 Good evening everyone and on a Saturday evening to learn the nuances of the procedures of the arbitration act. We had requested Madame Justice Roshan Dalvi, a former judge of the Rajas, of the Bombay High Court, and we all know that the way she gives the insights, along with her PPT has created its own hallmark. We also realized that in a lot of cases, we all discussed that the arbitration is a new alternative dispute judicial system. But as to whether there are certain procedures or rules to follow or simplicity because they say there are no fixed mechanism. But as to how the arbitration proceedings can be invoked, despite once the clause is provided, what is the way forward in that regarding as to how the evidence would be there, whether you are allowed to do cross examination, what is the timeline for that, after the arbitration, what comes into being as to what is the manner of filing the objections, cross objections, and whether there will be confidentiality and as to how the reports are being maintained, and what is the way of resolutions in the main arbitration. As I stated at the first brush, we had requested Justice Roshan Dalvi was a well known arbitrator, and she had been kind enough to accept our request in this regard. And we all know that she had also done with the case management, as to whether these case management, etc. Also, is there any way forward in this arbitration proceedings would also be the issues to be discussed in the present webinar. Taking much time, I would request ma'am Roshan Dalvi. It's always a pleasure connecting with her on the screen and off the screen to share thoughts about our process of the beyond law CLC how to go about, and she has been kind enough to, I can say patronize a platform to how we should proceed forward and share our knowledge. And thank you ma'am for accepting I invite and what do you mean because I'm bringing in friends arbitration itself denotes and I was just talking to because that there is no procedure as such. The title of my presentation today is arbitration procedures, which is a kind of a misnomer, because any procedure is good procedure so far as it is fair, equitable and just. That is mainly arbitration and arbitration is by a chosen judge of the parties. You can choose your grandfather. If you are in a family relationship, you can choose the main manager of your business. If they are family businesses, you don't have to choose a lawyer or a judge. There are domain arbitrators, however, and they are the experts. For example, if you have an RCC consultant for a for a building matter, or you have an architect, then they would be domain arbitrators. The pipeline cases, for example, where they require engineers relating to that as domain arbitrators. Aside from that, the biggest domain is the domain of law. And therefore lawyers and judges are always domain arbitrators, provided of course I say that they are trial lawyers and trial judges, because arbitration is essentially a trial. A trial without any rigidity. A very flexible trial where you can get the truth of the parties where today you can mix it with other kinds of adjudications like mediation and conciliation, which is under the act itself. And you can give an award and finish up the dispute between the parties, whether it is by conciliation or by arbitration, whether it is under an award or under a settlement, it has the same effect. So, you should not be carried over and be overwrought by what is arbitration procedure or anything like that. In one line it can be said, any flexible procedure. Nevertheless, arbitration has been with us since centuries. We had it in our panchayati raj. We had it there after under the arbitration act of 1940. When I do my presentation will go through this entire history. And this arbitration today has shown that the lobbying power of the government, the financial institutions, the various persons required for domestic as well as international arbitration is a lot. I have not seen any legislation which has got so many amendments back to back. Right from 1996 when the 1940 act was drastically amended and we got a new act. There has been amendments in 2015 overruling all that was in 1996 almost and making a new phase of arbitration. As if to say that was not enough. We had another set of amendments in 2019. Now this would make it a little awesome that oh, there is something great about it. But the spirit of arbitration has been flexibility. As you see it was with Thomas Alva Edison. He used to work and he had 10,000 investments to his name. He had 10,000 patents in his name. The largest, the highest in the world. He hired a scientist and this little boy, a new young man who was hired. He said, but sir, what are the rules in your organization? And Edison tells him, we got no rules here. Here we want to achieve something. That is the spirit of arbitration. That is the spirit of arbitration in many countries where it has succeeded far, far greater than it has succeeded in India. And where it has kind of taken hold because it is an alternative dispute. Now arbitration here we call it ADR, alternative dispute resolution. But I would say it is appropriate dispute resolution or it is additional dispute resolution also just like mediation of reconciliation. There are certain matters, especially the commercial matters or the family property matters, which are amenable to arbitration. It is quite another thing that it may not go to arbitration because some of the parties find the costs very prohibitive. And therefore the legislature has made amends and has made a kind of a regime forecast from 1996 onwards, which has thereafter been amended through our rules of the High Court also. Now what I propose to do therefore is not to take you through sections one to 100 of the arbitration act, because that will be very boring, especially for a legislation, the spirit of which is to go forward. I will take you through the history. I will tell you how arbitration has shaped, how it has been amended from time to time, just like for example, section 138 of the Negotiable Instruments Act, but there have been so many amendments under section 142, 143. You know that entire doctrine of negotiable instruments and dishonor of checks as soon as it gathered momentum after it was criminalized, the dishonor. Similarly, arbitration has gathered momentum because we have to show how arbitration proceeds in our country. And to do that, we have to follow the spirit of the act. I would say if you don't, any arbitrator or any person who appears before the arbitrator, it is anti-national. The way arbitrations were proceeding and the way the amendments have come, the punitive action which has to be taken against arbitrators also, not only the parties who are defaulting, shows that if not a shame, it was a national embarrassment or an international embarrassment. Arbitrations going on from year to year is quite unthinkable in many countries, democracies that they are like our democracy. And therefore the legislature has said that if we have to cope up with the economic development of the country and show the extent of globalization that India is capable of shouldering, arbitration must take a good photo. Now, having said that, I would like to share my presentation with you if you give me a minute. Okay. So this is the new horizon that we have under the arbitration act. And the history of domestic arbitration starts with 1940, if not the Pantayati Raj as I told you, then there was arbitration and conciliation at 1996, which you all know. In 1999, the amendment to sections 89 of the CPC made it an ADR. And this is the ADR, which is only by consent of the parties in writing. The other ADRs without even the consent of the parties as held in the response case, we can refer the adjudication to the mediation or conciliation. But arbitration is by agreement in writing. Under section 10 rule 1A of the CPC, we have to refer the disputes and essentially that is for mediation, but we refer them so soon as the issues are framed. Arbitrations we refer under section 8 of the act as soon as an arbitration agreement is shown. Now that said, we are now actually going to deal with 2015 and 2019 amendments where under the arbitration and conciliation act that act of 1996 remains and the amendments are separately to them. So the procedure under the act of 1996, the essential procedure that we must know is that there is an arbitration agreement under section 7. There is an arbitration agreement under section 7, which is in writing. It is made by the parties if they want to refer the dispute to arbitration. Without going to court, they can come to the arbitrator. If one party goes to court despite the arbitration agreement, then the court can upon the arbitration. Under section 16 is the jurisdiction. And I will tell you that this jurisdiction of the arbitrator to decide his or her own jurisdiction is only in the Indian arbitration act. It is nowhere else in the world in this fashion. So therefore a lot has to be said for appointment of arbitrators under section 11, initially by the court, the High Court and the Supreme Court, and also thereafter by the arbitral institution, which we will come to a little later because that is in the later amendment. Now under this jurisdiction, the arbitrator has to see one that there is an agreement between the parties to what is the purview of that agreement. Quite often it happens that there are many sister concerns and there are arbitration agreements separately between in all those sister concerns which are partnership firms or companies. Now if one is referred to arbitration, the arbitrator would not be able to decide any dispute which relates to the other sister concern, unless the parties again agree in writing and allow the arbitrator to proceed, in which case only she or he would have that choice. Then there is an issue of whether there has been a settlement between the parties. In many of the commercial contracts, especially the construction contracts, there are parties who cannot proceed with the construction. And since they cannot proceed, they say okay, let us pay off this much that is there, you are not able to handle it because you