"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, October 1, 2014

Is the Arbitrator Obligated to Frame Issues?

Srinivasan, Badrinath, Is the Arbitrator Obligated to Frame Issues? (September 3, 2014). Current Tamil Nadu Cases, Volume 20, Issue 36, Journal Section, pp. 162-167. 

One of the frequent questions that a non-lawyer arbitrator faces is how to frame issues. Framing of issues involves comprehensive reading of the pleadings and coming up with the real and substantial points of difference between the parties. This is not easy even for lawyers. Therefore, the question arises whether the arbitral tribunal is obligated to frame issues.

The arbitrator’s power to determine the manner in which the arbitration is to be conducted is expansive [Section 19(3) of the Indian Arbitration and Conciliation Act, 1996 ("1996 Act")] and is circumscribed only by the agreement between the parties and the legislative fiat to treat the parties equally [Section 19(2)]. The arbitrator has the power to determine his own jurisdiction [Section 16]; he is empowered to pass interim orders [Section 17]; his award is enforceable in the same manner as that of a decree of a civil court [Section 36]. For most purposes, the arbitrator is a substitute to the civil court. Nevertheless, the arbitrator is not bound to strictly follow the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908 [Section 19(1)]. The 1996 Act is silent as regards whether the arbitrator is obligated to frame issues to determine the dispute, akin to a court of law.

This short paper, published in the Journal Section of the Current Tamil Nadu Cases addresses this topic of practical significance. Further, it also discusses the possibilities of alternatives to framing issues to enable the arbitrator resolve the disputes in an effective manner.

The paper can also be accessed from the below link: