The laws relevant to the building and construction industry in India
Indian Contract Act, (9 of 1872)
Arbitration Act, (10 of 1940)
Rules of Arbitration of the Indian council of Arbitration, (ICA Rules)
Constitution (Forty sixth Amendment), Act, (1982) (Popularly known as the works Contract Act)
Sale of Goods Act, (3 of 1930)
Transfer of property Act, (4 of 1882 as amended by 21 of 1929)
Limitation ACT, (36 OF 1963)
Architects (professional Conduct) regulation, (1989)
Explosives Act, (4 of 1884)
Explosives Substance Act, (6 of 1908)
The Explosives Rules, (1983)
Forest Act, (16 of 1927)
Forest Conservation Act, (69 of 1980)
Mines and Minerals (Regulation and Development) Act,(67 of 1957)
Minimum Wages Act, (11 of 1948)
Workmen’s Compensation Act, (8 of 1923)
Workmen’s Compensation Rules, (1924)
Contract Labour (Regulation and Abolition) Act, (37 of 1970)
Employment of Children Act (26 of 1938)
Equal Remuneration Children Act, (25 of 1976)
Payment of Wages Act, (4 of 1936)
Employer’s Liability Act, (24 of 1938),
Companies Act, (1 of 1956),
Income – tax Act, (43 of 1961)
Partnership Act, (9 of 1932),
Prevention of Corruption Act, (2 of 1947),
Specific Relief Act, (47 of 1963)
Co-operation Societies Act, (2 of 1947),
Official Societies Act, (19 of 1923),
Cantonments Act, (2 of 1924),
Cantonments (Amendment) Act, (15 of 1983),
Electricity Act, (9 of 1910)
The Indian Electricity Rules, (1956),
Motor Vehicles Act, (4 of 1939),
Personal Injuries (Compensation Insurance) Act, (37 of 1963)
ARBITRATION
Arbitration is a process of dispute resolution between parties.
Definitions
Rule 1
(i) these rules may be called the “Rules of arbitration of the Indian Council of Arbitration”.
(ii) These rules shall apply where parties have agreed in writing that
(a) a dispute has arisen or
(b) a dispute which may arise between them in respect of a defined legal relationship whether contractual or not shall be settled under the rules of arbitration.
Rule 2:
in these rules, the following words have the following meanings:
“Arbitral Tribunal” means an arbitrator or arbitrators appointed for determining a particular dispute or difference. “Arbitral Award” includes an interim award.
“Committee” means the arbitration Committee of the Council as provided for hereinafter.
“Council” means the Indian Council of Arbitration.
“Governing Body” means the Governing Body of the council.
“Guidelines” means the guidelines for arbitrators and the parties to arbitration for expeditious conduct of the arbitration proceedings given in the Annexure to these Rules. “International Commercial Arbitration” means an arbitration relating to disputes arising out of legal relationships, whether Contractual or not, considered as commercial under the law in force in India and where at least one of the parties is
(i) an individual who is a national of, or
(ii) a body corporate which is incorporated in any country other than India; or
(iii) a company or an association or a body of individuals whose central management and control is exercise in any country other than India; or
(iv) the Government Undertaking.
“Party” means a party to an arbitration agreement. it shall include any individual, firm, company, Government, Government organization or Government Undertaking. “Panel” means that panel of arbitration maintained by the Council.
“Registrar” means that the Registrar for the time being appointed by the Committee and includes such other person as the Committee may nominate for carrying out duties of the Registrar under these rules.
“Rules” means the Rules of Arbitration of the Council.
“Fast Track Arbitration” means arbitration in accordance with Rule 82.
Words importing the singular number include, where the context admits or requires, the plural number and vice versa.
“Disputes are inevitable”, reasons for many of the disputes are:
*Drafting of contract agreement is not simple,*Confusing words,*Unreasonable decisions
*Incomplete specifications,*Incorrect specifications
Essential requirements for Arbitration:
Existence of Arbitration agreement in writing either as a clause in contract or as a separate agreement.
Who can be an arbitrator:
Persons spelt out in the Arbitration agreement Persons form Indian Council of ArbitratorsPersons from Panel of Arbitrators Persons appointed by Court,Even judges, Advocates in the panel of arbitrator can be appointed.
Number of Arbitrators (Sec 10)
a) No. as agreed by both parties, should be odd number.
b) If nothing is agreed, the no should be one.
