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ICA
ARBITRATION CLAUSE
The Indian
Council of Arbitration recommends to all parties desirous
of making reference to arbitration by the Indian Council
of Arbitration, the use of the following arbitration clause
in writing in their contracts:
"Any
dispute or difference whatsoever arising between the parties
out of or relating to the construction, meaning, scope,
operation or effect of this contract or the validity or
the breach thereof shall be settled by arbitration in accordance
with the Rules of Arbitration of the Indian Council of Arbitration
and the award made in pursuance thereof shall be binding
on the parties."
DEFINITIONS
Rule 1
(i) These rules may be called the "Rules of Arbitration
of the Indian Council of Arbitration."
(ii) These rules shall apply where parties have agreed in
writing that (a) a dispute has arisen or (b) a dispute which
may arise between them in respect of defined legal relationship
whether contractual or not, shall be settled under the Rules
of Arbitration.
Rule
2
In these rules, the following words have the following meanings:
(i) "Arbitral Tribunal" means an arbitrator or
arbitrators appointed for determining a particular dispute
or difference.
(ii) "Arbitral Award" includes an interim award.
(iii) "Committee" means the Arbitration Committee
of the Council as provided for hereinafter.
(iv) "Council" means the Indian Council of Arbitration.
(v) "Governing Body" means the Governing Body
of the Council.
(vi) "Guidelines" means the guidelines for arbitrators
and the parties to arbitration for expeditious conduct of
the arbitration proceedings, given in the Annexure to these
Rules.
(vii) "International Commercial Arbitration" means
an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as
commercial under the law in force in India and where at
least one of the parties is (a) an individual who is a national
of, or habitually resident in, any country other than India;
or
(b) a body corporate which is incorporated in any country
other than India; or (c) a company or an association or
a body of individuals whose central management and control
is exercised in any country other than India, or (d) the
Government of a foreign country.
(viii) "Party" means a party to an arbitration
agreement. It shall include any individual, firm, company,
Government, Government organisation or Government Undertaking.
(ix) "Panel" means the Panel of Arbitrators maintained
by the Council.
(x) "Registrar" means the Registrar for the time
being appointed by the Committee and includes such other
persons as the Committee may nominate for carrying out the
duties of the Registrar under these rules.
(xi) "Rules" means the Rules of Arbitration of
the Council.
(xii) "Rules of Conciliation" means the Rules
of Conciliation of the Council.
(xiii) "Fast Track Arbitration" means arbitration
in accordance with Rule 44.
(xiv) Words importing the singular number include, where
the context admits or requires, the plural number and vice
versa.
ARBITRATION
COMMITTEE
Rule 3
(a) The Governing Body of the Council shall constitute an
Arbitration Committee for performing the functions prescribed
under these Rules. The Committee shall consist of the President
of the Council, who shall be the ex officio Chairman of
the Committee and three members of the Governing Body of
the Council elected by the Governing Body from amongst themselves.
The Committee shall hold office for a year.
(b) The Committee may co-opt not more than two persons to
be additional members of the Committee during its terms
of office. Persons who are not members of the Governing
Body may also be co-opted to be members of the Committee.
(c) The Committee or the Chairman of the Committee may delegate
to the Registrar the power to take certain decisions, provided
that any such decision shall be reported to the Chairman
or the Committee as the case may be.
RULES
APPLICABLE
Rule 4
(a) Any dispute relating to any commercial matter including
shipping, sale, purchase, banking, insurance, building construction,
engineering, technical assistance, know-how, patents, trade
marks, management consultancy, commercial agency, or labour,
arising between two or more parties in India or a party
or parties in India and a party or parties in a foreign
country or between foreign parties who agree or have agreed
for arbitration by the Council, or under the Rules of Arbitration
of the Council, shall be determined and settled in accordance
with these Rules.
(b) The Council shall also be competent to administer the
conduct of arbitration in any dispute or difference relating
to a commercial transaction between parties as mentioned
in sub-clause (a) where they have agreed to have their dispute
arbitrated under any other Rules of Arbitration and have
agreed to have such arbitration administered by the Council,
wholly or in respect of some matters arising out of such
arbitration.
(c) In case the parties have provided different procedure
for appointment of arbitrator or schedule of cost including
the arbitrator's fee, the Council shall not be bound to
process the case unless both the parties agree to follow
the entire procedure of arbitration under Rules of Arbitration
of the Council.
(d) The Council shall be competent to function as Appointing
Authority as contemplated under the Arbitration Rules of
the United Nations Commission on International Trade Law
(UNCITRAL).
Rule 5
Wherever the Parties have provided or agreed for arbitration
by the Indian Council of Arbitration or for arbitration
under the Rules of Arbitration of the Council, these rules
or any amendment thereof, in the form obtaining at the time
the dispute is referred to arbitration of the Council, shall
apply.
Rule 6
If one or both of the parties to a dispute which is referred
to arbitration by the Council belong to a country or countries
other than India, in the absence of an agreement by the
Parties on the substantive law to be applied, it will be
determined by the arbitral tribunal. The procedural law
shall be the laws of India and parties shall be deemed to
have submitted to the jurisdiction of the Courts in India.
Rule 7
Any chamber of commerce, trade association or any arbitral
or other organisation may adopt these Rules by making them
generally available to its members or by applying them to
any dispute in which any of its members may be parties or
by normally conducting its arbitration under these Rules.
INTERPRETATION
OF THE RULES
Rule 8
The decision of the Committee on any question relating to
interpretation of these rules or any procedural matter there
under shall be final and binding on the parties.
PANEL
OF ARBITRATORS
Rule 9
A Panel of Arbitrators shall be appointed by the Committee
from amongst persons who are qualified and possesses knowledge
and experience in their respective field of profession and
arbitration law & procedure and are willing to serve
as arbitrators generally or in specific fields and who are
from time to time recommended by the members of the Council
or any other person or organisation.
All the
members of the Panel will carry equal status and parties
will not have any right to challenge the appointment of
the arbitrator on the ground that its nominee arbitrator
has higher status than the Presiding Arbitrator.
