1.

INTRODUCTION

A success, commercial in nature, in a global economy entails creativity and flexibility,

which needs to be appearing enthralling in both, the working machinery, and arbitration.
International commerce transactions often engross cultural differences, unfamiliar
philosophies, differing traditions, and the use of foreign legal systems. These can give
rise to complex legal challenges with important commercial consequences. The fast-
paced, technology-driven, cross-border world of the twenty-first century makes these
challenges ever more demanding. The arbitration laws are based on the recognition of
the value of arbitration, i.e. a third party tribunal as a widely used method of settling
disputes arising in international trade, as well as on the recognition of the need for a
comprehensive regulation of international commercial arbitration by means of
legislation and it takes into account the provisions on such arbitration contained in
various international treaties.1

Since the past 50 odd years, there has been an upraise of this so-called
international body which is set up to settle disputes from contractual and other civil law
relationships arising in the course of foreign trade and other forms of international
economic relations, provided that the place of business of at least one of the parties is
abroad, as well as disputes arising between enterprises with the foreign investments,
international associations and organizations etc. it has now become a fancy more than
business to have a Commercial Arbitration Committee of one’s own state in this world
community. The questions gain shot at are something like, ‘Are these bodies self capable
to handle what they have been setup for? Do they not need the help and assistance of
other neighbouring states also? And if so, then why such a vast number of Arbitration
Committees at each full stop? Why not just one single body, i.e. the International
Commercial Arbitration? Why does Japan say that it will solve all its disputes from
varying relationships with other states with its ‘Japan Commercial Arbitration
Association’?2 And why does America with its American Arbitration Association, or
United Kingdom with its Chartered Institute of Arbitration, or Australia, or even Ukraine
or the European community say the same thing with a small twister? Why not only a
single body like the United Nations body of UNCITRAL is? And to understand a fact
analogous to this, there is a prerequisite of a contemporary understanding of the legal
framework within which international commercial disputes between private parties and
between states and private parties are resolved, a knowledge and understanding of
international trade law, conflict of laws and related topics, a development of awareness of
the role of national laws in supporting and controlling arbitration,3 to place the subject
in its practical, commercial context, to critically evaluate the role of strategy and practice
as much as of the law itself in the settlement of commercial disputes.

1 A mention of which has been made at p. 9 of this article.

2 Refer for further information, http://www.adr.org/index2.1.jsp. Last visited on 09.08.2010
3 Refer for further information, Hans Smit and Vratislav Pechota, The World Arbitration Reporter, Vol. III,
International Arbitral Institutions and Rules (Juris Publishing, 1986); and Vol. 4-4A: Rules of National
Arbitration Institutions.
 Making a critique is very easy, but appraisal of the same thing is quite
difficult. This paper will try to bridge both, to make a balance and add to its stability to
improvise and understand it further with clarity.

International commercial arbitration is one of several forms of dispute

resolution for international commercial agreements. The use of arbitration has increased
along with the growth of international trade and commerce and the accompanying
disputes springing from these pursuits. In its broadest sense, arbitration is a vehicle of
dispute resolution in which parties to a contract select a neutral arbitrator (or a panel of
arbitrators) to present their dispute for a legally binding ruling. Arbitration is often
selected for the reasons of confidentiality, and to eliminate the uncertainties in the choice
of arbitrator and forum. Parties from different national origins may also be reluctant to
accept national court litigation with the potential for national bias. Arbitration offers the
parties more control over how proceedings will be conducted. International commercial
arbitration is, with rare exception, final and binding.

2. THE NEED FOR ARBITRATION AND DISPUTE RESOLUTION:

Not always can the internal laws bind the parties in conflict. And this is especially
because of the dearth of the efficient clauses for the proper governance when specifically
two parties of a different origin and a different state come into some sort of divergence.
Therefore, often, inherent differences between international business partners in an
international project or commercial transaction manifest themselves most visibly when
disagreements or disputes arise. These differences can exacerbate or complicate what
already a potentially uneasy interaction is cutting across differing cultural and business
traditions and sometimes-unfamiliar laws.

In the Indian context, one of the foremost issues came up when the
Supreme Court laid down in the Guru Nanak Foundation’s case,4 that the way in which
the proceedings under the law existent has not helped any conflicts in the commercial
field to any extent. Informal forum chosen by the parties for expeditious disposal of
disputes has, by the decisions of the Courts been clothed with ‘legalese’ of unforeseeable
complexity.

The apex Court in India also further laid in the Joginderpal’s Case,5 that
the government realised late that for implementation of its economic reforms, it was
necessary to recognize the demand of the business community in India and investors
abroad for reforms in the law of arbitration in India.

In the international arena, the prospect of protecting one's rights through

the courts of the country of an opponent, applying unfamiliar laws in unfamiliar
circumstances, is perceived as a major disadvantage. It is generally agreed that it's
preferable to adopt methods that are not based upon perceived disadvantage or

4 M/s- Guru Nanak Foundation v. M/s- Rattan Singh & Sons, AIR 1981 SC 2075
5 Food Corporation of India v. Joginderpal Mohinderpal, AIR 1989 SC 1263
unfamiliarity.6 Companies involved in such transactions need access to advice at both the
pre-contract stage and, should it arise, the dispute stage both to choose the most effective
way in which disputes can be handled and in managing the dispute should one arise.

In particular, International arbitration is seen as an effective, practical

forum for combining the desirable goals of an enforceable outcome, and equality between
the parties. There is currently no other way to deal with international business disputes
that allows both parties to feel that the dispute process has the required neutrality, even-
handedness and finality.

3. INTERNATIONAL BUSINESS DISPUTES:

Dealing with the issues arising from, and the management of, dispute resolution on an
international footing is increasingly important. In adopting an international outlook and
engaging more frequently in international transactions, companies require strategies and
advice for achieving effective and efficient resolution of differences, by arbitration or
other means.

International commercial arbitration is now a key component of the

commercial calculations in international business transactions. It holds an important place
in the global international business environment along with the other ways in which
parties can manage disputes or have them resolved and any outcomes enforced if
required.

The Theory of Lex Arbitri:

Arbitration is possible because it is permitted by a national laws. All developed countries,

and many other countries, have arbitration laws that permit arbitration of commercial
disputes between companies, if the companies either:

1. agree to arbitration in a contract, before a dispute arises, or

2. agree to arbitration in an ad-hoc agreement, after a dispute arises.

a the arbitration agreement is a creature of contract, parties may stipulate the substantive
law that will govern the arbitration. But the law of the place where the arbitral tribunal
sits,7 generally determines the procedural law of the arbitration. National arbitration
law may be found in the country’s Code of Civil Procedure, the Judicature Act, or the law
exists as a separate Arbitration Act.8 So, thereby meaning that either the parties or an
arbitration institution specify a venue for the arbitration. The laws of that venue govern
the arbitration and can have a significant effect on the conduct of the proceedings.
Indeed, the details of what is or is not arbitrable, the form of arbitration agreements,
6 Refer Park, William W., International Forum Selection, (Kluwer Law International, 1995) for an
exhaustive analysis of the factors and considerations in selecting a forum for arbitration and inclusive of
documentary annexure of model clauses, arbitration treaties, and translation of national arbitration laws.
7 Generally known as the ‘Doctrine of Lex Loci Arbitri’
8 Alternatively, as the case may be prevailing in the specific respective country.
how national courts may or may not interfere with arbitration proceedings,9 and many
other important practical details vary greatly by jurisdiction. For a number of reasons, the
most commonly used venues for international arbitration are Paris, France; London,
UK; and Geneva, Switzerland; but many other venues are commonly used, in particular
Stockholm, Sweden; The Hague, Netherlands; and Vienna, Austria. Hence, it has also to
be taken care that the constitution is by the will of parties.

