Singh Bachawat, Mohinder Singh has been consulted to see the various dimensions of arbitration law. "Commentary on Arbitration and Conciliation Act by P. Chandershekhar Rao has been consulted regarding the working of arbitration law in India.





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