don't have the infrastructure, you give an NOC and we call it a day. Thereafter, experience has shown that they come again for arbitration and make a huge claim, including the claim for damages for not allowing them to proceed. Now this initially the High Court was deciding and the High Court would decide and the section 6A of section 11, subsection 6A of section 11, whether the arbitration will still remain or not. That section is now omitted under the 2019 act and therefore only the arbitrator himself can decide. Now when that happens, we will see what happens to section 11 and what is the scope of the High Court and the arbitral tribunal to appoint an arbitrator under section 11, which I will do a little later when we do the other, the 2015 and 19 amendments. Now we go to section 17, the interim relief. Now I would say that this is a very simple and an easy position. When parties come up before any adjudicating authority, be it the court, be it arbitration, whatever way, you have to hold your horses naturally because you can't do anything after you have wanted an arbitration or after another party has wanted an arbitration and you agree and the arbitrator is appointed and you are in the midst of that kind of arbitration, reference having been entered and arbitration having commenced. So what happens is that quite often the parties make an application for interim relief under section 9 to the court, then they come up before the arbitrator, then they file the claim, then they file the defense and a lot of time is taken up. Years go up, 2, 3. Now this is not right. And therefore the court sometimes say that okay, not section 9, you go to the arbitrator himself. So you start with the claim immediately and you apply for interim relief. This is the only legislation by surprisingly, despite so many amendments, the claim is not filed even when an interim application for interim relief is made under section 17 quite often. So they rely upon the section 9 application, argue of the interim relief application and then take time to file the claim. Now I don't see when everything has been streamlined under the act and it has really been, I would say it is the best case management statute. But this is a corner which has been left out. You have to always get the main petition, say the repetition or the plaint or whatever to apply for interim relief. Once that is done, hold your horses is the actual term for interim relief to be granted. But of course it has to be nuanced in various ways. There are sometimes state builders agreements where you have to allow the construction to go on because under RERA, the Real Estate Act construction can never be stopped. If construction is stopped, what happens to the flat purchases, for example. So the interim relief has to be so molded that both parties get relief. One party who is in construction, he may be a partner in a partnership firm which is carrying on business or he may be a builder against the flat purchases or the stock purchases. He would continue the construction for the good of all and yet some security, some kind of safety of the flat or the shop or whatever can be given to the purchaser or to the other partner if there is a dispute in the partnership firm of building contractors. Now this takes some time. It requires some kind of thinking about what is just fair and equitable. And a judge who has been practicing or a lawyer who has been practicing is very adept at understanding what is an interim relief. Quickly that must be given. Now let's move on to section 19. The smallest section but the backbone of the Act and that is actually the minstrel of this entire presentation because that relates to procedure. And what it says is that the parties can decide upon the procedure, feeling which the arbitrator can decide upon the procedure. You go on as you wish, but ultimately the award will be challenged if it does not meet with the requirements. Now therefore it is specifically laid down that the cumbersome procedure under the CPC and also the evidence act will not be followed. Now this is where the catch lies. Very simple. Any procedure, this legislations regarding the procedure will not be applicable. But then what is applicable? The fundamentals of this both legislations are always applicable. Because you cannot say that okay I will not file the claim but you decide because I have filed the earlier petition. I am not going to file it. It can be that way. We have to understand what is the ambit of the claim. What is the ambit of the defense and therefore to that extent and of course as per the arbitration act the procedure would have to be loosely, flexibly but followed. Similarly the evidence. The nuances of the evidence act are not applicable but that does not mean that any document fabricated or any document just made out can be produced for the arbitrator as a good document and can be taken on record. Yet how you can take various documents on record in the shortest possible time with greatest of flexibility is what is the art under this science. So therefore let us say for example I would say only admitted documents within the parties can be immediately marked. How does one do that? And this is the best way of doing that. The parties come with their pleadings. The pleadings are the statement of claim and the statement of defense. I will call it claim and defense. It is for the arbitrator to read the papers thoroughly. Once having done that and made notes the arbitrator finds out what are the admitted facts and the admitted documents. And I may tell you that in most of the matters, most of the documents are actually admitted to taken to be denied in the defense. How is it that? How is it? How is it so? It is that there is first an agreement. The clause relating to arbitration and that agreement is itself the arbitration agreement because that is in writing. It's not of course a separate agreement. But the agreement or it is the contract between the parties is there between the parties. Once that is done, the usual thing that happens in a commercial contract is and the commercial thoughts act for the commercial contracts also. We'll have to be heated partially though. It is that there are various now today emails, emails upon emails. Now why the parties say these documents are not admitted is because the contents of the documents are not admitted. It's one thing to have the document. It's another thing to have the contents of the document proved. Now if there are a chain of correspondence initially there used to be by way of letters. Now it is by way of emails. It may even be in some cases by way of WhatsApp. But we are still sticking to emails because this are business contracts. You have received the email. You have replied to the email. There has been a reply to your reply and a reply to that reply. Now this forms a chain of emails. And when there is a chain, you can never say that the emails were never there. So the fact about the emails is always admitted. But what is in the emails is not admitted because therefore you have got another email. Otherwise you would say approve, admitted, accepted and that's all. Now when there are emails upon emails, therefore these emails become documents which are markable immediately in arbitration. Whatever may happen in adjudication, I would say even in adjudication, a chain of correspondence must be immediately marked as an exhibit. So that then you refer to that as an exhibit. It comes upon record and then you can deal with all of this. So the agreement and the correspondence, do not the contents of the correspondence would be marked. That is the procedure. Once that is done, you narrow down the controversy and the dispute between the parties. And that then you can then frame the issues. So I will give you later after we deal with all of these amendments and the legislation. What I would say is A, A, M, I, A, remember that much and that is all that arbitration is all about. But before we go to such simplification, we go to what are the legislative provisions. Now in the section 23, SOC and SOD, the statements of claim and defense, they have to be filed. The arbitrator gives his or her directions and they have to be followed for filing it. So then thereafter, you can have what are called admitted documents. And then thereafter, what are the disputed. You are ready for trial. Then comes the yearings section 24 yearings, maybe oral yearings, but generally are basically in this commercial context. We do have oral yearings. They are quite a must, but not as much as an adjudication that is required to in places like Bombay. I'm told not in other places. In places like Bombay, it goes on and on and it has to be curtailed with the personality of the arbitrator. Now at the same time, I may tell you when I'm talking about Bombay that for example in Bangalore, which is another budding center of arbitration, a judge with all responsibility in a conference at the National Judicial Academy made a statement that in Bangalore, arbitration is so well settled. He says that we call upon the arbitrator to return the award within 12 weeks. That is what remains. The arbitration act stays one year and they return the award within four weeks. Now this is really maintaining the spirit of arbitration and it is not that it is not doable. It is doable in many cases. It is only that a small matter is made large to show that it is so large that fees are chargeable and sort of the mega figures are merited or whatever that is. But if you are going to bring down the issues in a very scientific way by following case management principles that is not required and that much time for your ins is not required. Now this was not followed and arbitrations went really awry and therefore the legislature has made specific provisions perhaps the only statute at least in India definitely. But I don't think in the world there is another statute unless they follow the Indian statute only as they do in some of the smaller countries that so much of a whip is given upon earrings of arbitration. We'll deal with that when we come to the specific amendments in the next slide. But before that in 1996 default of any party, it is just like order 