CHAPTER 1 – INTRODUCTION
a. AIM & SCOPE
This study is focused on the effectiveness and practical implication of the arbitration between the two and also get better knowledge about the arbitration in Singapore and what are the things which India is lacking. This comparative study will give help to understand more clearly the difference.
b. STATEMENT OF PROBLEM
The practices which is followed by corporates is that, all agreements executed, to bring before common purpose, have three covenants. The ‘governing law’ states that the law of which country will it take recourse to, if and when deals with international corporations. The ‘jurisdiction clause’ states, as to which country will have the ‘say’ in the dispute of arbitration, at hand. Further the ‘arbitration clause’ states that, how the disputes needs to be resolved between corporation before they are brought before the court of law for adjudication; arbitration clause speaks about the mechanism which are of the nature of ‘ out of the court settlement’ and not by way of long procedure of courts and just quick procedure but expensive. The ‘out of the court settlement of disputes’ are such as mediation, conciliation and arbitration.
The Arbitration and Conciliation Act, 1996 was formulated to promote alternate dispute resolution in India. India is also developing like other countries and importance is given towards arbitration. Singapore as rightly said is one of the emerging hotspots like other places such as Austria, Belgium, China (and Hong Kong), Spain and Sweden for arbitration. In India even if arbitration is in big scale it did not reach the mark as compared to other countries. It leads to finding out the methods used in arbitration by India and to analyse those from other countries to know where the actual problem lies. This research paper will give a comparative study between arbitration in India and arbitration in Singapore in commercial arbitration.
c. ABSTRACT
Arbitration is one of the Alternative Dispute Resolution mechanisms for sorting out disputes between the parties outside the court procedure in similar like Conciliation, Mediation and Negotiation etc. Due to globalization in the recent world, the International Trade which has been developed drastically. By development of trade between the nations disputes also arose with similar effect. For sorting out of these disputes, the parties are choosing Arbitration as a lucrative mechanism. Out of the arbitration existed in the present form is either Domestic arbitration or International Commercial Arbitration. The finalisation of domestic arbitration and international commercial arbitration depends on the nationality of the parties and also the matter where they mutually want to keep the place for arbitration proceedings.
The system of arbitration prevailing in modern India was a legacy of British rule where the methods and every matter which is been used for arbitration was from during that time. Arbitration was introduced in India in phases through various Regulations and Acts. The Indian Arbitration Act, 1940 was the first comprehensive legislation which was made for practise of arbitration on the subject after which Arbitration and Conciliation Act, 1996 was formed. This Act provides provisions for the appointment, duties and functions of arbitrators, the laws to govern the proceedings, the binding effects of awards, etc. The Singapore International Arbitration Centre (SIAC) was established in July 1991. The SIAC administers most of its cases under its own rules of arbitration made which is more preferred by the parties although it is able to administer arbitrations under any other rules agreed to by the parties which wants other rules. SIAC keeps this quite flexible so that parties also be satisfied about the method. This research paper will cover the comparison between India and Singapore and also which one is the best in the method and procedure. The research will thereby conclude the analysis by the giving method in which as per required.
d. REVIEW OF LITERATURE
Arbitration is most likely the best known other option to court case. Arbitration is a form of alternative dispute resolution (ADR) method in which a question is submitted, by consent of the parties, to at least one authorities who settle on a coupling choice on the question. It is the private, legal assurance of a debate, by a free outsider who as experience and good background for arbitration. Discretion is a private instrument, however does not happen in a legitimate vacuum. In picking Arbitration, the gatherings choose a private debate determination methodology as opposed to going to court.
India has in place a modern and an efficient Arbitration Act, but, is plagued with many shortcomings and the quality of arbitration is not fully developed as a quick and low cost mechanism for resolution of commercial disputes. In the light of developments in the arbitration system of India, one can expect the same to grow and become stronger in addition to being qualitative. Arbitration is a speedy and economical way to determine disputes alternatively even though quite expensive, not only in India but, all across the world.
e. RESEARCH QUESTIONS/ HYPOTHESIS
- What is the difference in which India is lacking behind from Singapore?
