Commercial Arbitration is a private method of dispute resolution. In Commercial arbitration parties comply with refer that dispute to an impartial tribunal consisting of 1 or more arbitrator, both the parties to the dispute represented by lawyers present their arguments ahead of the tribunal, after taking note of the arguments of both the parties the tribunal delivers a gift , a gift is analogous to the judgment and it can be enforced anywhere in the world.
Long before laws were established, or courts were organized, or judges formulated principles of law, men had resorted to arbitration for the resolving of discord, the adjustment of differences, and the settlement of disputes. If the course of arbitration is traced through the centuries, it’ll be found within the most primitive society, also as in modern civilization. Commercial arbitration was known to the desert caravans in Marcopolo’s time and was common practice among Phoenician and Greek traders. A border at issue between the Genoese and viturians was settled by arbitration (117 B.C.), this decision having been recorded upon a bronze tablet unearthed near Genoa. There also are instances during which a 3rd strong power compelled other powers to resort to arbitration.
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Problems
Commercial Arbitration is a private method of dispute resolution. In Commercial arbitration parties comply with refer that dispute to an impartial tribunal consisting of 1 or more arbitrator, both the parties to the dispute represented by lawyers present their arguments ahead of the tribunal, after taking note of the arguments of both the parties the tribunal delivers a gift , a gift is analogous to the judgment and it can be enforced anywhere in the world.
Long before laws were established, or courts were organized, or judges formulated principles of law, men had resorted to arbitration for the resolving of discord, the adjustment of differences, and the settlement of disputes. If the course of arbitration is traced through the centuries, it’ll be found within the most primitive society, also as in modern civilization. Commercial arbitration was known to the desert caravans in Marcopolo’s time and was common practice among Phoenician and Greek traders. A border at issue between the Genoese and viturians was settled by arbitration (117 B.C.), this decision having been recorded upon a bronze tablet unearthed near Genoa. There also are instances during which a 3rd strong power compelled other powers to resort to arbitration.
Advantages
The advantages of arbitration are, that the parties in a dispute can mutually agrees on selection of a person as their arbitrator. An arbitration procedure can be designed to time saving. The parties can plan the arbitration procedure to be economical also . Arbitration can be done privately without disclosing the sensitive business information to the public and government.
In India
commercial arbitration in India generally has been affected and can still be affected prejudicially by lack of clarity and consistency on the legal principles and standards on which awards is given, in such, arbitration are liable to be imputed. We all know that the 1996 Act was to minimize the judicial intervention in a large area but the experience of the SAGA for past 20 years has shown the decline to simply hand over the supervisory jurisdiction.
The 246 law commission which led to the 2015 Act, stated in quite clear and accurate words, it says, ‘ there are major deleterious defect leading to the further erosion of religion in arbitration presiding among individual and businesses in India, a discount in popularity of India as a destination for international domestic arbitration increased invest a priority among domestic and foreign investors about the efficacy and speed of dispute resolution and an incidental increase in judicial back laws.’
Why we are in this mess today and how it did happened. Begin with Renusagar judgment 1994, which was under the foreign award act 1961, and under section 7(1)(b), they first introduced the concept of fundamental policy of Indian law has been a component of public policy, while doing so, the court was cautious to say, there should be narrowly consider and there is not equivalent to the violation of statute law, there should be something more than contravention of law, while doing that in 1994 the court held a fair up, embodies of fundamental policy of Indian law.
To add fuel to the hearth , in 2003 came the saw pipe judgment which for an extended time confirmed everybody because it brought in concept very on the brink of administrative law concepts, patent illegality, violation of substantive law as a part of the arbitrate review jurisdiction.
Conclusion
So, I say it with regret, that there has got to be a far greater sense of discipline in courts in ensuring that with the intent of doing justice in individual cases. You do not lay down doctrine of intervention which virtually makes it impossible to have an effective arbitral process in India. It’s time to have very close hard look at matters, it’s not going to work if we carry on as we have been doing.
writer: Pratyaksha
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