To print this article, all you need is to be registered or login on Mondaq. Issue Whether the High Court was right in referring the parties to arbitration on the oral consent given by the counsel without written instructions from the party?
Supreme Court decision Supreme Court observed that jurisdictional pre-condition for reference of a dispute to arbitration under section 7 1 of the Arbitration and Conciliation Act is a reference or submission that should be sought, by parties, to arbitration. Conclusion When there is no express arbitration agreement between the parties as regards to reference of disputes for arbitration, the court cannot refer the parties to arbitration unless there's a written consent by parties by way of joint application or a joint memo or a joint affidavit.
This compilation seeks to identify the significant developments in arbitration law by the courts of India after the advent of the COVID pandemic. It also reaffirmed that the legislative intent of the Arbitration Act is party autonomy and minimal judicial interference in the arbitration process. The jurisdiction of and is vast and has to be exercised sparingly. Disputes arising out of a contract containing an arbitration clause, unless specified otherwise, are referred to arbitration.
In a recent case, the question before the Supreme Court was whether interest could be levied during the pendency of a litigation Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email.
Register For News Alerts. Article Tags. NOV Securitisation Outlook and Key Tax Updates for More Webinars. Alternative Investment Funds. Artificial Intelligence. Aviation Finance. Aviation Regulation. Where a provision is capable of more than one meaning, the meaning which best promotes the spirit, purpose and objects of the Act of Parliament must be opted for.
During insolvency proceedings, the:. Company's directors and management are in charge of affairs to defend or prosecute in arbitral proceedings. Liquidator is in charge of legal proceedings. Arbitration is a private judicial hearing, but its outcome binds the parties.
It appears that the term "proceedings" in Act must be given a broader meaning to include legal and quasi-legal matters such as arbitration. The court's leave must therefore be sought before starting or continuing with arbitral proceedings. The suspension of legal or arbitral proceedings against an insolvent company will not prejudice the prospective claimant, as Act provides the opportunity for debts to be proved and for various meetings with creditors to settle outstanding claims.
Remedies What interim remedies are available from the tribunal? Interim remedies An arbitrator can, at the request of a party, grant any interim relief the arbitrator considers necessary for the protection or preservation of property section 38, Alternative Dispute Resolution Act Act However, as the parties set the procedural rules at the management conference, they usually agree on the procedure to be adopted in these situations.
However, in general, unless the parties agree otherwise a tribunal must always give notice to and hear the other side before granting interim relief.
Security The arbitrator can award security for costs section 38 2 and 3 , Act What final remedies are available from the tribunal? The arbitrator can, within the scope of the arbitration agreement, grant any relief that the arbitrator considers just and equitable, including specific performance section 50, Alternative Dispute Resolution Act Act This can also include declaratory reliefs, damages, injunctions, costs and interest.
Appeals Can arbitration proceedings and awards be appealed or challenged in the local courts? What are the grounds and procedure? Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises such as in the arbitral clause itself?
They cannot be appealed. They can only be set aside on very limited grounds see below. Grounds and procedure The High Court can set aside the award only where it is satisfied that:. A party to the arbitration was under some disability or incapacity. The law applicable to the arbitration agreement is not valid. The applicant was not given notice of the appointment of the arbitrator or of the proceedings, or was unable to present its case.
The award deals with a dispute not within the scope of the arbitration agreement or outside the agreement. The parties have failed to conform to the agreed procedure.
The arbitrator has an interest in the subject matter of the arbitration, which the arbitrator failed to disclose. The dispute is incapable of being settled by arbitration. The arbitral award was induced by fraud or corruption.
An application to set aside the award must be made within three months from when the applicant received the award, unless the court for justifiable reasons orders otherwise. Waiving rights of appeal Act does not authorise parties to waive any rights of appeal or challenge to an award by agreement before the dispute arises.
What is the limitation period applicable to actions to vacate or challenge an international arbitration award rendered inside your jurisdiction?
The Alternative Dispute Resolution Act Act does not state the limitation period to vacate or challenge an international arbitration award. The limitation period is therefore the three-month limitation period that applies to all other awards under Act A party to an international arbitration seeking to challenge or vacate an award in Ghana must be familiar with Ghanaian provisions and comply with them. Costs What legal fee structures can be used? Are fees fixed by law?
The scale of fees provides for:. Fixed fees. Fixed fee for part of the work and hourly fees for the other half. The following are subject to negotiations between counsel and client:. Hourly billing:. Brief fees in the High Court and arbitration for certain commercial claims:. Third party funding is not used. Contingency fees also known as success fees are legal and frequently used in debt recovery claims.
