REMEDIES UNDER THE CONSTITUTION OF INDIA

● FUNDAMENTAL RIGHT - ARTICLE 32 = RIGHT TO CONSTITUTIONAL

REMEDIES.

“Remedies for enforcement of rights conferred by this Part.—(1) The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by this Part is
guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The
right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.”

Article 32 of the Indian Constitution is a fundamental right that guarantees the right to
constitutional remedies. It is considered one of the most crucial provisions in the Constitution as
it empowers individuals to seek protection and enforcement of their fundamental rights directly
from the Supreme Court of India.

Article 32 grants every individual the right to move the Supreme Court for the enforcement of
their fundamental rights. This means that if someone believes their fundamental rights have been
violated, they can approach the Supreme Court directly for relief. It also ensures that not only do
individuals have the right to move the Supreme Court, but the Court also has the power to issue
appropriate orders, directions, or writs for the enforcement of fundamental rights.

THE SUPREME COURT CAN ISSUE FIVE TYPES OF WRITS UNDER ARTICLE 32:

Habeas Corpus: To ensure the release of a person who has been unlawfully detained.
Mandamus: To direct a public official or authority to perform a duty they are legally bound to
perform.
Prohibition: To prevent a lower court or tribunal from exceeding its jurisdiction.
Certiorari: To quash an order passed by a lower court, tribunal, or authority.
Quo Warranto: To inquire into the legality of a person's claim to a public office.

● ARTICLE 226 - “POWER OF HIGH COURTS TO ISSUE CERTAIN WRITS.—

“(1)Notwithstanding anything in article 32 3 ***, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions,
orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose.]

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories.
[(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without—

(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand
vacated.]”

Article 226 of the Indian Constitution empowers High Courts to issue writs for enforcing
Fundamental Rights and other legal rights. It allows individuals to seek remedies through writs
like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. The jurisdiction
extends to persons or authorities within the High Court's territory, making it broader than Article
32, which is limited to Fundamental Rights.
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

SECTIONS - CONTENT THE KIND OF REMEDY

Sec. 8 Power to refer parties to arbitration where there is an arbitration Mandates that if a party files a
agreement.— lawsuit in a matter covered by an
arbitration agreement, the other
[(1)A judicial authority, before which an action is brought in a party can request the court to refer
matter which is the subject of an arbitration agreement shall, if a the dispute to arbitration. The court
party to the arbitration agreement or any person claiming must stay the proceedings and refer
through or under him, so applies not later than the date of the matter to arbitration if the
submitting his first statement on the substance of the dispute, agreement is valid and applicable.
then, notwithstanding any judgment, decree or order of the
Supreme Court or any Court, refer the parties to arbitration
unless it finds that prima facie no valid arbitration agreement
exists.]

(2) The application referred to in sub-section (1) shall not be

entertained unless it is accompanied by the original arbitration
agreement or a duly certified copy thereof:
[Provided that where the original arbitration agreement or a
certified copy thereof is not available with the party applying for
reference to arbitration under sub-section (1), and the said
agreement or certified copy is retained by the other party to that
agreement, then, the party so applying shall file such application
along with a copy of the arbitration agreement and a petition
praying the Court to call upon the other party to produce the
original arbitration agreement or its duly certified copy before
that Court.]

(3) Notwithstanding that an application has been made under

sub-section (1) and that the issue is pending before the judicial
authority, an arbitration may be commenced or continued and an
arbitralaward made.”

Sec.9 Interim measures, etc., by Court.— Allows parties to seek interim relief
from the court to protect their rights
[(1)]A party may, before or during arbitral proceedings or at any or the subject matter of the dispute.
time after the making of the arbitral award but before it is It includes measures like preserving
enforced in accordance with section 36, apply to a court— property, securing amounts in
(i) for the appointment of a guardian for a minor or person of dispute, or ensuring evidence is
unsound mind for the purposes of arbitral proceedings; or safeguarded. Relief can be sought
(ii) for an interim measure of protection in respect of any of the before, during, or after arbitration
following matters, namely:— but before the award is enforced.
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(a) the preservation, interim custody or sale of any goods which

are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or
thing which is the subject-matter of the dispute in arbitration, or
as to which any question may arise therein and authorising for
any of the aforesaid purposes any person to enter upon any land
or building in the possession of any party, or authorising any
samples to be taken or any observation to be made, or
experiment to be tried, which may be necessary or expedient for
the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to
the Court to be just and convenient, and the Court shall have the
same power for making orders as it has for the purpose of, and
in relation to, any proceedings before it.

