Law relating to Arbitration, Mediation and Conciliation

The Alternative Dispute Resolution (ADR) processes provide procedural flexibility, save valuable time and money and avoid the stress of a conventional trial. ADR can help in reducing the workload of regular Courts and in long run can pave way in solving the problem of judicial arrears before the Courts of law. ADR is not meant to supplant the court system because the conclusions arrived through these mechanisms are recognised by the Courts and there are provisions in law that allow for appeal against the ADR outcome in regular courts. Arbitration, mediation and conciliation are three of the most popular means of ADR. Arbitration is the means by which parties to a dispute get the same settled through the intervention of a third person (or more persons) but without recourse to a Court of Law. The parties repose confidence in the judgement of the arbitrator and show their willingness to abide by his decision.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 3(d) (Syllabus 2017).

With the passage of time, some difficulties in the applicability of Arbitration and Conciliation Act, 1996(Principal Act) have been noticed. Interpretation of the provisions of the Act by Court in some cases have resulted in delay in disposal of arbitration proceeding and increase the interference of the courts in arbitration matters, which tend to defeat the object of the Act.

With a view to overcome the difficulties, Arbitration and Conciliation (Amendment)

Act, 2015(the amendment Act) was passed by the Parliament. The amendment Act facilitate and encourage Alternative Dispute Mechanism, especially arbitration for settlement of disputes in a more user-friendly, cost effective and expeditious disposal of cases, since India is committed to improve its legal framework to obviate in disposal of cases.

The purpose of the amendment act is as under:

(i)to amend the definition of “Court” to provide that in the case of international commercial arbitrations, the Court should be the High Court;

(ii)to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India;

(iii)an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days;

(iv)to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues;

(v)to provide that the arbitral tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause;

(vi)to provide that a model fee Schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of arbitral tribunal, where a High Court appoints arbitrator in terms of section 11 of the Principal Act;

(vii)to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast track procedure and the award in such cases shall be made within a period of six months;

(viii)to provide for neutrality of arbitrators, when a person is approached in connection with possible appointment as an arbitrator;

(ix)to provide that application to challenge the award is to be disposed of by the Court within one year.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 6A(iv) (Syllabus 2017).

Essentials of arbitral process are:

1.Seat of Arbitration - The parties are free to select any location as the arbitration’s seat.

2.Venue of Arbitration - The Venue or location, for the sessions of the arbitral proceedings may be decided by the parties.

3.Arbitral Institution - The parties may select the arbitral institution for conducting the proceedings. The rules of such arbitration institution will apply to proceedings.

4.Law - The parties may by agreement choose any law.

5.Language - The parties may also agree on the language of the arbitration proceedings.

6.Number of arbitrators - The parties are free to determine the number of arbitrators, provided that such number shall not be an even number. However, failing the determination, the arbitral tribunal shall consist of a sole arbitrator.

7.Cost - The Court or arbitral tribunal have the discretion to determine the cost which includes the decision as to:

(a)whether costs are payable by one party to another;

(b)the amount of such costs; and

(c)when such costs are to be paid.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6(d) (Syllabus 2017).

As per Section 20(1) of the Arbitration and Conciliation Act, 1996 (AC Act) the parties are free to agree on the place of arbitration and sub-section (2) states that if they fail to reach an agreement, the place of arbitration is determined by the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties. Section 20(3) of AC Act introduces an option by providing that the arbitrator/tribunal may, unless otherwise agreed by the parties, may meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Parties are free to agree on the place of arbitration. Party autonomy has to be construed in the context of parties choosing a court which has jurisdiction out of two or more competent courts having jurisdiction.

The case is similar to the Supreme Court judgement in Brahmani River Pellets Limited (Appellant) vs.

Kamachi Industries Limited (Respondent).

In this case, the appellant contested the petition challenging the jurisdiction of the Madras High Court on the ground that the parties have agreed that the Seat of arbitration be Bhubaneswar.