Does the unsuccessful party have to pay the successful party's costs? How does the tribunal usually calculate any costs award and what factors does it consider? Cost allocation The parties must agree on several issues, including costs and the arbitrator's fees, during the arbitration management conference Alternative Dispute Resolution Act Act In practice, tribunals award all costs expended by the successful party, including legal costs, unless the successful party contributed negatively to the arbitral proceedings and with diligence could have adverted the hearing.
Cost calculation The mode of calculation depends on the parties' agreement at the arbitration management conference. However, the arbitrator must assess the arbitration fees, expenses and compensation in the award section 51, Act Factors considered In assessing the amount of costs to be awarded to any party, the tribunal considers:.
The amount of expenses including travel expenses reasonably incurred by that party or that party's lawyer, or both, in relation to the proceeding. The amount of administrative fees paid by that party or that party's lawyer in relation to the proceedings.
Enforcement of an award Domestic awards. To what extent is an arbitration award made in your jurisdiction enforceable in the local courts? An arbitral award is enforced in the same manner as a judgment of the High Court, subject to leave of that court section 57, Alternative Dispute Resolution Act Act When leave is granted, judgment can be entered in respect of the award.
However, leave to enforce an award is not given where the person against whom the award is sought shows that the arbitrator lacked substantive jurisdiction to make the award. Enforcement proceedings must be brought in the High Court. Foreign awards. Is your jurisdiction party to international treaties relating to recognition and enforcement of foreign arbitration awards, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards New York Convention?
Ghana is party to the New York Convention, which it acceded to in The convention is attached as the first schedule to Act To what extent is a foreign arbitration award enforceable? The High Court can enforce a foreign arbitral award if it is satisfied that all of the following apply:. The award was made by a competent authority under the laws of the country in which the award was made.
A reciprocal arrangement exists between the Republic of Ghana and the country in which the award was made. The award was made under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards New York Convention or under any other international convention on arbitration ratified by the Ghanaian parliament.
There is no appeal pending against the award in any court under the law applicable to the arbitration. The party seeking to enforce the award must produce to the court the original award or an authenticated copy. It must also produce the agreement under which the agreement was made or an authenticated copy. If the award is not in English, the applicant must produce a true translation of that document in English.
The court will not enforce a foreign award if:. The award has been annulled in the country in which it was made. The party against whom the award is made was not given sufficient notice to present its case. A party lacking legal capacity was not properly represented. The award does not deal with issues submitted to arbitration. The award contains a decision beyond the scope of the matter submitted to arbitration.
What is the limitation period applicable to actions to enforce international arbitration awards rendered outside your jurisdiction? The limitation period applicable to actions to enforce arbitration awards rendered outside Ghana is:. Six years for simple contracts and debt awards. Length of enforcement proceedings. How long do enforcement proceedings in the local court take, from the date of filing the application to the date when the first instance court makes its final order?
Is there an expedited procedure? There is no set time frame for enforcement proceedings in the local court. Essentially enforcement should not take more than six weeks. However, in practice, this time frame is affected by adjournments and other unforeseen circumstances that can cause delays. In Waverly Jute Mills Co.
India Pvt. AIR SC 90 the Supreme Court of India held that if a contract contained an arbitration clause and the contract was itself illegal and void, the arbitration clause would also perish with the contract. In UP. Rajkiya Nirman Nigam Ltd Vs. Indore Pvt. Section 16 of the new law empowers the arbitral tribunal to rule on its jurisdiction: Under the new law, the arbitration tribunal can rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for this purpose an arbitration clause which forms part of a contract will be treated as an agreement independent of the other terms of the contract; and a decision by the arbitral tribunal that the contract is null and void will not entail, ipso jure, the invalidity of the arbitration clause.
A plea that the arbitral tribunal does not have jurisdiction will, however, have to 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 he has appointed, or participated in the appointment of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority has to 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 to above, admit later a plea if it considers the delay justified. The arbitral tribunal has to decide on a plea about lack of jurisdiction or about the tribunal exceeding the scope of its authority and where the arbitral tribunal takes a decision rejecting the plea, it shall continue with the arbitral proceedings and make the arbitral award.
A party aggrieved by such an arbitral award is free to make an application for setting aside the award under section 34 of the new Act. Section 34 2 a inter alia permits a challenge to an award on the above grounds. About Us. Commercial Arbitration. Annual Report. New Law Sections 2 3 of the new law provides that the provisions in Part I which apply to arbitration which takes place in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.
New Law Section 7 3 of the new Act requires that the arbitration agreement must be in writing.
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