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Published by Enhelion, 2019-11-24 04:51:05

Module_3

Module_3

Termination of mandate
The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator,
if-

• He becomes de jure or de facto unable to perform his functions or for other reasons
fails to act without undue delay; and

• He withdraws from his office or the parties agree to the termination of his mandate. 28

Additional circumstances for termination are enumerated as follows29-
• Where the arbitrator withdraws from office for any reason; or
• By or pursuant to agreement of the parties.

Jurisdiction of the arbitral tribunal
Sec 16 of the Arbitration and Conciliation Act 1996 deal with the jurisdiction of the arbitral
tribunal. It contains the following provisions-

1. The tribunal may rule on its own jurisdiction including any objections with respect to
the existence or validity of the arbitration agreement and for that purpose an
arbitration clause included in a contract shall be considered as an independent
contract. This plea shall be raised not later than submission of the statement of
defence. However, a party shall not be precluded from raising the plea if he has
merely appointed or participated in the appointment of an arbitrator.

28 Section 14 of Arbitration and Conciliation Act 1996
29 Section 15 of Arbitration and Conciliation Act 1996

2. A party can raise a plea that the arbitral tribunal is exceeding the scope of authority
given by the arbitration agreement. this plea has to be raised as soon as the matter
which is alleged to be beyond the scope is raised in the arbitral proceedings.

3. The arbitral tribunal may accept a plea later than the time limit mentioned in (1) and
(2) if the delay is justified.

4. When the plea raised under (1) and (2) are rejected, the arbitral tribunal shall
commence the proceedings and make an arbitral award. Later, a party aggrieved by it
may make an application under Section 34 to set aside the award.

Powers of arbitrators-

1. Power to make awards
2. Power to take assistance (Section 6)
3. Power to rule on its own jurisdiction (Section 16)
4. Power to pass interim relief (Section 17)
5. Determination of rules of procedure (Section 19)
6. Language (Section 22)
7. Statement of claims and defense (Section 23)
8. Hearing and written proceeding (Section 24)
9. Default of a party (Section 25)
10. Power to appoint an expert (Section 26)
11. Power to seek assistance of the court in seeking evidence Section 27)
12. Award and settlement power (Section 30)
13. Power to terminate proceedings (Section 32)
14. Power to correct, interpret award and make additional award (Section 33)
15. Power to impose interest and deposit (Section 38)
16. Power to remuneration
17. Power as to lien on arbitral award and deposits as to costs (Section 39)

Duties of an arbitrator

1. Equal treatment to parties (Section 18)
2. Duty to arbitrate only the dispute (Section 34(2) (a) (iv))
3. Duty to follow provisions of Arbitration Act 1996 (Section 34(2) (a) (v))
4. Duty towards public policy
5. Obligation towards time limitation
6. Obligation towards remuneration
7. Duty to make reasoned awards
8. Duty to render natural justice
9. Duty to withdraw or recuse
10. Not to act beyond jurisdiction
11. Not to be guilty of fraud or misconduct
12. Duty of finality and reasonableness
13. Duty to decide the dispute according to law
14. Duty to render accounts (Section 38)
15. Duty to follow trade usages (Section 28(3))
16. Duty towards settlement (Section 30)
17. Duty to follow Ex Aequo Et Bono or as amiable compositeur.

CONCLUSION

International commercial arbitration is the most convenient and effective method for
settlement of disputes. There is no definitive authorized source that defines the jurisdiction,
appointment, powers and duties of the tribunal. Being consensual in nature, the agreement to
arbitrate is central to deciding in case of dispute. Hence, utmost care has to be taken while
drafting the same by taking into consideration the grievances and reliefs of both the parties.
The agreement should be explicit about all the provisions the parties wish to include in it and
ambiguity should be avoided to the greatest extent possible. But at the same time, the
agreement should provide flexibility and discretion to the arbitrators to conduct the arbitral
proceedings. This shall ensure a successful arbitration bearing the desired result


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