Para 4.9 — GOODS_MANUAL

GOODS_MANUAL

4.10. Changes introduced by the Arbitration and Conciliation (Amendment) Act, 2015 4.10.1 Independence, Disqualification and Obligations of arbitrators at the time of appointment
1. Independence, Impartiality and Accountability of Arbitrators: A fixed fee structure ensures the independence of the arbitral tribunal and also provides a reasonable cost estimate to the parties entering into arbitration. The Amendment Act in the Fourth Schedule prescribes the model fees for arbitrators, and the High Courts have been assigned the responsibility of framing the rules for determining the fees and the manner of payment. The model fee varies from Rs 45,000 to Rs 30 Lakh (Rupees forty-five to rupees thirty lakh) for various slabs of disputed value from Rupees five Lakh to above Rs 20 (Rupees twenty) Crore (with a sole arbitrator entitled to 25% (twenty-five per cent) extra above the model fee). However, it is clarified that such fees shall not be applicable in International Commercial Arbitration and in cases where parties have agreed to the determination of fees as per the rules of an arbitral institution.
2. Disqualification from appointment: A long and exhaustive list of specific circumstances which shall act as a bar against any person from being appointed as an arbitrator in a dispute, have been enumerated in the seventh schedule. However, the parties to the dispute have been given the opportunity, after the dispute has arisen, to waive the applicability of the seventh schedule, by mutual written agreement, if they so deem fit. Especially of interest in Public Procurement is disqualification of past or present employees, consultant, advisors, or other related business relationship not only with the Procuring Entity but also with any allied entity thereof. Thus, the earlier practice of appointing serving officers of procuring entity as arbitrator is no more legal.
4.9. Recourse against Arbitral Award Recourse to a court against an arbitration award can be made by an application (within three months from the date of the arbitral award) only on the grounds specified in the act, that is, the party was under some incapacity; the arbitration agreement was not valid; the proper opportunity was not given to present the case; award deal with disputes not falling within the terms of reference of the arbitrator; composition of the arbitral tribunal is not as per agreement of parties; subject matter of the dispute is not capable of settlement through arbitration under the law, or the arbitral award conflicts with the public policy.
3. Disclosures: An arbitrator who is approached for an appointment is obligated to disclose as per the Sixth Schedule of the Act. The declaration as per a set format removes any ambiguity and ensures uniformity:
a) Conflict of Interest: Existence, either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality as per fifth schedule to the Act for arbitrator. b) Time constraints: An arbitrator shall disclose all circumstances which may affect his ability to deliver an award within 12 (twelve) months.
4.10.2 Fast-tracking Arbitration in India 1. Award within 12 (Twelve) months: The arbitral tribunal is statutorily obligated to deliver an award within 12 (twelve) months from the date when the arbitral tribunal enters into reference. The arbitral tribunal is said to have entered upon the reference on the date on which the arbitrator
(s) have received notice of their appointment. The award can be delayed by a maximum period of six months only under exceptional circumstances where all parties give their consent to such extension of time. Where the award is not made within the statutory period, the mandate of arbitrators shall automatically terminate. It is open for the courts to extend the period for making an award upon receipt of an application by any of the parties. Such extension is to be granted only for sufficient cause, and the court, in its discretion, may impose the following penalties depending on the facts and circumstances of the case: a) Reduce the fees of arbitrators by up to 5% (five per cent) for each month of delay. b) Substitute one or all the arbitrators. c) Impose actual or exemplary costs on any of the parties.
2. Oral arguments to be held on a day-to-day basis: Oral arguments as far as possible shall be heard by the arbitral tribunal on a day-to-day basis and no adjournments shall be granted without sufficient cause. Provision for imposition of exemplary cost on the party seeking adjournment without sufficient cause has also been made.
