Para 4.2 — GOODS_MANUAL

4.3. Arbitration Agreement It is an agreement by the parties to submit to arbitration all or certain disputes, which have arisen, or which may arise between them, in respect of a defined legal relationship, whether contractual or noncontractual. The dispute resolution method of arbitration, as per the Arbitration and Conciliation Act, can be invoked only if there is an arbitration agreement (in the form of an arbitration clause or a separate arbitration agreement) in the contract. If there is such an agreement, courts are barred from directly entertaining any litigation in respect of such contracts and are bound instead to refer the parties to arbitration. Procuring Entity May lay down that Arbitration Clause would not be applicable for claims below and/ or above a threshold (say below Rs. 25 Lakhs and above Rs. 100 Crores, on the lines of ONGC). Disputes involving claims above Rs. 100 crores shall be adjudicated under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This Agreement should state that it shall continue to survive 120 days after termination, completion, or closure of the Contract.

4.4. Ad-hoc and Institutional Arbitration Ad-hoc arbitration and institutional arbitration are two different modes of arbitration under the Indian Arbitration and Conciliation Act, 1996.

4.4.1.Ad-hoc Arbitration 1. In ad-hoc arbitration, the parties are free to choose the arbitrators, the rules, the procedures, and the administrative support for their dispute resolution. 2. In institutional arbitration, the parties agree to refer their dispute to an arbitration institution (see list below), which have their own standardised and proven set of rules, a panel of certified arbitrators, and administrative services. 3. Ad-hoc arbitration may be more flexible and cheaper than institutional arbitration, as it allows the parties to tailor the process according to their needs and preferences. However, it may also be more time-consuming and uncertain, as it depends on the cooperation and competence of the parties and the arbitrators. 4. Institutional arbitration may be more efficient and dependable than ad-hoc arbitration, as it offers a standardized and streamlined process, with quality control and supervision by the arbitration institution. However, it may also be more expensive and rigid, as it involves fees for the institution and adherence to its rules. 5. Traditionally, India has favoured ad-hoc arbitration over institutional arbitration due to several factors. However, in recent years, there has been a shift towards institutional arbitration as India seeks to improve its arbitration regime and attract more foreign investment.

4.2. Arbitrator, Arbitration and Arbitral Award The person or persons appointed to determine differences and disputes are called the arbitrator or arbitral tribunal. The proceeding before him is called arbitration proceedings. The decision is called an Award. For Law of Limitations, The Arbitration for a particular dispute is deemed to have commenced on the date, on which a request for arbitration is received by the respondent.

4.4.2.Institutional Arbitration 1. Procuring entities are encouraged to use Institutional Arbitration of large value arbitration (say for claims more than Rs 5 Crore) on the line of, what has been legislated by the Government of Maharashtra. For this purpose, the Arbitration Clause should be modified to include this provision. 2. There are several recognised institutional arbitration centres in India that provide arbitration services under their own rules and procedures. Some of them are: a) India International Arbitration Centre (IIAC): It was created in 2019 by an Act of Parliament as an institution of national importance. It provides institutional arbitration services in India and abroad. b) Delhi International Arbitration Centre (DIAC): It was established in 2009 by the Delhi High Court and offers arbitration, mediation, and conciliation services. c) Mumbai Centre for International Arbitration (MCIA): It was launched in 2016 as a joint initiative of the Government of Maharashtra and the domestic and international business and legal communities. It aims to provide a world-class arbitration facility in India. d) Indian Council of Arbitration (ICA): It was founded in 1965 as a non-profit organisation under the aegis of the Federation of Indian Chambers of Commerce and Industry (FICCI). It administers both domestic and international arbitrations. e) Indian Institute of Arbitration & Mediation (IIAM): It was established in 2001 as an autonomous institution dedicated to the promotion and development of alternative dispute resolution (ADR) in India.

