VII.  RECOURSE AGAINST ARBITRAL AWARD 

 

34. Application for setting aside arbitral award 

 

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

 

(2) An arbitral award may be set aside by the court only if -

 

(a) the party making the application furnish proof that -

 

(i) a party was under some incapacity or

 

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or failing any indication thereon under the law for the time being in force; or

 

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

 

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it contains decisions on matters beyond the scope of the submission to arbitration :

 

Provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

 

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate or failing such agreement was not in accordance with this Part; or

 

(b) the court finds that -

 

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force or

 

(ii) the arbitral award is in conflict with the public policy of India.

 

Explanation : Without prejudice to the generality of sub-clause (ii) of clause (b) it is hereby declared for the avoidance of any doubt that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.

 

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or if a request had been made under section 33 from the date on which that request had been disposed of by the arbitral tribunal :

 

Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days but not thereafter.

 

(4) On receipt of an application under sub-section (1) the court may where it is appropriate and it is so requested by a party adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

 

VIII.  FINALITY AND ENFORCEMENT OF ARBITRAL AWARDS 

 

35. Finality of arbitral awards 

 

Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.

 

36. Enforcement 

 

Where the time for making an application to set aside the arbitral award under section 34 has expired or such application having been made it has been refused the award shall be enforced under the Code of Civil Procedure 1908 in the same manner as if it were a decree of the court.

 

IX - APPEALS 

 

37. Appealable orders 

 

(1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear from original decrees of the Court passing the order namely :-

 

(a) granting or refusing to grant any measure under section 9;

 

(b) setting aside or refusing to set aside an arbitral award under section 34.

 

(2) An appeal shall also lie to a court from order of the arbitral tribunal -

 

(a) accepting the plea referred to in sub-section (2) or sub-section (3) or section 16; or

 

(b) granting or refusing to grant an interim measure under section 17.

 

(3) No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

 

X - MISCELLANEOUS 

 

38. Deposits 

 

(1) The arbitral tribunal may fix the amount of the deposit or supplementary deposit as the case may be as an advance for the costs referred to in sub-section (8) of section 31 which it expects will be incurred in respect of the claim submitted to it :

 

Provided that where apart from the claim a counter-claim has been submitted to arbitral tribunal it may fix separate amount of deposit for the claim and counter-claim.

 

(2) The deposit referred to in sub-section (1) shall be payable in equal shares by the parties :

 

Provided that where one party fails to pay his share of the deposit the other party may pay that share :

 

Provided Further that where the other party also does not pay the aforesaid share in respect of the claim or the counter-claim the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claim or counter-claim as the case may be.

 

(3) Upon termination of the arbitral proceedings the arbitral tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties as the case may be.

 

39. Lien on arbitral award and deposits as to costs 

 

(1) Subject to the provisions of sub-section (2) and to any provision to the contrary in the arbitration agreement the arbitral tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.

 

(2) If in any case an arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it the court may on an application in this behalf order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into court by the applicant of the costs demanded and shall after such inquiry if any as it thinks fit further order that out of the money so paid into court there shall be paid to the arbitral tribunal by way of the costs such sum as the court may consider reasonable and that the balance of the money if any shall be refunded to the applicant.

 

(3) An application under sub-section (2) may be made by any party unless the fees demanded have been fixed by written agreement between him and the arbitral tribunal and the arbitral tribunal shall be entitled to appear and be heard on any such application.

 

(4) The court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting such costs and the arbitral award contains no sufficient provision concerning them.

 

40. Arbitration agreement not to be discharged by death of party thereto 

 

(1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party but shall in such event be enforceable by or against the legal representative of the deceased.

 

(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.

 

(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

 

41. Provisions in case of insolvency 

 

(1) Where it is provided by a term in a contract to which an insolvent is a party that any dispute arising thereout or in connection therewith shall be submitted to arbitration the said term shall if the receiver adopts the contract be enforceable by or against him so far as it relates to any such dispute.