3. Fast Track Procedure: The parties to arbitration may choose to opt for a new fast track procedure either before or after the commencement of the arbitration. The award in fast-track arbitration is to be made out within six months.
a) Arbitral Tribunal can decide to follow documents only Arbitration, especially in case of lowvalue arbitrations, to fast track the arbitration. b) Where the Arbitral Tribunal delivers the award within a period of six months the arbitral tribunal shall be entitled to additional fees. The parties shall determine the quantum of such additional fees. c) The salient features of the fast-track arbitration are: i) Disputes are to be decided based on written pleadings only. ii) The arbitral Tribunal shall have the power to call for clarifications in addition to the written pleadings where it deems necessary. iii) Oral hearing maybe held only if all the parties make a request or if the arbitral tribunal considers it necessary. iv) The parties are free to decide the fees of the arbitrator(s).
4. Appointment within 60 (sixty) days: Whenever an application for appointment of Arbitrator
(s) is moved before a court such application shall be disposed of as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party. The court while appointing arbitrators shall confine itself to the examination of the existence of an arbitration agreement.
4.10.3 Procedural and Jurisprudence simplified. 1. Arbitration to commence within 90 (ninety) days of interim relief: Where the court grants interim relief before the commencement of arbitration, the arbitration must commence within 90 (ninety) days from such order of interim relief. The court however has been given the authority to extend the period within which the arbitration must commence if it deems such extension necessary. The Act prohibits courts from entertaining any application for interim relief once the arbitration has entered into reference, unless the court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. 2. Powers of Interim Relief in Section 9 also to Arbitral Tribunal: The parties to arbitration can now directly approach the arbitral tribunal for seeking interim relief on the same grounds as were available to the parties under section 9 of the previous act. Further, the tribunal has now been granted the powers of a court while making interim awards in the proceedings before it. 3. Arbitral tribunal not bound to rule in accordance with terms of the contract: The arbitral tribunal was previously bound to deliver an award in accordance with the terms of the agreement and was required to take into consideration the ‘usages of the trade applicable to the transaction.’ Vide the Amendment the arbitral tribunal has been freed of the obligation to only rule in accordance with the terms of the agreement. The arbitral tribunal is only required to take the agreement into account while delivering its award and is free to deviate from the terms of the agreement if the circumstances so warrant. 4. The act made applicable on International Commercial Arbitration with even seat outside India: Part I of the act has been made applicable for limited purposes (listed below) on International Commercial Arbitrations even in instances where the seat of the arbitration is outside India; however, giving freedom to exclude the applicability the Act by agreeing to this effect: a) Seeking interim relief from courts [section 9] b) Seeking the assistance of the court in taking evidence [section 27] c) Appealing against the order of a court where the court refuses to refer the parties to arbitration. [section 37(1) (a)] d) Restricting the right to second appeal and preserving the right of parties to approach the Supreme Court in appeal. [section 37 (3)]
5.0The Mediation Act, 2023 1. This Mediation146 Act, 2023 applies to mediations conducted in India, particularly when the ‘mediation agreement/ clause’ provides that any dispute shall be resolved in accordance with the provisions of this Act; or when in a commercial dispute one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations, and local bodies, including entities controlled or owned by such Government. Thus, it specifically covers dispute resolution in Public Procurement. 2. The Act provides for a Mediation Council of India (MCI) to be created and an enabling provision for registration of Mediation Service Providers (MSP) by MCI. The parties are free to determine the mediation's venue, manner, and language. 3. Like arbitration agreement, a mediation agreement shall be in writing recorded in any document (including the Contract) signed by the parties; or as exchange of communications or any pleadings in any proceedings in which existence of mediation agreement is alleged by one party and not denied by the other. However, unlike the Arbitration and Conciliation Act, the Mediation Act does not prevent a party from agitating a dispute in Court before seeking a resolution; hence, the nature of Mediation is voluntary. Nevertheless, if Mediation is provided contractually and, instead, one party seeks recourse to courts, the other party can inform the Court of the mediation agreement and request a reference to Mediation. 