[(2) Where, before the commencement of the arbitral

proceedings, a Court passes an order for any interim measure of
protection under sub-section (1), the arbitral proceedings shall
be commenced within a period of ninety days from the date of
such order or within such further time as the Court may
determine.
(3) Once the arbitral tribunal has been constituted, the Court
shall not entertain an application under sub-section (1), unless
the Court finds that circumstances exist which may not render
the remedy provided under section 17 efficacious.]”

Sec. 12 [(1) When a person is approached in connection with his Establishes the grounds for
possible appointment as an arbitrator, he shall disclose in challenging the appointment of an
writing any circumstances,— arbitrator based on impartiality,
(a) such as the existence either direct or indirect, of any past or independence, or qualifications.
present relationship with or interest in any of the parties or in Key provisions -
relation to the subject-matter in dispute, whether financial,
business, professional or other kind, which is likely to give rise 1. Disclosure by Arbitrator
to justifiable doubts as to his independence or impartiality; and (Section 12(1)):
(b) which are likely to affect his ability to devote sufficient time An arbitrator must disclose in
to the arbitration and in particular his ability to complete the writing any circumstances that
entire arbitration within a period of twelve months. could:
Explanation1.—The grounds stated in the Fifth Schedule shall Raise justifiable doubts about their
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

guide in determining whether circumstances exist which give

rise to justifiable doubts as to the independence or impartiality impartiality or independence.
of an arbitrator. Affect their ability to meet the
Explanation 2.—The disclosure shall be made by such person in qualifications agreed upon by the
the form specified in the Sixth Schedule.] parties.
(2) An arbitrator, from the time of his appointment and This duty is ongoing throughout the
throughout the arbitral proceedings, shall, arbitration proceedings.
without delay, disclose to the parties in writing any
circumstances referred to in sub-section (1) unless they have 2. Grounds for Challenge
already been informed of them by him. (Section 12(3)):
(3) An arbitrator may be challenged only if— An arbitrator may be challenged if:
(a) circumstances exist that give rise to justifiable doubts as to
his independence or impartiality, There are justifiable doubts about
or their impartiality or independence.
(b) he does not possess the qualifications agreed to by the
They do not meet the qualifications
parties.
agreed upon by the parties.
(4) A party may challenge an arbitrator appointed by him, or in
whose appointment he has participated, only for reasons of 3. Applicability of the Fifth
which he becomes aware after the appointment has been made. and Seventh Schedules:

[(5) Notwithstanding any prior agreement to the contrary, any The Fifth Schedule lists
person whose relationship, with the parties or counsel or the circumstances that may give rise to
subject-matter of the dispute, falls under any of the categories justifiable doubts about an
specified in the Seventh Schedule shall be ineligible to be arbitrator’s independence or
appointed as an arbitrator: Provided that parties may, subsequent impartiality.
to disputes having arisen between them, waive the applicability
The Seventh Schedule provides
of this sub-section by an express agreement in writing.]
specific grounds that disqualify an
arbitrator from being appointed.
This section ensures the neutrality
and fairness of the arbitration
process by setting clear standards
for the appointment and conduct of
arbitrators.

Sec. 13 Challenge procedure.— procedure for challenging an

arbitrator. A party may challenge
(1) Subject to sub-section (4), the parties are free to agree on a the appointment of an arbitrator if:
procedure for challenging an arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party 1. Circumstances Give Rise to
who intends to challenge an arbitrator shall, within fifteen days Justifiable Doubts: If there
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

after becoming aware of the constitution of the arbitral tribunal

or after becoming aware of any circumstances referred to in sub- are reasonable grounds to
section (3) of section 12, send a written statement of the reasons doubt the arbitrator’s
for the challenge to the arbitral tribunal. impartiality or
(3) Unless the arbitrator challenged under sub-section (2) independence.
withdraws from his office or the other party agrees to the 2. Lack of Qualifications: If
challenge, the arbitral tribunal shall decide on the challenge. the arbitrator does not meet
(4) If a challenge under any procedure agreed upon by the the qualifications agreed
parties or under the procedure under sub- section (2) is not upon by the parties.
successful, the arbitral tribunal shall continue the arbitral
proceedings and make an arbitral award. Procedure for Challenge:
(5) Where an arbitral award is made under sub-section (4), the 1. Submission to the Tribunal:
party challenging the arbitrator may make an application for The challenging party must
setting aside such an arbitral award in accordance with section send a written statement
34. detailing the reasons for the
(6) Where an arbitral award is set aside on an application made challenge to the arbitral
under sub-section (5), the Court may decide as to whether the tribunal.
arbitrator who is challenged is entitled to any fees.” 2. Time Limit: The challenge
must be raised within 15
days of becoming aware of
the circumstances forming
the basis of the challenge or
the appointment of the
arbitrator.
3. Decision by the Tribunal:
Unless the arbitrator
withdraws or the other party
agrees to the challenge, the
tribunal will decide the
challenge.
If the challenge is unsuccessful, the
tribunal continues with the
arbitration, but the challenging
party may seek to set aside the
award under Section 34 after the
final award. This provision ensures
transparency and fairness in the
arbitration process while
minimizing undue interference.

Sec. 15 Termination of mandate and substitution of arbitrator.— Deals with the termination of the
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

mandate of an arbitrator and the

(1) In addition to the circumstances referred to in section 13 or procedure for appointing a
section 14,the mandate of an arbitrator shall terminate— substitute arbitrator. The mandate of
an arbitrator terminates in the
(a) where he withdraws from office for any reason; or following circumstances:
(b) by or pursuant to agreement of the parties.
1. By Agreement or
(2) Where the mandate of an arbitrator terminates, a substitute Withdrawal: If the arbitrator
arbitrator shall be appointed according to the rules that were resigns or both parties
applicable to the appointment of the arbitrator being replaced. mutually agree to terminate
the mandate.
(3) Unless otherwise agreed by the parties, where an arbitrator is 2. Inability to Perform Duties:
replaced under sub-section (2), any hearings previously held If the arbitrator becomes de
maybe repeated at the discretion of the arbitral tribunal. jure or de facto unable to
perform their functions (as
(4) Unless otherwise agreed by the parties, an order or ruling of addressed in Section 14).
the arbitral tribunal made prior to the replacement of an 3. Failure to Act Without
arbitrator under this section shall not be invalid solely because Undue Delay: If the
there has been a change in the composition of the arbitral arbitrator fails to act
tribunal.” promptly and delays the
arbitration process.
In case the mandate of an arbitrator
is terminated, a substitute arbitrator
must be appointed according to the
rules applicable to the original
appointment. The substitute
arbitrator may proceed from the
stage the mandate terminated unless
the parties agree otherwise. Section
15 ensures the continuity of the
arbitration process while addressing
situations where the arbitrator is
unable to fulfill their role.

Sec. 17 Interim measures ordered by arbitral tribunal.—(1) A party may,

during the arbitral proceedings, apply to the arbitral tribunal— Empowers the arbitral tribunal to
(i) for the appointment of a guardian for a minor or person of grant interim measures to protect
unsound mind for the purposes of the rights and interests of the parties
arbitral proceedings; or during the arbitration process. A
(ii) for an interim measure of protection in respect of any of the party can apply to the tribunal for
following matters, namely:— measures similar to those available
under Section 9, which include:
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

