Authored By: Dev Gupta
COUNTER-CLAIM IN ARBITRATION MATTERS
Table of Contents
The world throughout the 20th century searched for a way to deal with grievances of parties to a legal action more quickly, more efficiently and more mutually. The pursuit in finding such a solution gave rise to the advent of Alternate Dispute Resolutions. This method consisted of various routes that parties to a dispute can take namely arbitration, conciliation, mediation etc. At the core of all of these various methods is the process wherein both the aggrieved parties, themselves or through a representative, sit across the table and negotiate the terms and conditions which would be suitable to them in order to settle the dispute. Widely speaking they are similar to Court Settlements but consist of a more streamlined process and are more time effective and inclusive of the needs of the parties. Adjudicatory processes such as Arbitration are binding on the parties whereas Non Adjudicatory ones such as Mediation, Conciliation are not binding.
ARBITRATION
Arbitration is an adjudicatory process where the parties to a dispute both amicably appoint a third party who acts as the arbitrator who they deem fit of being free from bias. The arbitrator proceeds to hear both the sides of the party and then accordingly asks the parties to lower / higher their bar on the terms and conditions of the said dispute in order to reach a final agreement. Due to its very nature, arbitration and other Alternate Dispute Resolution methods make the parties to the proceedings more inclusive to the process of arriving at an agreement so that the result which comes out of it generally satisfies the parties. Some countries desire to make themselves the go – to centres for arbitration. Countries such as US, UK, UAE, Singapore and Hong Kong have all boosted their efficiency in terms of dealing with arbitral proceedings in order to indirectly growth tourism and economy. This is so because it becomes a great advantage for these countries should any of the parties to a dispute chose them to be the arbitration venues,it subsequently leads to more hotel bookings, travel tickets and possibly leisure sight-seeing as well.These countries keep on the table some of the most creative and free – of – bias ways for the parties to settle their dispute. For example – Some countries refrain from getting involved when the dispute is between Party belonging to country A and a Party belonging to country B by making them appoint an arbitrator from country C.
HISOTRY OF ARBITRATION LAWS – INDIA
Arbitration in India was originally put in place in 1899 via the Arbitration Act, 1899 which was majorly based on the British Arbitration Act. The operation of this Act was strictly limited to the Presidency Towns. Then Arbitration Act, 1940 was introduced which repealed much of what was stated in the 1899 Act and in the Civil Procedure Code relating to arbitration. This Act put forward three types of Arbitration- a) arbitration without the intervention of the court b) arbitration with the intervention of the Court c) Arbitration in Suits. This Act made court intervention necessary at all stages of arbitration which defeated the whole point of it proposing to be a time – efficient method.
Finally, an act recognised by the Government and in accordance with the UNCITRAL (UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW)was passed in 1996 with the Arbitration and Conciliation Act, 1996. The Act contained the terms, procedures, enforcement of awards, process of convincing and terminating proceeding, qualifications of arbitrators, venues governing the process of arbitration.
Finally, an act recognised by the Government and in accordance with the UNCITRAL (UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW)was passed in 1996 with the Arbitration and Conciliation Act, 1996. The Act contained the terms, procedures, enforcement of awards, process of convincing and terminating proceeding, qualifications of arbitrators, venues governing the process of arbitration.
SECTION 23
Since the biggest advantage of Arbitration is that the parties to the proceedings have a fair shot at being heard, provisions providing the same were enacted in the procedural guidelines put forward in the act.
| (1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements. (2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.(2A) The respondent, in support of his case, may also submit a counterclaim or plead a set-off, which shall be adjudicated upon by the arbitral tribunal, if such counterclaim or set-off falls within the scope of the arbitration agreement.] (3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it. (4) The statement of claim and defence under this section shall be completed within a period of six months from the date the arbitrator or all the arbitrators, as the case may be, received notice, in writing of their appointment.] |
This provides the defendants with a chance to put forward their version of the events that led to the proceedings and with it, state what they feel to be the true damage caused to the plaintiff. However subject to any clause in the arbitration agreement of the parties, the parties are permitted to amend or supplement claim or defence during the arbitral proceedings. The Arbitration Tribunal has the power to grant or refuse any amendments to the statement of claim / defence but should allow this discretion fairly and impartially especially if the said is to cause grave injustice to either of the parties.