The Hon’ble supreme court observed that Section 2(1) (e) of the Arbitration and Conciliation Act, 1996 (the Act) defines the “Court” with reference to the term “subject-matter of the suit”. As per Section 2(1) (e) of the Act, if the “subject-matter of the suit” is situated within the arbitral jurisdiction of two or more courts, the parties can agree to confine the jurisdiction in one of the competent courts. In para (96) of BALCO, the Supreme Court held that the term “subject matter” in Section 2(1) (e) of the Act is to identify the court having supervisory control over the arbitral proceedings. As per Section 20 of the Act, parties are free to agree on the place of arbitration. Party autonomy has to be construed in the context of parties choosing a court that has jurisdiction out of two or more competent courts having jurisdiction. The Supreme Court observed that when the parties agreed to have the “venue” of arbitration at Bhubaneswar, the Madras High Court erred in assuming the jurisdiction under Section 11(6) of the Act. Since only the Orissa High Court will have the jurisdiction to entertain the petition filed under Section 11(6) of the Act. The impugned order was liable to be set aside.

Therefore, the Madras High Court was not justified in appointing the arbitrator.

Alternate Answer

According to section 11(6) of Arbitration and Conciliation Act, 1996, where, under an appointment procedure agreed upon by the parties,–

(a)a party fails to act as required under that procedure; or

(b)the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c)a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

In view of the above mentioned provision, Madras High Court can appoint Arbitrator if the matter is under its Jurisdiction under section 11 of the Arbitration and Conciliation Act, 1996.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 4(c) (Syllabus 2022).

Section 12(3) of the Arbitration and Conciliation Act, 1996, states that an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or he does not possess the qualifications agreed to by the parties.

Section 12(4) of the Arbitration and Conciliation Act, 1996 provides that a party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reason, of which he becomes aware after the appointment has been made.

Section 12(1) of the Arbitration and Conciliation Act, 1996, provides that when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances -

(a)such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and

(b)which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.

According to Section 12(2) of the Arbitration and Conciliation Act, 1996, an arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub section (1) unless they have already been informed of them by him.

Section 12(5) of the Arbitration and Conciliation Act, 1996 states that notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel the subject matter of the dispute, falls under any of the categories specified in the Seventh Schedule of the Act shall be ineligible to be appointed as an arbitrator.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 5(a) (Syllabus 2017).

In the matter of Dayawati vs. Yogesh Kumar Gosain (17.10.2017-Del H.C): 2017 SCC Online Del 11032, the question before Delhi High Court was whether an offence under section 138 of Negotiable Instruments Act can be referred for amicable settlement through mediation. Court stated that “even though an express statutory provision enabling the criminal court to refer the complainant and accused persons to alternate dispute redressal mechanisms (ADR) has not been specifically provided by the legislature, however, the Code of Criminal Procedure, 1973 (Cr.P.C.) does permit and recognize settlement without stipulating or restricting the process by which it may be reached. There is thus no bar to utilizing the ADR including arbitration, mediation, conciliation (recognized under Section 89 of CPC) for the purposes of settling disputes which are the subject matter of offence covered under Section 320 of Cr.P.C.”

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 2(d) (Syllabus 2022).

Interim measures ordered by arbitral tribunal Section 17 (1) of the Arbitration and Conciliation, 1996 provides that a party may, during the arbitral proceedings, apply to the arbitral tribunal—

(i)for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii)for an interim measure of protection in respect of any of the following matters, namely:

(a)the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;

(b)securing the amount in dispute in the arbitration;

(c)the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d)interim injunction or the appointment of a receiver;

(e)such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 3(b) (Syllabus 2017).

Arbitration is the means by which parties to a dispute get the same settled through the intervention of a third person (or more persons) but without recourse to a Court of Law. The settlement of dispute is arrived by the judgment of the third person (or more persons) who are called Arbitrators. The parties repose confidence in the judgement of the arbitrator and show their willingness to abide by his decision. The essence of arbitration is thus based upon the principle of keeping away the dispute from the ordinary Courts enabling the parties to substitute by a domestic tribunal.