4. CONTRACT CLAUSES:

Parties who initiate arbitration proceedings have usually agreed to do so by contract,

before any disputes arise. In fact, arbitration clauses are extremely common in
international contracts,10 and de rigueur in contracts involving developing or newly-
industrializing countries. A good contract that contains an arbitration clause will specify
the following:

1. The law governing the contract: This is called a choice of law clause and is
normally an independent clause separate from the arbitration clause. It is easily
the most important clause of an international contract since, if it is omitted and a
dispute arises, the parties can expect to pay big bucks to experts in conflict of
laws theory before they can get an arbitral tribunal to render a decision on the
merits of a case.
2. The venue of arbitration: Not all hearings need take place a t the seat, but the
arbitration laws of the seat will govern the arbitration proceedings. The laws of
certain countries are considered particularly favorable for commercial arbitration
and many contracts specify seats in these countries. The decision of the arbitrator
or arbitrators (the sentence) should be signed and dated at the agreed seat of
arbitration.
3. The language in which the arbitration proceedings will take place: This need
not be the national language of the seat of arbitration. English is a frequent
choice of language in international arbitration.
4. The number of arbitrators: One arbitrator is appropriate for cases in which the
stakes are small. Three arbitrators is a more appropriate choice for complex
international contracts.

5. How the arbitrators are to be appointed: It should refer to the phenomenon of

the appointment of arbitrators.11 The most commonly used methods are:

Ø Each party appoints one arbitrator, and those two people jointly appoint
a third, who acts as chair of the panel.

9 Refer Arab African Energy Corporation Ltd. v. Olieprodukten Nederland B. V., [1983] 2LL 419; and
Marine Contractors Inc. v. Shell Petroleum Development Co. of Nigeria Ltd., [1984] 2LL 77
10 Refer Mitsubishi Motors Corporation v. Soler Chrysler – Plymouth Inc., 473 US 614 S.ct. 3346: 87
L.Ed.2d. 444 (1985)
11 Traditionally, arbitration can be resorted to in all civil matters and so the procedure laid down should
be accordingly, but some of the areas in which arbitration methods have been successfully resorted to are
commercial disputes such as joint ventures, intellectual property, real estate, and product liability etc.
 Ø An arbitration institution provides lists of names to the parties, who
cross out certain names and rank the remaining ones. Based on those
ranks, the institution nominates the arbitrators.

Ø An arbitration institution appoints some or all of the arbitrators, using

some internal process that is not revealed to the parties.

In all cases, it is essential that the arbitration clause clearly specify who will nominate
the arbitrators. The nomination is typically made by an arbitration institution. Under the
laws of some countries, arbitrators will be nominated by the court if the parties do not
specify a nominating authority, but use of this option is uncommon in practice. In most
cases, arbitration clauses specify that an arbitration institution will also perform the
role of administrating the arbitration (taking note of communications by one party to the
other, making sure that deadlines are met, etc).

5. SUBMISSION AGREEMENTS, MISSION STATEMENTS, AND TORS

Even if a contract did not contain an arbitration clause, parties can agree to use
arbitration after a dispute arises. Such agreements are called submission agreements and
should contain the same elements as an arbitration clause. Mission statements and terms
of reference (TORs) are often drafted by the arbitrators, in consultation with the parties,
at the beginning of the arbitration proceedings, in order to define clearly what the claims
are and what the main points in dispute are.

Stay of Judicial Proceedings

National arbitration laws typically provide that national court proceedings concerning a
dispute will be stayed if the dispute is submitted to arbitration. In particular, national
courts will refuse to consider a dispute regarding a contract that contains an arbitration
clause. For example, the New York Convention is an agreement between states that
provides for stay of national proceedings during arbitration, for enforcement of arbitral
decisions rendered abroad, and for limits to the grounds for appealing arbitral decisions.

Procedure: Hearings, Discovery

Unlike proceedings in national courts, arbitration procedures are controlled by the

parties. If parties agree on certain procedures, the arbitral tribunal should follow them.12

Broad US-style discovery is rarely agreed to in arbitration proceedings,

and parties can agree to limit the length and complexity of hearings. By agreeing on
appropriate procedures, parties can reduce the cost of the proceedings.