4.5. Appointment and Composition of Arbitral Tribunal Both parties can mutually agree on the number of arbitrators (which cannot be an even number) to be appointed. In case there is no agreement, a single (sole) arbitrator may be appointed. The parties can mutually agree on a procedure for appointing the arbitrator or arbitrators, or else in case of arbitration with three arbitrators, each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator, who will function as a presiding arbitrator. If one party fails to appoint an arbitrator within 30 (thirty) days, or if the two appointed arbitrators fail to agree on the third arbitrator, then the court may appoint any person or institution as arbitrator. In case of an international commercial dispute, the application for appointment of arbitrator must be made to the Chief Justice of India. In case of other domestic disputes, the application must be made to the Chief Justice of the High Court within whose jurisdiction the parties are situated.

4.6. Challenge to Appointment of Arbitrator An arbitrator is expected to be independent and impartial. If there are some circumstances due to which his independence or impartiality can be challenged, he must disclose the circumstances before his appointment. The appointment of an arbitrator cannot be challenged on any ground, except when there is justifiable doubt as to the arbitrator’s independence or impartiality or when he does not possess the qualifications for the arbitrator agreed to by the parties. The challenge to appointment must be decided by the arbitrator himself. If he does not accept the challenge, the arbitration can continue, and the arbitrator can make the arbitral award. However, in such a case, application for setting aside the arbitral award can be made to the court, after the award is made by the arbitrator. Thus, the other party cannot stall further arbitration proceedings by rushing to court.

4.3. Creating an Auction Event: Auction Catalogue 1. The seller lists items to be auctioned on a specified date. This list is generally called an auction catalogue. Besides the list of items, it also contains any special conditions of the contract that are generally applicable or to specific lots. The following auction details are provided in this list:

Auction Catalogue. a) Auction number; b) Auction Opening date and time, c) Auction Closing date and time; d) Type of Auction Ending: Close Ended/ Open Ended e) Max Auto Extensions Allowed (five to ten)/ Duration of Auto Extensions (90 Secs– ninety seconds) f) Auction Catalogue Number and Date g) Inspection from date; h) Inspection closing date; i) Seller/Unit name; j) Address; Contact details; k) Details of the contact person; l) Details of ED and Sales Tax (GST) in each Lot and TCS (including Surcharge and Edu Cess) for all lots; m) Whether Subject to Acceptance (STA) is applicable for bids within (10% (ten per cent) or any other percentage) of the Reserve Price n) List of lots to be included:(Lot Description is hyperlinked to relevant details containing particular terms of lifting, etc.)

Auction Sq. No: Lot No Lot Desc Quantity ED/(ST/ Vat) % Custodian/ Location Start Time Close Time Minimum Increment STA applic able Y/N Total Number of Lots =

4.2. Legal Status of e-Auction e-Auction through E-Auction Service Provider (eASP) is a triangular contract. eASP is a sub-agent of the seller through a standing contract entered between them, which is subject to the general terms and conditions (GTC) of eASP. eASP is also a sub-agent of the successful buyer through a standing contract between them, which is subject to Buyer Specific Terms and Conditions (BSTC). eASP gets a commission of a fixed percentage of sale value from the purchaser directly – which is deducted from the amount payable to the seller. The e-auction sale is governed by GTC, BSTC and Special Terms and& Conditions (STC) of the e-auction. In case of conflict or differences among any provisions of GTC, BSTC and STC, the provisions of STC would prevail. Normally, successful purchasers pay all monies to eASP, who, in turn, transfer it to the seller. But the seller may, if desired, negotiate with eASP to accept such payments directly from the purchaser.

2. The fixed reserve price must also be uploaded on the portal for each lot, which is kept confidential. Bids below the reserve price up to a percentage can be accepted on an STA basis. eASP can post the auction details, but to maintain the sanctity of the reserve price, the seller should do so through his login and password. The bidder's queries before the auction will reach the seller by e-mail and can be answered online. The seller will not be allowed to edit any item once the auction starts. To attract bidders to the auction to get a higher price, the seller should describe items in detail and include information such as the condition and size of the item. The more information is provided, the more bidders will bid with confidence. A photo can also be uploaded. Generally, auctions with images have higher sell-throughs. Many buyers like to browse through the eASP categories, and therefore, listing the item in the appropriate category increases the likelihood of interested bidders viewing it.