Section 2(1)(a) of the Arbitration and Conciliation Act, 1996, defines the term “arbitration” as to mean any arbitration whether or not administered by a permanent arbitral institution.

Conciliation is an informal process in which the conciliator (the third party) tries to bring the disputants to agreement. He does this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement. It can succeed only if the parties are willing to re-adjust.

Conciliation involves building a positive relationship between the parties to the dispute. Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement.

The Arbitration and Conciliation Act, 1996(Part III containing Section 61 to 81) gives a formal recognition to conciliation in India.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 2(b) (Syllabus 2017).

According to Section 2(1)(b) of the Arbitration and Conciliation Act, 1996 "Arbitration Agreement" means an agreement referred to in Section 7.

Under Section 7, the Arbitration agreement has been defined to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

Following are some of the essential elements of Arbitration Agreement:

a)An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

b)An arbitration agreement shall be in writing.

c)An arbitration agreement is in writing if it is contained in:

•a document signed by the parties;

•an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or

•an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

d)The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 4(c) (Syllabus 2017).

As per Section 2(1)(c) of the Arbitration and Conciliation Act, 1996, "arbitral award"

includes an interim award. The definition does not give much detail of the ingredients of an arbitral award. However, taking into account other provisions of the Act, the following features are noticed:

1.The arbitral award is required to be made on stamp paper of prescribed value (as applicable at the place of making the award) and in writing.

2.The award is to be signed by the members of the arbitral tribunal.

3.The making of an award is a rational process which is accentuated by recording the reasons. The award should contain reasons.

4.The award should be dated i.e. the date of making of the award should be mentioned in the award.

5.Place of arbitration is important for the determination of rules applicable to substance of dispute, and recourse against the award. Place of arbitration refers to the jurisdiction of the Court of a particular city or State.

6.The arbitral tribunal may include in the sum for which award is made, interest upto the date of award and also a direction regarding future interest.

7.The award may also include decisions and directions of the arbitrator regarding the cost of the arbitration.

8.After the award is made, a signed copy should be delivered to each party for appropriate action like implementation or recourse against arbitral award.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 6A(iv) (Syllabus 2017).

As per Section 2(1)(c) of the Arbitration and Conciliation Act, 1996(the Act), “arbitral award” includes an interim award. This definition does not give much detail of the ingredients of an arbitral award. However, taking into account various other provisions of the Act, an award can have following essential features:

1.Written and stamped: An award is required to be made in writing. The arbitral award is required to be made on stamp paper of prescribed value (as applicable at the place of making the award) and in writing.

An oral decision is not an award under the law.

2.Signed: The award is to be signed by the members of the arbitral tribunal. However, the signature of majority of the members of the tribunal is sufficient if the reason for any omitted signature is stated.

3.Reasoned: The making of an award is a rational process which is accentuated by recording the reasons.

The award should contain reasons.

However, there are two exceptions where an award without reasons is valid i.e.

(a)Where the arbitration agreement expressly provides that no reasons are to be given, or

(b)Where the award has been made under Section 30 of the Act i.e. where the parties settled the dispute and the arbitral tribunal has recorded the settlement in the form of an arbitral award on agreed terms.

4.Dated: The award should be dated i.e. the date of making of the award should be mentioned in the award.

5.Mention of Place: Place of arbitration is important for the determination of rules applicable to substance of dispute, and recourse against the award. The arbitral tribunal is under obligation to state the place of arbitration as determined in accordance with Section 20 of the Act. Place of arbitration refers to the jurisdiction of the Court of a particular city or State.

6.Clarity of Value and Interest: The arbitral tribunal may include in the sum for which award is made, interest up to the date of award and also a direction regarding future interest.

7.Cost of Arbitration: The award may also include decisions and directions of the arbitrator regarding the cost of the arbitration.