12 Within the limits provided by the arbitration law of the seat and by the New York Convention, which
generally provides that each party must be given the opportunity to present its case and to respond to
evidence and arguments presented by the other party.
Interim and Partial Awards

Decisions by arbitrators (sentences) are usually called awards. The area of partial and
interim awards is one in which national arbitration laws differ. Some jurisdictions grant
broad powers to arbitrators regarding interim awards while others do not.

Final Awards

All jurisdictions recognize final awards as binding. In some countries, awards issued in
cases where one of the parties is foreign can be appealed only on very limited grounds
(typically, misconduct by the arbitrators, lack of due process, and similar gross
miscarriages of justice). In a few countries, parties can agree to waive the right of appeal
altogether, thus limiting the scope for the losing party to delay the enforcement of the
arbitral sentence by appealing to national courts.

Enforcement

The New York Convention is an agreement between states that provides for the
enforcement of arbitral decisions rendered abroad, and that limits the grounds for denying
enforcement of those sentences to misconduct by the arbitrators, lack of due process, and
similar gross miscarriages of justice.

6. INSTITUTIONAL ARBITRATION

Arbitrations have been continuing at various places and by various institutions with the
forerunner as the International Chamber of Commerce (ICC), the first to commence this
small business which has of course grown to a substantial area now. Two types of
arbitration exist, i.e. ad hoc and institutional. In ad hoc arbitration, parties organize
and plan their own arbitration, including the selection of arbitrators, designation of rules
and applicable law, and even the powers of the arbitrators. When parties select
institutional arbitration, an arbitral institution provides the rules of procedure for the
arbitration and performs supervisory and administrative functions such a keeping the
proceedings on a time table. Parties may also select an international institution such as
the ICC or a national institution such as the institution operating at America called the
American Arbitration Association (AAA),13 or the London Court of International
Arbitration (LCIA), or the Chartered Institute of Arbitrators14 (CIA). The International
Chamber of Commerce in Paris, France administers the vast majority of international
commercial arbitrations.15 However, not all arbitrations actually take place in Paris,
but, London, UK, and Geneva, Switzerland, are very popular seats for ICC arbitrations.
ICC arbitrations typically involve complex cases and can be as lengthy and expensive as
conventional court proceedings. If the ICC is called upon to nominate one or more
13 Brown, Laura Ferris, The International Arbitration Kit: A Compilation of Basic and Frequently
Requested Documents, Vol. III, compiled, edited and reviewed 4th Edn, (New York: American Arbitration
Association, 1993), with special emphasis at pp. 301-385 for text of inter-association agreements concluded
between AAA and other arbitral institutions.
14 Refer for further information, http://www.arbitrators.org.
15 Refer for further information, http://www.iccwbo.org.
arbitrators (which is not infrequent), it uses an internal procedure based on nominations
from national committees. In practice, a small group of professional arbitrators tends to
handle the bulk of cases. At this juncture, it would be a wise decision to refer to the
WIPO’s working for a comprehensive understanding.

WIPO:

There are many arbitration institutions other than ICC, some with regional
specialization, some with subject-matter specialization. The World International Property
Organization (WIPO) in Geneva, Switzerland has recently started an arbitration center
whose services could be of interest in the context of disputes arising on the Internet.
Interesting features of the WIPO center are:

1. WIPO codifies explicitly "best practices" regarding nomination of arbitrators,

including a list system, thus encouraging the parties to agree on people based on
their qualifications.
2. Although there hasn't been much practical experience yet, there is reaso n to
believe that the WIPO nomination process will be quite fast, since the WIPO
works with an in-house computerized data-base.
3. WIPO explicitly states that, when nominating arbitrators, it will take into account
any preferences expressed by the parties, and has created a mechanism to
implement this in practice: a data-base of names and detailed qualifications.
4. The WIPO rules explicitly cater for multi-party arbitrations, and are designed to
avoid the situation which led to the annulment in France of the award in the
Dutco multi-party case.
5. WIPO provides a special procedure that can be used if one party consider s certain
material too sensitive to disclose to the other party.
6. Although there is no practical experience yet, there is hope that WIPO
arbitrations will be faster than other institutional arbitrations, which these days
often last between 2 and 3 years. Reasons for this hope are:

Ø WIPO arbitrations start before the parties have paid their fees t o
the arbitration center;

Ø WIPO duns the arbitrators by requiring a status report every three

month s after the expiration of the nine month limit imposed by the
rules;

Ø WIPO requires arbitrators to have enough spare time available to

complet e the arbitration expeditiously.