(a) the preservation, interim custody or sale of any goods which

are the subject-matter of the 1. Preservation of Property:
arbitration agreement; Measures to preserve or
(b) securing the amount in dispute in the arbitration; secure the subject matter of
(c) the detention, preservation or inspection of any property or the dispute or evidence
thing which is the subject- relevant to the case.
matter of the dispute in arbitration, or as to which any question 2. Interim Custody or Sale:
may arise therein and authorising for any of the aforesaid Orders regarding the interim
purposes any person to enter upon any land or building in the custody, preservation, or
possession of any party, or authorising any samples to be taken, sale of goods.
or any observation to be made, or experiment to be tried, which 3. Securing the Amount in
may be necessary or expedient for the purpose of obtaining full Dispute: Directions to
information or evidence; safeguard the monetary
(d) interim injunction or the appointment of a receiver; value of the claim.
(e) such other interim measure of protection as may appear to The interim orders passed by the
the arbitral tribunal to be just arbitral tribunal under Section 17
and convenient, and the arbitral tribunal shall have the same are enforceable as if they were
power for making orders, as the court has for the purpose of, orders of a court. This section
and in relation to, any proceedings before it. ensures that parties can seek
(2) Subject to any orders passed in an appeal under section 37, effective remedies from the tribunal
any order issued by the arbitral tribunal under this section shall itself, reducing reliance on courts
be deemed to be an order of the Court for all purposes and shall and maintaining the integrity of the
be enforceable under the Code of Civil Procedure,1908 (5 of arbitration process.
1908), in the same manner as if it were an order of the Court.]

Sec. 33 Correction and interpretation of award; additional award.—(1) Allows parties to seek clarification,
Within thirty days from the correction, or supplementation of an
receipt of the arbitral award, unless another period of time has arbitral award. The key provisions
been agreed upon by the parties— are:
(a) a party, with notice to the other party, may request the
arbitral tribunal to correct any 1. Correction of Errors: A
computation errors, any clerical or typographical errors or any party can request the arbitral
other errors of a similar nature tribunal to correct clerical,
occurring in the award; typographical, or
(b) if so agreed by the parties, a party, with notice to the other computational errors in the
party, may request the arbitral award within 30 days of
tribunal to give an interpretation of a specific point or part of the receiving it.
award. 2. Interpretation of the Award:
(2) If the arbitral tribunal considers the request made under sub- A party may seek the
section (1) to be justified, it shall tribunal’s interpretation of a
make the correction or give the interpretation within thirty days specific part of the award if
from the receipt of the request and the the meaning is unclear.
interpretation shall form part of the arbitral award. 3. Additional Award: If the
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

(3) The arbitral tribunal may correct any error of the type tribunal failed to address
referred to in clause (a) of sub-section (1), certain claims submitted
on its own initiative, within thirty days from the date of the during arbitration, a party
arbitral award. may request an additional
(4) Unless otherwise agreed by the parties, a party with notice to award within the prescribed
the other party, may request, within time.
thirty days from the receipt of the arbitral award, the arbitral 4. Tribunal’s Power: The
tribunal to make an additional arbitral award tribunal may correct errors
as to claims presented in the arbitral proceedings but omitted or provide interpretations on
from the arbitral award. its own initiative within 30
(5) If the arbitral tribunal considers the request made under sub- days of passing the award.
section (4) to be justified, it shall
make the additional arbitral award within sixty days from the Section 33 ensures clarity and
receipt of such request. completeness of arbitral awards
(6) The arbitral tribunal may extend, if necessary, the period of while providing a mechanism for
time within which it shall make a rectifying minor errors without
correction, give an interpretation or make an additional arbitral resorting to judicial proceedings.
award under sub-section (2) or
sub-section (5).
(7) Section 31 shall apply to a correction or interpretation of the
arbitral award or to an additional
arbitral award made under this section.

Sec. 34 Application for setting aside arbitral award.—(1) Recourse to a Provides the procedure for
Court against an arbitral award challenging an arbitral award. A
may be made only by an application for setting aside such award party can apply to set aside an
in accordance with sub-section (2) and award by the arbitral tribunal on
sub-section (3). specific grounds, such as:
(2) An arbitral award may be set aside by the Court only if— (a)
the party making the application 1 1. Incapacity of a party or
invalid arbitration
[establishes on the basis of the record of the arbitral tribunal agreement.
that]— 2. Procedural irregularities,
(i) a party was under some incapacity, or like improper notice of
(ii) the arbitration agreement is not valid under the law to which arbitration proceedings or
the parties have subjected it denial of a fair opportunity
or, failing any indication thereon, under the law for the time to present the case.
being in force; or 3. The award addresses matters
(iii) the party making the application was not given proper beyond the scope of the
notice of the appointment of an arbitration agreement.
arbitrator or of the arbitral proceedings or was otherwise unable 4. The composition of the
to present his case; or arbitral tribunal or the
(iv) the arbitral award deals with a dispute not contemplated by procedure not being in
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