8.Delivery of copies: After the award is made, a signed copy should be delivered to each party for appropriate action like implementation or recourse against arbitral award.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 6(d) (Syllabus 2017).

According to Section 2(1)(d) Arbitration and Conciliation Act, 1996, “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators.

Section 16 deals with competence of arbitral tribunal to rule on its jurisdiction. According to this section, the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,

(a)an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b)a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

The arbitral tribunal may, in either of the cases referred it, in sub-section (2) or sub-section

(3)(stated in above paragraphs), admit a later plea if it considers the delay justified.

Further, the arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) (stated in above paragraphs) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 4A(i) (Syllabus 2022).

According to Section 2(1)(f) of the Arbitration and Conciliation Act, 1996, International Commercial Arbitration means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is —

(i)an individual who is a national of, or habitually resident in, any country other than India; or

(ii)a body corporate which is incorporated in any country other than India; or

(iii)an association or a body of individuals whose central management and control is exercised in any country other than India; or

(iv)the Government of a foreign country.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 4(c) (Syllabus 2017).

Section 25 of Arbitration and Conciliation Act, 1996 provides that unless otherwise agreed by the parties, where, without showing sufficient cause,-a. the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings; b. the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegation by the claimant and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited.

c.a party fails to appear an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 3(c) (Syllabus 2017).

According to Section 3(h) of the Mediation Act, 2023 (Act) “mediation” includes a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute.

According to Section 3(i) of the Mediation Act, 2023 “mediator” means a person who is appointed to be a mediator, by the parties or by a mediation service provider, to undertake mediation, and includes a person registered as mediator with the Council.

Explanation: Where more than one mediator is appointed for a mediation, reference to a mediator under this Act shall be a reference to all the mediators; Difference between Arbitration and Mediation are:

1.Mediation is when a neutral third party aims to assist the parties in arriving at a mutually agreeable solution whereas arbitration is like litigation which is outside the court and which results in an award like an order.

2.Mediation is more collaborative; arbitration is more adversarial.

3.The process of mediation is more informal than that of arbitration.

4.The outcome in mediation is controlled by the parties whereas in arbitration it is controlled by the arbitrator.

5.In mediation, the dispute may or may not be resolved whereas in arbitration it is always settled in either party’s favour.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 4A(ii) (Syllabus 2022).

As per section 31(1) the Arbitration and Conciliation Act, 1996(the Act), an arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.

Section 31(2) of the Act states that for the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated.

Under Section 31 (3) of the Act, the arbitral award shall state the reasons upon which it is based, unless:

(a)the parties have agreed that no reasons are to be given, or

(b)the award is an arbitral award on agreed terms under section 30.

Section 31(4) of the Act, provides that the arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.

Section 31(5) of the Act says that after the arbitral award is made, a signed copy shall be delivered to each party.

Under Section 31(6) of the Act, the arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 6A(ii) (Syllabus 2017).

As per section 32 (1) of Arbitration & Conciliation Act, 1996, the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

Under section 32 (2) of Arbitration & Conciliation Act, 1996, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings where, a. the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in, obtaining a final settlement of the dispute, b. the parties agree on the termination of the proceedings, or c. the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

Section 32(3) says that the mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings. This is subject to the provisions of Sections 33 and 34(4) of the Act.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 6A(ii) (Syllabus 2017).

As per Section 32(1) of the Arbitration and Conciliation Act, 1996 (the Act) the arbitral proceeding shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

Under Section 32(2) of the Act, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings where – a. The claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in, obtaining a final settlement of the dispute, b. The parties agree on the termination of the proceeding, or c. The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

Section 32(3) of the Act says that the mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings. However, this is subject to the provisions of Section 33 and 34(4) of the Act.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6A(i) (Syllabus 2022).

As per section 32 (1) of the Arbitration and Conciliation Act, 1996 the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal.

