Am I an intermediary? Is my liability unlimited? What are my liabilities. Am I an intermediary? Is my liability unlimited? What are my liabilities.
With rising market share of e-commerce platforms these questions are ringing bell in the corridors of Industry and Indian Legal System. These questions are being asked, debated and answered in various forums, at industry level and in Courts. The stakeholders to this technological revolution are thinking loud more about “regulation” and less about “facilitation”.
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Arbitration Agreement under Arbitration and Conciliation Act, 1996 Statutory Definition:
Section 7 of the Arbitration and Conciliation Act, 1996 defines Arbitration Agreement as an agreement between the parties to a contract. The Arbitration and Conciliation Act, 1996 defined the arbitration agreement as below:
Section 7. Arbitration Agreement.
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. read more +
Recourse to award passed by Lok Adalat under Section 21 of the Legal Services Authorities Act, 1987 Bharvagi Constructions & Anr. vs. Kothakapu Muthyam Reddy & Ors. dated 2017-09-07
1. Whether the award passed by Lok Adalat after settlement can be challenged in District Court by Suit for Declaration on the grounds of Fraud and Misrepresentation?
2. Whether the abovesaid Suit for declaration can be rejected under Order VII Rule 11 CPC as barred by Law?
3. Whether "Law" in Order VII Rule 11 CPC includes judicial pronouncements of Higher Courts? read more +
Recourse against the Arbitral Award: The principle emerging from the abovesaid judgment can be enumerated as below:
(1)The Court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that:--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
2) The Court may set aside the award:--
(i) (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties,
(b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part-I of the Act.
(ii) if the arbitral procedure was not in accordance with:--
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with Part-I of the Act.
However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part-I of the Act from which parties cannot derogate.
(c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
(3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to:--
(a) fundamental policy of Indian law;
(b) the interest of India; or
(c) justice or morality, or
(d) if it is patently illegal.
(4) It could be challenged:--
(a) as provided under Section 13(5); and
(b) Section 16(6) of the Act.
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