or not falling within the terms accordance with the

of the submission to arbitration, or it contains decisions on arbitration agreement or the
matters beyond the scope of the Act.
submission to arbitration: 5. The award being in conflict
Provided that, if the decisions on matters submitted to with public policy, which
arbitration can be separated from those includes fraud, corruption,
not so submitted, only that part of the arbitral award which or fundamental policy
contains decisions on matters not violations.
submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral The application must be made
procedure was not in accordance within three months (extendable by
with the agreement of the parties, unless such agreement was in 30 days) from the date of receiving
conflict with a provision of this the award. Section 34 provides for
Part from which the parties cannot derogate, or, failing such limited judicial interference,
agreement, was not in accordance preserving the finality of arbitral
with this Part; or awards while ensuring fairness and
(b) the Court finds that— legal compliance.
(i) the subject-matter of the dispute is not capable of settlement
by arbitration under the law
for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of
India.
[Explanation 1.—For the avoidance of any doubt, it is clarified
that an award is in conflict with the
public policy of India, only if,—

(i) the making of the award was induced or affected by fraud or

corruption or was in violation
of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian
law; or
(iii) it is in conflict with the most basic notions of morality or
justice.
Explanation 2.—For the avoidance of doubt, the test as to
whether there is a contravention with the
fundamental policy of Indian law shall not entail a review on the
merits of the dispute.]
[(2A) An arbitral award arising out of arbitrations other than
international commercial arbitrations,
may also be set aside by the Court, if the Court finds that the
award is vitiated by patent illegality
appearing on the face of the award:
Provided that an award shall not be set aside merely on the
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

ground of an erroneous application of the

law or by reappreciation of evidence.]
(3) An application for setting aside may not be made after three
months have elapsed from the date on
which the party making that application had received the arbitral
award or, if a request had been made
under section 33, from the date on which that request had been
disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was
prevented by sufficient cause from
making the application within the said period of three months it
may entertain the application within a
further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court
may, where it is appropriate and it is
so requested by a party, adjourn the proceedings for a period of
time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such
other action as in the
opinion of arbitral tribunal will eliminate the grounds for setting
aside the arbitral award.
[(5) An application under this section shall be filed by a party
only after issuing a prior notice to the
other party and such application shall be accompanied by an
affidavit by the applicant endorsing
compliance with the said requirement.
(6) An application under this section shall be disposed of
expeditiously, and in any event, within a
period of one year from the date on which the notice referred to
in sub-section (5) is served upon the other
party.]

Sec. 37 Appealable orders.—(1) Provides the right to appeal against

specific orders in arbitration
[Notwithstanding anything contained in any other law for the matters. It allows parties to appeal
time in the following cases: (1) orders
being in force, an appeal] shall lie from the following orders refusing to refer parties to
(and from no others) to the Court authorised arbitration under Section 8, (2)
by law to hear appeals from original decrees of the Court orders granting or refusing interim
passing the order, namely:— measures under Section 9, and (3)
orders setting aside or refusing to
[(a) refusing to refer the parties to arbitration under section 8; set aside an arbitral award under
(b) granting or refusing to grant any measure under section 9; Section 34. Additionally, appeals
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

(c) setting aside or refusing to set aside an arbitral award under can be made against orders granting
section 34.] or refusing interim measures by the
(2) Appeal shall also lie to a court from an order of the arbitral arbitral tribunal under Section 17.
tribunal— However, no second appeal is
(a) accepting the plea referred to in sub-section (2) or sub- permitted except to the Supreme
section (3) of section 16; or Court, ensuring a streamlined and
(b) granting or refusing to grant an interim measure under efficient appellate process. This
section 17. section aims to balance the finality
(3) No second appeal shall lie from an order passed in appeal of arbitral decisions with judicial
under this section, but nothing in this oversight in critical matters.
section shall affect or takeaway any right to appeal to the
Supreme Court.