17 of the CPC. The claimant doesn't want to go on. It happens sometimes the counter claimant wants to go on because as soon as the counter claim is filed, the claimant may feel that ultimately he's not going to get anything in because he might have to pay the counter payment. And it does happen sometimes that the claim is dismissed and the counter claim is partly or fully granted. The claimant may not come when just like a suit being dismissed, the arbitration of what would have to be given, but upon whatever is on the record that the arbitrator will see on merits. Similarly, quite often it happens that when the evidence is led in the claim and the defense realizes that there is no go, we have come up to the edge of the diving board and now we have to dive inside. And there are rocks right down. So we cannot dive. They may not come up. And therefore the arbitrator will have to call it a day after sometime, giving them some kind of leeway and finish up the arbitration from the material which is on record so that it is a merited award. It is an award on merits and it doesn't become ex-party. Now, this upon the default of any party, but if there is no default and the arbitration proceeds after the statement of claim and defense is filed and the jury commences and the evidence begins, then the parties can get an expert witness. Now who is an expert witness? An expert witness is a witness who would say something about a particular agreement or a project which nobody else can talk about. He is not an expert witness where you can bring in some kind of a document by one of the parties and examine that witness. For example, an accountant. Parties can audit their accounts and produce the auditor as the witness. He is not an expert witness. He is a witness of the party. He is the witness who has been chosen by the party and not appointed by the arbitrator. He gives evidence on behalf of that party and his cross-examination. He doesn't become an expert witness. Suppose you have a case of a boiler and how the boiler works and functions would have to be seen. Neither the arbitrator, unless he is a domain arbitrator who is an engineer on a panel of arbitrators, where there is a lawyer or a judge also, will not know and neither will the lawyer who appears for the parties would know about the functioning of a boiler. Then the person who actually works the boiler, he may be a foreman in a factory, but he becomes an expert witness and he has to be, that the arbitrator will himself want it. He may then get or rather the parties would then apply for getting some other such expert from elsewhere who has got a knowledge of boilers, who has got the knowledge of, let us say it's a building contract and you get a building, not a building contractor, but an RCC consultant. He may become an expert witness. Even an architect may become an expert witness. Now that witness will have to give a report that report will be proved by him so that he has to come into the evidence. He will prove the report and he is liable for cross-examination because the report will have to be studied and questions would have to be put. It may be that because he is an expert witness called by the arbitrator, both parties can put questions to him. That is like a court witness that we have under the CPC. Now to get witnesses, expert or not expert, either the witnesses of the parties or the witnesses which are required as an expert, sometimes the witnesses come themselves and sometimes they don't. There are authorities, sometimes government authorities like income tax authorities also, they would have to be summoned if they are required. They may produce public documents. When a public document is produced, whether it is an electronic document or a manual document, it is a public document and a certified copy of that is enough even under adjudication. So in arbitration, those documents can be just taken into the report, mapped as an evidence, and then both parties can rely upon the documents and produce whatever evidence that they want and argue upon the documents. But otherwise, if the documents are not in the possession of the party and would have to be produced, for example, a witness would have to be summoned. Sometimes a doctor may have to be summoned because a mental agony, et cetera, and the parties would say that there have been certain mischiefs, accidents, et cetera. Then the doctor would have to be summoned or a letter of request would have to be given. He may not come when the arbitrator calls him because the arbitrator does not have the right to summon witnesses, otherwise not able to come. The court assistance is required and application has to be made to the court. Sometimes may go into that and then the court would direct that party to appear before the arbitrator. After this evidence is taken, this evidence is oral as well as documentary. And I will deal with the oral evidence and documentary evidence a little later as to how best we can take it into evidence, into an arbitration, comes the stage of abort. So it's as simple as that. This much you have got to do and then it is the arbitrator's burden to give the abort. It must be dated, it must show the place, it must be on a stamp paper, it must be signed by the arbitrator and if there is a panel by a majority of the arbitrators. Preferably by all. This having been done, you can say that this award brings to an end the proceedings. So there is termination under the next section. But an award can be an interim award or a final award. Generally we have only a final award because the arbitration goes on and then there is nothing more. But interim award can be granted if sometimes there are additions of the parties. Part of the claim is admitted. Certain amounts of certain parties is admitted and that can under Order 12 Rule 6 be given in. But only if there is a specific judgment, I will not go into the judgments because this is Donuka will deal with it in the next session which is in the series. But if there is any controversy, if it is ambiguous, there is nothing like an interim award which can be given. You have to go finally to the award. Now, when we are coming to the award and that award will be ultimately challenged in the section 34, which is dealt with by the court and not by the arbitrator. So it is not even the jurisdiction that is decided by the arbitrator is final at that time. If the arbitrator feels he or she has got the jurisdiction, he proceeds with the arbitration and only when the award is given, this aspect also of jurisdiction can be challenged if it is required to be challenged. If not, and if an arbitration can come to an end, then what you give is not an interim award, but you give a final award terminating the proceedings even without further evidence. When does that happen? For example, there is a construction award and there is an accord and satisfaction. As I told you, many times it happens in construction, I was an NOC is given. Okay, I don't want anymore you pay me my fees for the work done and fees for the work done is given to that contractor and then the contractor makes an arbitration. Now, an arbitrator ideally must deal with this aspect first assuming that yes, there may not have been an accord and satisfaction. It may be fraudulent or it may be got up or it may be sort of under force and coercion that the contractor has signed because the other party is a big huge company. If you say the highway authority of India or some such thing, then ideally the arbitrator must decide on whether there was an accord and satisfaction first. If she comes to the conclusion that there was, there is no need to go into the evidence, more so the evidence for damages claim for the work not given of a breach of that contract because then there is no breach. So that award is not an interim award. It is a final award. It brings the arbitration to an end. The arbitration is terminated under section 32, but without going into the damages aspect. Now, where do you get this kind of a substantive law in adjudication? We get it for the first time in India in 2015 under the Commercial Courts Act and under that act there is a summary judgment. Now, this provision has been imported from the US procedure code in US since I think 1937. There used to be summary judgments. If anyone, both the parties or if both the parties don't do the court can say that this will finish off the court matter. So I'm going to deal with this and give a summary judgment without any evidence. Which are those cases? Suppose there is a question of law which will decide that this court has no jurisdiction to give a summary judgment. Suppose there is a question relating to only interpretation of documents. Suppose there is a partnership deed and one party wants a dissolution of partnership. The other party says, well, he was not even a partner. Where is the question of dissolution? Now under order 15 rule 3 of the secrecy which was a very salutary provision and which has gone because order 15 has gone in the 2015 amendments. Unfortunately, you could have disposed of that matter, that suit by holding that there is either no partnership agreement or he was not a partner. This was not done and therefore there were no kind of summary judgments in our jurisprudence under the CPC. So it has been brought in effect under the Commercial Courts Act now and all these arbitrations are commercial causes. Actually, if they were to be dealt with by way of attunication, they would go to the commercial courts and that provision is used in arbitration. And therefore under section 11, whether the arbitrator has jurisdiction or not, whether there has been a court and satisfaction and therefore there is no arbitration agreement now subsisting is not to be decided under the 2015 amendment. So section 11, subsection 68, which has been omitted in 2019 amendment. But the award can ultimately be given by the arbitrator, either for part of the claim or for the full claim, either an interim award where the further matters can go on as usual until the final award is given or first itself the final award. There would be interest and costs. Now there is a provision specifically for interest and costs and interest would