 

(2) Where a person who has been adjudged an insolvent had before the commencement of the insolvency proceedings become a party to an arbitration agreement and any matter to which the agreement applies is required to be determined in connection with or for the purposes of the insolvency proceedings then if the case is one to which sub-section (1) does not apply any other party or the receiver may apply to the judicial authority having jurisdiction in the insolvency proceedings for an order directing that the matter in question shall be submitted to arbitration in accordance with the arbitration agreement and the judicial authority may if it is of opinion that having regard to all the circumstances of the case the matter ought to be determined by arbitration make an order accordingly.

 

(3) In this section the expression "receiver" includes an Official Assignee.

 

42. Jurisdiction 

 

Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force where with respect to an arbitration agreement any application under this Part has been made in a court that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of the agreement and the arbitral proceedings shall be made in that Court and in no other court.

 

43. Limitation 

 

(1) The Limitation Act 1963 shall apply to arbitrations as it applies to proceedings in court.

 

(2) For the purposes of this section and Limitation Act 1963 an arbitration shall be deemed to have commenced on the date referred in section 21.

 

(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred some step to commence arbitral proceedings is taken within a time fixed by the agreement and a dispute arises to which the agreement applies the court if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused and notwithstanding that the time so fixed has expired may on such terms if any as the justice of the case may require extend the time for such period as it thinks proper.

 

(4) Where the court orders that an arbitral award be set aside the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act 1963 for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.

 

PART II.  ENFORCEMENT OF CERTAIN FOREIGN AWARDS  

 

I - NEW YORK CONVENTION AWARDS 

 

44. Definition 

 

In this chapter unless the context otherwise requires foreign award means an arbitral award on differences between persons arising out of legal relationships whether contractual or not  considered as commercial under the law in force in India made on or after the 11th day of October 1960 -

 

(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in First Schedule applies and

 

(b) in one of such territories as the Central Government being satisfied that reciprocal provisions have been made may by notification in the Official Gazette declare to be territories to which the said Convention applies.

 

45. Power of judicial authority to refer parties to arbitration 

 

Notwithstanding anything contained in Part I or in the Code of Civil Procedure 1908 a judicial authority when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44 shall at the request of one of the parties or any person claiming through or under him refer the parties to arbitration unless it finds that the said agreement is null and void inoperative or incapable of being performed.

 

46. When foreign award binding  

 

Any foreign award which would be enforceable under this chapter shall be treated as binding for all purposes on the persons as between whom it was made and may accordingly be relied on by any of those persons by way of defence set off or otherwise in any legal proceedings in India and any references in this chapter to enforcing a foreign award shall be construed as including references to relying on an award.

 

47. Evidence 

 

(1) The party applying for the enforcement of a foreign award shall at the time of the application produce before the court -

 

(a) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;

 

(b) the original agreement for arbitration or a duly certified copy thereof; and

 

(c) such evidence as may be necessary to prove that the award is a foreign award.

 

(2) If the award or agreement to be produced under sub-section (1) in a foreign language the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

 

Explanation : In this section and all the following sections of this chapter "court" means the principal civil court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit but does not include any civil court of a grade inferior to such principal civil court or any court of small causes.

 

48. Conditions for enforcement of foreign awards 

 

(1) Enforcement of a foreign award may be refused at the request of the party against whom it is invoked only if that party furnishes to the court proof that -

 

(a) the parties to the agreement referred to in section 44 were under the law applicable to them under some incapacity or the said agreement is not valid under the law to which the parties have subjected it or failing any indication thereon under the law of the country where the award was made; or

 

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitrator proceedings or was otherwise unable to present his case; or

 

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or it contains decisions on matters beyond the scope of the submission to arbitration :

 

Provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

 

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or failing such agreement was not in accordance with the law of the country where the arbitration took place; or

 

(e) the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which or under the law of which that award was made.

 

(2) Enforcement of an arbitral award may also refused if the court finds that -

 

(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or

 

(b) the enforcement of the award would be contrary to the public policy of India.

 

Explanation :- Without prejudice to the generality of clause (b) of this section it is hereby declared for the avoidance of any doubt that an award is in conflict with the public policy of India if the making of the award was induced or effected by fraud or corruption.

