Recently, the influence of arbitration has been so massive that it has almost taken over the popular intervention of the judiciary. The pandemic has thrown light on alternative mechanisms of dispute resolution. Yet arbitration is still an alien concept to the layman and the procedure of these proceedings is considerably vague to most. Arbitration is a private and convenient process that can be flexibly determined by the parties and the arbitrators. There have been a number of recent moves taken to improve the procedure of arbitration in India. Significantly the initiated amendments have made an impact on the speed and efficiency of arbitration. The courts have also accepted this alternative wave of settlement due to the overburden of backlog cases and the narrow scope of the judiciary.
There are six main steps involved in the arbitration process, namely: (1) initial pleading, (2) panel selection, (3) scheduling, (4) discovery, (5) trial preparation, (6) final hearing.
Once the client hires an attorney, they meet with the clients to learn about the facts of the case and make sure that the client understands the specific goals and objectives. They make the client go through the laws governing their claims and the facts weighing in the client’s favor. After the initial meeting, attorney prepares a Statement of Claim (“Claim”), which will describe how the client has been harmed, who harmed and the damages they are seeking. Attorney works with the client to revise and edit the Claim until they are comfortable that it accurately presents the claims in the best possible light of their respective case. After the institution receives the Statement of Claim, it will send a copy of it to the parties that the client wants to sue. They will then be provided an opportunity to prepare and file their respective answers.
After the Statement of Claim and Answers have been filed, the institution will send the parties a list of proposed arbitrators who will ultimately sit on the arbitration panel that will decide their dispute. The arbitrators will draft a statement of claim. Statement of claim contains the dispute between the parties, events which lead to the dispute and the compensation claimed from the defaulting party. The other party can file a statement of counterclaim along with reply to the statement of claim.
After appointment, the arbitrator will convene a scheduling conference with the parties to discuss when to set a hearing date and key dates for discovery. The arbitrator may utilize a form scheduling order or ask the parties to coordinate and draft the order. Key dates on the scheduling order may include deadlines for submitting more detailed statements of claims, filing requests for production, completing depositions, disclosing experts, and filing dispositive motions.
Discovery is the pre-trial or pre-arbitration phase during which the parties attempt to identify and track down all of the relevant documents, information, and witnesses that they will need to present their claims and defenses at the final hearing. Attorneys work with their respective client to collect whatever relevant documents and information they might have and determine whether they need to be produced. Additionally, they prepare detailed requests for documents and serve them on the other side and identify the possibility if any third parties who might have relevant documents. Attorneys also prepare responses and objections to any document requests opposing counsel serves on them. In the event the parties cannot resolve a particular discovery issue, they will prepare, respond to, and argue any discovery motions that might be filed.
The goal of the Trial Prep stage is to prepare for and remove any possible surprises at the final hearing so that attorneys can focus all their energy on presenting the claims or defenses in the best possible light. Approximately one month before the final hearing, the attorneys start the meeting with client to begin preparing for the final hearing. They review with clients, all of the documents obtained during the discovery phase; attorneys try to identify and prepare the exhibits and witnesses used at the final hearing; lines of examination for any witnesses who might be called are prepared. The client’s testimony is also prepared.
This is the final step in the procedure of arbitration proceedings. The arbitrators, the concerned lawyers and the parties will introduce themselves before the hearing begins. Any preliminary issues will be resolved before the final hearing. Both the parties will be provided with an equal opportunity to make opening statements and present their case by calling witnesses and submitting evidences. After hearing the parties, the arbitral tribunal will pass the decision. This decision is called as an ‘Award’.
The procedure of arbitration proceedings is flexible and simpler in comparison to litigation. The clients along with their respective lawyers can discuss the intricacies of the case with the arbitrator conveniently at a comfortable setting or can also utilize modern tools technology. Arbitration ensures that the parties involved are acknowledged with the perks and flaws of their position in the case. The parties are free to decide upon the procedure for arbitration and the award must be passed within 12 months from the date of filling the pleadings. It is crucial that the arbitrator must be selected with careful consideration to suit the requirements of the case. The procedure of arbitration is not governed under the Civil Procedure Code 1908 (India.) Therefore, arbitration is always feasible and a more favorable option for the parties involved in settling disputes with beneficial negotiations.
Hajra Fathima, 4th-year law student, M.S.Ramiah College of Law, Bangalore,
Intern with the ADR Wing of Prerna Foundation