be the commercial rate of interest and under the amendment, it would be now 2% more than the commercial rate of interest. It's an extremely good provision and a real whip for the defaulting party. Because you may make as much of default as you can, you may drag on the arbitration, you may not want to come to the arbitration and then make all sorts of excuses later on when it is found that the claim is very honest and just the interest which is granted would be 2% more. And since it is in the legislation, it is like you can say section 428 of the CRPC. The part of the imprisonment which has already been undergone will have to be deducted. So whether the court says or not, it has to be deducted under the statute. Similarly, your interest, it has to be granted whether it is granted in the award or not. Quite often it happens that it is not specifically mentioned in the award because it doesn't have to be because it is in the legislation itself. So when you actually go for enforcement of the award and execution of the award, did you add that interest? But parties want to play safe and they actually apply for the connection of the award and say please say that it is 2% more. I don't think it is required though it is sometimes done for the sake of safety for that party if that party wants it that way. But there is a regime for costs in the sense that under section 31, section 31A which follows 31, the arbitrator first initially had to ask for deposits for various kinds of costs including his fees. Now his fees are covered under schedule 4 when he is appointed by the court or when there is no other specific agreement between the parties then under schedule 4 he or she will get the fees. So therefore we will not deal with that now we will deal with schedule 4 because that is what now applies. Termination is by actually finishing up the arbitration but sometimes it happens that the arbitrator has had enough. So he says I am terminating the proceedings I don't want to carry on with this arbitration you may go to anybody else. He can he has got a right to terminate the proceedings and then again unless the parties agree upon another arbitrator you to go back to section 11. Go back to the court and now to the arbitral institution and get another arbitrator appointed and he will start somewhere the earlier arbitrator left off and give the award. Similarly parties may terminate the award because if the arbitrator wants to go on a journey and a journey and doesn't take up the matter. Parties will say we don't want to come to you now. So by agreement between the parties they may terminate the services of the arbitrator and go to another one. That is under section 32. So there is a kind of checks and balances on both ways. And then of course there is conciliation under section 30 later on we'll see that there is settlement. So the arbitrator can get the matter settled any which way and the best way is by mediation or conciliation. These are the two main ways that are used. We'll deal with them later but conciliation under the arbitration and conciliation act that we have got is under sections 61 to 74. Not as well used as sections 1 to 73 during the international commercial arbitration but it can be done. It can start at any point in time or it can commence right from the beginning by parties referring the dispute to conciliation. Now when in 1989 section 89 came to be enacted and all these things happened and all these four modes of ADR came about. What happened was that we felt that there was an alternative dispute resolution don't over burden the courts. So some matters are amenable to conciliation. Some matters are amenable to arbitration. Some matters are amenable to mediation. And some matters can be only adjudicated as is held in the Booz Allen case which again Justice Danuka will deal with next time. So the arbitration act itself made a provision for conciliation in 1996. Well before the 1999 amendment which was not until then used but parties can refer that dispute only to conciliation. We have not been able to settle. Please help us to settle and you amend you sort of give us those options and you show us how to settle. Today mediation is not as popular as conciliation in America. What parties say is that we have funded you as the mediator because we cannot negotiate our dispute and settle the dispute. So why do you tell us to do it? It is for you to do it and that becomes conciliation. The arbitrator not only nudging the parties but the arbitrator actually helping them to settle in a given way because he or she finds out. That they are not in a position to do it. Let me give them this bonus. That is conciliation which we will deal with separately in another lecture. Now we are dealing with arbitration. So now the new horizon and as I told you though 1996 was a quantum leap. It didn't work so well. Arbitrations went on and on and on especially in large metropolises where both parties or at least one party always wanted to delay. And the arbitrators also unfortunately loved to delay because they could get their fees. Let us call a spade a spade or rather we can even call it an axe. Now the legislature has played its part and the legislature has said enough is enough. This is how arbitrations will proceed in a time frame. I would say this is not only the intent of the legislature which you always find out when we are interpreting any statute. This is the cry of the legislature. Legislature saying what you are doing is not good enough many of ways and we have to have a paradigm shift. I will tell you what paradigm shift is a little later. It is one of the best business principles. Now how is what are these paradigm shifts? Section 11 appointment under now under the 2019 amendment not even by the courts. So far the courts are appointing. Yes, there is no arbitral institution laid out and arbitral institution has to be there under the legislative mandate now. So that the burden of courts under section 11 goes to the arbitral institution so that the arbitral institution does only that work 24 hours 365 days. And therefore as soon as a matter comes the arbitral institution will have to give it out to the various arbitrators who are on the back. And how this work will have to be decentralized is another business principle that is in the statute itself. The principle of decentralization will come to that also later. So now the appointment first by the High Court or the Supreme Court, the High Court in case of domestic arbitration, the Supreme Court in case of international commercial arbitration. Then now the arbitral institution, there is also an arbitral council which will come to a little later. So arbitral institution will have to appoint and now there is nothing like deciding by the institution or by the court as to whether the arbitration agreement survives or not. Because the jurisdiction itself is with the arbitrator. There were all that they have to do is which arbitrator has to be appointed and who could be the best arbitrator, lawyers and judges. And now we have got qualifications of arbitrators also laid down 10 years practice in law and what law would it be? It should be essentially the commercial law. The specific relief act, the commercial causes, the commercial contract, the trial lawyers and the trial judges. Because then alone will the face of arbitration change so that they become the domain arbitrators for the law that is to be decided and the way in which it has to be done. Now then there is section 29A. We are going to appoint you. You are the right person, the right man or the right woman. But there is going to be another way you've got to do it. The recommended period is six months. The allowed period is one year. After one year only with consent of the parties that is when both parties say alright, you give an extension of six months to the arbitrator. Then no more. It's like the written statement now. You make it within 30 days, over in 60 days, 90 days, 120 and no. Then there is a sort. The head is cut. You cannot have your written statement anymore. Just like under section 34 of the arbitration act. When you go to challenge the award, 120 days is the limit. Similarly year, there is a one and a half year limit. After that, if you go to the court, you can make out a case. If there are adequate and sufficient reasons, the court will grant further time. If the court feels that the arbitrator is the one who has been the default. The court has to terminate the services of the arbitrator, remove the arbitrator or point another arbitrator. What a shame. But if the parties have done that, what can the arbitrator do? Of course, I would say the arbitrator can do a lot. But there are times when the arbitrator cannot do then what happens? The court allows the arbitrator to proceed sometimes with reduction of fees. Now one question that remains is, and that is very essential. I have never had my arbitration more than a year. But because of COVID, one arbitration goes on and on because one parties doesn't want to come. Now what happens is the parties say, oh, we will give you extension of time. Me, my consent will give you, don't worry. But you may give me my consent, but I don't want to consent to the additional time. I want to finish my arbitration within one year. And why? Why would I want to do it? Because the fees of the arbitrator are now available. I've been appointed by the court. I'm governed by Schedule 4. I charge the fees exactly as for Schedule 4. Now when Section 29A has to be read, it has to be read along with Schedule 4. We come to Schedule 4 a little later. Now what happens is there is a one-year time limit provided. Okay, I will wait for one year. But when fees have to be paid and entire fees would have to be paid. It can be paid after one year, six months because I take up my arbitrations in a way that gives me the leeway to work for one year. And then I work on other arbitrations. So if one party were to delay, what does the arbitrator get? I would say that when you go by extension of time and the arbitrator under 2019 amendment has got the right to be heard. The arbitrator can say, I don't want extension of time. They may want it. I was prepared to finish it as is the spirit of the act within the year or at the most within one and a half years. So therefore I will consent if I am paid now. That has not happened. That must now happen. Now for the fees of the arbitrator, which we will deal with later. There's been a judgment of the Delhi High Court which lays down how fees would have to be charged. And we at present are on section 29A. The statute has to be read as a whole. That is an archic provision which we follow till today. It is one of the most salutary provisions. All documents have to be read as a whole. A will has to be read as a whole. An agreement has to be read as a whole. A statute has to be read as a whole. Now the purpose behind this statute is what? That this is an alternative dispute resolution. Don't go on like the main dispute resolution. You have got the leeway not to follow the CTC, not to follow the evidence act to follow whatever procedure that you want. You must finish it within this time limit. Therefore you would be paid fees also as per that time limit. And if that time limit is considered, the fees are very fine. Now what is the second time limit? 