CA Amresh Vashisht
A Chartered Accountant can equip himself to enter into the field of Arbitration with considerable advantage. A Chartered Accountant normally represents the cases of his clients before various authorities, including the Tribunals, Company Law Benches, SEBI, RBI etc. He can definitely specialize in arbitration matters, particularly those connected with breach of contracts, insurance claims, loss of profit, securities fraud, commercial disputes, rights of properties, lease transactions etc. and represent his clients in Arbitration proceedings. The objective of arbitration is to provide expeditious, efficient and economic justice to the aggrieved parties as it is felt that too much legality defeats the very purpose of arbitration.
THE REGULATORS – INDIAN COUNCIL OF ARBITRATION (ICA)
INDIAN COUNCIL OF ARBITRATION (ICA) is registered under the Societies Registration Act, 1860.It was established in 1965 as a specialized arbitral body at the national level with the initiatives of the Govt. of India and apex business organizations like FICCI etc. Based in New Delhi, the main objective of ICA is to promote amicable, quick and inexpensive settlement of commercial disputes by means of arbitration, conciliation, regardless of location. This is a specialized arbitral body, sponsored by Government of India and certain apex business organizations, also recognize Chartered Accountants as arbitrators.
A WITH 15 YEAR EXPERIENCE IS ELIGIBLE FOR ARBITRATOR
ICA maintains a panel of arbitrators drawn from various fields. Clause III (b) of the “broad categories of qualification and experience for empanelment as an arbitrator indicate that Chartered Accountants are eligible for empanelment. Clause III (b) reads as follows:— III(b)“Chartered Accountants basically Valuers or other technical consultants accountancy etc. with at least 15 years experience in government / private organization or in professional practice, with adequate knowledge and experience in arbitration matters.”
So, a Chartered Accountant having 15 years of post professional experience is eligible for empanelment as an arbitrator. There are a large number of organizations, national as well as international, which maintain a panel of arbitrators. The job of an arbitrator is often challenging but satisfying.As on 31st May 2015, only 135 Chartered Accountants are registered as Arbitrator with the ICA.
ICAI LAUNCHED A CERTIFICATE COURSE ON ARBITRATION.
ICAI also maintains a panel of member arbitrators after successful completion of the training and course on arbitration. As of 1st July 2015 , 648 are listed there as arbitrator and in the light of the emerging diversities & opportunities as Arbitrator, ICAI have designed a course to empower the members to be the leaders in the global service market. The Institute claimed that apart from the comprehensive theoretical aspects, this course will sharpen the expertise over the new coming up professional opportunity. The objective of this Course is to familiarize the members with the relevant laws which impact the arbitration process and the practical procedural aspects and to build the competency level of the members of the Institute to position them as multidisciplinary consultants in the global service market The course is targeted at members who are desirous of building their expertise and skills in the area Apart from the comprehensive theoretical aspects, this course cover practical and procedural aspects of the arbitration process with case studies and mock arbitration proceedings.
The course fee is Rs. 20000/- in New Delhi, Mumbai, Chennai, Kolkatta and Bangalore Rs. 15,000/- for Ahmedabad, Hyderabad, Jaipur, Kanpur, Lucknow, Nagpur, Pune, Secundrabad, Chandigarh, Agra, Allahabad, Bhopal, Indore, Ludhiana, Madurai, Patna, Surat, Tiruvanatapuram and Vadodara, and Rs 12,000/- for Cities/ Towns other than the above. The duration of the course is 40 hours spread over 6 days. The CPE credit of 20 Hours will be given to the participants.
ARBITRATION AN OLD WINE IN NEW BOTTLE
In all walks of life, it is usual to come across disputes, more so in business dealings. In olden days informal system of Arbitration existed in the shape of Panchayats [comprising “panch” meaning five wise men] headed by a Sarpanch. These systems were perceptible in all villages, castes and circles where all disputes were settled promptly and economically. The Father of Nation Mahatma Gandhi was also a staunch believer of arbitral process for resolving the problems in our predominantly rural society at affordable costs via Panchayats Raj. The word Arbitration’ appears to have originated from the word arbitrary. The parties involved in the disputes refer them to a peer who is supposed to be a person of nobility having capability to resolve the disputes. Presently amendments to the arbitration Act is pending with the Parliament and it is expected that after the amendments, the intent of the present government is to establish INDIA as hub for International Arbitration.