Rule 10
The Registrar shall prepare and maintain an up-to-date Panel
of Arbitrators together with adequate information as to
their qualifications and experience. Separate lists may
be kept and maintained of arbitrators included in the Panel
for disputes in general and for each of the fields of international
trade and/or business transactions in which the Governing
Body decides that the Council will offer arbitration facilities
under the Rules.
The parties
to a dispute or the Registrar where he appoints the arbitrator
may choose any person from the panel with reference to any
dispute. If any party appoints a foreigner/person residing
abroad, as arbitrator from the panel, that party will have
to meet the travel & stay expenses of the person appointed
as arbitrator at the venue of arbitration. The arbitral
tribunal may, however, make any order in regard thereto
in the award. The panel of Arbitrators shall be open to
inspection by all persons with the permission of the Registrar.
Rule 11
The Committee may at any time add the name of any person
to the list of arbitrators included in the Panel or delete
the name of any person from the panel.
Rule 12
The Chairman of the Committee may include the name of any
person in the panel, in case it is required in any particular
case. His continuance in the Panel will be decided by the
Committee.
Rule 13
The persons who have attained the age of more than 80 years
will automatically cease to be member of the Panel of Arbitrators.
In the case of a person, who has been appointed as Arbitrator
before attainment of the age of 80 years, his panel membership
will continue till the pronouncement of the Award in pending
arbitration matters referred to him.
DUTIES OF THE REGISTRAR
Rule 14
(a) The Registrar shall receive applications for arbitration
by the Council, receive payment of fees and deposits, appoint,
in consultation with the Chairman of the Committee, and
in his absence in consultation with the member of the Governing
Body designated by him, an arbitrator or arbitrators as
hereinafter provided. The Registrar shall also receive all
communications made to the arbitral tribunal by the parties
and communicate to them the orders and directions of the
arbitral tribunal, keep a register of applications to the
Council and of awards made by the arbitral tribunal, keep
such other books or memoranda and make such other records
or returns as the Committee shall from time to time require
and generally carry out the directions of an arbitral tribunal
so constituted under these rules and take such other steps
as may be necessary to assist such arbitral tribunal in
the carrying out of its functions.
(b) The Registrar may delegate to any officer of the Council,
Chambers of Commerce or Trade Association at the premises
of which the arbitration proceedings are taking place, to
discharge such of the functions and administrative duties
of the Registrar as are deemed proper and necessary from
time to time, with reference to a particular case or cases.
INITIATION
OF ARBITRATION
Rule 15
(i) Any Party wishing to commence arbitration proceedings
under these rules (Claimant) shall give a notice of request
for arbitration to the Registrar of ICA and to the Respondent.
(ii) The notice of request (application) for arbitration
to the Registrar shall be accompanied by:-
(a) the names and full addresses of the parties to the dispute.
(b) statement of the claim and facts supporting the claim,
points at issue and relief or remedies sought with other
details of the claimant's case.
(c) original or duly certified copies of the arbitration
agreement, any contract or agreement out of or in connection
with which the dispute has arisen and such other documents
and information relevant or relied upon.
(d) Registration fee of Rs. 2,500/- for claim upto Rs. One
Crore and Rs.5,000/- for claim more than Rs. One Crore.
(e) The Arbitration shall be deemed to have commenced on
the day the application for arbitration, registration fee
and statement of claim are received in the office of the
Council.
Rule 16
If any Court makes an order directing that an arbitration
be held under these Rules, in addition to the documents
listed in Rules 15, the order of that Court or a copy thereof
shall accompany the application for arbitration.
Rule 17
(a) On
receipt of an application for arbitration, the Registrar
shall have absolute discretion to accept or reject the said
application. The Registrar is not bound to give reasons
for the exercise of his discretion.
Before
deciding on the acceptability of an application for arbitration,
the Registrar may ask the parties for further information
and particulars of their claims.
(b) Similarly,
if any information or particulars regarding the arbitration
agreement furnished by claimant with the application for
arbitration are found to be incorrect or false, at any time
subsequently, the Registrar shall have a like power to reject
the application for arbitration.
(c) Any Party aggrieved by the decision of the Registrar,
in accepting or rejecting an application for arbitration
as above, may apply to the Court for suitable directions.
DEFENCE
STATEMENT
Rule 18
(a) On receipt of the application together with the claim
statement, the Registrar shall send to the other Party (Respondent)
a copy of the claim statement and attached documents and
ask such other party to furnish within thirty days or within
any extended date, a defence statement setting out his case
accompanied by all documents and information in support
of or bearing on the matter.
(b) Any communication sent by the Registrar under Registered
Post to the Respondent on the address appearing in the Arbitration
Agreement/the contract between the parties, as per the information
supplied to the Council, will be deemed to be duly served
on the Respondent, if it is delivered to the addressee personally
or at his place of business, habitual residence or mailing
address last known, even if the Respondent refuses to accept
the said communication or if it is returned to the Council
by the postal authorities as unclaimed by the said party.
The Registrar may proceed further with the arbitration proceedings
as per the rules as if such communication had been duly
served on the concerned party. The Registrar may in such
cases make an additional communication to the Parties by
Registered Letter or by other means which may provide a
record of attempts to deliver it.
(c) A copy of the defence statement and all appended documents,
if any, shall be sent to the Claimant for information.
(d) The communication is deemed to have been received on
the day it is so delivered.
COUNTER-CLAIM
AND REPLY TO COUNTER-CLAIM
Rule 19
(a) The Respondent may make a counter-claim against the
Claimant provided the counter-claim arises under the same
transaction as the original claim. He must submit the counter-claim
with full details supported by all documents and information
as in the case of the claim under Rule 15 within the period
laid down for the defence statement to the claim and the
Claimant may within twenty-one days of the notification
of the counter claim or within such extended time submit
a statement in reply to the counter-claim. The arbitral
tribunal appointed to adjudicate upon the original claim
shall also adjudicate upon the counter-claim and there will
be no change in the number of members of arbitral tribunal
already constituted on the basis of original claim.
(b) Copy of the reply of the Claimant to the counter-claim
and all appended documents, if any, shall be sent to the
Respondent for information.