Ø WIPO provides an accelerated (expedited) arbitration procedure.

Treaties:
There have been enacted many Treatises for commercial arbitrations, like the United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of
1958 (New York Convention);16 Convention on the Settlement of Investment Disputes
Between States and Nationals of Other States (Washington Convention),17 established the
International Centre for the Settlement of Investment Disputes (ICSID); the Inter-
American Convention on International Commercial Arbitration (Panama Convention),
Organization of American States;18 Inter-American Convention of Extraterritorial
Validity of Foreign Judgements and Arbitral Awards (Montevideo Convention),
Organization of American States;19 Convention for the Pacific Settlement of International
Disputes;20 Convention for the Pacific Settlement of International Disputes; 21 European
Convention on International Commercial Arbitration;22 Agreement relating to application
of the European Convention on International Commercial Arbitration;23 European
Convention Providing a Uniform Law on Arbitration;24 Convention on the Settlement by
Arbitration of Civil Law Disputes Resulting from Relations of Economic and Scientific-
Technical Cooperation (Moscow Convention); World Trade Organization (WTO), The
General Agreement on Tariffs and Trade (GATT) came into being in 1948 as a
multilateral instrument to promote trade. In 1993, the Uruguay Round of GATT,
established the World Trade Organization as an international organization. The WTO
deals with the rules of trade between nations and supports the multilateral trading system
through the WTO agreements.

7. THE INDIAN EXPERIMENT – ACT OF 1996

With a view of the procedural aspects of a Arbitration Committee, there urges a need to
scrutinise through a arbitration phenomenon in a country, say for example, India. In
India, the dominant features of the law, i.e. The Arbitration and Conciliation Act, 1996
are that it recognizes the autonomy of the parties in the conduct of arbitral proceedings.
The law promotes transparency in the matter of decision making by the arbitral tribunal
by providing that the arbitral tribunal shall give reasons for its arbitral award.

The supervisory role of courts has been minimised as it is practically nil

till the award is made. The old system of making the arbitral award a rule of court before
it is enforced has been dispensed with. The arbitral award itself, once it becomes final,
will be enforced as if it was a decree of the court, without going through the erstwhile
process of its becoming a rule of the court.

The law allows parties to resort to arbitration for resolution of

their disputes in any matter which is arbitrable. However, where, by virtue of any other
16 330 U.N.T.S. 3, 21 U.S.T. 2517 (June 10, 1958).
17 575 U.N.T.S. 159 17 U.S. T. 1270 (March 18, 1965).
18 Treaty Series no. 42.
19 Treaty Series no. 51.
20 Adopted on July 29, 1899, and replaced by convention of Oct. 18, 1907 as between contracting parties
to the later convention.
21 Adopted October 18, 1907.
22 484 U.N.T.S. 349 (Apr. 21, 1961).
23 523 U.N.T.S. 93 (Dec. 17, 1962).
24 Council of Europe, ETS No. 56.
law (i.e. a special statute providing for a different remedy), a certain dispute or certain
kinds of disputes cannot be submitted to arbitration, they cannot be referred to
arbitration. The parties are given maximum freedom in the appointment of arbitrators.
The Act also provides the basis for institutional arbitration in as much as the parties may
agree to abide by the rules of procedure of an arbitral institution for the purpose of
arbitration. In case of International disputes, the Chairman arbitrator should be from a
neutral country, i.e. from a different country.

The arbitral tribunal has the competence to decide its own jurisdiction and
to consider objections with respect to the existence or validity of the arbitration
agreement. The new law clearly provides that an arbitral tribunal will not be bound by the
Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. However, parties are at
liberty to agree on a procedure to be followed by the arbitral tribunal in conducting the
proceedings.25

The Act, for the first time in the country, provides a detailed statutory
framework for the conduct of independent conciliation proceedings outside the court. It is
based on the conciliation rules adopted by the United Nations Commission on
International Trade Law (UNCITRAL) in 1980 which were conceived primarily in the
context of dispute resolution in international commercial relations.