Sec. 36 [36. Enforcement.—(1) Where the time for making an Deals with the enforcement of an
application to set aside the arbitral award arbitral award as if it were a decree
under section 34 has expired, then, subject to the provisions of of the court. Once the arbitral award
sub-section (2), such award shall be becomes final (i.e., the time to
enforced in accordance with the provisions of the Code of Civil challenge the award under Section
Procedure, 1908 (5 of 1908), in the same 34 has lapsed, or the challenge has
manner as if it were a decree of the court. been rejected), it is enforceable
(2) Where an application to set aside the arbitral award has been under the Code of Civil Procedure,
filed in the Court under section 34, 1908, in the same manner as a court
the filing of such an application shall not by itself render that decree. This provision ensures that
award unenforceable, unless the Court the successful party in arbitration
grants an order of stay of the operation of the said arbitral award can secure the fruits of the award
in accordance with the provisions of without unnecessary delay. It is a
sub-section (3), on a separate application made for that purpose. critical link between arbitration and
(3) Upon filing of an application under sub-section (2) for stay the judicial system, making
of the operation of the arbitral award, arbitration an effective alternative to
the Court may, subject to such conditions as it may deem fit, litigation.
grant stay of the operation of such award for
reasons to be recorded in writing: Provided that the Court shall, The provision also addresses the
while considering the application for grant of stay in the case of impact of a challenge to the award
an under Section 34. Prior to the 2015
arbitral award for payment of money, have due regard to the Amendment, the mere filing of an
provisions for grant of stay of a money application to set aside the award
decree under the provisions of the Code of Civil Procedure, under Section 34 acted as an
1908 (5 of 1908).] automatic stay on its enforcement.
[Provided further that where the Court is satisfied that a Prima However, the 2015 Amendment
facie case is made out that,— removed this automatic stay,
(a) the arbitration agreement or contract which is the basis of the requiring parties to obtain a specific
award; or stay order from the court, often
(b) the making of the award, subject to conditions like furnishing
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

was induced or effected by fraud or corruption, it shall stay the

award unconditionally pending disposal of security. This change enhances the
the challenge under section 34 to the award. finality of arbitral awards and
Explanation.—For the removal of doubts, it is hereby clarified prevents misuse of the process by
that the above proviso shall apply to delaying tactics. Section 36 thus
all court cases arising out of or in relation to arbitral balances the objectives of
proceedings, irrespective of whether the arbitral or arbitration as a quick and effective
court proceedings were commenced prior to or after the dispute resolution mechanism while
commencement of the Arbitration and safeguarding parties' rights during
Conciliation (Amendment) Act, 2015 (3 of 2016).] judicial scrutiny of awards.

Sec. 45 Definition.—In this Chapter, unless the context otherwise Deals with the concept of referring
requires, “foreign award” means an parties to arbitration in matters
arbitral award on differences between persons arising out of involving foreign arbitration
legal relationships, whether contractual or agreements. It applies when a
not, considered as commercial under the law in force in India, dispute arises in a matter governed
made on or after the 11th day of October, by an arbitration agreement, and
1960— one of the parties seeks court
(a) in pursuance of an agreement in writing for arbitration to intervention. According to this
which the Convention set forth in provision, if the court finds that the
the First Schedule applies, and arbitration agreement is valid,
(b) in one of such territories as the Central Government, being operative, and capable of being
satisfied that reciprocal provisions performed, it must refer the parties
have been made may, by notification in the Official Gazette, to arbitration, provided the
declare to be territories to which the said agreement does not conflict with
Convention applies. Indian laws or public policy. This
section embodies the principle of
competence-competence and the
pro-arbitration stance of Indian law
under the New York Convention.
However, the court can decline to
refer the parties to arbitration if it
determines that the arbitration
agreement is null, void, inoperative,
or incapable of being performed.
This allows limited judicial
interference to ensure fairness while
respecting the parties' choice of
arbitration. The section primarily
emphasizes the enforceability of
foreign arbitration agreements in
India, promoting certainty and
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

reducing the scope for dilatory

tactics in cross-border disputes.

