An Effective Alternative Dispute Resolution Forum

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INTRODUCTION A necessary pre-requisite for any arbitration proceeding is an arbitration agreement which embodies the consent of the parties to submit their disputes to arbitration. This is because the choice of an effective alternative dispute resolution forum cannot be enforced unless it is contained in a legally enforceable contract. The enforceability of such arbitration agreements reached new heights with the coming of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law (Model Law) which led to uniformity in the arbitration laws of various countries. It must be noted that the law of arbitration in India, which would be the focus of this essay, is also substantially based on the…show more content…
Though the Act contains the strict requirement of the agreement being in writing, the idea of what would be constitute to be “in writing” has been considerably whittled down by the very next provision. Section 7(4) provides various forms which would be deemed to constitute an arbitration agreement and these are a signed document, exchange of communications providing a record and an exchange of statements of claim and defence not denied by the other party . Section 7(5) recognises an arbitration agreement to be valid if it contains a reference to another arbitration clause with an intention of incorporating it. The Supreme Court (SC) has held in a number of decisions that the ad idem intention of the parties to go to arbitration must not be uncertain but unequivocal. It was held in Jagdish Chandra case that the arbitration agreement must ad idem refer the disputes to a private tribunal must be in writing, wherein the determination would be made in an impartial manner and the decisions would bind the parties. Thus, so long as the parties’ intention to go for arbitration can be gathered from a written document and the above requirements are fulfilled, the arbitration agreement has been held to be valid. ISSUES NOT ADDRESSED IN SECTION 7 Though the 1996 Act lays down the qualifications for arbitration agreements to be
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