Appointment (Sec-11)
a) Parties are free to agree for their own procedure.
b) If three arbitrators, then one arbitrator each by each party and third arbitrator by the two
arbitrators already selected who will act as presiding arbitrator over two.
c) Time for such appointments are 30 days of receipt of request by either party to the
appointing authority.
d) If the appointing authority fails, then the appointment of arbitrators or 3rd arbitrator shall
be done by Chief Justice of high court( or any person or institution designated by him)
Jurisdiction of Arbitral Tribunals (Sec 16)
Arbitral Tribunal can decide its own jurisdiction
Objection to jurisdiction should be raised not later than submission of defense statement.
If objection not accepted by Arbitral Tribunal, then objection can be filed in court under section 34.
Conduct of Arbitration Proceedings
Parties shall be given full opportunity
Parties free to decide procedure for arbitration proceedings
If no consent by the parties, then Arbitral Tribunal shall conduct proceedings in the manner it considers appropriate.Hearings
a) Mode: Parties can agree on the procedure,If no consent, the Tribunal can decide whether oral or only document
b) Place: Parties can agree for place of hearing
If no consent, place to be decided by Arbitration Tribunal considering circumstances of the case and convenience of parties
Rules For Award:
Award to be decided in accordance with the terms of contract, using trade practice and substantive law in India.
Arbitral Award
It s It should state rate of future interest or else it shall be 18%. Cost of Arbitrator shall be fixed by Arbitral Tribunal.
Correction of Award
Request for computational errors/ typographical errors by any party within 30 days of receipt of award. The Arbitral Tribunal may make correction on its own.
Setting aside Arbitration Award
Award may be set a side only if :
A party was under some in-capacity, Arbitration Agreement is not valid under law Party was not given adequate opportunity to present his case Award deals with dispute not included in the terms of reference. If the Arbitral award is in conflict with the Public policy of India. Application for objection within 90 days
Enforcement
The Arbitral Award is as good as decree of court should be reasoned or speaking, in writing and signed.
It should state rate of future interest or else it shall be 18%. Cost of Arbitrator shall be fixed by Arbitral Tribunal.
Correction of Award
Request for computational errors/ typographical errors by any party within 30 days of receipt of award. The Arbitral Tribunal may make correction on its own.
Setting aside Arbitration Award
Award may be set a side only if :
A party was under some in-capacity
Arbitration Agreement is not valid under law
Party was not given adequate opportunity to present his case Award deals with dispute not included in the terms of reference. If the Arbitral award is in conflict with the Public policy of India. Application for objection within 90 days
Enforcement
The Arbitral Award is as good as decree of court.
Indian Contract Act, (9 of 1872)
Arbitration Act, (10 of 1940)
Rules of Arbitration of the Indian council of Arbitration, (ICA Rules)
Constitution (Forty sixth Amendment), Act, (1982) (Popularly known as the works Contract Act)
Sale of Goods Act, (3 of 1930)
Transfer of property Act, (4 of 1882 as amended by 21 of 1929)
Limitation ACT, (36 OF 1963)
Architects (professional Conduct) regulation, (1989)
Explosives Act, (4 of 1884)
Explosives Substance Act, (6 of 1908)
The Explosives Rules, (1983)
Forest Act, (16 of 1927)
Forest Conservation Act, (69 of 1980)
Mines and Minerals (Regulation and Development) Act,(67 of 1957)
Minimum Wages Act, (11 of 1948)
Workmen’s Compensation Act, (8 of 1923)
Workmen’s Compensation Rules, (1924)
Contract Labour (Regulation and Abolition) Act, (37 of 1970)
Employment of Children Act (26 of 1938)
Equal Remuneration Children Act, (25 of 1976)
Payment of Wages Act, (4 of 1936)
Employer’s Liability Act, (24 of 1938),
Companies Act, (1 of 1956),
Income – tax Act, (43 of 1961)
Partnership Act, (9 of 1932),
Prevention of Corruption Act, (2 of 1947),
Specific Relief Act, (47 of 1963)
Co-operation Societies Act, (2 of 1947),
Official Societies Act, (19 of 1923),
Cantonments Act, (2 of 1924),
Cantonments (Amendment) Act, (15 of 1983),
Electricity Act, (9 of 1910)
The Indian Electricity Rules, (1956),
Motor Vehicles Act, (4 of 1939),
Personal Injuries (Compensation Insurance) Act, (37 of 1963)
ARBITRATION
Arbitration is a process of dispute resolution between parties.
Definitions
Rule 1
(i) these rules may be called the “Rules of arbitration of the Indian Council of Arbitration”.
(ii) These rules shall apply where parties have agreed in writing that
(a) a dispute has arisen or
(b) a dispute which may arise between them in respect of a defined legal relationship whether contractual or not shall be settled under the rules of arbitration.
