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BBA LLB   29 January 2021

Academic query adr

Hi there, I'm a student of law. I'm looking for a suitable answer to clear few of my queries related to ADR, so it's better if someone professionalised in the field can do so. My query is 1.) Are there any other grounds or forms to set aside an Arbitral Award under Arbitration & Conciliation Act 1996? Please provide any relevant case law for reference. 

2.) there is a legal Maxim as "OMNIA PRIUS VERIS EXPERIRI QUAM ARMIS SAPIENTEM" What is the meaning of this legal Maxim? What does it upholds in ADR?

Thank you in advance



Learning

 2 Replies

Rohini Kamble   05 February 2021

Section 34 of the Arbitration and conciliation Act, 1996 provides the provisions of certain grounds to set aside an arbitral award. This are as follows 

1. Invalid arbitration agreement. 

2. Improper composition I.e. the arbitral award not in accordance with the agreement of party. 

3. If proper notice is not given to party of arbitral tribunals. 

4. If a party is incapable of making application to enter the agreement. 

For relevant case law please refer National Aluminum  Co. Ltd Vs Presteel Fabrication (p) Ltd. 

'Consilia omnia verbis prius experiri, quam armis sapientem decet.' means it becomes a wise man to try all methods before having recourse arms. A intelligent man would rather negotiate than use arms. 

To negotiate means to resolve disputes by mutual understanding or agreement where no third party is involved. Negotiation is a contemporary mode to resolve disputes. 

 

 

Nirali Nayak   07 July 2021

Hello student, greetings of the day.
As per your query, I am answering it in two parts.
To ascertain the proper conduct of the arbitration proceedings, the law allows certain remedies against an arbitral award. An aggrieved party may resort to the law Court for setting aside the arbitral award on certain Grounds mentioned under Arbitration and Conciliation Act, 1966. 
Section 34 of the Arbitration and Conciliation Act provides the provisions of certain specific grounds on the basis of which an arbitral award rendered in India can be set aside. They are-
Incapacity of a party while making an application to enter the agreement.
Arbitration agreement not being valid under the law.
Parties were not given proper notice of the appointed Arbitrators or the Arbitral Tribunal.
Nature of dispute not capable of settlement by arbitration.
Composition of the arbitral award was not in accordance with the agreement of parties.
The Arbitral award is in the violation of the public policy of a state.
The Arbitral award deals with a dispute not falling within the terms of submissions to arbitration.
Relevant case laws for reference are: 
Emkay Global Financial Service Limited v. Giridhar Sondhi, Civil Appeal No. 8367 of 2018, decided on August 20, 2018.
K. Kishan v. Vijay Nirman Company, Civil Appeal No. 21824 of 2017, decided on August 14, 2018
State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, Civil Appeal No. 7314 of 2018, Decided on July 30, 2018
BCCI v. Kochi Cricket Pvt. Ltd., (2018) 6 SCC 287

The maxim ‘Omnia prius verbis quam armis sapientem decet experiri’ means ‘An intelligent man would rather negotiate than use arms’. it is said that exhausting negotiation before resorting to arms is the part of wisdom. In this stage, it focuses on which can be termed as a win-win outcome wherein both the parties may have the satisfaction that they gained something positive through the process and both the parties may feel that their point has been considered. 
Hope this solves your query
Regards
Nirali Nayak
Law Student


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