Sec. 37A Regime for costs.—(1) In relation to any arbitration proceeding A remedy to ensure fairness in
or a proceeding under any of allocating costs incurred during
the provisions of this Act pertaining to the arbitration, the Court arbitration or related court
or arbitral tribunal, notwithstanding proceedings. It allows the arbitral
anything contained in the Code of Civil Procedure,1908 (5 of tribunal or court to award costs to
1908), shall have the discretion to the prevailing party, including
determine— arbitrators' fees, legal expenses, and
(a) whether costs are payable by one party to another; other related charges.
(b) the amount of such costs; and
(c) when such costs are to be paid. The remedy discourages frivolous
Explanation.—For the purpose of this sub-section, “costs” claims and unreasonable conduct by
means reasonable costs relating to— ensuring that the losing party
(i) the fees and expenses of the arbitrators, Courts and typically bears the costs unless the
witnesses; tribunal or court decides otherwise
(ii) legal fees and expenses; based on factors like settlement
(iii) any administration fees of the institution supervising the offers or party behaviour. This
arbitration; and provision promotes accountability
(iv) any other expenses incurred in connection with the arbitral and efficiency, safeguarding parties
or Court proceedings and the from undue financial burdens in the
arbitral award. arbitration process.
(2) If the Court or arbitral tribunal decides to make an order as
to payment of costs,—
(a) the general rule is that the unsuccessful party shall be
ordered to pay the costs of the
successful party; or
(b) the Court or arbitral tribunal may make a different order for
reasons to be recorded in writing.
(3) In determining the costs, the Court or arbitral tribunal shall
have regard to all the circumstances,
including—
(a) the conduct of all the parties;
(b) whether a party has succeeded partly in the case;
(c) whether the party had made a frivolous counterclaim leading
to delay in the disposal of the
arbitral proceedings; and
(d) whether any reasonable offer to settle the dispute is made by
a party and refused by the other
party.
(4) The Court or arbitral tribunal may make any order under this
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

section including the order that a

party shall pay—
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date.
(5) An agreement which has the effect that a party is to pay the
whole or part of the costs of the
arbitration in any event shall be only valid if such agreement is
made after the dispute in question has
arisen.]

Sec. 62 Commencement of conciliation proceedings.—(1) The party This section provides the remedy to
initiating conciliation shall send to the party initiating the conciliation
the other party a written invitation to conciliate under this Part, process to opt for Arbitration or
briefly identifying the subject of the Litigation if the other party rejects
dispute. or does not reply to the conciliation
(2) Conciliation proceedings, shall commence when the other process within 30 days of the
party accepts in writing the invitation to initiation of conciliation.
conciliate.
(3) If the other party rejects the invitation, there will be no
conciliation proceedings.
(4) If the party initiating conciliation does not receive a reply
within thirty days from the date on
which he sends the invitation, or within such other period of
time as specified in the invitation, he may
elect to treat this as a rejection of the invitation to conciliate and
if he so elects, he shall inform in writing
the other party accordingly.

Sec. 67 Role of conciliator.—(1) The conciliator shall assist the parties Establishes the conciliator's role and
in an independent and impartial responsibilities, which indirectly
manner in their attempt to reach an amicable settlement of their provides remedies by ensuring a
dispute. fair, impartial, and effective
(2) The conciliator shall be guided by principles of objectivity, conciliation process. It mandates
fairness and justice, giving that the conciliator act
consideration to, among other things, the rights and obligations independently and impartially,
of the parties, the usages of the trade treating both parties equally and
concerned and the circumstances surrounding the dispute, giving them a fair opportunity to
including any previous business practices present their case. This provision
REMEDIES - THE ARBITRATION AND CONCILIATION ACT 1996

between the parties. safeguards the parties from bias or

(3) The conciliator may conduct the conciliation proceedings in procedural unfairness, offering a
such a manner as he considers remedy in the form of protection
appropriate, taking into account the circumstances of the case, against any compromise to the
the wishes the parties may express, integrity of the conciliation process.
including any request by a party that the conciliator hear oral
statements, and the need for a speedy Additionally, the section allows the
settlement of the dispute. conciliator to guide the proceedings
(4) The conciliator may, at any stage of the conciliation flexibly while suggesting settlement
proceedings, make proposals for a settlement options. If a conciliator violates
of the dispute. Such proposals need not be in writing and need these principles, remedies include
not be accompanied by a statement of the the termination of proceedings,
reasons therefor. rejecting unfair settlements, or
seeking alternative dispute
resolution methods such as
arbitration or litigation. Thus,
providing procedural and
participatory safeguards, ensuring
that parties are not prejudiced.