COPIES
OF STATEMENTS, ETC.
Rule 20
All statements, replies and other documents and papers submitted
by the parties and all appended documents must be supplied
in triplicate. Where there is more than one arbitrator or
more than one opposing party, the parties shall within the
time specified furnish to the Registrar such number of further
copies as may be required by the Registrar.
CONSTITUTION
OF THE ARBITRAL TRIBUNAL
Rule 21
On receipt of the application for arbitration, the Registrar
shall take necessary steps to have the arbitral tribunal
constituted for the adjudication of the dispute or difference
as provided hereunder.
Rule 22
The number
of arbitrators to hear a dispute shall be determined as
under:
(a) Where the claim including determination of interest,
if any, being claimed upto the date of commencement of arbitration
in terms of Rule 15, does not exceed Rs. One crore and where
the arbitration agreement does not specify three arbitrators,
the reference shall be deemed to be to a sole arbitrator,
unless the parties to the dispute agree to refer the dispute
to three arbitrators within thirty days from the date of
notification of request for arbitration.
(b) Where the claim including determination of interest,
if any, being claimed upto the date of commencement of arbitration
in terms of Rule 15 exceeds Rs. One crore, the dispute will
be heard and determined by three arbitrators, unless the
parties to the dispute agree to refer the dispute to a sole
arbitrator within thirty days from the date of the notification
of the request for arbitration.
(c) Where three arbitrators have to be appointed as per
the above sub-rule and any of the parties to the dispute
fails to make the necessary deposit towards the cost and
expenses of arbitration, instead of three arbitrators, the
Registrar may appoint a sole arbitrator, where the claim
is upto One crore. Where the claim is for more than Rs.
One crore, the Registrar may appoint arbitrator/s on behalf
of the Respondent as well the as Presiding Arbitrator.
Rule 23
The appointment of sole arbitrator or three arbitrators
shall be made in the following manner:
(a) In case a Sole Arbitrator has to be appointed, the Registrar
shall, by a notice in writing, call upon the parties to
the dispute to forward the name of an agreed arbitrator
from among the Panel of Arbitrators. The said notice shall
specify the period within which the nomination shall be
made which shall not be more than thirty days from the date
of the said notice to the respective parties. If the parties
fail to agree on the person to be appointed as sole arbitrator
within the time granted by the Registrar, the Registrar
in consultation with the Chairman of the Committee and in
his absence in consultation with the member of the Governing
Body designated by the Chairman, shall appoint the sole
arbitrator from among the Panel of Arbitrators. If one of
the parties is a national or resident of a country other
than India, the sole arbitrator shall, as far as possible,
be chosen or appointed by the Registrar from among the nationals
of a country other than that of either of the parties. The
sole arbitrator so nominated shall constitute the arbitral
tribunal to hear the dispute and shall be appointed as such
in writing by the Registrar. The Registrar shall give notice
to the Parties of the constitution of the arbitral tribunal.
(b) Where the reference is to three arbitrators, the Registrar
shall in the first instance call upon the parties to nominate
one arbitrator each from among the Panel of Arbitrators
by a notice in writing, sent to them. The said notice shall
specify the period within which the nomination shall be
made which shall not be more than thirty days from the date
of the said notice to the respective Parties. If a Party
to the dispute refuses or neglects to appoint an arbitrator
on his behalf within the period specified or if he requests
the Registrar to nominate an arbitrator on behalf of that
party, the Registrar in consultation with the Chairman of
the Arbitration Committee and in his absence in consultation
with the members of the Governing Body designated by the
Chairman shall appoint the arbitrator from the Panel of
arbitrators on behalf of that party. On receipt of the nominations
from the respective parties or on the appointment as aforesaid
by the Registrar, the Registrar shall appoint another person
as the Presiding Arbitrator of the arbitral tribunal in
consultation with Chairman of the Committee and in his absence
in consultation with members of the Governing Body designated
by the Chairman, from among the panel of arbitrators to
be additional arbitrator to act as Presiding Arbitrator
of the arbitral tribunal.
(c) If one of the parties is a national or resident of a
country other than India, the additional arbitrator shall,
as far as possible, be chosen or appointed from among the
nationals of a country other than that of either of the
parties. The arbitrators so nominated or appointed shall
constitute the arbitral tribunal and shall be appointed
as such in writing by the Registrar. The additional arbitrator
appointed by the Registrar shall act as Presiding Arbitrator
of the arbitral tribunal. The Registrar shall give notice
to the parties of the constitution of the arbitral tribunal.
Rule 24
The parties will obtain the consent from the persons nominated
by them as arbitrator and intimate the Council accordingly.
The Registrar will obtain the consent from person(s) nominated
by him. After a person gives his consent for appointment
as arbitrator, he will be duly intimated about his appointment
to decide the dispute, by a Memo in writing under the hand
of the Registrar about the constitution of the arbitral
tribunal. The appointment of the arbitrator will take effect
from the date of such intimation about the constitution
of the arbitral tribunal.
Rule
25
Before accepting his nomination the prospective arbitrator
shall disclose any circumstances such as financial or personal
interest in the outcome of the award, likely to disqualify
him as an impartial arbitrator. Upon receipt of such information,
the Registrar shall disclose it to the parties, who if willing
to proceed under the circumstances disclosed, shall advise
the Registrar accordingly. If either party declines to waive
the presumptive disqualification, the prospective arbitrator
shall be disqualified from acting as arbitrator and the
vacancy so created shall be filled, in accordance with the
applicable provision of these Rules.
Rule 26
Any Party shall have the right to challenge the appointment
of an arbitrator on receipt of the notice of his appointment
for reasons which disqualify the arbitrator. The Challenge
of an arbitrator shall be made within 30 days after his
appointment has been communicated to the challenging party
or within 30 days of his becoming aware of the reasons for
which the challenge is made. Copies of the communication
of challenge shall be sent to the other Parties and the
arbitrators. The Committee shall be the sole judge of the
grounds of challenge and its decision shall be final and
binding on the Parties.