 

(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the court may if it considers it proper adjourn the decision on the enforcement of the award and may also on the application of the party claiming enforcement of the award order the order party to give suitable security.

 

49. Enforcement of foreign awards 

 

Where the court is satisfied that the foreign award is enforceable under this chapter the award shall be deemed to be a decree of that court.

 

50. Appealable orders 

 

(1) An appeal shall lie from the order refusing to -

 

(a) refer the parties to arbitration under section 45;

 

(b) enforce a foreign award under section 48; to the court authorised by law to hear appeals from such order.

 

(2) No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

 

51. Saving 

 

Nothing in this chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this had not been enacted.

 

52. Chapter II not to apply 

 

Chapter II of this Part shall not apply in relation to foreign awards to which this chapter applies.

 

II.  GENEVA CONVENTION AWARDS 

 

53. Interpretation 

 

In this chapter "foreign award" means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July 1924 -

 

(a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies and

 

(b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government being satisfied that reciprocal provisions have been made may by notification in the Official Gazette declare to be parties to the Convention set forth in the Third Schedule and of whom the other is subject to the jurisdiction of some other of the powers aforesaid and

 

(c) in one of such territories as the Central Government being satisfied that reciprocal provisions have been made may by like notification declare to be territories to which the said Convention applies and for the purposes of this chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.

 

54. Power of judicial authority to refer parties to arbitration 

 

Notwithstanding anything contained in Part I or in the Code of Civil Procedure 1908 a judicial authority on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement whether referring to present or future differences which is valid under that section and capable of being carried into effect shall refer the parties on the application of either of them or any person claiming through or under him to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.

 

55. Foreign awards when binding 

 

Any foreign award which would be enforceable under this chapter shall be treated as binding for all purposes on the persons as between whom it was made and may accordingly be relied on by any of those persons by way of defence set off or otherwise in any legal proceedings in India and any references in this chapter to enforcing a foreign award shall be construed as including references to relaying on an award.

 

56. Evidence 

 

(1) The party applying for the enforcement of a foreign award shall at the time of application produce before the court -

 

(a) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;

 

(b) evidence proving that the award has become final; and

 

(c) such evidence as may be necessary to prove that the conditions mentioned in clauses (a) and (c) of sub-section (1) of section 57 are satisfied.

 

(2) Where any document requiring to be produced under sub-section (1) is in a foreign language the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

 

Explanation : In this section and all the following sections of this chapter court means the principal civil court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit but does not include any civil court of a grade inferior to such principal civil court or any court of small causes.

 

57. Conditions for enforcement of foreign awards 

 

(1) In order that a foreign award may be enforceable under this chapter it shall be necessary that -

 

(a) the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;

 

(b) the subject-matter of the award is capable of settlement by arbitration under the law of India;

 

(c) the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;

 

(d) the award has become final in the country in which it has been made in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;

 

(e) the enforcement of the award is not contrary to the public policy or the law of India.

 

Explanation : Without prejudice to the generality of clause (e) it is hereby declared for the avoidance of any doubt that an award is in conflict with the public policy of India if the making of the award was induced or effected by fraud or corruption.

 

(2) Even if the conditions laid down in sub-section (1) are fulfilled enforcement of the award shall be refused if the court is satisfied that -

 

(a) the award has been annulled in the country in which it was made;

 

(b) the party against who it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that being under a legal incapacity he was not properly represented;

 

(c) the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions of matters beyond the scope of the submission to arbitration :

 

Provided that if the award has not covered all the differences submitted to the arbitral tribunal the court may if it thinks fit postpone such enforcement or grant it subject to such guarantee as the court may decide.

 

(3) If the party against whom the award has been made proves that under the law governing the arbitration procedure there is a ground other than the grounds referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c) of sub-section (2) entitling him to contest the validity of the award the court may if it thinks fit either refuse enforcement of the award or adjourn the consideration thereof giving such party a reasonable time within which to have the award annulled by the competent tribunal.

 

58. Enforcement of foreign awards 

 

Where the court is satisfied that the foreign award is enforceable under this chapter the award shall be deemed to be a decree of the court.

