BRUS CHAMBERS, Solicitors
Q. What is arbitration?
A. Arbitration is a way for parties to resolve disputes outside of the court system, and without going to trial. In an arbitration proceeding, an independent and neutral arbitrator hears evidence from both parties, applies the relevant law, and issues a decision known as an "award." Arbitration decisions are binding.
Q. How do I know if I have to go to court or invoke arbitration for a dispute?
A. If the parties have agreed that if there is any dispute the same shall be resolved by arbitration, kindly check the contract for an arbitration clause therein. If there is no such clause you may have to initiate legal action in court at appropriate jurisdiction. You may still request the opponent to enter into a separate arbitration agreement.
Q. Is the arbitration agreement valid even through the main contract is void?
A. An arbitration agreement shall exist totally independently of the contract. Any modification, extension or rescission of the contract, or invalidity or unenforceability of the contract shall not result in the invalidity of the arbitration agreement. – The consideration of whether the arbitration agreement is valid will be conducted by the arbitral tribunal and the competent court.
Q. What can be done if one party ignores the arbitration agreement and commences court proceedings?
A. If the court proceedings are commenced, the court will refuse to accept jurisdiction, unless the arbitration agreement is determined by the court as invalid or incapable of being performed.
Q. What is the duty of the arbitrators?
A. Arbitrators must respect the agreement of the parties if it does not breach prohibitions and is not contrary to social morals. – Arbitrators must be independent, objective and impartial and must comply with the provisions of law. – Parties in dispute shall have equal rights and obligations.
Q. Is arbitration clause important in an agreement or should I accept as is when entering into a contract?
A. Arbitration clause is a very important clause and you should not overlook. When dispute arises, arbitration cost will play a very important role cost also depends upon the seat of arbitration, the tribunal forum, the applicable law for the arbitration and several other factors therefore conceiving and drafting arbitration clause or agreement is really important.
Q. Can I seek interim relief from court pending or commencement of arbitration?
A. Section 9 of the Arbitration and Conciliation Act, 1996 permits interim measures and any party to an arbitration agreement can seek relief by way of an interim application from the court under Section 9 of the Arbitration and Conciliation Act before the commencement of the arbitral proceedings or after the pronouncement of award but before its enforcement.
Q. Do you represent client in arbitration case?
A. Yes. Brus Chambers represent client in all commercial arbitration matters either for claimant or for respondent, be it ad-hoc or institutional we attend to the entire gamut of arbitration, this includes assistance with substantive written pleadings, appearances and arguments including strategy relating to procedural aspects and conduct of arbitral proceedings, examination of witnesses; expert evidence; closing arguments; post hearing submissions; if need be to challenge arbitral award; enforcement of arbitral award and recovery.
Q. Which industry sector and practice areas have you attended arbitration until date?
A. Contractual defaults or disputes arising between parties from commercial agreement within corporate and finance; shipping; infrastructure and construction; entertainment; technology; telecommunication; health care; oil, gas and energy; natural resources; mining; metals; banking; joint ventures; aviation; pharmaceutical; import and export; manufacturing; automobile; fashion; distribution.
Q. What are your billing rates and methodology?
A. Brus Chambers professional fees are mainly computed on hourly basis, or on a competitive capped fixed fee model while some are customised on case to case basis or on stage-wise capped fixed fee or on a long term retainer depending on client requirement. All disbursements and tax where applicable are computed on actual unless the same is a package offer. Each client has a dedicated partner (the lead partner) who will lead, co-ordinate and will be directly responsible to meet the client requirements effectively. While computing on hourly basis we calculate only the lead partner’s time although other lawyers and para-legal’s are working on the file. Our fixed fee or stage wise capped fixed fee model provides clients much needed budget certainty and cost predictability, which can be structured as up-front payments or as periodic payments.
Q. At what stage client has to pay?
A. We estimate the fees and expenses stage wise, this includes institutional tribunal fees; arbitrator fees (if separate); counsel fees and all other expenses involved that is expected to be incurred and our professional fees. We thereafter call for the estimated fees upfront from client before commencement of any work.