29A and then there is 29B. It is a fast track procedure. Fast track procedure is when the parties agree that look there is not much of a dispute. We have come, we have narrowed down our dispute. Now we cannot agree. Therefore we have got an arbitration clause. Let us go for arbitration and make it fast track. Only this has to be decided. It can be decided on arguments. There is no need for an oral hearing. It can be decided by giving the arbitrator two briefs. The claim and the statement of defense and the arbitrator can decide. That is what happens very often in America. So we have got that here which we call the fast track procedure. In this fast track procedure, we may hear the parties, we may not hear the parties. There is no need for any oral evidence. It must be finished within six months. If it doesn't get finished within six months, then it is the usual thing. Because even though you have called it fast track procedure, you have not been able to comply with that fast track procedure laid down under section 29B. You go on the slow track procedure. Then thereafter, one year limit, one and a half year by concern of the parties, and then only if an addition is given by the court. In one of my matters, we finished the arbitration in one day, I would say. Because at the most you can say three days. Parties came and I gave the directions. And when they said it is fast track, I said, alright, come next Thursday also, whatever date. We will finish off. They said, we will come on this, this day he will argue, this day she will argue. I said, no, even this fast track, it is like a matter has reached before me. I have to hear the parties and give the award. I will hear both of you. And sure enough, we finished the entire arguments on that day. I never give them the lunch break because I said this is fast track you have called me. So by about five o'clock, we almost finished. I even started dictating the award. But what was there was that we both, we underestimated ourselves. So we actually should not. And I did not have the stamp paper. Therefore, I said, come tomorrow and take the award on the stamp paper. And that was the third and the final day. Now, if a fast track procedure gives the kind of fees that are made in schedule four. What is wrong? These were two huge companies. The third company being also interested. They were having a merger and amalgamation, et cetera. Everything was done and certain things remained. So there was a bottleneck. The other company was also interested. Huge claim of several hundreds of crores and a small thing that they could not agree. The law is the same for all. Whether it is a 10,000 rupee claim or a 10,000 crore claim, the law is the same. And it has to be heard and interpreted and decided. That's it. So one of the attorneys when he left told me that we told you to make it a fast track, but this was super fast. Now, there have been so many of these super fast agreements, habitations in London, in New York, in Singapore. This has given them the kind of personality that they have, which we today don't have. And it is precisely for this reason. And for that, certain things would have to be done. Both lawyers must be absolutely prepared. The arbitrator must read everything and come. And whatever that I will tell you in the procedure of AMIA, which we'll come to later, would have to be followed. Many things become fast track. Now we go to section 30. There is a settlement provided in the 1996 act in this settlement is by way of a conciliation and mediation under the 2015-2019 act. And now it is therefore that once the arbitration is going on, and any arbitrator would understand whether this matter can or cannot be settled. And if he feels that this matter is worth being settled, he can always try the settlement. But I would put one lighter on this. And that is because of my experience. What happens is the arbitration has gone on some length until of course the arbitrator would decide on such a thing in his mind at least or in her mind. And then if the arbitrator just allows the parties to settle and accept the settlement, it's fine. But if the arbitrator then has to mediate upon the dispute, then one party may say that now you cannot proceed with the arbitration and quite justify this. So then what happens is that the party who agrees with that, with the options that are created by the arbitrator in his capacity, wearing a second hat as a mediator. What will he do? He will have to again go to another arbitrator and start being over. That arbitrator will again charge his views. And is that fair for a man who wants to reasonably settle? It is not fair. Therefore, I have found out my own procedure by my experience in doing that settlement. Yes. But what I do is once I start with the arbitration in between, I don't want the interference of settlement. I may feel that this matter is worth settling and quite a few matters are. I don't interfere. I don't open my mouth. I allow the parties to make their submissions, to give their arguments, to leave their evidence for whatever that I want the evidence, oral evidence as is required in that case. Or sometimes full evidence as the parties want an acquisitorial procedure and I make the award ready. The award is signed and sealed and kept. I don't post it. I call both the parties to take the award. I keep it on a given day for the award. I keep it in the morning at about 10, 10, 30, 11. And then I tell the parties, see the award is ready. I can serve this award upon you just now. But I tell them that I believe that their business relations or their family business relations can be very easily and must be kept. So it is good that even now at this stage, you can settle and I will help you mediate and settle that dispute for the entire of today without any further piece. Because you paid me my arbitration piece and all parties have no problems about that. So I offer this and I have seen that the parties take up that offer and that offer is then for very flexible procedure. I will call my mother, he will call his father, whatever, whatever, I allow everything. And parties know their position in law. They have even discussed with their lawyers as to what is the weakness of that case, what is the strength of that case. And now the award is staring on my desk. They come and they give this, they kind of negotiate. And sometimes it results in settlement. Sometimes it doesn't in settlement. But even when it doesn't result in settlement, I may tell you that the germ of settlement has settled in. And I believe that when the next step comes, which may be either enforcement by the party who has kind of one day award, or the challenge by the party who has lost their work, they will take off from where they have left off. So it is good that you do our meat or our corn rather than need our meat corn as we generally call it. Now in England, Canada, America, there is this half meat. Arbitrator wears two hats. Parties make them an arbitrator and a conciliator or an arbitrator and a mediator. Parties immediate that is good if you can't give an award. So it starts with mediation and goes into arbitration and the award that he gives becomes final and binding. All it is our meat. So it starts with arbitration. When there is a settlement between the parties, negotiation, settlement, it results from mediation or conciliation and everything else. But if it is not finished, then there is this problem. And therefore, if you turn the tables, it works very well because otherwise the second difficulty is this, that when there is a kind of mediation, when arbitrator becomes a mediator or tries to settle the dispute and parties tell you everything. So you come to know things about the family concerns, about the sister concerns, about what had happened before the contract and why the contract came into being and all of those kinds of things. This cannot come into the award because the arbitrator has no jurisdiction in his capacity as an arbitrator. There may be a mistake made by an arbitrator when he deals with or takes into account those things which we must leave out if the settlement has not come about. That is difficult. And to avoid that, the best thing is to deal with the law, to deal with the facts, the admitted facts and the disputed facts. Finish off the award, then offer the settlement and then if you want to settle and if you want to have a caucus, you can have it right on that day. There is no need for parties again to tell the arbitrator, this is the position and this was it and all because the arbitrator knows many things. Now only tell the arbitrator the inside story. There can be a caucus and there can be a settlement much, much quicker than not. So I would say arbitration is like a neutral evaluation. Neutral evaluation is one of the modes of settlement in America. So as soon as a party comes to court, there is a neutral evaluation by a judge or another party and he says that this is the weakness, this is the strength. Okay, now you do whatever you want. If you want more mediation, if you want go for