Rule 27
(a) If any appointed arbitrator resigns or dies or becomes
incapable of acting or neglects or fails to act expeditiously,
prior to or during the arbitration hearings, or if he fails
to make the award within the prescribed time and the Parties
do not agree to extend the time for making the award, the
Registrar in consultation with the Arbitration Committee
may terminate the authority of such an appointed arbitrator
and inform him accordingly.
(b) In case of the resignation or death or termination of
authority of an appointed arbitrator under Sub-Rule(a) above,
a new arbitrator will be appointed in his place by the Registrar
in case he had appointed the original arbitrator. Where
the appointment was made by the Parties, the Registrar shall
call upon the Party who had appointed the arbitrator to
nominate another arbitrator in his place. If any Party refuses
or neglects to nominate an arbitrator within 15 days of
the date of notice requiring him to nominate the arbitrator
or within such extended time, the Registrar shall nominate
the arbitrator on behalf of that Party from among the Panel
of Arbitrators.
(c) The arbitrator(s) appointed as above will be informed
about the reconstitution of the arbitral tribunal and the
reconstituted arbitral tribunal shall make the award expeditiously
within the time prescribed under Rule 63 from the date when
the reconstituted arbitral tribunal enters on the reference.
The reconstituted arbitral tribunal shall proceed with the
arbitration with the liberty to act on the record of evidence
and proceedings as then existing or to commence the proceedings
de novo.
DEPOSITS
Rule
28
The Registrar
may require the Parties before passing the case on to the
arbitrators under Rule 38, to deposit in advance in one
or more installments such sums of money as he deems necessary
to defray expenses of the arbitration including the administrative
charges and arbitrator's fee. As a general rule, the deposits
shall be called for in equal shares from the Claimant(s)
and the Respondent(s). The arbitral tribunal may, during
the course of the arbitration proceedings or in the arbitration
award, require further sums to be deposited by the Parties
or any one of them to meet the expenses of the arbitration.
When one of the Parties neglects or refuses to make the
deposit, the Registrar or the arbitral tribunal, as the
case may be, may require such deposit whether in relation
to a claim or a counter-claim, to be made by the other Party
to the dispute (Claimant or Respondent as the case may be).
Should the whole or part of the deposit be not made by the
Parties or any one of them, the Registrar shall inform the
Parties or the Party concerned that the claim or counterclaim,
as the case may be, will not be the subject matter of the
reference. The arbitral tribunal shall proceed only in respect
of those claims or counter-claims for which the deposits
has been duly paid to the Council and otherwise may order
the suspension or termination of the arbitral proceedings.
All deposits
towards costs and expenses shall be made with the Council
and no payment shall be released to the arbitrators directly
by the parties. The deposit made shall be taken into account
by the arbitral tribunal in apportioning the cost while
making the award. Any deposit made in excess shall be refunded
to such of parties as the arbitral tribunal may direct.
The Council shall have a lien for the arbitral award on
any unpaid cost of the arbitration.
FEES AND EXPENSES
Rule
29
The
arbitral tribunal shall be entitled to allow fees and expenses
of witnesses, expenses connected with the selection and
carriage of sample and examination of goods, Licensed Measure’s
Department charges, conveyance, hire, cost of legal or technical
advice or proceedings in respect of any matter arising out
of the arbitration incurred by the arbitral tribunal, and
any other incidental expenses and charges in connection
with or arising out of the reference or award as the arbitral
tribunal shall, in its absolute discretion, think fit.
Rule
30
The
costs of the reference and the award including charges,
fees and other expenses shall be in the discretion of the
arbitral tribunal, which may direct to and by whom, and
in what proportion, such charges, fees and other expenses
and any part thereof shall be borne and paid, and may tax
and settle the amount of costs to be so paid or any part
thereof and may award costs to be paid as between solicitor
and client. In the event, any administrative fees and expenses
are due to the Council, the arbitral tribunal may award
them in favour of the Council.
Rule
31
The
fees, costs and expenses incidental to the reference and
the award shall include the following :
(1)
Registration Fee
The
Registration fee shall be payable with regard to the amount
in dispute in each case as hereunder. The registration fee
will not be refunded and becomes the property of the Council.
Rs.5,000/-
upto Rs. One Crore claim
Rs.10,000/-
more than Rs. One Crore claim
(2)
Administrative Fee and Arbitrator’s Fee
The
Administrative fee (of ICA) and Arbitrator’s fee (for each
arbitrator) will be fixed separately with regard to the
amount in dispute including determined interest in each
case, as under:
(3) In
addition to the above the ICA will be entitled to receive
a Special Fee of Rs.2, 500/- per hearing for providing facilities
of hearing rooms, for arbitration hearings and secretarial
assistance etc. at the arbitration hearing.
(4) Notwithstanding the provisions in Sub-Rule (2) of this
Rule, the Committee/Chairman of the Committee may prescribe
the Arbitrator's fees and the Administrative fees of the
Council at a figure higher than those prescribed in the
said Sub- Rules, if in the exceptional circumstances of
the case this appears to be necessary.
(5) Notwithstanding the provision in Sub-Rule (2) hereinabove,
in arbitration cases to which Rule 39 applies, the Arbitrator's
fee and the Administrative fee of the ICA will be fixed
by computing the fee applicable to larger claim in addition
to 60% of the applicable fees of all claims being tried
jointly. Provided that the Committee will have the power
to prescribe the Arbitrator's Fee and Administrative Fee
under this Sub-Rule in any other manner, having regard to
the nature and facts of the matters under reference.
Rule 32
Other expenses : The arbitrator may be paid an amount of
Rs. 750/- towards local conveyance for attending each arbitration
hearing in the city of his residence. In respect of joint
trial, the hearing will be treated as one irrespective of
the number of cases. Any traveling and other expenses incurred
by the arbitrator or the Registrar for attending the arbitration
hearings in a city other than the place of residence, shall
also be reimbursed to him as provided hereinafter. All the
above expenses shall form part of the arbitration costs.