 

59. Appealable orders 

 

(1) An appeal shall lie from the order refusing -

 

(a) to refer the parties to arbitration under section 54; and

 

(b) to enforce a foreign award under section 57 to the court authorised by law to hear appeals from such order.

 

(2) No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

 

60. Saving 

 

Nothing in this chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this chapter had not been enacted.

 

PART III.  CONCILIATION  

 

61. Application and scope 

 

(1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed this Part shall apply to conciliation of disputes arising out of legal relationship whether contractual or not and to all proceedings relating thereto.

 

(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.

 

62. Commencement of conciliation proceedings 

 

(1) The party initiating conciliation shall send to the other party a written invitation to conciliate under this Part briefly identifying the subject of the dispute.

 

(2) Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate.

 

(3) If the other party rejects the invitation there will be no conciliation proceedings.

 

(4) If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation or within such other period of time as specified in the invitation he may elect to treat this as a rejection of the invitation to conciliate and if he so elects he shall inform in writing the other party accordingly.

 

63. Number of conciliators 

 

(1) There shall be one conciliator unless the parties agree that there shall be two or three conciliators.

 

(2) Where there is more than one conciliator they ought as a general rule to act jointly.

 

64. Appointment of conciliators 

 

(1) Subject to sub-section (2) -

 

(a) in conciliation proceedings with one conciliator the parties may agree on the name of a sole conciliator;

 

(b) in conciliation proceedings with two conciliators each party may appoint one conciliator;

 

(c) in conciliation proceedings with three conciliators each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator.

 

(2) Parties may enlist the assistance of a suitable institution or person in connection with appointment of conciliators and in particular -

 

(a) a party may request such an institution or person to recommend the names of suitable individuals to act as conciliator; or

 

(b) the parties may agree that the appointment of one or more conciliators he made directly by such an institution or person :

 

Provided that in recommending or appointing individuals to act as conciliator the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and with respect to a sole or third conciliator shall taken into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

 

65. Submission of statements to conciliator 

 

(1) The conciliator upon his appointment may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party.

 

(2) The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof supplemented by any documents and other evidence that such party deems appropriate. The part shall send a copy of such statement documents and other evidence to the other party.

 

(3) At any stage of the conciliation proceedings the conciliator may request a party to submit to him such additional information as he deems appropriate.

 

Explanation : In this section and all the following sections of this Part the term "conciliator" applies to a sole conciliator two or three conciliators as the case may be.

 

66. Conciliator not bound by certain enactments 

 

The conciliator is not bound by the Code of Civil Procedure 1908 or the Indian Evidence Act 1872.

 

67. Role of conciliator  

 

(1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.

 

(2) The conciliator shall be guided by principles of objectivity fairness and justice giving consideration to among other things the rights and obligations of the parties the usages of the trade concerned and the circumstances surrounding the dispute including any previous business practices between the parties.

 

(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate taking into account the circumstances of the case the wishes the parties may express including any request by a party that the conciliator hear oral statements and the need for a speedy settlement of the dispute.

 

(4) The conciliator may at any stage of the conciliation proceedings make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons thereof.

 

68. Administrative assistance 

 

In order to facilitate the conduct of the conciliation proceedings the parties or the conciliator with the consent of the parties may arrange for administrative assistance by a suitable institution or person.

 

69. Communication between conciliator and parties 

 

(1) The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.

 

(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held such place shall be determined by the conciliator after consultation with the parties having regard to the circumstances of the conciliation proceedings.

 

70. Disclosure of information 

 

When the conciliator receives factual information concerning the dispute from a party he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate :

 

Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential the conciliator shall not disclose that information to the other party.

 

71. Co-operation of parties with conciliator 

 

This parties shall in good faith co-operate with the conciliator and in particular shall endeavour to comply with requests by the conciliator to submit written materials provide evidence and attend meetings.

 

72. Suggestions by parties for settlement of dispute 

 

Each party may on his own initiative or at the invitation of the conciliator submit to the conciliator suggestions for the settlement of the dispute.