arbitration. And then there are other dispute resolutions. We have this kind of dispute, neutral evaluation, which is not E and E, early neutral evaluation before the case comes up early. We have during the arbitration, a neutral evaluation. And if suppose they don't settle, this award can be served immediately. So one thing is finished. Then the next step is for the parties to go higher. Okay, so this is how it is. Now as I told you section 3770, interest on award, interest at the rate of 2% more than the commercial rate of interest. Generally when the court used to grant interest under the CPC, 6% or more, 6% or the commercial rate of interest under the CPC. Under the interest act, it was the rate agreed between the parties. Now it is 2% more than the commercial rate of interest. So this has gone much further. And this is again another deterrent for default. Then section 31A, the regime for costs. Under the 2015 act, the arbitrator could have, rather since 1996 act, the arbitrator could have deposits. We deposit this much amount. So that is for various things, like the venue of arbitration, et cetera, et cetera. And of course, mainly the fees of the arbitrator. Now all this can go by the board, though it has not been omitted in the 2019 act. But after 2015, the arbitrator fees need not be in the regime for costs. The deposits for, if at all, which are required to be made for payment to other parties, for payment to the opposite party, et cetera, et cetera, for the venue, they can be done under this section 31A. Then comes the award, as we dealt with earlier, and the enforcement of the award. Under section 362, there has been a lot of legislative and judicial interpretations and, you can say, additions. The award was final and binding. It so happened that the award, whether it had to be state or not, was initially that a claim and a challenge was made because it was automatically state. That the challenge could not be removed quickly. Therefore, there was no automatic state. And only when the court runs a state, it can be state. Court can run the state on certain conditions, mainly, of course, the security for costs, the security deposit. So the deposit part are full of the amount. And for that, though the CPC is not applicable, the provisions relating to the appeal in the CPC are applicable. Now, in the CPC, for money claims, if there is an appeal, the first appeal is by way of right. But way of right does not mean that the first appeal has to be filed and must remain on board and remain on board. It can be disposed of on day one also. And that is the amendment to the CPC. That without calling upon the other party, the court can dispose of this. So you have a right of appeal, yes. You have to be heard, yes. But the other party need not be heard. And if the court finds that it is a privilege appeal, it just dismisses the appeal on the first date of hearing. Or it says you deposit this amount and without that deposit, no. So therefore, for the purpose of deposit, the trial court cannot do anything. The appeal court has to do. The first provisions have to be kept in mind by an arbitrator, rather might have caught under section 362. Then what they did was they amended the section 362 and by the section 2019 Amendment Act, the provision relating to the state also became. Now there has been a judgment holding that this is against Article 14 of the Constitution because it is discriminatory. And it is arbitrary. And therefore, again, we come back to the same provision. Again, Justice Dhanuta will deal with those judgments in the next lecture. We have decided to have our own boundaries so that we don't repeat everything. Now, this is so far as the enforcement of the award is concerned. Then section 42A is the confidentiality of arbitration. I think it goes without saying there was no need for this provision, which has come in 2019. But just like the mediation that there should be confidentiality, there would be confidentiality of arbitration proceedings, not the award proceedings. And there can be no suit filed against an arbitrator because just like the court, it has a kind of an immunity. I have done my work in the course of my duty. That way. Part 1A is the new edition of 2019, extremely different. And it's a quantum leap. It's a parent and child. Now there is an arbitral council of India. A retired judge has to be a chairperson or a member. And there are various other members. There is an arbitration council. The arbitral institution under section 11, when the courts have done away with for appointment of arbitration and the arbitral institution will have to do that. And that has to be appointed. I think it's a mandate. The legislative mandate, though it has not come up in certain states. The arbitral council is the umbrella institution. It now will have various workshops, various conferences and seminars, like for example this one, to from time to time deal with the actual workings of arbitration in actual practice. And there is, in part A, section 43, A2K. And it deals with, in this section, various aspects of how the arbitration functions in the entire country. Then there are the schedules. Fourth schedule is the first absolutely new schedule at Valorant Court fees of arbitrators. Claims were absolutely phenomenal. In places like Bombay, Delhi, Madras, Hyderabad, Calcutta, Bangalore, absolutely phenomenal. 1000 crowds. Just make a claim which you are never, never going to be able to prove. So then you pay arbitrator also those fees. So it becomes at Valorant for some amount, some amount has to be paid, etc. Now there is a capping also. And that is very material. Otherwise a party makes an unusual, a very exorbitant claim on mega-pigots. What happens to the other side who has got to defend that claim? He also has to pay half the arbitrator's fees. So therefore, in the, in actual interest of both the parties, there is a capping limit. That capping is on 30 lakhs. And if there is a sole arbitration, then the sole arbitrator gets one fourth of the fee more than the arbitrator's on the trail panel. Because of course, he will do everything. It is like we don't have the juries this stuff. And when I was in England, the judge was very surprised and he said, Oh, you do the work of 13 men. So I said, yes, we do because there is no 12 member jury. There is only a one member judge as a single judge. So it's something like that, a single arbitrator and a panel of arbitrators. The single arbitrator naturally does everything from scratch A to Z. He gets 25% more or she gets 25% more. Now, when this algorithm fees is given, how has it to be discussed is not there. It should be in the rules. There are no rules frame for that. And therefore, arbitrators charge as they want. Earlier there was the regime of deposits from time to time new deposit. But the very fact that algorithm fees are chargeable as per the both federal, the intent of the legislature is that this and no more and no less can be charged by the arbitrator. So how do you charge? I charge very simply. I've got the papers. I've started the arbitration. I must be paid half the fees and half the fees when I give you the award. So when I keep the matter for a lot, the other half is paid. I've had no problems with any of the lawyers or any of the parties. Now we've got the rules. The rules yet then don't say how do you charge. I think this is the best because throughout the arbitration, there's absolutely no interference or this check was disordered or you are not paid. I'll give you some extra time. Nothing of the kind we don't waste that time. We are paid half and half. But for the payment of the full fees, again, as I say, if you read the statute as a whole, we go back to section 29A. Section 29A says recommended period six months very good job well done. If you can't do it. And under the 2019 amendment now six months are given. Only were filing the claim and the statement of defense. Very bad. But it is given. This is the leeway that they have found out. And therefore the arbitration begins not from the date of difference, but from the after the claim and the statement of defense are filed. So you get the one year period after the defense statement this one. So that much time is extra time given to the arbitrator and to the parties. Once that is done within one year, at least we must finish by consent of the parties one and a half years, then thereafter only if the court says yes. Another six months, then no more. So there would have been a fees that have to be charged after how much time when we are going to be paid only half first and half later. That other half cannot come up to six years, five years, because it was it was shown that that is not the way arbitration can and must function. Therefore those fees, I would say, must be paid within that one year period or at the most one and a half years if I can send the parties. So all right. Okay. Strictly speaking, the arbitrator may not consent. I am not defaulted. You have defaulted. I have given you but an arbitrator has allowed that. So maybe another six months. But thereafter, as I see it fees would just have to be paid, whether you go on for arbitration or not for the remainder of the half or whatever is the remainder. Now this last provision of tapping came up before the Delhi High Court and I might tell you about this because we are on peace now. And very interestingly, the parties wanted to terminate the arbitrator on the ground, but the arbitrator is asking for fees and we don't want to pay time as he left the arbitration terminated. They went to the court for termination of arbitration. The court said this is not the arbitrator's fault. That retired judge has done his job and the court again said that this capping of fees that have to be given will have to be given to this arbitrator. So within that time limit, the arbitrator had to be paid and the court further held that the fees which are laid down in schedule four for the main amount and then thereafter the percentage, it is main amount plus the percentage. So it doesn't come to 30 lakhs. It comes to that amount plus 30 lakhs and 25% for the sole arbitrator. Now with this kind of fee, I don't think anyone can