ARBITRATION ORGANISATIONS IN INDIA

ARBITRATION ORGANISATIONS IN INDIA

Abhishek Kumar


21/06/2017  

In India, arbitration proceedings are of two types: ad-hoc arbitration and institutional arbitration. The parties have the option to seek recourse to either of them depending on their choice and convenience.

Ad-hoc arbitration: It refers to an arbitration where the procedure is either agreed upon by the parties or in the absence of an agreement, the procedure is laid down by the arbitral tribunal. Thus, it is an arbitration agreed to and arranged by the parties themselves without seeking the help of any arbitral institution.

In Ad-hoc arbitration, if the parties are not able to nominate arbitrator/arbitrators by consent, the appointment of arbitrator is made by the High Court (in case of domestic arbitration) and by the Supreme Court(in case of international commercial arbitration). In India, still most of the arbitrations are Ad-Hoc Arbitrations.

Institutional arbitration: In an institutional arbitration, the arbitration agreement may stipulate that in case of dispute or differences arising between the parties, they will be referred to a particular institution such as:

  • Indian Council of Arbitration(ICA)
  • International Chamber of Commerce(ICC)
  •  Federation of Indian Chamber of Commerce & Industry(FICCI)
  • World Intellectual Property Organisation(WIPO)
  • The International Centre for Alternative Dispute Resolution(ICADR)
  • London Court of International Arbitration(LCIA)

All these institutions have framed their own rules of arbitration which would be applicable to arbitral proceedings conducted by these institutions. Such rules supplement provisions of the Arbitration Act in matters of procedure and other details as the Act permits. They may provide for domestic arbitration or for international commercial arbitration or both and the disputes dealt with by them may be general or specific in nature.

The Indian Council of Arbitration, being the apex body in arbitration matters in the country, has handled the largest number of international cases in India.

The Arbitral Institutions have fixed arbitrator’s fees, administrative expenses, qualified arbitration panel, rules governing the arbitration proceedings etc., which help in the smooth and orderly conduct of arbitration proceedings. Some of the prominent institutions which conduct institutional arbitration in India are:

  1. Delhi International Arbitration Centre (DIAC) – New Delhi
  2. Indian Council of Arbitration (ICA) – New Delhi
  3. Construction Industry Arbitration Council (CIAC)- New Delhi
  4. LCIA India – New Delhi
  5. International Centre for Alternative Dispute Resolution (ICDAR) – New Delhi
  6. ICC Council of Arbitration – Kolkata
DETERMINING JURISDICTION IN INDIA

DETERMINING JURISDICTION IN INDIA

Abhishek Kumar


21/06/2017  

In simple words jurisdiction can be defined as the limit of judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals and other proceedings. The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which falls within the territorial or pecuniary limits of its authority.

Section 9 of the Civil Procedure Code, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or implied barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.

Disputes relating to property, breach of contracts, wrongs committed in money transactions, etc. are categorized as civil wrongs and could be subject to a civil process. In such cases civil suits should be instituted by the aggrieved persons. Civil wrongs are redressed before civil courts by granting injunctions or by payment of damages or compensation to the aggrieved party. As a matter of fact, every suit should be instituted before the court of lowest jurisdiction. In the civil side the Munsiff’s Court is the court of lowest of the jurisdiction.

Hence, it is clear that the jurisdiction of the Civil Court does not extend to all matters but might be limited in certain cases. Thus, the current position regarding the jurisdiction of Civil Courts is that they have inherent jurisdiction to heat into all civil matters unless it is expressly or implied excluded by a statute.

INDIAN CIVIL COURTS SYSTEM

INDIAN CIVIL COURTS SYSTEM

Abhishek Kumar


21/06/2017  

Hierarchy of Courts in India

Civil Court System

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule. The framework of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. There are various levels of judiciary in India—different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a hierarchy of importance, in line with the order of courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Hierarchy of Courts in India

The District Court of India are established by the State Government in India for every district or more than one district taking into account the number of cases, population distribution in the district. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The District Court is presided over by one District Judge appointed by the State Government. In addition to the district judge there are many Additional District Judge and Assistant District Judge depending upon the workload.

In every state, besides the High Court there are number of judicial Courts to administer justice. These courts function under the complete control and supervision of the High Court. A state has got exclusive Legislative competence to determine the constituent organization and territorial jurisdiction of all courts subordinate to the High Court. The organization of subordinate courts throughout the country is generally uniform. There are two type of law courts in every district; (i) Civil Courts (ii) Criminal Courts

The court of the district judges is the highest civil court in a district. It exercises both judicial and administrative powers. It has the power of superintendence over the courts under its control. The court of the District judge is located at the district headquarters. It has power of trying both civil and criminal cases. Thus he is designated as the District and Sessions Judge.

Below the court of the District Judge are the courts of Sub-judge, Additional Sub-Judge and Munsif Courts, which are located in the sub-divisional and district headquarters. Most of the civil cases are filed in the court of the Munsif. A case can be taken in appeal from the court of the Munsif to the court of the sub-Judge or the Additional Sub-Judge. Appeals from the courts of the sub-Judges and Additional sub-Judges shall lie in the District-Court. The Court of the District Judge has both original and appellate jurisdiction. Against the decision of the District judge an appeal-shall lie in the High Court.

Civil Court has been categorized on the basis of Jurisdiction:

  • Subject Matter Jurisdiction: It can be defined as the Authority vested in the court to try and hear cases of the particular type and pertaining to a particular subject matter.
  • Territorial Jurisdiction: The court can decide within the geographical limits of a court’s authority and it cannot exercise authority beyond that territorial and geographical limits.
  • Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money, whether a court can try cases and suits of monetary value/amount of the case or suit in question.
  • Appellate Jurisdiction: It refers to the authority of a court to rehear or review a case that has already been decided by a lower court. Appellate jurisdiction is generally vested in higher courts. In India, both the High Courts and the Supreme Court have appellate jurisdiction to hear matters which are brought in the form of appeal before them. They can either overrule the judgment of the lower court or uphold it.