Page 27 - Insurance Times March 2016 Sample
P. 27
arbitrator to implementation of final award. Thus, the de-
fending party could approach court at various stages and
stall the proceedings.
Now, approach to court has been drastically curtailed. In
some cases, if an objection is raised by the party, the deci-
sion on that objection can be given by Arbitral Tribunal it-
self. After the decision, the arbitration proceedings are con-
tinued and the aggrieved party can approach Court only
after Arbitral Award is made.
Appeal to court is now on restricted grounds only. Of course, of movable or immovable property can be referred to con-
Tribunal cannot be unlimited and uncontrolled and supervi- ciliation. However, matters of criminal nature, illegal trans-
sion of Courts cannot be eliminated totally. actions, matrimonial matters like divorce suit etc. cannot
be referred to conciliation.
Arbitration Act has over-riding effect - Section 5 of Act clari-
fies that notwithstanding anything contained in any other Arbitration and Conciliation Act, 1996 is now prevailing in
law for the time being in force, in matters governed by the India, leaving aside the Arbitration Act, 1940 that was all
Act, the judicial authority can intervene only as provided in along printed in all erstwhile Genreral Insurance Policies
this Act and not under any other Act. before 1996.
Conciliation - Part III of the Act makes provision for concili- 7. Finally While Summing Up let us Con-
ation proceedings. In conciliation proceedings, there is no sider The Salient Features of Arbitration
agreement for arbitration. In fact, conciliation can be done Act in Indian Insurance Parlance:
even if there is arbitration agreement. The conciliator only
brings parties together and tries to solve the dispute using Now-a-days we have frequent Arbitration hearings in insur-
his good offices. The conciliator has no authority to give any ance for resolving disputes or the settling of differences
award. He only helps parties in arriving at a mutually ac- between parties i.e. the insured and insurers, having cho-
cepted settlement. sen or agreed to by them. Even the International Law is
there to settle various international disputes through Arbi-
After such agreement they may draw and sign a written tration, as the judicial methods for settlement of interna-
settlement agreement. It will be signed by the conciliator. tional disputes.
However after the settlement agreement is signed by both
the parties and the conciliator, it has the same status and Due to certain controversial decisions made by the Indian
effect as if it is an arbitral award. Conciliation is the ami- judiciary in the last decade-especially in cases involving a
cable settlement of disputes between the parties, with the foreign party-investors have kept a close watch on the
help of a conciliator. progress of arbitration laws in India. They have often
criticised the judiciary for its interfering in international
Offer for conciliation - The conciliation proceedings can start commercial arbitration and extraterritorial application of
when one of the parties makes a written request to an other domestic laws to awards obtained outside the country.
to conciliate, briefly identifying the dispute. The conciliation
can start only if other party accepts in writing the invita- Foreign investors and corporate entities considered it as a
tion to conciliate. Unless there is written acceptance, con- major risk factor for doing business in India. In fact, the delay
ciliation cannot commence. in the judicial process led to the first investment arbitration
claim against the country in the White Industries vs the
If the other party does not reply within 30 days, the offer
for conciliation can be treated as rejected [Section 62].All
matters of a civil nature or breach of contract or disputes
The Insurance Times, March 2016 27