A settlement agreement reached by the parties and signed by them with

the help of the conciliator shall be final and binding on them and the persons claiming
under them. The parties may terminate a conciliation proceeding by giving a written
notice addressed to the conciliator to the effect that the proceedings are terminated from
the date of notice. The conciliation proceedings are entirely dependent on the continued
goodwill of the parties and could be terminated by the parties at any time before the
signing of the settlement agreement.

The law provides that notwithstanding anything contained in any other

law, the principle of confidentiality shall be maintained by the parties as well as the
conciliator except where its disclosure is necessary for the implementation and
enforcement of the settlement agreement.

The demand for ADR has led to an increase in demand for arbitral
institutions. A systematised approach and effective institutions to conduct ADR are the
needs of the day.26

One of the most important elements is that there is no appeal from the
verdict of the arbitral tribunal on limited grounds as the purpose of commercial
arbitration is speed, certainty and recourse to a cheaper remedy. As the parties choose
their arbitrators, they cannot object to the decision either upon law or facts. Generally, the
arbitral tribunal is the final authority to adjudicate upon the disputes raised before it.
25 Refer further, Renusagar Power Co. Ltd. v. General Electric Co., AIR 1985 SC 1156; and Svenska
Handelsbanken v. Indian Charge Chrome Ltd., (1994) 2 SCC 155.
26 Refer further for specifications on demand for arbitral institutions at
http://www.ficci.com/icanet/law.htm.
However, under certain circumstances set out in Section 37 of the 1996 Act, appeal from
the arbitral order is provided such as an order by the arbitral tribunal granting or refusing
to grant an interim measure under Section 17 of the1996 Act. Some orders passed by the
court are also appealable such as those which are made by a court on an application by a
party to a dispute, granting or refusing to grant interim measures as, being compatible
with an arbitration agreement under Section 9 of the new Act, and setting aside or
refusing to set aside an arbitral award under Section 34 of the 1996 Act.

No second appeal lies from an order passed in appeal. However, the right
to invoke the extraordinary jurisdiction of the Supreme Court of India under Article 136
of the Constitution of India is not affected. Article 136 is an omnibus Article empowering
the Supreme Court to prevent injustice by any court of authority in India including the
arbitral tribunal armed with exclusionary clauses. The powers under the said Article are
in the nature of special residuary powers which are exercisable outside the purview of
ordinary law, in cases where the need of justice demands interference by the Supreme
Court.

It also lays down as to how will the foregin awards be enforced in this
country.The Arbitration and Conciliation Act, 1996, deals with the enforcement of
foreign awards, and consists of two chapters. Chapter 1 relates to the New York
Convention Awards and Chapter 2 to the Geneva Convention Awards, 1958 and the
Geneva Convention on the Execution of the Foreign Arbitral Awards, 1927, deal with
rules of procedure for enforcement of foreign awards in different countries which are
parties to these conventions. As India is a party to both these conventions, the relevant
provisions relating to the enforcement of these awards have been incorporated under the
new Act of 1996. Under the Geneva Convention, in order to obtain recognition or
enforcement of a foreign arbitral award, it is necessary to show that :

1. The arbitration agreement is valid;

2. Subject matter of dispute is capable of settlement by arbitration;
3. The award is made by a validly constituted Arbitral Tribunal;
4. The award has become final in the country in which it has been made;
5. Recognition and enforcement of award is not contrary to the public policy of the
country wherein it has to be enforced.