Rule 33
(1) An arbitrator who has to travel shall be paid travelling
expenses by air or rail (air conditioned wherever available)
or car (when neither air nor rail transport is available)
at actuals. In addition, he may be paid out-of-pocket expenses
at actuals for boarding, lodging and local transport subject
to maximum of Rs. 6,000/- per day in metropolitan towns,
Rs.3,000/- in class A cities and Rs. 2,000/- in other cities.
An arbitrator who makes his own arrangements for boarding,
lodging, local transport etc. may be paid out of pocket
expenses at the rate of Rs.1,000/ - per day, without production
of vouchers. The limits for stay of the Registry officials
will be of those applicable to arbitrators.
(2) The cost to be incurred on payment of expenses referred
to in Sub-Rule (1) to an arbitrator nominated by a party
will be borne and paid by the party nominating the arbitrator.
However, if an appointed arbitrator changes his residence
after his nomination by a party, he will not be entitled
to reimbursement of any enhanced expenses for attending
the arbitration hearing, unless the party nominating him
agrees to reimburse the same to him. The expenses payable
to the third arbitrator or sole arbitrator appointed by
the Council under Rule 23(a) & (b) will be borne and
paid by both the parties in equal proportion or in such
other manner as may be determined by the Arbitral Tribunal.
Rule 34
Where the arbitration proceedings under an adhoc arbitration
or under the rules of arbitration of any other arbitral
organisation or otherwise are administered by the Council
wholly or in respect of some matters arising out of such
arbitration, the Council may charge an appropriate fee for
such administration and other services.
Rule 35
The amount of the claim shall be stated in the application
by the party applying for arbitration. If the amount is
stated in a currency other than the rupee, it shall be converted
into Rupees, at the current official rate of exchange.
Rule 36
Where the sum under dispute is not stated or in arbitration
proceedings where the relief claimed is other than a money
claim, viz., a declaratory claim, the Registrar and the
Arbitral Tribunal under Rule 28, may require such deposits
as may be deemed necessary to be paid by such of the parties
as may be required subject to later adjustment.
Rule 37
The amount of interest, wherever specified, will be included
in the claim amount for the purpose of calculation of administrative
fee. Further, claims and counter-claims referred for arbitration
shall be taken into consideration separately for the purpose
of calculation of arbitrator as well as administrative fees
under Sub Rule 31(2).
SUBMISSION
OF THE CASE TO THE ARBITRAL TRIBUNAL
Rule 38
The Registrar shall send copies of all papers relating to
arbitration such as claim statement, defence statement,
counterclaims, reply, statements, or other documents received
from the parties to the dispute to the Arbitrator/Arbitrators
constituting the Arbitral Tribunal under Rule 22 with a
request to proceed with the arbitration and the arbitral
tribunal shall be deemed to have entered on the reference
on the day on which applications, defence statement, counter-claims,
replies, documents, etc. have been dispatched to the Arbitrator/Arbitrators.
Intimation shall be given to the Parties of the day on which
the Arbitral Tribunal is deemed to have entered on the reference.
If the
Claimant does not file all the requisite documents, papers,
etc. or does not deposit the appropriate fees as per the
Rules after having been given due opportunity for the purpose
by the Registrar or the arbitral tribunal, the Registrar
or the arbitral tribunal may dismiss/close the case on file
for lack of pursual by the Claimant. Similarly, if the Respondent
fails to produce any requisite documents, papers including
the statement of defence or information or fails to deposit
administrative fees, or arbitrators fees etc. after having
been given due opportunity for the purpose by the Registrar
or the arbitral tribunal, the Registrar or the arbitral
tribunal may proceed further with the arbitration proceedings
as per the Rules, notwithstanding such failure or refusal
by the Respondent.
Rule 39
Where there are two or more applications for arbitration
by the Council and the issue involved in the dispute arises
out of same transactions, the Registrar may, if he thinks
proper to do so and with the consent of the Parties, fix
the hearings of the disputes to be heard jointly or refer
the applications to the same Tribunal. The awards, however,
shall be given separately in each case.
NOTIFICATIONS
AND/OR COMMUNICATIONS FROM THE REGISTRAR
Rule 40
All applications which the parties desire to make to the
arbitral tribunal and all notices to be given to the Parties
before or during the course of arbitration or otherwise
in relation thereto shall be made through and sent by the
Registrar who shall communicate the orders and directions
of the Arbitral Tribunal thereon to the Parties.
AMENDMENT
OF CLAIMS, ETC.
Rule 41
Amendments of the claim, defence statement, counter-claim
or reply submitted to the Arbitral Tribunal must be formulated
in writing by the Party so desiring. The Arbitral Tribunal
will decide whether such amendments should be allowed or
not. The Administrative fee and Arbitrator's fee (for each
Arbitrator) shall get revised to the extent of increase
for such additional claims/counter-claims. The party making
such additional claim/counter-claim shall deposit the entire
fees payable in respect of such increase of additional claim
as set out in the schedule of fees in Rule 31(2).
PLACE
OF ARBITRATION
Rule 42
The place or venue of arbitration shall be India. The Arbitration
proceedings shall be held at such place or places in India
as the Arbitral Tribunal may determine having regard to
the convenience of the Arbitrators and the Parties. In a
case in which one or both the Parties are from overseas,
the Arbitration proceedings may also be held at any place
outside India at the discretion of the Arbitral Tribunal.
PROCEEDINGS
BEFORE THE ARBITRAL TRIBUNAL CONCILIATION
Rule 43
Optional Conciliation: The parties may opt for conciliation
and request the arbitral tribunal before the commencement
of the arbitration proceedings unless they have already
agreed otherwise, to settle their dispute through conciliation
as per Rules of Conciliation of the Council.
FAST
TRACK ARBITRATION
Rule 44
Fast Track Arbitration : The Parties may opt for Fast Track
Arbitration and request the arbitral tribunal, before the
commencement of the arbitration proceedings, to decide the
reference in a fixed time frame of 3 to 6 months or any
other time agreed between the Parties, according to the
Fast Track Arbitration procedure, as under:
(1) The arbitral tribunal will be authorised to decide the
dispute on the written pleadings, documents and written
submissions filed by the Parties without any oral hearings.
(2) The arbitral tribunal shall have power to call for any
further information/clarification from the parties in addition
to the pleading and documents filed by them.
(3) An oral hearing may be held if both the parties make
a joint request or if the Arbitration tribunal considers
an oral hearing necessary in any particular case.
(4) If an oral hearing is held, the arbitral tribunal may
dispense with any technical formalities and adopt such procedure
as it deems appropriate and necessary for economic and expeditious
disposal of the case.
Rule 45
At a hearing, a party shall be entitled to appear by counsel,
attorney, advocate or a duly authorised adviser or representative
or personally. However, where the dispute is purely of a
commercial nature, the parties shall have no right to be
represented by lawyers except where, having regard to the
nature or complexity of the dispute, the arbitral tribunal
considers it necessary in the interest of justice that the
parties should be allowed to be represented by counsel,
attorney or advocate.
Rule 46
The arbitral tribunal may proceed with the reference notwithstanding
any failure by a party to comply with any of the directions
of the arbitral tribunal and may also proceed with the arbitral
proceedings in the absence of any or both the Parties who
fail or neglect to attend at the time and place appointed
by the arbitral tribunal, in spite of due notice.
Rule 47
The parties shall do all acts necessary to enable the arbitral
tribunal to make an award expeditiously and shall not do
or cause or allow to be done, any act which will delay the
proceedings or prevent arbitral tribunal from making an
award expeditiously, and if any party does cause or allow
to be done any such act, that party shall pay such costs
as the arbitral tribunal deems reasonable.
Rule 48
The arbitration session will go on as far as possible on
a day-to-day basis from 10.30 a.m. to 4.30 p.m once the
hearing begins after completion of all the formalities.
The arbitral tribunal shall not ordinarily adjourn a hearing
at the request of any party, except where the circumstances
are beyond the control of the party and the arbitral tribunal
is satisfied that reasons and circumstances for the adjournment
are justified. While granting an adjournment, the arbitral
tribunal may make such orders regarding payment of costs
by one or both of the parties, as it deems fit and reasonable.
Rule 49
If the parties have agreed to submit their case to arbitration
under these Rules and any party refuses or fails to take
part in the arbitration proceedings, the arbitral tribunal
may proceed with the arbitration notwithstanding such refusal
or absence.
Rule 50
The arbitral tribunal may at its discretion at any time
or times before making the final award and at the expense
of the parties concerned, consult any person having special
knowledge relating to the particular industry, commodity,
produce or branch of trade concerned in the reference or
any expert or qualified accountant and may also at the like
expenses of the Parties, consult solicitors, counsel or
advocates upon any technical question of law, evidence,
practice or procedure arising in the course of the reference.
If the parties agree, the arbitral tribunal may, at the
expense of the Parties, appoint any expert, accountant,
or lawyers to sit with as an assessor and take into account
the advice of such assessor.
Rule 51
The Parties to the reference and any witness on their behalf
shall, subject to the provisions of any law for the time
being in force :
(a) submit to be examined by the arbitral tribunal on oath
or affirmation in relation to the matters in dispute.
(b) produce before the arbitral tribunal all books, deeds,
papers, accounts, writings and documents in their possession
or power respectively which may be required or called for
by the arbitral tribunal.
(c) Comply with the requirements of the arbitral tribunal
as to the production or selection of samples, and
(d) generally do all other things which, during the pendency
of the reference, the arbitral tribunal may require.
Rule 52
The arbitral tribunal will consider, as far as possible,
to receive the evidence of witnesses by affidavit. Provided
that the witness whose affidavit is admitted in evidence
is made available for cross-examination at the request of
the opposite Party, the Arbitral Tribunal may:
(a) administer oath or affirmation to the Parties or witnesses
appearing and giving evidence;
(b) make any award conditional or in the alternative;
(c) correct in any award any clerical mistake or error arising
from or incidental to any slip or omission;
(d) administer to the Parties to the arbitration such interrogatories
as it may consider necessary;
(e) decide all objections to its jurisdiction including
any objection regarding the existence or validity of the
arbitration clause or the arbitration agreement, without
prejudice to the right of the parties to have the matter
decided by the Court of law;
(f) decide the law governing :
(i) the contract or the matter in dispute,
(ii) the arbitration agreement, and
(iii) the arbitration procedure
(g) award interest including pendente lite interest.
Rule 53
When substantially the same dispute or questions of law
and facts are likely to arise in more than one contract
or agreement (Chain Contracts), the arbitral tribunal may
invite all parties involved to agree to submit to an award
in one arbitration between such two or more of the parties
as are named for the purpose.
Rule 54
(i) The arbitral tribunal may by the award dismiss the application
or claim:
(a) if the Claimant does not prosecute the arbitration proceedings
or file the papers within the time granted; or
(b) neglects or refuses to pay the dues or deposits ordered
to be paid by the arbitral tribunal or the Registrar.
(ii) The arbitral tribunal may make an ex parte award :
(a) if the Respondent neglects or refuses to appear or make
his defence or fails to file the papers within the time
granted; or
(b) neglects or refuses to pay the dues or deposits ordered
to be paid by the arbitral tribunal or the Registrar.
Rule 55
The Registrar shall make necessary arrangements for a stenographic
record of evidence whenever such record is required by a
Party. The cost of the stenographic record and all transcripts
thereof, if any, shall form part of the costs of the reference.
Rule 56
The language of the arbitration proceedings shall be English
unless otherwise agreed by the parties. If any documents
filed by a Party are in a language other than English, the
Party filling such documents shall simultaneously furnish
an English translation of the documents. The Registrar may
make arrangements for the service of an interpreter at the
request of one or more of the parties and costs thereof
shall form part of the costs of the reference.
Rule 57
The arbitral tribunal may issue such orders or directions
as it may deem necessary for safeguarding, interim custody,
preservation, protection, storage, sale or disposal of the
whole or part of the subject matter of the dispute or for
its inspection or sampling without prejudice to the rights
of the Parties or the final determination of the dispute.
WAIVER
OF RULES
Rule 58
Any party who proceeds with the arbitration with the knowledge
that any provision or requirement of these rules has not
been complied with and who fails to state his objection
thereto in writing, shall be deemed to have waived his right
to object.