- What are the advantages which is there in either of the countries and not there in other?
f. RESEARCH METHODOLOGY
The research is a doctrinal study of Arbitration and Conciliation Act, 1996. This paper will be based from various readings, observation from different authors, journal as well as research articles and analysing statutory provisions. The Library-based Research method will be followed for deriving the answer for the research problem. The search will be conducted on the basis of secondary sources such as books, online articles available freely as well as on legal databases. The paper is based on pure theoretical research.
CHAPTER 2- ARBITRATION IN INDIA AND SINGAPORE
a. INTRODUCTION TO ARBITRATION IN INDIA
Alternative Dispute Resolution (ADR) refers to the method where the legal disputes can be resolved outside the court. It is a way for alternative way for litigation and is generally conducted with the help of third party appointed as an arbitrator. All matters can be taken into arbitration like civil, commercial, industrial, etc. It is also useful in all types of business matters and also considered the best in case of commercial disputes. In Arbitration the arbitrator or impartial third party helps the parties to communicate, discuss and resolve the dispute.
The arbitration is governed by the Arbitration and Conciliation Act, 1996. This act is inspired by the UNCITRAL Model and the UNCITRAL Rules of Arbitration, 1976. This Act provides provisions relating to appointment, duties and functions of arbitrators, the laws to govern the proceedings, the effects of arbitral awards, etc.
b. FEATURES
i. The Act is a response to need for change – The process of globalisation and economy has brought the entries of foreign investors, multinational business which in any way are entering Indian markets. The rise in international business transactions disputes of trade is obvious. In the light of changes in Indian economic scene there was a need of suitable mechanism and where the disputes can be resolved quickly.
ii. The Act replaces three old statutes i.e. The Arbitration Act, 1940, The Arbitration (Protocol and Convention) Act, 1937, The Foreign Awards (Recognition & Enforcement Act), 1961.
iii. The Act seeks to make arbitration process more smooth minimising court intervention, speedier by conferring more powers on arbitral tribunal. Every final award is enforceable as if it will be decree of the court.
c. INTRODUCTION TO ARBITRATION IN SINGAPORE
After many years of steady growth, Singapore is moving towards the leading arbitration hub. In both 2017 and 2018 SIAC received more than 400 new cases. It is also the most popular seat in International Chamber of Commerce. Singapore is also known to have independent judiciary that is the forefront in arbitration related legal issues. It has world class infrastructure dedicated only to hosting arbitrations. SIAC’s comprises of well known lawyers and corporate leaders from China, India, Korea, UK, Hongkong, Singapore. Singapore conducts scrutiny of arbitral award thus enforcement issues are less likely
d. FEATURES
- An award made in Singapore is enforceable to 161 jurisdictions through New York Convention.
- Parties have some measure of choice over its procedural rules and location of proceedings.
- Matters are been heard behind closed doors without any market impact and also award is not made public. It is always confidential.
- Disputes are not binding to multiple round of appeals.
- Parties can choose the procedure of arbitration according to their dispute.
CHAPTER 3 – COMPARISON BETWEEN COMMERCIAL ARBITRATION IN INDIA AND SINGAPORE
In India there are various laws made and even amendments is done for arbitration in the past few years where India is progressing and making a good name like other best places. Singapore goes without a doubt for the best modes and good method for arbitration and where every procedure is distinct and even made more particular. SIAC does not leave any doubts during the proceedings and the best is done for the parties with the help of third party.
Therefore here are some of the main differences between India and Singapore which are as follows-
1. Commencement of arbitration proceedings[1]
In India Section 21 of Arbitration and Conciliation Act, 1996 it provides that the arbitration proceedings is commenced once it is received by the other party. Once a party who wishes to
start arbitration proceedings gives a notice it is further proceeded than. Whereas in Singapore as per SIAC rule 3.1[2] a party who wish to commence arbitration proceedings must file it
before Registrar a notice where everything is mentioned the main purpose of starting the arbitration. The Registrar than verifies it following with any documents if asked and then it is processed.
2. Seat for arbitration[3]
In India Section 20 of Arbitration and Conciliation Act, 1996 the parties are free to choose the seat for arbitration. If there is no agreement for the contrary the arbitral tribunal may meet at any place for consultation, hearing witness, experts or inspection of documents, etc. Whereas in Singapore as per rule 21.1[4] the parties may agree the seat of arbitration. Failing to such agreement the seat of arbitration shall be in Singapore, unless the tribunal determines that regard to circumstances of the case, the another seat is much more appropriate.