Under section 32(2) of the Arbitration and Conciliation Act, 1996, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings where -a. the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on his part in, obtaining a final settlement of the dispute, b. the parties agree on the termination of the proceedings, or c. the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 6A(iv) (Syllabus 2017).

Section 34 of the Arbitration and Conciliation Act, 1996 provides the provisions relating to grounds for setting aside an Arbitral Award. Section 34(2) states:

(a)An arbitral award may be set aside by the Court only if— 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 1 For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,

(i)the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81 ; or

(ii)it is in contravention with the fundamental policy of Indian law; or

(iii)it is in conflict with the most basic notions of morality or justice.

Explanation 2 For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

Further as per Section 34(2A), an arbitral award arising out of arbitrations, other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award.

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re appreciation of evidence.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 4A(i) (Syllabus 2022).

Section 34(2) of the Arbitration and Conciliation Act, 1996 states that an arbitral award may be set aside by the Court only if, a. the party making the application establishes on the basis of the record of the arbitral tribunal 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 1 provides as under:

For the avoidance of any doubt, it is clarified in the explanation appended to the Section that an award is in conflict with the public policy of India, only if, i. the making of the award was induced or affected by fraud or corruption or

was in violation of section 75 or section 81; or ii. it is in contravention with the fundamental policy of Indian law; or iii. it is in conflict with the most basic notions of morality or justice.

Explanation 2 provides as under:

For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

As per Section 34(2A), an arbitral award arising out of arbitrations, other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award.

However, an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 5(b) (Syllabus 2017).

According to Section 34(2) of the Arbitration and Conciliation Act, 1996, an arbitral award may be set aside by the Court only if the party making the application furnishes proof that-

1.a party was under some incapacity, or

2.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

3.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

4.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

5.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 Further, the Court finds that the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or the Court finds that the arbitral award is in conflict with the public policy of India.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 6(b) (Syllabus 2017).

Part IA of the Arbitration and Conciliation Act, 1996 (the Act) as inserted by the Amendment Act, 2019 deals with Arbitration Council of India. Section 43B empowers the Central Government to establish the Arbitration Council of India to perform the duties and discharge the functions under the Act. The Council shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to enter into contract, and shall, by the said name, sue or be sued. The head office of the Council shall be at Delhi. The Council may, with the prior approval of the Central Government, establish offices at other places in India.

Section 43D provides that it shall be the duty of the Council to take all such measures as may be necessary to promote and encourage arbitration, mediation, conciliation or other alternative dispute resolution mechanism and for that purpose to frame policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration.

For the purposes of performing the duties and discharging the functions under this Act, the Council may—

(a)frame policies governing the grading of arbitral institutions;

(b)recognise professional institutes providing accreditation of arbitrators;

(c)review the grading of arbitral institutions and arbitrators;

(d)hold training, workshops and courses in the area of arbitration in collaboration of law firms, law universities and arbitral institutes;

(e)frame, review and update norms to ensure satisfactory level of arbitration and conciliation;

(f)act as a forum for exchange of views and techniques to be adopted for creating a platform to make India a robust centre for domestic and international arbitration and conciliation;

(g)make recommendations to the Central Government on various measures to be adopted to make provision for easy resolution of commercial disputes;

(h)promote institutional arbitration by strengthening arbitral institutions;

(i)conduct examination and training on various subjects relating to arbitration and conciliation and award certificates thereof; (j) establish and maintain depository of arbitral awards made in India; (k) make recommendations regarding personnel, training and infrastructure of arbitral institutions; and (l) Such other functions as may be decided by the Central Government.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 5(a) (Syllabus 2017).

Section 43G(1) of Arbitration and Conciliation Act, 1996 (Act) provides that the Central Government may, remove a Member from his office if he–

(a)is an undischarged insolvent; or

(b)has engaged at any time (except Part-time Member), during his term of office, in any paid employment; or

(c)has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(d)has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or

(e)has so abused his position as to render his continuance in office prejudicial to the public interest; or

(f)has become physically or mentally incapable of acting as a Member.