RETURN
OF DOCUMENTS
Rule 59
Unless required to be filed in a Court of law, the arbitral
tribunal shall have full discretion to retain/to return
all books, documents or papers produced before it and may
direct at any time that the books, documents or papers produced
before it or any of them may be returned to the parties
producing them on such terms and conditions as the arbitral
tribunal may impose.
AWARD
Rule 60
No award shall be made by the arbitral tribunal unless the
case of the party applying for arbitration has been brought
to the notice of the other party and until after the lapse
of such specified time within which he has been asked to
submit his defence statement under Rule 18.
Rule 61
Whenever there is more than one arbitrator, the award of
the majority shall prevail and be taken as the decision
of arbitral tribunal. Failing a majority, the Presiding
Arbitrator of the arbitral tribunal alone shall make the
award.
Rule 62
Should
the Parties arrive at a settlement of the dispute by common
agreement before the Arbitral Tribunal and the Arbitral
Tribunal is satisfied that such agreement is genuine and
not to defeat the purpose of any law, the arbitral tribunal
shall render an award as per agreement of the Parties. Otherwise,
the arbitral tribunal shall make the award on the basis
of the documents, evidence, etc. filed before it by the
Parties.
Rule 63
The arbitral tribunal shall make the award as expeditiously
as possible, preferably within six months, according to
the Guidelines, from the date of the reference subject to
a maximum limit of two years from the date of commencement
of the arbitral proceedings. If necessary, the maximum limit
of two years for making the award may be extended by agreement
between the parties to the dispute or by the Committee.
Rule 64
The arbitral award shall state the reasons upon which it
is based, unless :
(i) the parties have agreed that no reasons are to be given,
or
(ii) the award is an arbitral award on agreed terms.
Rule 65
The arbitral award shall state its date and the place of
arbitration and the award shall be deemed to have been made
at that place.
Rule 66
The arbitral tribunal may make an interim award, and may,
by an award, determine and order what shall be done by either
or any of the Parties, respecting the matters referred.
Rule 67
The arbitrators
constituting the arbitral tribunal or the Presiding Arbitrator
where Rule 61 is applicable, shall sign the award and the
Registrar shall give notice in writing to the Parties of
the making and signing thereof and of the amount of fees
& charges payable in respect of the arbitration and
the award. The arbitrators fee shall be payable by the Council
on receipt of the award and requisite deposit made by the
parties.
Rule 68
(a) When an award has been made, the Registrar shall furnish
a true copy of the award to the parties by registered post
provided the arbitration costs have been fully paid to the
Council by the parties or by one of them.
(b) The Registrar may require either Party to notify him
of the compliance with the award.
(c) The arbitral tribunal and the Registrar of the Council
shall assist the parties in complying with any formalities
that may be necessary for the enforcement of the award or
for other purposes.
(d) The Council may print, publish or otherwise circulate
any award made under its rules or under its auspices, in
any arbitration journal, magazine, report, etc. for the
purpose of creating arbitration jurisprudence or precedents
for the benefit and guidance of future arbitrations. No
party to the arbitration shall have any objection to the
publication of awards as above provided that the names and
addresses of any Party to the dispute will be omitted from
such publication and its identity duly concerned if so desired
by such party.
Rule 69
Additional copies of the award certified true by the Registrar
shall be made available to the parties but to no one else,
at all times at request and on payment as fixed by the Registrar.
Rule 70
A party shall in all things abide by and obey the award
which shall be binding on the Parties and their respective
representatives, notwithstanding the death of any party
before or after the making of the award and such death shall
not operate as revocation of the submission or reference.
To avoid delays and further litigation, the arbitrators/Registrar
shall ask the Parties to agree that the award made by the
arbitrators/s shall be final and binding on the Parties
and neither Party shall be entitled to challenge it in the
Court of law.
FILING
OF AWARD
Rule 71
The arbitral tribunal shall at the request of any of the
Parties to the proceedings or of any person claiming under
a Party or if so directed by the Court and upon payment
of fees and charges due in respect of the arbitration and
award and of the costs and charges of filing the award,
cause the award or a signed copy thereof together with the
deposition or documents which may have been taken and proved
before it to be filed before the Court.
Rule 72
A fee of Rs. 1,000/- plus incidental expenses at actuals
in addition to the court fees, on the scale for the time
being in force is payable by the party requiring the award
to be filed.
STAMP
DUTIES
Rule 73
Stamp duties are to be paid by the parties in equal share
in all cases in accordance with the scale of stamp duties
for the time being imposed by law.
COPIES
OF PROCEEDINGS
Rule 74
No party is entitled as of right to copies of proceedings
before the arbitral tribunal. In case the Registrar is required
to furnish copies of depositions and/or documents which
have been taken or proved before the arbitrator, a charge
as demanded by the Registrar shall be paid by the party
requiring such copies.
Rule 75
The Registrar shall, upon the written request of a party,
furnish to such party at his expense certified facsimile
of any documents filed in the arbitration proceedings.
CASES
WITHDRAWN
Rule 76
When the party instituting a case desires to withdraw it
before an arbitral tribunal has been constituted, the Registrar
shall return to him any deposits made by him, under Rule
28, after deducting such charges as he might have incurred
in connection with the cases. The registration fee, however,
shall not be refundable.
Rule 77
If the arbitration is terminated by the act or default of
any parties after constitution of the arbitral tribunal
and before the award is made, any fees, charges and expenses
incurred by the Council shall be paid by the parties in
such proportion as per schedule of fees prescribed in the
Rules of Arbitration of the Council.
INDEMNITY
OF SECRETARIAT AND ARBITRATORS
Rule 78
The Council,
the Arbitration Committee and officers of the Council shall
not be liable for any act or omission in whatever capacity
they may have acted in connection with or in relation to
an arbitration under these Rules. Parties are themselves
required to contest the proceedings regarding the validity
of the arbitration agreement before the court.
Rule 79
No party shall bring or prosecute any suit or proceedings
whatsoever against the arbitral tribunal, or any member
thereof, for or in respect of any matter or thing purporting
to be done under these Rules nor any suit or proceedings
in respect thereof (save for enforcement of the award) against
the other party.