CA AS AN ARBITRATOR
A Chartered Accountant is required to maintain a high degree of professional competence and technical standard. He is bound by the code of conduct framed by the Institute of Chartered Accountants of India. Section 2(2) of the Chartered Accountants’ Act, 1949 read with Regulation 191 of the Chartered Accountants Regulations, 1988 specifically provides that a Chartered Accountant in his professional capacity is allowed to act as an arbitrator.
Viewed in this perspective, the role of a Chartered Accountant as an Arbitrator has now gained vast coverage and hence it is necessary to study the same. The Act has specifically recognised the objects underlying the agreements of the parties. The whole aim is to expedite justice at an affordable cost because the judiciary system of our country is already reeling under unprecedented workload and mire of paperwork and procedures.
CA TO ACT AS AN EXPERT
Under Sec 26(1) of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal may appoint expert/s to report on any specific issue to be determined by it. It may also require the parties to give the expert any relevant information, explanations, or to produce or provide access to any relevant documents, goods or other property for inspection. An expert may be examined and cross-examined by a party on request of a party and where an arbitral tribunal considers it necessary. A CA can help the arbitral tribunal in the capacity of an expert in matters relating to accounts, commercial transactions, lease transactions etc where he has sufficient domain knowledge.
CA TO ACT AS A CONCILIATOR
Conciliation is a process by which the conciliator endeavors to bring the disputant parties to an agreement. A conciliator is generally an independent third party who mediates for the disputing parties in order to bring them to a mutually acceptable settlement. A mediator is normally taken to be a person of the disputant’s choice. The conciliator is instrumental in drawing up the terms of settlement in the shape of an agreement, consequent upon comprehensive discussions with the parties to the dispute. A CA in his day-to-day practice often
helps his clients in settling their disputes through conciliation. CA’s can serve as professional conciliators. With the acquisition of thorough knowledge on the process of mediation, negotiating skills and related techniques of conciliation a CA can act as a successful professional conciliator thereby adding to the array of services he provides.
CA TO ACT IN OTHER CAPACITY
A Chartered Accountant can also advise the client whether a particular case is arbitrable or not. In case of arbitrable disputes, he can provide various services like, advising the clients on selection of arbitrator, initiating the arbitral proceedings, preparation of statement of claims or defence, pleadings etc. He can help in deciding which ADR process the client should choose. After enough experience in arbitration and other ADR methods, he can also play an important role in solving the pending disputes of his clients by identifying those cases that are suitable for resolution through ADR. It will not be out of place to mention that the field of ADR is bound to grow by leaps and bound in times to come. Nani Palkhivala had once said “If I were appointed a dictator of this country, in the short period between my appointment and my assassination, I would promulgate a law making all commercial disputes compulsorily referable to arbitration.” The Code of Civil Procedure, 1908 has been recently amended and amendment Act of 1999 has recognized ADR as an effective tool for resolving disputes. The purpose of the amendment is to speed up the judicial process and get over the problem of backlog of civil cases.
PROMISING PROFESSIONAL OPPORTUNITY
There are an estimated 30 million cases pending in various courts in the country. The criticism against the justice delivery system is continuous when we here, ‘Back Breaking delay’, Elusive Justice’, and ‘System on the verge of brink’. Arbitration system is a means to provide an easy and expedient mechanism for dispute resolution without the need of resorting to a long drawn litigation. This is meant to be Justice without law. It is meant to be far superior to a black letter law. Arbitration seeks to remove blockade caused by chocking legal pollution. Arbitration started as a reform to resolve conflict with mutual love and trust. Even late Shri Nani Palkhiwala remarked succinctly, “If I were appointed a dictator of this country, in the short span of my appointment and assassination, I would promulgate a law making all commercial disputes compulsorily referable to arbitration.”