According to Section 43G(2), notwithstanding anything contained in sub-section (1), no Member shall be removed from his office on the grounds specified in clauses (d) and (e) of that sub-section unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 6A(iv) (Syllabus 2022).

Section 48 of the Arbitration and Conciliation Act, 1996 enumerates the conditions for enforcement of foreign awards and provides that the party, against whom the award is invoked, may use one or more of the following grounds for the purpose of opposing enforcement of a foreign award, namely:

(i)the parties to the agreement referred to in section 44 of the Arbitration and Conciliation Act, 1996 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

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

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

(iv)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

(v)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; or

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

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

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 3(c) (Syllabus 2017).

Section 48 of the Arbitration and Conciliation Act, 1996, enumerates the conditions for enforcement of foreign awards and provides that the party, against whom the award is invoked, may use one or more of the following grounds for the purpose of opposing enforcement of a foreign award, namely, –

(i)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

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

(iii)the award deals with a difference not contemplated by or not failing 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 matter 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

(iv)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

(v)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.

Enforcement of an arbitral award may also be refused if the Court finds that:

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

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

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 6(c) (Syllabus 2022).

Yes, it is true that the enforcement of Foreign Award is subject to certain conditions.

These conditions are provided in section 48 of Arbitration and Conciliation Act, 1996 (the Act) for New York Convention Awards and section 57 of the Act for Geneva Convention Awards.

Conditions for Enforcement of Foreign Awards Section 48 of the Arbitration and Conciliation Act, 1996 enumerates the conditions for enforcement of foreign awards for New York Convention Awards and provides that the party, against whom the award is invoked, may use one or more of the following grounds for the purpose of opposing enforcement of a foreign award, namely, –

(i)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

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

(iii)the award deals with a difference not contemplated by or not failing 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 matter 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

(iv)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

(v)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; or

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

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

Section 57 of the Act which provides for the Conditions for enforcement of foreign awards in case of Geneva Convention states that in order that a foreign award may be enforceable under part II Chapter I, it shall be necessary that:

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

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

(iii)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;

(iv)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;

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

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 2A(iii) (Syllabus 2017).

According to section 48(1) of the Arbitration and Conciliation Act, 1996, 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 arbitral 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.

Further according to section 48(2), Enforcement of an arbitral award may also be 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 1. – For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, –

(i)the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii)it is in contravention with the fundamental policy of Indian law; or

(iii)it is in conflict with the most basic notions of morality or justice.

Explanation 2. – For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2025, Q. 6A(iv) (Syllabus 2022).

Procedure for commencement of Conciliation Proceedings According to Section 62(1) of Arbitration and Conciliation Act, 1996, the party initiating conciliation shall send to the other party a written invitation to conciliate, briefly identifying the subject of the dispute.

Section 62(2) states that Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate.

Section 62(3) states that if the other party rejects the invitation, there will be no conciliation proceedings.

Section 62(4) states that 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.

Number of conciliators According to Section 63 of Arbitration and Conciliation Act, 1996, there shall be one conciliators unless parties agree for two or more. Where there are more than one conciliators, they ought as general rule, to act jointly.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 5(b) (Syllabus 2022).

Conciliation is an informal process in which the conciliator (the third party) tries to bring the disputants to agreement. He does this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement.

Section 64(1) of the Arbitration and Conciliation Act, 1996 provides that subject to section 64(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.

Further section 64(2) provides that parties may enlist the assistance of a suitable institution or person in connection with the appointment of conciliators, and in particular, a. a party may respect 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 be made directly by such an institution or person.

However, 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 take into account the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 4(a) (Syllabus 2017).

Section 67 of the Arbitration and Conciliation Act, 1996 provides the provisions relating to Role of conciliator. These are as under:

(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 therefor.

Section 76 of the Arbitration and Conciliation Act, 1996 provides the provisions relating to the manner of termination of conciliation proceedings. According to this section, 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.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 1(d) (Syllabus 2017).

