How to insert an Arbitration Clause

Arbitration Clauses and Checkpoints

• A binding arbitration agreement must be in writing.

• When parties opt against ad-hoc arbitration, it is essential to choose an arbitration institution to oversee the conduct of arbitration proceedings. This ensures procedural functionality in the arbitral proceedings, including the naming of arbitrators and continuance of administrative assistance.

• Ad hoc arbitration in India appears to follow Indian court protocol and procedures, which are unversed and sometimes burdensome in the international context.

• In case the parties fail to specify the distinction between ‘venue’ and ‘seat’ of the arbitration in the arbitration agreement, it will substantially affect the time and costs associated with the dispute settlement process

• Steer Clear of vague language and specify the “seat” mainly when the intention is to have a seat outside India and where Indian law is designated to be governing law of the underlying contract.

• It is, of course, advisable to include a ‘governing law’ clause in every contract. Though non-Indian parties may choose to opt for another legal system due to reasons for familiarity, the substance of Indian contract law is, however, to a large extent, within the normal aspirations of the majority of non-Indian parties and can typically be accorded to as a part of a larger settlement.

• Clauses that mandate the parties to take specific steps before the start of arbitration proceedings (such conducting meetings to solve the dispute through other means before referring it to arbitration) are often referred to as “escalation clauses,”

• These clauses should be treated with caution, as they can cause substantial delays while (as is often the case) failing to achieve the objective of effective negotiations.

• If you consider such a clause desirable, or if a counterparty insists, then be mindful that such a clause can prevent the commencement of arbitration until periods set out in the clause have expired – and with that in mind make sure that the relevant timeframe is short and transparent.

• In general, it is a rule of thumb to avoid specifying, in an arbitration clause, qualifications that the arbitrators must fulfil (in particular, a condition that only the retired judges of the Supreme Court of India or the various High Courts of India can be nominated to the tribunal).• This is because such limitations minimize the pool of arbitrators available, sometimes causing significant damage to your interest.

Points To Remember While Drafting Arbitration Agreement in India.

· The seat of Arbitration – To determine the procedural rules which would apply to the arbitration, it essential to specify the seat of the arbitration. It is of extreme importance to understand the difference between the venue and seat of the arbitration. The venue of arbitration is limited to it being the place where the hearing would take place. In contrast, the seat of arbitration has a detrimental effect on the procedure of the arbitration. The seat of arbitration has a wide ambit it and brings within its purview not only the evidentiary rules but also rules for enforcement and execution of the award.

· Procedure for Appointing Arbitrators – • Section 11 of the Arbitration and Mediation Act applies to the appointment of arbitrators. It provides that, “unless otherwise decided by the parties, a person of any nationality may be named as an arbitrator. The parties are free to agree on the protocol for the appointment of the arbitrator(s). If the parties fail to reach an agreement, each party shall nominate one arbitrator in an arbitration with three arbitrators, and the two arbitrators shall then nominate a third arbitrator to be the presiding arbitrator”.

Where the dispute concerns an international commercial transaction, the arbitrator to be named shall not be of the same nationality as the parties to the dispute.

· Language of Arbitration –. It is essential to specify the language of the arbitration in the arbitration agreement. Especially in a country like ours, where Hindi and English are not the only two languages spoken, it would be very difficult to determine and resolve disputes. Choosing the language of the arbitration is also very cost-effective, as it will save you parties from paying exorbitant fees to the translators.

· Number and Qualifications of Arbitrators – According to Section 10 of the Arbitration and Reconciliation Act of 1996, the parties may decide the number of arbitrators, given that the number selected is an odd number. If the parties fail to determine the number of arbitrators, the arbitral tribunal shall be composed of a single arbitrator.

· Parties can choose type of Arbitration – Either institutional or ad hoc arbitrations. If the parties prefer the former, then they must be bound by the arbitration institutions laws. Many of these institutions have their own set of procedural rules, which will, in turn, apply to the arbitral proceedings. Whereas, in the case of ad-hoc arbitrations, the parties themselves have to set out the procedure for arbitration by themselves. In ad hoc arbitrations, no support is obtained from the arbitral institutions.

· Governing Law – This is the law regulating the principal point of contention between the parties to a dispute. The parties should state the law they wish to be governed by, which could, in the future, give way to conflicts. It is also known as substantive law which governs the arbitration agreement.

· Name and Address of the Arbitration Institution – If the parties refer their disputes to an arbitration centre, then it is necessary to state in plain and unambiguous terms the name and address of the arbitration facility.

We propose that non-Indian parties should adopt the following general approach:

o Consider, first of all, whether Indian law is needed.

o If this is not necessary, then if you can do so as by using your bargaining power, choose a non-Indian law such has UNIDROIT Principles or CISG, as they are conducive to facilitation of international trade.

o If you are required to opt for Indian law (whether under a legal requirement or as a matter of commercial bargaining power) have a trained professional review the contract.

o This is done to ensure that due consideration is given to those areas in which the Indian contract law varies from the contract law of other systems (s)

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