3. Law Applied[5]
In India Section 28(2) & 28(3) of Arbitration and Conciliation Act, 1996 the arbitration shall decide on the principles of ex aequo et bono or as amicable compsiteur only if the parties have expressed to do so and also by the terms and conditions of respective contract. Whereas in Singapore as per rule 31.1[6] the tribunal shall apply the rules of law which is designated by the parties to the substance of the dispute and where failing to such designation by the parties the tribunal shall apply the law which determines to be appropriate.
4. Production of evidence[7]
In India Section 47 & 56 of Arbitration and Conciliation Act, 1996 the party who is applying for enforcement of foreign award must during the time of application should produce before the court. Whereas in Singapore as per rule 20[8] all statements, documents or any other information supplied to the tribunal by one party shall communicate to the other party.
5. Interim measures[9]
In India Section 9 of the Arbitration and Conciliation Act, 1996, a party can apply for interim measures during or before arbitration proceedings or at any time after making of arbitration award but before it is enforced for the appointment of guardian, for custody or preservation or sale of goods or for securing the amount in dispute or property for appointment of receiver or such other interim relief of protection of protection as the court feels to be just and appropriate. Whereas in Singapore as per rule 30.1[10] the Tribunal may at the request of the party, issue award or an order granting interim reliefs if it deems appropriate. The Tribunal may order the party requesting interim reliefs to submit appropriate security in connection with the relief requested.
6. Recourse against arbitral awards[11]
In India the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 recourse of court against arbitral award may be made only by an application for setting aside such award for the conditions under the section within a period of 1 year from the date in which notice in sub section (5)[12] is served upon the other party. Whereas in Singapore as per rule 20.8[13] if the Claimant fails to submit Statement of Claim within the specified period of time, the Tribunal may terminate the arbitration proceedings or such as directions as may be appropriate.
7. Appeal[14]
In India the provisions of Section 37, 50 & 59 of Arbitration and Conciliation Act, 1996 an appeal can lie in the orders listed in the Section mentioned to the court authorised by law to hear appeals from original decrees of the court. The orders which is deemed valid and enforceable as per law can be proceeded for appeal. Whereas in Singapore as per rule 32.11[15] the award shall be final and binding on the parties from the date the award is made. During the arbitral proceedings the settlement if done in precise manner and with both consent therefore there don’t come a chance for any appeal.
8. Enforcement of Awards[16]
In India Section 35, 36, 48, 49, 55, 57 & 58 of Arbitration and Conciliation Act, 1996 where the court is satisfied that foreign award is enforceable by law, the award can be deemed to be decree. Foreign award needs to be precise and even all the measures should be seen from both the parties and settlement is made so that it can be enforced. Whereas in Singapore as per rule 32.8[17] an award shall be enforced when the award is delivered to Registrar and after verifying it will transmit certified copies to both the parties upon full settlement.
CHAPTER 4 – SUGGESTION
Since a long time, arbitration has become a good method for adjudication of commercial disputes. The ordinance carries proposal in the 246th Law Commission Report released last
year, had introduce some unique provisions which was not been seen in any other arbitration statute. Some of these provisions have extraordinary measures to give remedy related to domestic arbitration and also includes time limit to complete arbitration and arbitrators fees.
With reference to the comparison been made in a brief manner some of the things which is good about Singapore arbitration which Indian arbitration needs to adapt is has to be
government initiative, judicial and financial support is also needed and also the main thing is commercial mindset and environment. Singapore arbitration has given a lot of methods which they follow and this unique methods should be adopted for making a better view to the Indian arbitration. The various rules has been made which can be analysed, used and even improve more better if some good views about it arises. The acts, proceedings and even time limit of SIAC is given and made strict so that the proceedings should be completed within period specified and then the arbitral award be enforced so that there be a proper flow and being expensive there is a quick way to complete proceedings instead of waiting for years in courts. Indian arbitration should adopt this and efficient arbitration is the only key for a good image of India towards arbitration.