4. While the Act does not require the mediator to have any qualifications, it dictates that a mediator of foreign nationality shall possess such qualifications, experience, and accreditation as may be specified by the MCI. The Act provides for registration of Moderators with the Mediation Council of India (MCI); or empanelled by a court-annexed mediation centre; or empanelled by an Authority constituted under the Legal Services Authorities Act, 1987; or empanelled by a mediation service provider (MSP) recognised by MCI. Either the parties mutually agree to select an agreed candidate for mediator or else they may refer the mediation to Institutional Mediation through MSP registered with the MCI. MSP would then provide a mediator considering the suitability and preference of the parties. 5. The Act provides for confidentiality of Mediation Proceedings, and for declaration of mediators regarding ‘Conflict of Interest’ if any. Mediation can also be done online/ virtual mediation, provided the integrity and confidentiality of the process is maintained. 6. Mediator only facilitates the party to arrive at a mutually agreed resolution but does not have authority to impose any suggestion. 7. There is a time limit of 120 days (extendable by 60 days), after which the Mediator can provide a non-resolution report to the party or the MPS, as the case may be. Otherwise, if successful, moderator provides a Mediation Settlement Agreement (MRA) to the parties or MSP. A jointly signed MSP, countersigned by the Mediator becomes a decree of the court and can be enforced in the court like a decree. 8. The moderator of the dispute under resolution cannot subsequently be associated with any resolution process or with either party in the same dispute in any forum, judicial or otherwise.
6.0 Salient Features of Competition Act, 2002 relating to Anti-competitive Practices. 1. The Preamble of the Competition Act, 2002, provides for the establishment of a Commission keeping in view of the economic development of the country to promote and sustain competition in markets; prevent practices having adverse effect on competition; protect consumer interest; and ensure freedom of trade carried on by participants in Indian markets. 2. The Act was amended by Competition (Amendment) Act, 2007 and again by Competition (Amendment Act), 2009. 3. In India, Competition Commission of India (“CCI”), formulated under the Competition Act is a quasi-judicial and regulatory body entrusted with the task enforcement of the Competition Act, 2002. Apart from specific functions under the Competition Act, 2002 the CCI also has extraterritorial jurisdiction, inquiry into anticompetitive conduct, sector-specific regulatory work, competition advocacy, power of appointment of professional and experts, and procedure for investigation (in terms of regulating its own procedure). 4. Section 8 dealing with composition of Commission provides for a chairperson and not less than two and not more than six members which are to be appointed by Central Government. The CCI is vested with inquisitorial, investigative, regulatory, adjudicatory, and also advisory jurisdiction. Vast powers have been given to the Commission and under Section 64, the Commission can frame regulations. 5. The National Company Law Appellate Tribunal (NCLAT)147 is the body entrusted with the responsibility of hearing and disposing of appeals against any direction or decision or order of the CCI. It also adjudicates on compensation claims arising from the findings of the CCI or its own findings on appeals against the CCI orders and passes orders on the recovery of compensation. 6. Any person aggrieved by the order or decision of the CCI may prefer an appeal to the NCLAT within 60 (sixty) days from the date of communication of such order or decision. The second and final appeal under Section 53(T) lies before the Supreme Court of India from the orders of the NCLAT within a period of 60 (sixty) days from the date of communication of the order by the NCLAT. 7. CCI may initiate an inquiry: a) On its own motion based on information and knowledge in its possession or b) On receipt of any information, in such manner and accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association, or c) On receipt of a reference from the Central Government, a State Government, or a statutory authority
8. The Act provides for Director General (DG) office as a separate investigative wing to assist the CCI. The DG investigates the complaints received from the CCI and submits all findings to it. DG is solely responsible for making enquiries, for examining documents and for making investigations into complaints. The DG is vested under the Act with powers of summoning of witnesses, examining them on oath, requiring the discovery and production of documents, receiving evidence on affidavits, issuing commissions for the examination of witnesses etc.
