In arbitration, one of the major issues that come up in practice is the application of the principle of res judicata. It is well known in India that the application of res judicata in arbitration is not restricted only to litigation and arbitration, but also to other legal proceedings, as in our daily lives.

Is res judicata applicable in arbitration?

Hence the parties can refer their dispute in appeal , but it is necessary that agreement must be already in existence before the action is brought in the Court. Hence the doctrine of Resjudicata doesn't apply to the cases of arbitral proceedings .

Does Indian Evidence Act apply to arbitration?

The Indian Evidence Act and the CPC,1908 don't apply to the Arbitration proceedings. However, the general principles of the Evidence will apply, but a party under the Evidence statute cannot challenge the arbitral proceedings.

Does Limitation Act apply to arbitration?

Since the time-limit for making a claim arising out of a contract is three years as prescribed by the Limitation Act, 1963 and the law of limitation shall apply to arbitration as it applies to the civil suits in a court, any arbitration agreement which provides a shorter time period that the one prescribed by the law ...

What are the disadvantages of arbitration?

2.1 The following have often been said to constitute the disadvantages of arbitration: A. There is no right of appeal even if the arbitrator makes a mistake of fact or law. However, there are some limitations on that rule, the exact limitations are difficult to define, except in general terms, and are fact driven.

One Contract, Two Arbitrations: Res Judicata in International Arbitration

What happens if a party does not appear for arbitration in India?

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.

Why is Indian Evidence Act not applicable for arbitration?

Hence , there is no application of evidence act to the arbitral proceedings . In India ,the arbitrator is bound to only follow the rules of evidence so that there may not be any violation of the principle of natural justice in the proceedings.

What rules of evidence apply in arbitration?

The rules of evidence are hardly ever applied in arbitration (except as to priv- ilege and settlement offers). Thus, near- ly all the evidence that any party wishes to present will be received “for what it's worth,” so fighting over admissibility is a fool's errand.

Is Evidence Act applicable to CPC?

L and T Finance Limited and Anr. examined the scope of applicability of CPC during the arbitration proceedings and held that although the Code and the Evidence Act are not applicable strictly, (Section 19), but their settled principles do apply.

What is res judicata effect of arbitration award?

Res judicata is a rule of evidence that provides that when a matter has been determined by a court of competent jurisdiction, such determination is conclusive upon the parties to an arbitration proceeding and shall not be relitigated.

Is res judicata procedural or substantive?

In civil law jurisdictions, res judicata is usually codified in procedural codes. There would appear to be good reason why res judicata should therefore be regarded as essentially a question of procedural law rather than substantive law.

What is foreign award in arbitration?

Section 44 of the Act defines "foreign award" as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India.

Does Indian Evidence Act apply to civil cases?

Admissions in civil cases, when relevant. —In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.

What evidence is not admissible in Court?

Evidence that can not be presented to the jury or decision maker for any of a variety of reasons: it was improperly obtained, it is prejudicial (the prejudicial value outweighs the probative value), it is hearsay, it is not relevant to the case, etc.

Where is CPC not applicable?

To give uniformity to Civil Procedure, Legislative Council of India, enacted Code of Civil Procedure, 1858, which received the assent of Governor-General on 23 March 1859. The Code however, was not applicable to the Supreme Court in the Presidency Towns and to the Presidency Small Cause Courts.

Who usually wins in arbitration?

The study found that: Employees were three times more likely to win in arbitration than in court. Employees on average won twice the amount of money through arbitration ($520,630) than in court ($269,885). Arbitration disputes were resolved on average faster (569 days) than in litigation (665 days).

Who has the burden of proof in arbitration?

In order for the arbitrator to decide in favor of a party, the party must provide sufficient clear and convincing evidence to support their claims. This is known as meeting the “burden of proof.” The arbitrator will determine whether the party has met their burden of proof.

Can you sue after binding arbitration?

Arbitration can be non-binding or binding depending on what the parties agreed upon. ... While binding arbitration is usually less time consuming and less expensive, it also means that you are basically giving up your right to sue in a court of law.

Where the principle of evidence has no strict applicability?

All the technicalities of the Evidence Act are not strictly applicable to Labour Courts and Tribunals, except in so far as Section 11 of the Industrial Disputes Act 1947 and the rules therein are permitted. This had been held in the case of Bareilly Electricity v. Workmen AIR 1972 SC 330.

Who chooses arbitrator?

Under the WIPO Arbitration Rules, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the presiding arbitrator.

What is difference between arbitration and conciliation?

The primary difference between arbitration and conciliation is that arbitration is the process by which parties select an independent person, who renders a decision regarding the case. Conversely, conciliation attempts to make parties come to an agreement, about the problem at hand.

Can I refuse arbitration in India?

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.

How does arbitration work in India?

The Indian Arbitration Law contemplates minimal intervention by courts; however, it provides for specific situations where courts can intervene in the arbitration proceeding, which includes appointment of an arbitrator (when the agreed-upon procedure fails); for grant of interim reliefs; summoning witnesses and ...

Can I ignore arbitration?

Refusing to participate in an arbitration will not prevent an arbitration award against that party once it has agreed to arbitrate. Given courts' great deference to arbitration awards, it is essential for a respondent to present its defense on the merits during the arbitration.

Are dying declarations admissible in court?

Although, the dying declaration can be considered as admissible evidence, there are certain conditions that must be met before the declaration can be tendered in court. the declaration must be made “under a settled hopelessness of death”. ... Oh, and of course the person making the declaration must also be dead.