Q. What is the cost of arbitration?
A. This will depend on several factors such as the forum; tribunal fees; seat of arbitration and our fees and expenses.
Q. What is the time frame to complete arbitration?
A. Section 5 of the 2019 Amendment Act inserted sub-section (4) in Section 23 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’). By virtue of this insertion, the statement of claim and defence is now required to be completed within a period of six months from the date when the arbitrator or all the arbitrators, as the case may be, received notice, in writing, of their appointment. Section 6(a) of the 2019 Amendment Act substituted Section 29A(1) of the Arbitration Act, which, inter alia, now mandates that the award in matters other than international commercial arbitration shall be made by the Arbitral Tribunal within a period of twelve months from the date of completion of pleadings under the newly inserted sub-section (4) of Section 23 of the Arbitration Act. The erstwhile section 29A(1) mandated that an arbitral award shall be made within 12 months from the date of entering into reference of the Arbitral Tribunal.
Q. Who are the arbitrators in arbitration proceedings?
A. Arbitrators are independent third-party individuals who hear the evidence, apply the law, and decide the outcomes of arbitration disputes.
Q. What types of disputes can be resolved in arbitration?
A. Almost any type of legal dispute can be settled in arbitration, including those arising under commercial contracts. When entering into a contract, the parties can include an arbitration agreement clause providing that some or all of the disputes that arise between the parties will be resolved in arbitration.
Q. How to enter into an Arbitration agreement?
A. An Arbitration agreement may be in the form of Arbitration clause in a contract or in the form of a separate agreement. An Arbitration agreement has to be in writing.
The requirement as to Arbitration agreement being in writing is fulfilled ;-
a) If the document is signed by the parties
b) If the Arbitration is entered into by exchange of letters, telex, telegrams or other means of communication which provide as a record of the agreement; or
c) An exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other.
Q. How and what number of Arbitrators are to be appointed?
A. The parties are free to determine the number of arbitrators, provided that such numbers shall not be an even number. Feeling the determination referred to by the parties, the Arbitral Tribunal shall consist of a sole Arbitrator. If the procedure for appointment of Arbitrator or Arbitrators is not agreed, in Arbitration with three arbitrators each party shall appoint an arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding Arbitrator. In case a party fails to appoint his Arbitrator within 30 days from the receipt of the request to do so from the other party or the two appointed Arbitrators fail to agree on the third Arbitrator within 30 days from the date of their appointment, the appointment shall be made upon request of a party, by the Chief Justice or any person or institution designated by him. In Arbitration with a sole Arbitrator if the parties fail to agree on the Arbitrator within 30 days from receipt of request by one party from the other party to so agree, the appointment shall be made upon request of the party by the Chief Justice or any person or institution designated by him. This applies in cases where the agreement on the appointment procedure does not provide other means for securing their appointments. The appointment made by the Chief Justice is final.
Q. When does the Arbitration commence?
A. Unless otherwise agreed by the parties, the Arbitration proceedings commence on the date on which a request for the dispute to be referred to Arbitration is received by the respondent.
Q. What is the Law applicable in case of Arbitrations within India and in case on International Commercial Arbitration?
A. In an Arbitration other than an International Commercial Arbitration, the Arbitral Tribunal (Arbitrator/Arbitrators) shall decide the disputes in accordance with the substantive Law for the time being in force in India;
In International Commercial Arbitration :-
(i) the dispute is to be decided in accordance with the Law as agreed by the parties to be applicable to the dispute.
(ii) Such agreed Law or legal system as agreed to be applicable shall be construed unless otherwise expressed, as directly referring to the substantive Law of that country and not to its conflict of Laws rules;
(iii) Failing any agreement as to the Law applicable by the parties, the Arbitrator shall apply the rules of Law it considers to be appropriate, given all the circumstances surrounding the dispute.
In all cases the Arbitrator shall decide in accordance with the terms of the contract and shall take in to account the usages of the trade applicable to the transaction.