AMENDMENT
OF RULES
Rule 80
The Governing Body may revise, amend or alter these rules
or the schedule of fees and other monies to be charged and
paid as and when expedient and necessary.
Annexure
I
GUIDELINES FOR ARBITRATORS AND THE PARTIES
FOR EXPEDITIOUS CONDUCT OF ARBITRATION PROCEEDINGS
1. The arbitrators
and the parties to arbitration are expected to follow these
guidelines to ensure economic and expeditious disposal of
arbitration cases.
For
Arbitrators
2. The arbitrators must take up the arbitration expeditiously
on receipt of the request from the Council and should also
complete the same with reasonable despatch. Serious efforts
should be made to settle arbitration cases expeditiously
within a period of 6 months where the amount of claim exceeds
1 crore and within a period of 4 months where the amount
of claim is less than Rs.1 crore.
3. When accepting his mandate, the arbitrator shall be able
to perform his task with the necessary competence according
to his professional qualifications.
4. When giving notice of his acceptance, the arbitrator
shall disclose in writing in the printed format as under:
- any relationship with the parties or their counsel which
may affect his independence and impartiality;
- any personal or economic interest, either direct or indirect,
in the subject matter of the dispute;
- any prejudice or reservation as to the subject matter
of the dispute which may affect his impartiality.
- Where necessary due to supervening facts, this Statement
shall be repeated in the course of the entire arbitral proceedings
until the award is filed.
5. Where facts that should have been disclosed are subsequently
discovered, the arbitrator may either withdraw or be challenged
or the Indian Council of Arbitration may refuse to appoint
him in other arbitral proceedings on this ground.
6. The arbitrator may at all stages suggest the possibility
of a settlement to the parties but may not influence their
decision by indicating that he has already reached a decision
on the dispute.
7. In the course of the arbitral proceedings, the arbitrator
shall refrain from all unilateral contact with the parties
or their counsel which is not notified to the Indian Council
of Arbitration so that the ICA can inform the other parties
and arbitrators.
8. The arbitrator shall refrain from giving the parties,
either directly or through their counsel, notice of decisions
in the evidence taking place or on the merits; notice of
these decisions may be given exclusively by the ICA.
9. The arbitrator shall neither request nor accept any direct
arrangement on costs or fees with the party which has designated
him. The arbitrator is entitled to reimbursement of expenses
and a fee as exclusively determined by the ICA according
to its Schedule of Fees, which is deemed to be approved
by the arbitrator when accepting his mandate.
10. The arbitrator shall encourage a serene and positive
development of the arbitral proceedings. In particular,
he shall decide on the date and manner of the hearings in
such a way as to allow both parties to fully participate
therein, in compliance with the principle of equal treatment
and adversarial proceedings.
11. The first hearing of the arbitral tribunal should be
convened within 15 days of the receipt of the complete reply
of the respondent when the arbitral tribunal may issue necessary
directions. Admission and denial of the documents may be
got done by the Registrar. Issues if any to be framed, may
be done at the same or at the next hearing. The arbitrators
should hold arbitration hearings continuously on day-to-day
basis during office hours.
12. The parties should be asked to furnish a list of their
witness, if any, in advance and they should be asked to
file affidavits of witness on the date fixed for evidence
preferably within a weeks of the settlement of issues, Cross
examination of such of the deponent's witnesses whose presence
is demanded by the opposite party should be completed at
a hearing to be fixed within 15 days.
13. Arguments preferably should be heard within 15 days
of the completion of evidence, to be followed by submission
of written arguments, if any.
14. Adjournments of duly fixed hearing should not be granted
except for unavoidable reasons which should be spelt out
in the adjournment order.
15. The Arbitrator should make the award expeditiously after
the close of the hearings, preferably within 15 days.
16. The arbitrator who does not comply with the provisions
of these guidelines may be replaced by the Committee. Where
it is not appropriate to replace the arbitrator in order
not to cause delay in the arbitral proceedings, the ICA
may also take such action after the conclusion of the arbitral
proceedings, by refusing to confirm him in subsequent arbitral
proceedings.
For
Parties
17. The claimant should file the applications or demand
for arbitration to the Registrar of the Council with all
the information and papers as per Rules, full statement
of claim and copies of documents relied upon, in 3 sets
in case of a Sole Arbitrator and in 5 sets in case of three
arbitrators
18. The respondent should file his reply to the claim with
complete information and documents relied upon, in 3 or
5 sets as above as early as possible within the prescribed
time. Fresh documentation/claims should not be entertained
at a later stage of the proceedings unless the arbitral
tribunal is satisfied about the reasons for granting such
permission.
19. If any party to arbitration, particularly in cases where
any arbitrator, advocate or any of the parties has to come
from out station to participate in arbitration proceedings,
desires to seek adjournment on any valid ground, it must
submit a written request to the Registrar at least before
5 working days stating the grounds which compel it to request
for postponement of the hearing so that the Council is in
a position to take necessary steps to inform the Parties,
Arbitrators and Advocates regarding postponement of the
hearing. Parties seeking adjournment will have to pay cost
as may be determined by the arbitral tribunal.
20. Parties should deposit arbitration and administrative
fees with the Council (ICA) within the stipulated time,
as per the Rules and no extension should be sought in this
behalf except for compelling reasons.
21. To avoid excessive costs in arbitration proceedings,
the parties are advised to choose their arbitrators from
the Panel, as far as possible from the place where the arbitration
hearings have to be held. In case, a party still chooses
an arbitrator from a place other than the place of hearing,
the concerned party will bear the entire extra cost to be
incurred on stay TA/DA etc. of the arbitrator nominated
by it.
For
Arbitration Committee
22. The Arbitration Committee of the Council may examine
the arbitration case file, from time to time to evaluate
the progress of the proceedings and to ascertain whether
the arbitrators have granted adjournments only on reasonable
grounds.
23. The Arbitration Committee shall be sole judge of the
grounds of violation of the guidelines and its decision
shall be final and binding on the arbitral tribunal as well
as the parties.
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