be more avaricious to get more if they are going to work within this time limit. If of course they are not going to be able to do it or they don't want to do it or they've got so many arbitrations that they just cannot do it but yet take up another arbitration which is again not the spirit of this act and the amendments then it's a different story. So we go to the schedule which gives not only the fees but also how the decentralization has to take place. Fifth schedule is the arbitrator's relationship between the parties. Now under the fifth schedule in the act, under the 2015 amendments, there are some 30 different subsections, the points in the schedule. And point number I think 28 or so is that no lawyer or no attorney's firm can give arbitration more than three to a single arbitrator, to the same arbitrator. Now what does that show? The intent of the legislature is that there are so many arbitrators, you must have a circulation between the arbitrators. And because only some arbitrators are favored, I don't know why, I like your nose and I want to appoint you as an arbitrator was held to me by the legislature a wrong practice and therefore more than three cannot be appointed. Now go back to section 11. When the arbitrator is appointed by the court or by the institution, can they appoint one arbitrator for more than three arbitrations at a given time? If you see the spirit of the act and if you read the act as a whole, even they cannot do it because the purpose is not that the attorney's firm should not appoint. The purpose is that one arbitrator should not have more than three arbitrations either by a single firm or then by the arbitral institution or the court. Now this decentralization, this provision would therefore get in more arbitrators. Therefore, easier dates can be given. Therefore, the arbitrations can be finished within one year period, which is the allowed period. And there is no need to ask for arms. There is no need to beg for more by either the parties or the arbitrator, if they all function within that. You finish the first arbitration and take up the fourth arbitration. You finish the second arbitration, take up the fifth arbitration by all means. But if you cannot, then you cannot give a date after four months, after eight months because that was helped to be the real endemic disease of our arbitration system, which brought our country into dispute in the international sector. I beg your pardon. Now the sixth schedule, disclosure for showing time available to the arbitrator. Ideally, when an arbitrator files this, he must be able to say that I don't have more than three. I have one, I have two, I have three arbitrations. And then he should be given the fourth one. So when the arbitrator has that and he disposes of, he disposes of, as soon as it comes, give quick, quick dates and finish up the arbitration. There are many arbitrations that can get finished well within the one year period. I am saying firm experience. So therefore, now you have to disclose your interest. If you say I've got 38 arbitrations, it will be a shame that the court gives you the 39 arbitration. Anyway, then there is the eighth schedule. That has come only in the 2019 act. Qualifications and experience of arbitration. The legislature really saw that all arbitrators do not qualify to be arbitrators. Or at least their performance is not so qualifiable. And therefore, just like the qualification shares of directors in a company under section 273 as it then was in the 1956 act. What happens is that you have qualifications of arbitrators and they are laid down. They are the qualifications of a high court judge. 10 years experience for a lawyer. And what experience should you have? Experience in motor accident cases is not required for conducting arbitrations in a commercial court. Experience in reputations is not really required. Experience as a trial judge or a trial lawyer is actually meant to be the 10 year experience, as I see it. Because then alone will the arbitrator have the neck, the experience, the expertise and the personality that is required for arbitration. Now this completes the first act, the 1996 act, 2015 and 2019 amendments in different sections separately given so that we don't go only section-wise. Now we see how this is case management. This is case management by the legislature. Though not case management by the arbitrators. Now within this legislative frame, at least the arbitrators must do the case management. Paradigm shift. Section 11, appointment. Very different now. Section 16, only in India. Section 29A, as I told you, the one year period. 43A, arbitral counsel. And schedules 4, 5 and 8 which we just dealt with gives a quantum leap. It is completely different. I'll tell you why we have a story. It is like a story of a singer. He was a sitarist. He went to his Guruji. He played the sitar. Guruji was not satisfied. Not well done. Again played. Again played. Again played. Guruji was not satisfied. This is not the way you play sitar. He wants to give up. And Guruji says, take out your sitar from your right hand. Put it in your left hand and start all over again. That was the quantum leap. And he became a world-renowned sitarist. That is what is in our arbitration act. The non-value-added items. There are so many unnecessary applications. The arbitrator can dispose it off within 15 minutes as soon as it comes up before him or her or not have it at all. These are the procedural requirements. Any procedure under Section 19, deal with it. 29B, fast track procedure. Any application can be dealt with. Allow any amendment. Allow it. Somebody has died. Allow it. So these are non-value-added items. Finish it. Finish it out. Again, a very sound business principle. A businessman will not want to do anything which does not give him profit. Why will the arbitrator do anything which does not give him the benefit of time? Then core competence. That is a business principle that our legislature has thought of. And therefore the qualifications of arbitrators for what is the arbitration today? Arbitration of commercial disputes. So you have domain arbitrators. For example, as I told you, Assisi consultants or whatever, you have trial lawyers and judges under schedule. Then decentralization. Again, under the schedule. Under Section 11, 3A, there is no provision that the judge must appoint only so many. But it is like book by show tickets, for example. There are so many on the panel and the one intent of the legislature schedule five is three for every lawyer or every attorney's firm. It should be three for all. Then there will be decentralization. And many arbitrators, many lawyers, many judges would get it. And it can then be a real alternative dispute resolution because those lawyers and judges would specialize only in arbitration. And that is what it's meant to be. You can't be a lawyer in the court and then at five o'clock come arbitrator or be a lawyer in an arbitration. That is the melee in our system, which is something to be removed, but it's not removed specially in Bombay. Then the principle of blame storming. What is the result of the legislature saw? Where is the blame? Not to blame any particular man or woman, but where is the blame and start to clean up that system? And the whole arbitration equity I've discussed is this blame storming that happened with the legislature and has resulted in this amendments. Then of course time management, we did not have to say the rules of IAC say that the directions of an arbitrator itself, there's no need to go all unnecessary directions, directions for the claim, then the defense and find out again next, the admitted facts documents and the issues, which we'll come to in the next slide. Procedural simplification section 19 itself says any procedure, very simplified procedure. As they say, simplicity is the key. Team, together each achieves more. Is team, dedicated lawyers and judges forming and working only in arbitration or arbitration and mediation, meet up or meet com as they call it. Then those dedicated lawyers and the direct judges don't do other work so that they can give those dates and actually go on as our country demands as our legislature has said. Then the Uda loop, very new, very different, the result and new legislation is by observe, orient, decide and act. Uda, this happened in the US military. There were fighter planes between America and Russia, the Soviet Union at that time during the Cold War. The American fighter planes were destroyed, the Russian fighter planes on many occasions, but the Russian fighter planes could go higher and were faster. So one person observe, oriented, decided to do something and acted, what he said. The American ones can take a loop very nicely. It's called the loop. So he called it the Uda loop. They can change their course and destroy. Therefore that is our strength, do that. And in the arbitration act, the result and new legislation is the strength of specialization. And then there is a package deal. Package deal for the evidence, 29A, package deal for the fees. Even lawyers can charge fees like a package deal. It is like you can say a tool operator. Normally they used to only book our tickets, then they were booking our hotels, then they were booking the taxis. Now they are booking even the tools which we take when we go abroad. We give everything to the travel agent and we give him his fees. You give everything to your lawyer. I want the award like this. Or I want the award not to be passed, depending upon whether you are a claimant or an independent. And the lawyer charges fees like the package deal of the arbitrator. And therefore this package deal also goes a long way as a business principle. Now therefore I would say the steps in arbitration, simple, A, M, I, A, hear the address within the parties. Generally the interim application is itself the address. Having read all the papers knows everything. Record the admissions of facts. One, two, three, four. Record it by way of minutes. Mark the admission documents. You will be surprised how many admitted documents you will find without actual express admission of the parties because there are implicit admissions. There is an email