According to Section 2(1) (b) of the Arbitration and Conciliation Act, 1996, arbitration agreement means an agreement referred to in Section 7 of the Act. Under Section 7, the Arbitration agreement has been defined to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

—An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

—An arbitration agreement shall be in writing.

—An arbitration agreement is in writing if it is contained in-— a document signed by the parties; — an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or — an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

—The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 1(c) (Syllabus 2017).

Section 8(1) of the Arbitration and Conciliation Act, 1996 provides that a judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

Further sub-section (2) states that the application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

It may be noted that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.

Sub-section (3) states that notwithstanding that an application has been made under sub- section

(1)and that the issue is pending before the judicial authority, arbitration may be commenced or continued and an arbitral award made.

In the given situation, since the application by Reyansh was filed before the submission of the first statement on the substance of the dispute, the arbitration clause is admitted to exist, and a photocopy of the agreement was filed along with a request to direct the other party to produce the original. Therefore, in view of Section 8 of the Arbitration and Conciliation Act, 1996, the judicial authority may refer the matter to arbitration.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 4(b) (Syllabus 2022).

Section 9 of the Arbitration and Conciliation Act, 1996 deals with interim measures etc. by Court.

Section 9(1) states that a party may, before, or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced in accordance with Section 36 of the Act, apply to a court-i. for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or ii. for an interim measure of protection in respect of any of the following matters, namely:-a. the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; b. securing the amount in dispute in the arbitration; c. the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any part) or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; d. interim injunction or the appointment of a receiver; e. such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

Further, Section 9(2) states that where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

Under Section 9 (3) once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 6(d) (Syllabus 2017).

Section 9(1) of the Arbitration and Conciliation Act, 1996 states that a party may, before, or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced in accordance with section 36, apply to a court,

(a)for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(b)for an interim measure of protection in respect of any of the following matters, namely, i. the preservation, interim custody or sale of any goods which are the subject-matter of

the arbitration agreement; ii. securing the amount in dispute in the arbitration; iii. the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any part) or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; iv. interim injunction or the appointment of a receiver; v. such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

Further, sub-section (2) states that where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine.

Under sub-section (3) once the arbitral tribunal has been constituted, the Court shall not entertain an application under sub-section (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2025, Q. 4A(iii) (Syllabus 2022).

Types of Mediation

1.Court-Referred Mediation - It applies to cases pending in Court and which the Court would refer for mediation under Section 89 of the Code of Civil Procedure, 1908. The courts have mediation centres where cases are referred, and following a preliminary investigation, the cases are assigned to skilled and qualified mediators from the Mediation Centres’ Panel of Mediators.

Court Annexed Mediation - In Court- Annexed Mediation the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely refers the matter to a mediator.

2.Statutory/Mandatory Mediation - Some disputes, like those involving labour and family laws, are required by law to go through the mediation procedure. Mandatory mediation simply refers to the act of attempting mediation rather than requiring parties to resolve their problems through mediation.

3.Private Mediation - In private mediation, qualified mediators offer their services on a private, fee-for-service basis to the Court, to members of the public, to members of the commercial sector, and also to the governmental sector to resolve disputes through mediation. Private mediation can be used in connection with disputes pending in Court and pre-litigation disputes.

4.Online Mediation - Online mediation including pre-litigation mediation may be conducted at any stage of mediation, with the written consent of the parties including by the use of electronic form or computer networks.

Distinction between Arbitration and Mediation

1.Mediation is when a neutral third party aims to assist the parties in arriving at a mutually agreeable solution whereas arbitration is like litigation which is outside the court and which results in an award like an order.

2.Mediation is more collaborative; arbitration is more adversarial.

3.The process of mediation is more informal than that of arbitration.

4.The outcome in mediation is controlled by the parties whereas in arbitration it is controlled by the arbitrator.

5.In mediation, the dispute may or may not be resolved whereas in arbitration it is always settled in either party’s favour.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6A(iii) (Syllabus 2022).