Rule 2:
in these rules, the following words have the following meanings:
“Arbitral Tribunal” means an arbitrator or arbitrators appointed for determining a particular dispute or difference. “Arbitral Award” includes an interim award.
“Committee” means the arbitration Committee of the Council as provided for hereinafter.
“Council” means the Indian Council of Arbitration.
“Governing Body” means the Governing Body of the council.
“Guidelines” means the guidelines for arbitrators and the parties to arbitration for expeditious conduct of the arbitration proceedings given in the Annexure to these Rules. “International Commercial Arbitration” means an arbitration relating to disputes arising out of legal relationships, whether Contractual or not, considered as commercial under the law in force in India and where at least one of the parties is
(i) an individual who is a national of, or
(ii) a body corporate which is incorporated in any country other than India; or
(iii) a company or an association or a body of individuals whose central management and control is exercise in any country other than India; or
(iv) the Government Undertaking.
“Party” means a party to an arbitration agreement. it shall include any individual, firm, company, Government, Government organization or Government Undertaking. “Panel” means that panel of arbitration maintained by the Council.
“Registrar” means that the Registrar for the time being appointed by the Committee and includes such other person as the Committee may nominate for carrying out duties of the Registrar under these rules.
“Rules” means the Rules of Arbitration of the Council.
“Fast Track Arbitration” means arbitration in accordance with Rule 82.
Words importing the singular number include, where the context admits or requires, the plural number and vice versa.
“Disputes are inevitable”, reasons for many of the disputes are:
*Drafting of contract agreement is not simple,*Confusing words,*Unreasonable decisions
*Incomplete specifications,*Incorrect specifications
Essential requirements for Arbitration:
Existence of Arbitration agreement in writing either as a clause in contract or as a separate agreement.
Who can be an arbitrator:
Persons spelt out in the Arbitration agreement Persons form Indian Council of ArbitratorsPersons from Panel of Arbitrators Persons appointed by Court,Even judges, Advocates in the panel of arbitrator can be appointed.
Number of Arbitrators (Sec 10)
a) No. as agreed by both parties, should be odd number.
b) If nothing is agreed, the no should be one.
Appointment (Sec-11)
a) Parties are free to agree for their own procedure.
b) If three arbitrators, then one arbitrator each by each party and third arbitrator by the two
arbitrators already selected who will act as presiding arbitrator over two.
c) Time for such appointments are 30 days of receipt of request by either party to the
appointing authority.
d) If the appointing authority fails, then the appointment of arbitrators or 3rd arbitrator shall
be done by Chief Justice of high court( or any person or institution designated by him)
Jurisdiction of Arbitral Tribunals (Sec 16)
Arbitral Tribunal can decide its own jurisdiction
Objection to jurisdiction should be raised not later than submission of defense statement.
If objection not accepted by Arbitral Tribunal, then objection can be filed in court under section 34.
Conduct of Arbitration Proceedings
Parties shall be given full opportunity
Parties free to decide procedure for arbitration proceedings
If no consent by the parties, then Arbitral Tribunal shall conduct proceedings in the manner it considers appropriate.Hearings
a) Mode: Parties can agree on the procedure,If no consent, the Tribunal can decide whether oral or only document
b) Place: Parties can agree for place of hearing
If no consent, place to be decided by Arbitration Tribunal considering circumstances of the case and convenience of parties
Rules For Award:
Award to be decided in accordance with the terms of contract, using trade practice and substantive law in India.
Arbitral Award
It s It should state rate of future interest or else it shall be 18%. Cost of Arbitrator shall be fixed by Arbitral Tribunal.
Correction of Award
Request for computational errors/ typographical errors by any party within 30 days of receipt of award. The Arbitral Tribunal may make correction on its own.
Setting aside Arbitration Award
Award may be set a side only if :
A party was under some in-capacity, Arbitration Agreement is not valid under law Party was not given adequate opportunity to present his case Award deals with dispute not included in the terms of reference. If the Arbitral award is in conflict with the Public policy of India. Application for objection within 90 days
Enforcement
The Arbitral Award is as good as decree of court should be reasoned or speaking, in writing and signed.
It should state rate of future interest or else it shall be 18%. Cost of Arbitrator shall be fixed by Arbitral Tribunal.
Correction of Award
Request for computational errors/ typographical errors by any party within 30 days of receipt of award. The Arbitral Tribunal may make correction on its own.
Setting aside Arbitration Award
Award may be set a side only if :
A party was under some in-capacity
Arbitration Agreement is not valid under law
Party was not given adequate opportunity to present his case Award deals with dispute not included in the terms of reference. If the Arbitral award is in conflict with the Public policy of India. Application for objection within 90 days
Enforcement
The Arbitral Award is as good as decree of court.