Even if these conditions are fulfilled, the recognition and enforcement of the award could
be refused if the court is satisfied that (a) the award is annulled, (b) sufficient notice of
the arbitration proceedings is not given to the party; and (c) the award does not deal
with contemplated differences. It was, however, felt that the Geneva Convention suffered
from certain defects which hampered the speedy settlement of disputes through
arbitration and thus the New York Convention was entered into. The New York
Convention seeks to remedy those defects by providing for much more simple and
effective methods of obtaining recognition and enforcement of the foreign awards. The
party against whom the award is sought to be enforced can object to recognition and
enforcement of the foreign award on the following grounds, (a) of incapacity of the
parties or invalidity of the agreement; (b) lack of proper notice of appointment of
arbitrator or arbitral proceedings; (c) that the award deals with differences not
contemplated within the submission to arbitration; (d) that the composition of the
arbitral authority or procedure does not accord with the agreement; (e) that the award has
not as yet become binding; (f) that the subject-matter is not capable of settlement by
arbitration; (g) that recognition and enforcement of the award is contrary to public
policy. None of these grounds postulates a challenge to the award on merits. Both the
conventions have been incorporated as schedules to the 1996 Act and thus have been
made a part thereof.

‘Foreign award’ is defined in Section 44 of the new Act as an award on

differences arising between persons out of legal relationships, whether contractual or not,
which are considered to be commercial under the laws in force in India; and made in
pursuance of an agreement in writing for arbitration to be governed on the Recognition
and Enforcement of foreign Awards Act, 1958, in the territory of a foreign state notified
by the Government of India as having made reciprocal provisions for enforcement of the
convention.

The execution is also quite simple, i.e. the foreign award is executed as it
is and there is no scope for any addition in executing the foreign award. The award to be
executed must, however, be properly construed and given effect to. If the award is
ambiguous, the court has jurisdiction to ascertain its import, ambit and scope. If an
application is filed for a decree in terms of the award, the court in upholding the award
has to grant a decree in terms of the award and not to subtract any portion therefrom.
Thus, when parties to the contract agree to arrange for settlement of their disputes by a
judge of their choice, by a procedure of arbitration voluntarily agreed upon, the court
must hold the parties to the bargain. When the parties have agreed to an arbitration by a
foreign arbitral tribunal under the laws of the foreign country, the case for stay would be
stronger than in an ordinary case as there is an assumption that parties not only sought
and agreed upon the forum for resolution of the dispute but also the law according to
which the dispute would be resolved.

Moving further ahead of execution and commenting on the working

machinery in India, he absence of reliable statisticsmake it almost impossible to specify
the number of ‘international arbitrations’ is keeping pace with the proliferation to trans-
national commercial disputes.27 What does seem clear is that the prosperity of
international arbitration as a comntemporary institution is due, in part at least, to the
advent of a comparitively few but almost protracted and expensive proceedings, amny of
them burdened with heavy judicial overtones.

8. CONCLUSION

27 As viewed by F. S. Nariman in one of his articles, cited as Nariman, F. S., Arbitration and ADR in India,
Alternative Dispute Resolution, (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 1997 Edn, Reprint
2002).
The Indian law with respect to international commercial arbitration has leaped a great
deal by following the UNCITRAL model, but it will be commendable to say that in
many, or rather most of the cases, it has outparred th latter model, for example, with
respect to interim orders, interference by courts (where it is very less in the Indian
scenario), or even as a prt of the public law. It has been modified to a great extent,
hence removing the several bottlenecks, and the Act certainly bringing about greater
satisfaction and perfection I the international community that the Indian law of
arbitration is comparable to the laws of arbitration of other countries to a much extent.
This Act fulfills the need of a comprehensive and effective law responsive to both
domestic and international requirements. This also has tied to minimise the law delays by
limiting the supervisory role of the Courts, which is shown by the Act itself implying
lessened interference of the Courts. It also tries to minimise the scope by reducing the
grounds on which an award can be challenged while ensuring fairness of process and
transparency in the arbitral proceedings by enacting suitable measures.

This arbitration should be made much easier and accessible or else the
main purpose of its existence will be deprieved. It should also be less technical and more
responsive to the cannons of justice and fair play and make the arbitrator adhere to such
process and norms which will create confidence not only by doing justice between the
parties, but by creating the sense that justice appears to have been done, and this being
emphatically done.

The object inter alia is to provide ‘a unified legal framework for the
fair and efficient settlement of disputes arising in international commercial
relations.’