received, an email replied. The email is received. So that is an admitted fact. You mark those admitted documents, not the contents of the documents, but the document itself. Contents of course would have to be grouped. Frame the issues. So once these documents are marked, issues get narrowed. You frame those issues. Record the overall evidence wherever it is necessary. In some of the big commercial matters, lawyers think everything is necessary. Because we do record all that oral evidence which they give. Here are the arguments. In some of the matters, it can be a summary judgment, so only arguments, fast track matters, only arguments. Otherwise, oral and or written arguments, which is the metadata dirty act. So if you have heard oral arguments at length, only bullet points of written arguments. Otherwise you say, give me proper written arguments and just go through, scan through them and help me with the oral arguments. That is what happens everywhere abroad, in the western countries. Then pass the award, give the award ready and then combine that with the con, if you can, conciliate, mediate, see if it can be disposed of between the parties. And the lawyers can get the package deal of fees. Otherwise they will not agree, I suppose. So now what is case management? Practitioners and judges becoming better at what they do. Achieving the same end with less resources and in less time. That is what Lord Wolf said in his Wolf report in 1996 when our arbitration act came to be enacted. That is case management, it went in arbitration. And what does it entail? Improving efficiency, reducing delays and cutting costs. Period. Nothing more is required. So now what do we do? We can do certain things, though it is not mentioned in the act because there is a leeway. Pleadings can be taken as evidence. Sorry that E is not there, I'm sorry. Pleadings itself, I tell them the claim and the defense statement, I will take it as evidence. Whatever is written, you can be cross-examined directly. If there is anything more to say, you can file your affiliate of evidence. And yet I find so many things repeated and repeated. Bad drafting. Then all original documents in the arbitration proceedings, that also helps, it helps me as a judge also. I tell them every day bring the original documents so that inspection can be completed in my room itself so that documents can be shown and they take the screenshots nowadays of the documents and they can be used for their whatever purpose with the lawyers. Simplification of proof of documents. For example, old seemingly genuine documents. I said these are the documents which I will mark in evidence. You cross-examine. So anything which is taken as fraud or whatever, oh, it is a luxury also. Take it as a document. I say it is an old seemingly good and for whatever you cross-examined. There are some documents I have found where the agreement is admitted but the attachment is not. There is an extra to the agreement. That is not in all probability. That may be false. That may be fabricated. Take the old document and both parties can cross-examined. Documents in a group. Sometimes you find for example, the documents have to be proved in a case for damages. So you find so many electricity bills. Take all of them together. There is no need to prove because everything cannot be forged. One document can be forged. Take certain documents in together. And if they are brought in, say for example, in a company, some of the documents which come up every time like salary slip, I take them all as one document and parties can cross-examined. These were the removal of the roadblocks by our experience. And therefore, as J.A.D. Tata said, there is joy in having done something as well as you could and better than others, what you could. Thank you. Thank you, ma'am. We can do away with the screen sharing. Ma'am, we can do away with the screen sharing. I have stopped the sharing but it has not gone. I will do that. You will do that. Yes, we have done it. Yes. Okay. I have come in. Yeah. So it was quite engaging session. And we will take the questions. An agreement between party A and party B. Having an arbitration clause, parties involved the court proceedings in India and pendency of the same. The party A invoked arbitration clause outside India in which party B did not participate. The arbitrator awarded an award to party A. The question is, will this award valid in the eyes of law? The repeal of the pre-pendency of the issues pending in the Indian courts. But whether this is an international commercial arbitration or a domestic arbitration would have to be seen first. So unless the entire clause is given, I don't know how I can reply to this question. Okay. It'll have to be interpreted. That's true. And I'm sure the arbitrator interpreted it when he gave the award because he would have found that this is where he has got the jurisdiction in the section 16. by this is OASirini Vasan, Chapter 12A of Chapter 3A of Commercial Courts Act, where it is stated that a suit which doesn't require any urgent interim relief, the plaintiff has to exhaust the pre-institution mediation. Because of this section the people who has, the person who has the case would prefer interim application so that they could avoid the mediation stating required interim relief. What is your call on that? My call on that is that it is a fine legislation with a very fine loophole and it could have been done very easily saying that if there is an interim application and interim relief is required, then of course you can't go to mediation pending that interim relief. Once the interim relief is granted, it's a factor it should go to mediation. Now in Canada there is this provision. I don't know, it is called a particular thing which I'm missing now, but it is called, I'm missing that. But when the parties have filed their pleadings and issues have to be framed, then in Canada there is what is called some kind of compulsory mediation where parties just have to go. Now if there was a provision that as soon as you file a legislation there should be pre-legislation mediation so that before the matter comes to court you go for mediation as soon as you file it and there are applications filed. If there is an interim relief, it is an exception and we know that in almost all the matters except perhaps for suit for damages, there is always interim relief in all of these big cities specially. And therefore the mediation has failed. But one more provision, a provision to that provision should be that once the interim relief is granted or rejected, the parties must be taken to mediation. This is by Raj. How is arbitration cost effective to the common man who cannot afford to pay the arbitrators? Shouldn't the main aim to deliver justice faster and make it a cost efficient matter? See there are arbitrators who may work for much less. Of course one thing is that an arbitrator cannot understand before he enters upon the reference and before he starts the arbitration whether this is a verited arbitration by the party who is suffering. And arbitrators have to charge fees equally because you must treat both parties equally. Therefore there is a hitch and arbitrators cannot say that okay I will take less. But if both parties agree with the arbitrator and the arbitrator agrees to charge less, he can charge less. I understand that there is one retired judge who charges only 5000 rupees for every arbitration. He has got many arbitrations. He decides them in the first step procedure or some such thing and it is a very good thing that he is doing in his retirement. So then that would be very cost effective. But how do you find that it should be cost effective for the common man? That common man must have a verited case. It must be shown to the arbitrator. Because if it is a commercial litigation, then why would the arbitration not get the fees which I am specified by the legislature? This is by Raj. But even then I would say just one minute. Even then I would say that if arbitrations do get over quickly, parties would be prepared to pay. That is what I have felt. This is by Raghav. What should be the right forum to challenge an order of a high court under single bench appointing an arbitrator under section 11, whether it is an LPA or an SLP? I don't know. You find out because I don't think it can be appealable as such. I believe it is not the high court appoints because you wanted the high court to appoint. Then it is an SLP only. Maybe. Then you answer. Some people are asking the questions like Sanjay Vatva, I think on the next session which is being held on 28th with Justice Ramesh Danuka, you will take those legal questions because today was only on the procedural aspect. So they can stay connected with us on 28th when we will have the second session of the. That will be a very different session because this is Danuka will deal with the arbitration act for the case law that has happened. That's what I'm saying. That's what I'm saying. Those who are asking on the legal aspects will take it up on the 28th. Yeah. Anurag has asked, finally asked my question. Anurag's question is answered in a Supreme Court judgment itself. So you can contact me after the session. So, thank you friends for connecting with us. And as usual, Justice Roshan Dalvi took us to the entire act from the old act of 14 1996 2019 and what are the pros and cons of the same. We are all delighted to have the insights on a weekend. Thank you for sharing the knowledge and tomorrow's session. Friends is on the role of first appeal, how to deal the first appeal in CPC with special reference of Ramjan and Bhoomi case. That is, in M's week, dead to ELAS versus Mahant, Suresh Das and others. So do stay connected with us for the insights on section 96 CPC. What is the role of limitation act adverse position specific relief act and CPC how the evidence has to be appreciated in the first appeal. So do stay connected with us tomorrow. The session will be by Justice Chandrasekhar from Karnataka High Court, a former judge. Thank you everyone. Stay safe, stay blessed and thank you ma'am once again for that sessions, which was very nicely explained. Thank you. Thank you. Good night.