Legal Service India.com  
Arbitration and elements of Natural Justice

Arbitration and elements of Natural Justice

click here for LIVE help-desk
Chat with us  (2 PM - 9 PM IST)


Sambit Swain & Mehak Khanna - Amity Law School (Five Year Law Course)

  Search On:Laws in IndiaLawyers Search

The Black's Law dictionary, defines arbitration as a method of dispute resolution involving one or more neutral third parties, who are agreed to by the disputing parties and whose decision is binding. In order to realize the mentioned components of the definition it is essential and necessary for a legislation that supplements a legal binding, to the process and award of arbitration.

In India, the first piece of legislation was in the form of the Arbitration Act, 1940 on the pattern of English Arbitration Act, 1934 & it remained in force until it was replaced by the new Arbitration and Conciliation Act, 1996. The Arbitration and Conciliation Act 1996 not only possessed the essential features of arbitration that is, as a less expensive, efficient and effective tool of Alternate Dispute Resolution but was also more comprehensive in its outlook than the Arbitration Act 1940.

The new Act defined the term International Commercial Arbitration, it stated the qualification required for an Arbitrator, it abolished the umpire system, reduced the interference of the Court in various regards and also provided for the enforcement of foreign awards made under the New York Convention and the Geneva Convention.

We offer Copyright Registration Services
Right from your Desktop.....

Justice Without Power Is Inefficient: The concept of justice underlines the basic values that are to be attained by a system of law. It is a virtue by which....

The Rules To Be Followed By A Court In Applying Appropriate Law In Cases Having A Foreign Party: Private International Law or Conflict of Laws is that branch of law, private in some states, public in others.....

Singapore Arbitration: Singapore is a vibrant centre for alternative dispute resolution processes. After a quarter of a century of development, building up....

International Status the Right to Vote: Significant international treaties, including the International Covenant on Civil and Political Rights and regional agreements......

A Rear View of the YouTube case: The Delhi High Court recently passed an order of interim injunction against YouTube and its parent company Google.....

Thereby the arbitration and Conciliation Act1996 made a significant contribution to the Alternative Dispute Resolution means and it has remained so.

However, there remain a few loopholes in the legislation; that on occasions form a distinct part of conflict in the course of Alternative Dispute Resolution. It is pertinent to notice Section 13 of the Act, which states the challenge procedure to remove an arbitrator from the tribunal.

Section 13 (3) states as follows;
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

It is to be noted; that the arbitrator who is being challenged; remains in the arbitral tribunal and hence decides about his own competence as an arbitrator; which is completely against the principle of natural justice. Equity has often been regarded as a synonym for Natural Justice by jurists from the dawn of civilization and fairness is an integral part of it. The principle of Nemo Judex in Causa Sua that is no man shall be the judge of his own cause remains as one of the bedrocks of natural Justice. Under Section 13(3) of the Act the Arbitrator himself would adjudicate his own competence by being part of the tribunal, thereby creating doubts of biasness and unfair justice to be meted.

The competence of the arbitrator on the ground of biasness has been laid down by the Hon'ble Supreme Court in the case of Jiwan Kumar Lohia vs Durgadutt Lohia The test of likelihood of bias is whether a reasonable person, in possession of relevant information would have thought that bias was likely and whether the person concerned was likely to be disposed to decide the matter only in a particular way.

In the present scenario, that the fact that a judge is adjudicating his own competence, certainly forms a reasonable ground for apprehension of bias. The Hon'ble Apex Court in Bihar State Mineral Development, Corp. v. Encon Builders (I) Pvt. Ltd, while referring to Russell on Arbitration, stated:
A distinction is made between actual bias and apparent bias. Actual bias is rarely established but clearly provides grounds for removal. Moreover, there is a suspicion of bias, which has been variously described as apparent or unconscious or imputed bias. In such majority of cases it is often emphasized that the challenger does not go so far as to suggest the arbitrator is actually biased, rather some form of some objective apprehension of bias exists.

In relevance to the present picture, there is certainly a clear unambiguous apprehension of bias that is to be created out of the
peculiar situation as the arbitrator becomes the judge of his own cause.

The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, am I biased but to look at the mind of the party before him. Therefore it is to be carefully perceived that the challenge to the arbitrator adjudicating his own competence is in no manner a doubt or imputation to the character of the arbitrator, instead it is the apprehension of biasness that forms the ground of appeal that has arisen from a situation. Hence it has to be acknowledged that Section 13(2) is speculative and needs clarity.

As Salmond said Natural justice is justice in deed and in truth, while legal justice is justice declared and recognised by law and enforced in law courts. He maintains that natural justice is the ideal and the truth, of which legal justice is the more or less imperfect realisation and expression. Therefore, we can always correct the legal justice so as to be in consonance with justice in deed and truth. In regards to Section 13 of the Arbitration and Conciliation Act, 1996 the need arises for an express provision, stating the challenged arbitrator not to be a part of the tribunal deciding his competence.

To, conclude the lines of Lord Hewart C.J would be aptly suited; It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly been seen to be done.

author's contact information!The  author can be reached at :sambit@legalserviceindia.com
 

Legal Service India

Arbitration
Cyber Law
Copyright
Protect your website
Trademarks
Passport
Income-Tax
Contract laws
Criminal laws
Lok Adalat, legal Aid & PIL
Supreme Court Judgments
Legal Latin maxims
Famous Trials

Download law Forms
Famous - Quotes
Medico Legal
Divorce law
Family law
Patent Forms
Wills
law ibrary
Law Articles
Legal Resources
Cheque bounce laws
Law Blog
legal Discussion Forum
Osama Bin Laden
Stamp Duty Calculator
Link-Exchange
Bare - Acts
Constitutional Law
Immigration Law

Company Law
Partnership firms
Woman issues
Consumer laws
Cause Lists
High Courts in India
legal Profession
Law Forum
Web-Search
Blogs

Ad page
Sitemap

RSS Feed

Lawyers in India - Search by City

legal Service India

lawyers in Delhi - New Delhi
lawyers in Chennai
lawyers in Chandigarh
lawyers in Surat
lawyers in Nashik
lawyers in Janjgir
lawyers in Indore
lawyers in Allahabad
lawyers in Agra
lawyers in Ahmedabad
lawyers in Jodhpur
Lawyers in Noida & Gr Noida
Lawyers in New York
Lawyers India

lawyers in Kolkata
lawyers in Mumbai
lawyers in Bangalore
lawyers in Pune
lawyers in Hyderabad
lawyers in Rajkot
lawyers in Nagpur
lawyers in Pondicherry
lawyers in Jaipur
lawyers in Cochin
lawyers in Lucknow
International Courts
Law Colleges
Law Debates

Home | About Us | Privacy | Terms of use | F A Q | Divorce by mutual consent | Lawyers | Submit article | Sitemap | Contact Us

legal Service India.com is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2013
ISBN No: 978-93-82417-01-9