9. The Act in Section 49 (3) lays down the advocacy function of CCI and lays down that the CCI shall take suitable measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues. Section 32 of the Act grants the CCI extra-territorial jurisdiction over anticompetitive conduct which has an appreciable adverse effect on competition within India. Any anticompetitive activity taking place outside India but having an appreciable adverse effect on competition within India shall be subject to the application of the Competition Act.
10. Under Section 21 of the Act, any statutory authority can suo motto or on request of a party during a proceeding before it can make a reference to CCI. CCI shall give its opinion within sixty days of receipt of such reference by such statutory authority. Under the provisions of the Act, the authority which made reference shall consider the opinion of the Commission and thereafter, give its findings recording reasons on the issues referred to in the said opinion by CCI. Section 21A in the same language provides for such reference by CCI to any statutory authority.
11. The key provisions of the Competition Act include: a) Section 3 of the Competition Act, 2002 deals with anti-competitive agreements; b) Section 4 of the Competition Act, 2002 which discusses the abuse of dominance; c) Sections 5 and 6 of the Competition Act, 2002 deal with the regulation of combinations.
12. The term ‘agreement’ has been defined broadly in the Competition Act. It extends to a mere ‘arrangement,’ ‘understanding’ or ‘action in concert,’ none of which need be in writing or enforceable by law.
13. Section 3(1) of the Competition Act lays down that no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. The Act prohibits an anti-competitive agreement and declares that such an agreement shall be void.
14. Section 3(3) of the Competition Act deals with horizontal agreements as it covers the agreements between entities engaged in identical or similar trade of goods or provision of services. It also includes cartels. The section covers the following:
a) Agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise. b) The practice carried out by any association of enterprises or association of persons. c) Decision taken by any association of enterprises or association of persons.
15. Section 3(3) of the Competition Act enlists four broad classifications of horizontal agreements that are presumed to cause an appreciable adverse effect on competition (AAEC) in India.
a) Agreements regarding Prices b) Agreements regarding Quantity / Quality c) Market Allocation d) Bid Rigging 16. These four horizontal agreements are not presumed to have appreciable adverse effects on competition and are excluded from the provisions of Section 3(3) of the Competition Act, 2002, provided they are entered into by way of joint ventures and increase efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
17. Cartels, by their very nature are secretive and thus it is difficult to find the direct evidence of their presence. The orders of the CCI clearly point that CCI relies on circumstantial evidence, both economic and conduct-based, to reach its decision on the existence of a cartel agreement.
18. The Act defines bid rigging, and it covers agreements having the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding:
a) Collusive bidding: Agreement between firms to divide the market, set prices or limit production – involves, kickbacks and misrepresentation of independence. b) Bid Rotation c) Bid Suppression d) Complementary Bidding e) Subcontracting arrangements f) Market Allocation
19. The Act gives wide discretion to CCI to frame the remedies to overcome the anticompetitive situation: a) Declare Anticompetitive Agreements Void b) Impose Heavy Penalties i) Penalty can be up to 10% (ten per cent) of the average turnover for the last three preceding fiscal years upon each of such persons or enterprises which are parties to bid-rigging. ii) Cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or 10% (ten per cent) of its turnover for each year of the continuance of such agreement, whichever is higher. c) Order the parties to Cease & Desist. d) Modification of agreements e) Remedy Damage to reputation. f) Fix Individual Liability g) Grant Interim orders h) Any other order as CCI deems fit.
20. Who can file the information: Raising issues regarding anti-competitive behaviour for action by CCI under the act is called filing the information:
a) Any person, consumer, association, or trade association can file information before the Commission. b) Central Govt. or a State Govt. or a statutory authority can also make a reference to the Commission for making an inquiry. c) “Person” includes an individual, HUF, firm, company, local authority, cooperative or any artificial juridical person.
