Arbitration & Conciliation
Settlement of Disputes - 3 Stages
Conciliation. If it fails, then
Arbitration. If this one too fails, then
Judicial proceedings
● Authority: Click for Indian Arbitration & Conciliation Act, 1996. New Act is “Indian Arbitration & Conciliation Act, 1996 - Simple, straight and easy in its understanding & implementation. It repeals the Arbitration Act, 1929.
● Source: Clauses 63 & 64 Click for GCC for Works,2022 April
90 days - If the Contractor does not prefer his claims in writing within a period of 90 days of receiving the intimation from the Railways that the final bill is ready for payment, he will be deemed to have waived hi claim and the Railways shall be discharged and released all liabilities and under the contract in respect of these claims.
What is Conciliation ?
1. The action of mediating between two disputing people.
2. An alternative out of court dispute resolution instrument.
3. An alternative to Arbitration too.
4. The parties seek to reach an amicable dispute settlement.
5. The Conciliator, a neutral third party assists the conciliation process.
6. Voluntary proceedings. Both parties are free to agree to it.
7. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings.
8. The ultimate decision to agree on the settlement remains with the parties.
Conciliation:
Notice of Dispute: By Contractor to Railways - Within 30 days from the date of issue of Completion Certificate by Chief Engineer.
Notify the name(s) of Conciliator(s) to the Contractor - Within 30 days from the date of receipt of “Notice of Dispute”
Conciliator(s) shall assist the parties to reach an amicable settlement in an independent and impartial manner within the terms of contract.
During Conciliation proceedings - Parties shall not initiate any arbitral or judicial proceedings.
If parties reach an agreement due to the above efforts of Conciliator - Draw up and Sign a Written Settlement Agreement by all parties and Conciliator and it is final and binding for all.
Termination of Conciliation proceedings (Section 76 of ‘The Arbitration and Conciliation Act, 1996)
By the signing of the settlement agreement by the parties, or
By a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, or
By a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, or
By a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated.
● What is Arbitration?
1. Use of an Arbitrator to settle a dispute between parties arising out of contract.
2. An inbuilt mechanism in Contracts.
3. Without going through the judiciary.
● Who is an Arbitrator ?
An Independent person or body officially appointed to settle a dispute.
● Reasons for Arbitration cases
1. Site not handed over in time due to delayed land acquisition.
2. Non removal of Powerline crossings
3. Non availability of P.Way materials
4. Delay in obtaining clearances from Forest Dept, Environment ministry etc
5. Not preparing plans/drawings/designs in advance.
6. Inadequate delay in issuing instructions.
7. Frequent changes in Scope, Design, Plans of work during the tenure of contract.
8. Non finalization of variation statements
9. Delay in making measurements and arranging passing of bills
10. Inadequate funds availability leads to delay in payments
11. Non attending grievances of contractor promptly
12. Improper fixation of completion of time leading to number of extensions.
● Excepted matters are not arbitrable. Clauses 8, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57A,61(1), 61(2) and 62(1) of Standard General Conditions of Contract or in any Clause (stated as excepted matter) of the Special Conditions of the Contract) - Decision of the Railway authority shall be final and binding on the Contractor.
Clause 7(j) - Assignment or Subletting of Contract: Further, in case Engineer is of the view that subcontractor’s performance is not satisfactory, he may instruct the Contractor to remove the subcontractor from the work and Contractor has to comply with the above instructions with due promptness. Contractor shall intimate the actual date of discontinuation of subcontract to Engineer. No claim of Contractor whatsoever on this account shall be entertained by the Railway and this shall be deemed as ‘excepted matter’ (matter not arbitrable).
Clause 8 - Assistance by Railway for the Stores to be obtained by the Contractor:
Clause 18 -Illegal Gratification, bribe, commission, gift or advantage provided by Contractor to the Railway Official.
Clause 22(5) - Specifications and Drawings
Clause 39 - Rates for extra items of work
Clause 43(2) - After signing “No Claim Certificate” by Contractor
Clause 45 (i)(a) - Measurement of Works by Railway:
Clause 55 A (5) - Provisions of Contract Labour (Regulation and Abolition) Act, 1970
Clause 57 - Provision of Workmen Compensation Act
Clause 57 (A)- Provision of Mines Act:
Clause 61(1) - Right of Railway to Determine the Contract
Clause 61(2) - Payment on Determination of Contract
Clause 62(1) - Determination of Contract owing to Default of Contractor
● Demand for Arbitration:
120 to 180 days - If Railway fails to take a decision on Contractor’s claim within 120 days, Contractor shall make demand for Arbitration after 120 days but before 180 days from the date of Contractor’s claim
In Writing
Specify the matters and claims
Within 30 days from the date of appointing Arbitral tribunal - Claimant shall submit his/her claims with supportive documents.
Railway’s counterclaim - 60 days from the date of appointing Arbitral tribunal.
Place of Arbitration: Within Division or Hqrs or any other place with the written consent of both the parties.
No new claim during the proceedings by either party. However either of the parties can amend or supplement the original claim or defense subject to the acceptance by the Tribunal.
● Cost of Arbitration - borne by both parties equally.
A party may apply for corrections of any computational errors, any typographical or clerical errors or any other error of similar nature occurring in the award of Tribunal and interpretation of specific point of award to Tribunal within 60 days of receipt of the award.
Appointment of Arbitrators - Where applicability of Section 12(5) of Arbitration & Conciliation Act, 2015 (Arbitrator’s relationship with the parties or counsel ) has been waived off
The serving Officer can continue as Arbitrator in the Tribunal even after Retirement.
In case of Tribunal, comprising 3 members - Award shall be made by the majority of members of Tribunal. In the absence of such a majority, the views of the presiding arbitrator shall prevail.
Appointment of Arbitrators - Where applicability of Section 12(5) of Arbitration & Conciliation Act, 2015 (Arbitrator’s relationship with the parties or counsel ) has not been waived off
Qualifications of Arbitrators:
Serving Gazetted officers of JAG & above
Retired Railway Officers of SAG & above , one year after his date of retirement
Below 70 Years.