Arbitrator cannot pass award!


In an ongoing Arbitration (over 2 years now) recently responsent filed an application in High Court challenging that Arbitrator is biased (with proofs / witness). Upon seeing the application and background of the case, High Court directed the Arbitrator that he can proceed but CAN NOT pass the final award. 

 

Current status of proceedings: Cross examination is going on.

 

Case history / dispute: Employement bond. Restructiing employee to start his own business after terminating her from the job. No salary given for 9 months.

 

My arguement is - Can Arbitration be sustained or it is valid if the contract or dispute is against public policy, against fundamental right of a person and hit by Section 27 of Indian Contract Act?

 

Should I carry on with proceedings when I observed that the contract and clause is voidable in court of law?

 

What shoud I do as there is pressure from client?

 

Suggestions Please!

 

Kiran

 

 
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Consultant

What is your role in the whole play ?

 
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At Claimant / Employer side. 

 
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Consultant

Its not lyk that Arbitrator cannot award .... bt its also a comon fact that awards are also being challanged in the higher court of law inasmuch to any order/ judgement of any court .. further can u please elaborate the below mentioned: 

"My arguement is - Can Arbitration be sustained or it is valid if the contract or dispute is against public policy, against fundamental right of a person and hit by Section 27 of Indian Contract Act?"

 
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Consultant

at claimant side means u are employer in actual, or agent of emp[loyer or Arbitrator .....

 
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I am employer, also I appointed the sole arbitrator. But when I read examples and citations and pasr judgements I was bit worried. As the whole idea was to somehow try to unsettle my ex-employee as not to poach my clients after her termination. so I invoke the Arbitration clause in agreement, but that contract is also not valid as there are negative covenants which are clearly hitting Section 27 Contract Act. :/

 

So I need suggestion wheather we should continue, or not?

 

Kiran

 
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Dear Kiran

Elaborate info is required.As per your tex 'High Court directed the Arbitrator that he can proceed but CAN NOT pass the final award"...no inference can be drawn.This is surprising to assume Arbitrator to proceed but do not pass award.Then what is the motto in proceeding further??The object of appointment of Arbitator is to get the matter finally decreed.

The H.C might have given the interim order & the case must be yet to be decided.The information submitted by you is lacking the facts & circumstances.

 

NITIN KULKARNI

ADVOCATE

 
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Hi Nitin

You are right, it is an 'interim order' . I just checked with counsel.

 

Now, as I stated earlier, This contract clearly hitting Section 27 of contract act (post employment restrsiction and non competion clasuse). And I dont have any proof of dual employment neither we spent any expenses for trainning on her (ex employee). She has also produced 'email communication' between us which unfortunately suggests that full and final settlement was done. 

 

So, again, Can I stop her to be my competitor or join my compititor based on contract she signed where as per clause she can not join any rival or same business till 12 months? 

 

Actually my worry is I dont have proof and it was merely to unsettle her business and I think my counsel has guided me wrongly.

 

Regards

Kiran

 

 
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Dear Kiran,

Please consider my friendly advice.As we are citizens of largest democratic nation,everyone has his own right to choose his business and the circumstances shows that you are short of stronge evedences on your part..By searching undue advantages of loopholes of law,you are just wasting your energy.

You are honest & sincere one, let her enjoy with her job & you concentrate on your job.Certainly one day you will enjoy her rivalry in your rising business.

 

NITIN KULKARNI

ADVOCATE

 
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Hi Nitin

 

You mean I should stop Arbitration against her or out of court settlement. Her lawyer has claimed a money for undue harrassment now.

I am consider on the same line as you advice.

 

Regards

Kiran

 
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