METHODS UNDER ARBITRATION
Any dispute is normally resolved by way of litigation in court or through Alternative Dispute Resolution [ADR] mechanism involving four methods like negotiation, mediation, conciliation and Arbitration. In negotiation, there are no outsiders to resolve disputes .In mediation, there is a facilitator creating “win win” situation but settlement is not binding. Whereas, the conciliator authenticates settlement reached by the parties and is binding one. On the other hand, arbitration is a quasi-judicial method outside the court. Mediation is a procedure designed to resolve disputes through agreement i.e. Mutual consent of the parties. The mediator is a neutral person who facilitates discussions between the parties to reach an agreement based upon their consent. Mediation involves the use of a facilitator trend in conflict resolution. Arbitrator is called “pramanpurush” in Hindi meaning by a man of substance in domestic forum. Part I of the Act deals with domestic Arbitration, Part II deals with International Commercial Arbitration, Part III deals with conciliation and Part IV deals with supplementary provisions.
ADMINISTRATIVE FEE AND ARBITRATOR’S FEE
The Administrative fee (of ICA) and Arbitrator’s fee (for each arbitrator) will be fixed separately with regard to the amount in dispute including determined interest in each case, as under:
|Amount of Claim & Counter Claim||Arbitrator’s fee for each Arbitrator||Administrative Fee|
|Upto Rs. 5 lac (Rs.5,00,000/-)||Rs.60,000/-||Rs.45,000/-|
|From Rs.5 lac one to Rs.25 lac (Rs.5,00,001 to 2,500,000)||Rs.60,000/- plus Rs.3,000/- per lac or part thereof subject to a ceiling of Rs.1,20,000/-||Rs.45,000/- plus Rs.2,250/- per lac or part thereof subject to a ceiling of Rs.90,000/-|
|From Rs.25 lac one to Rs.1 crore
(Rs.2,500,001 to 10,000,000)
|Rs.1,20,000/- plus Rs.2,400/- per lac or part thereof subject to a ceiling of Rs.3,00,000/-||Rs.90,000/- plus Rs.1,800/- per lac or part thereof subject to a ceiling of Rs.2,25,000/-|
|From Rs.1 crore one to Rs. 5 Crore
(Rs.10,000,001 to 50,000,000)
|Rs.45,000/- per crore or part thereof subject to a ceiling of Rs.4,80,000/-||Rs.33,750/- per crore or part thereof subject to a ceiling of Rs.3,60,000/-|
|From Rs. 5 crore one to Rs.10 crore
(Rs.50,000,001 to 100,000,000)
|Rs.4,80,000/- plus Rs.30,000/- per crore or part thereof subject to a ceiling of Rs.6,30,000/-||Rs.3,60,000/- plus Rs.22,500/- per crore or part thereof subject to a ceiling of Rs.4,72,500/-|
|Over Rs.10 crores||Rs.6,30,000/- plus Rs.24,000/- per crore or part thereof||Rs.4,72,500/- plus Rs.18,000/- per crore or part thereof|
REIMBURSEMENT OF EXPENSES
The arbitral tribunal shall be entitled to allow fees and expenses of witnesses, expenses connected with the selection and carriage of sample and examination of goods, Licensed Measure’s Department charges, conveyance, hire, cost of legal or technical advice or proceedings in respect of any matter arising out of the arbitration incurred by the arbitral tribunal, and any other incidental expenses and charges in connection with or arising out of the reference or award as the arbitral tribunal shall, in its absolute discretion, think fit.
The costs of the reference and the award including charges, fees and other expenses shall be in the discretion of the arbitral tribunal, which may direct to and by whom, and in what proportion, such charges, fees and other expenses and any part thereof shall be borne and paid, and may tax and settle the amount of costs to be so paid or any part thereof and may award costs to be paid as between solicitor and client. In the event, any administrative fees and expenses are due to the Council, the arbitral tribunal may award them in favour of the Council.
Members interested in obtaining membership are requested to send their email address and other contact details to firstname.lastname@example.org post/ fax their contact details to:
Indian Council of Arbitration
Room 112, Federation House
New Delhi 110001
Internal Phone No. 23738760-70
Email : email@example.com
(About the Author- Author was Member of ICAI- Regional Research Committee 2013-14 and ICAI- Committee For Direct Taxes 2011-12 and can be reached at email firstname.lastname@example.org or on phone Phone: 0 1 2 1-2 6 6 1 9 4 6. Cell: 9 8 3 7 5 1 5 4 3 2 having office at 1 1 5, Chappel Street, Meerut Cantt, UP, INDIA)