 

73. Settlement agreement 

 

(1) When it appears to the conciliator that there exist elements of a settlement which may be acceptable to the parties he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties the conciliator may reformulate the terms of a possible settlement in the light of such observations.

 

(2) If the parties reach agreement on a settlement of the dispute they may draw up and sign a written settlement agreement. If requested by the parties the conciliator may draw up or assist the parties in drawing up the settlement agreement.

 

(3) When the parties sign the settlement agreement it shall be final and binding on the parties and persons claiming under them respectively.

 

(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

 

74. Status and effect of settlement agreement 

 

The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.

 

75. Confidentiality 

 

Notwithstanding anything contained in any other law for the time being in force the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement except where its disclosure is necessary for purposes of implementation and enforcement.

 

76. Termination of conciliation proceedings 

 

The conciliation proceedings shall be terminated -

 

(a) by the signing of the settlement agreement by the parties on the date of the agreement; or

 

(b) by a written declaration of the conciliator after consultation with the parties to the effect that further efforts at conciliation are no longer justified on the date of the declaration; or

 

(c) by a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated on the date of the declaration; or

 

(d) by a written declaration of a party to the other party and the conciliator if appointed to the effect that the conciliation proceedings are terminated on the date of the declaration.

 

77. Resort to arbitral or judicial proceedings 

 

The parties shall not initiate during the conciliation proceedings any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where in his opinion such proceedings are necessary for preserving his rights.

 

78. Costs 

 

(1) Upon termination of the conciliation proceedings the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties.

 

(2) For the purpose of sub-section (1) costs means reasonable costs relating to -

 

(a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties.

 

(b) any expert advice requested by the conciliator with the consent of the parties;

 

(c) any assistance provided pursuant to clause (b) of sub-section (2) of section 64 and section 68;

 

(d) any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.

 

(3) The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party.

 

79. Deposits 

 

(1) The conciliator may direct each party to deposit an equal among as an advance for the costs referred to in sub-section (2) of section 78 which he expects will be incurred.

 

(2) During the course of the conciliation proceedings the conciliator may direct supplementary deposits in an equal amount from each party.

 

(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within thirty days the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties effective on the date of that declaration.

 

(4) Upon termination of the conciliation proceedings the conciliator shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the parties.

 

80. Role of conciliator in other proceedings 

 

Unless otherwise agreed by the parties -

 

(a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings;

 

(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.

 

81. Admissibility of evidence in other proceedings 

 

The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings -

 

(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;

 

(b) admissions made by the other party in the course of the conciliation proceedings;

 

(c) proposals made by the conciliator;

 

(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.

 

PART IV.  SUPPLEMENTARY PROVISIONS 

 

82. Power of High Court to make rules 

 

The High Court may make rules consistent with this Act as to all proceedings before the court under this Act.

 

83. Removal of difficulties 

 

(1) If any difficulty arises in giving effect to the provisions of this Act the Central Government may by order published in the Official Gazette make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty :

 

Provided that no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.

 

(2) Every order made under this section shall as soon as may be after it is made be laid before each House of Parliament.

 

84. Power to make rules 

 

(1) The Central Government may by notification in the Official Gazette make rules for carrying out the provisions of this Act.

 

(2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

 

85. Repeal and saving 

 

(1) The Arbitration (Protocol and Convention) Act 1937 the Arbitration Act 1940 and the Foreign Awards (Recognition and Enforcement) Act 1961 are hereby repealed.

 

(2) Notwithstanding such repeal -

 

(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

 

(b) all rules made and notifications published under the said enactments shall to the extent to which they are not repugnant to this Act be deemed respectively to have been made or issued under this Act.

 

86. Repeal of Ordinance 27 of 1996 and saving 

 

(1) The Arbitration and Conciliation (Third) Ordinance 1996 is hereby repealed.

 

(2) Notwithstanding such repeal any order rule notification or scheme made or anything done or any action taken in pursuance of any provision of the said Ordinance shall be deemed to have been made done or taken under the corresponding provisions of this Act.

 

BACK                                                                                       NEXT