Thus, after evaluating the numerous features of the various mechanism, suggestion related to Indian act is that amendments brought will be millstone of Indian arbitration and very positive approach towards commercial growth. These are a few suggestions after studying various articles, acts and analysing both arbitration.
CHAPTER 5 – CONCLUSION
India as a centre for arbitration should not be viewed as a narrow approach for serving the economic agenda for the few. Instead it should be broadly seen in a manner where it can be boosted in a good pace with all the methods and ways possible so that speedy proceedings can happen and also settlements and various disputes can be resolved. Business growth can’t be seen, if a huge amount was stuck just because of some dispute. By arbitration it can be resolved soon bringing in pace and efficiency in the Indian markets. Time to time the matters should should be kept in the manner so that there wont be any delay in just the proceedings. India need to adapt and view this as a national interest and even the mindset of the State agencies and the judiciary should even encourage and contribute for this effort. Even though arbitration is gradually growing more in India because of the out of the court settlement bring a quick and broad idea for the matters to resolve. Singapore being the best as to be learned and even understand, rules made for the arbitration can be adapted for making Indian arbitration strong. The desirability for the country to come on its own in the international dispute resolution with all the good methods, efficiency and develop just like other hubs will have a good advantages and surely in some years Indian participants will bring India in a good position and soon India will be globally known for arbitration.
[1] Arbitration and Conciliation Act, 1996, § 21, Acts of Parliament, 1949 (India).
[2] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 3.1 (Singapore).
[3] Arbitration and Conciliation Act, 1996, § 20, Acts of Parliament, 1949 (India).
[4] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 21.1 (Singapore).
[5] Arbitration and Conciliation Act, 1996, § 28(2) & § 28(3), Acts of Parliament, 1949 (India).
[6] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 31.1 (Singapore).
[7] Arbitration and Conciliation Act, 1996, § 47 & § 56, Acts of Parliament, 1949 (India).
[8] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 20 (Singapore).
[9] Arbitration and Conciliation Act, 1996, § 9, Acts of Parliament, 1949 (India).
[10] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 30.1 (Singapore).
[11] Arbitration and Conciliation Act, 1996, § 34, Acts of Parliament, 1949 (India).
[12] Arbitration and Conciliation Act, 1996, § 34 (5), Acts of Parliament, 1949 (India).
[13] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 20.8 (Singapore).
[14] Arbitration and Conciliation Act, 1996, § 37, § 50, § 59, Acts of Parliament, 1949 (India).
[15] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 32.11 (Singapore).
[16] Arbitration and Conciliation Act, 1996, § 35, § 36, § 48, § 49, Acts of Parliament, 1949 (India).
[17] Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 6th Edition, 1 August 2016, Rule 32.8 (Singapore).
***
REFERENCE
ARTICLES
♦ Ravi Singhania, Gunjan Chhabra, Thio Ying Ying and Joyln Khoo, “International Commercial Arbitrations Between Singapore And India” Singhania & Partners LLP, Solicitors and Advocates, 29 May 2018 (18/12/2020, 10.01)
https://www.mondaq.com/arbitration-dispute-resolution/705302/international-commercial-arbitrations-between-singapore-and-india
♦ All Answers Ltd, “Arbitration in India Analysis” (November 2018) (20/12/2020, 11.01) https://ukdiss.com/examples/arbitration-in-india.php
♦ Nishith Desai “ International Commercial Arbitration Law and Recent Developments in India” February 2020 (22/12/2020, 9.15)
https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/International_Commercial_Arbitration.pdf
♦ (Dr.) Rajesh Bahuguna, Vijay Srivastava “Challenges before International Commercial Arbitration in India and new hope for its improvements” IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 22, Issue 4, Ver. II April. 2017 (22/12/2020, 12.00)
♦ Alastair Henderson, Tomas Furlong and Gerald Leong, Herbert Smith Freehills, “Arbitration procedures and practice in Singapore: overview”, LLP, 1st April, 2020 ( 29/12/2020, 11.15)
https://uk.practicallaw.thomsonreuters.com/3-381-2028?transitionType=Default&contextData=(sc.Default)#co_anchor_a989956
STATUTES
- International Arbitration Act
- Arbitration and Conciliation Act, 1996
- Arbitration and Conciliation(Amendment) Act, 2015
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