21. What are the issues on which information can be filed? a) The information can be filed on issues like anti-competitive agreements and abuse of dominant position or a combination. b) Class of consumers.
a) Rupees 5000/- (Five thousand only) in case of an individual, or Hindu undivided family (HUF), Non-Government Organisation (NGO), Consumer Association, Co-operative Society, or Trust duly registered under the respective Acts, b) Rupees 20,000/- (twenty thousand only) in case of firms, companies having turnover in the preceding year upto Rupees one Crore, and c) Rupees 50,000/- (fifty thousand only) in case not covered under clause
(a) or
(b) above.
1. The Act seeks to protect whistle blowers, i.e., persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant.
2. Any public servant or any other person including a non-Governmental organization may make such a disclosure to the designated agencies i.e., Central or State Vigilance Commission. The Time Limit for making any complaint or disclosure to the Competent Authority is seven years from the date on which the action complained against is alleged to have taken place.
3. The Designated Agency cannot entertain any disclosure relating to any inquiry ordered under the Public Servants (Inquiries) Act, 1850andCommissions of Inquiry Act, 1952.
4. Similarly, the Amendment Act 2015 prohibits the reporting of a corruption-related disclosure if it falls under any 10 (ten) categories, including information related to:
a) The sovereignty, strategic, scientific, or economic interests of India or the incitement of an offence b) Records of deliberations of the Council of Ministers c) That which is forbidden to be published by a court or if it may result in contempt of court; d) A breach of privilege of legislatures; e) Commercial confidence, trade secrets, intellectual property (if it harms a third party); f) That relayed in a fiduciary capacity; g) That received from a foreign Government; h) That which could endanger a person’s safety etc.; i) That which would impede an investigation, etc.; j) Personal matters or invasion of privacy.
5. However, if information related to b), e), f), and j) above is available under the Right to Information Act, 2005, then it can be disclosed under the Act.
7.0Salient Features of the Whistle Blowers Protection Act, 2011 and the Whistle Blowers Protection (Amendment) Act, 2015
a) Any public interest disclosure received by a Competent Authority will be referred to an authorised authority if it falls under any of the prohibited categories above. This authority will decide on the matter, which will be binding. b) The Identity of the Complainant must be included in the Complaint or the Disclosure. However, the Designated Agency shall conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in his complaint or otherwise. However, the Designated Agency can reveal the identity of the complainant in circumstances where it becomes inevitable or extremely necessary for the enquiry. c) The Designated Agency may, with the prior written consent of the complainant, reveal the identity of the complainant to such office or organization where it becomes necessary to do so. If the complainant does not agree to his name being revealed, in that case, the complainant shall provide all documentary evidence in support of is complaint to the Designated Agency. d) Any person who negligently or with malafide reveals the identity of the complainant shall be punished with imprisonment up to three years and a fine not exceeding Rs. 50,000 (Rupees fifty thousand). e) Similarly, any disclosure made with mala fide and knowingly that it was false, or misleading shall be punished with imprisonment up to two years and a fine not exceeding Rs. 30,000 (Rupees thirty thousand). f) After receipt of the report or comments relating to the complaint, if the Designated Agency is of the opinion that such comments or report reveals either wilful misuse of power or wilful misuse of discretion or substantiates allegations of corruption, it shall recommend to the public authority to take appropriate corrective measures such as initiating proceedings against the concerned public servant or other administrative and corrective steps. However, in case the public authority does not agree with the recommendation of the Designated Agency, it shall record the reasons for such disagreement. g) While dealing with any such inquiry, the Designated Agency shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, with respect to matters like receiving evidence, issuing commissions, discovery, and production of any document, etc. Also, every proceeding before the Designated Agency shall be deemed to be a judicial proceeding under the Code of Criminal Procedure148 (CrPC), 1973, and Indian Penal Code149 (IPC) 1860. h) No obligation to maintain secrecy or other restrictions upon the disclosure of information shall be claimed by any Public Servant in the proceedings before the Designated Agency. i) However, no person is required to furnish any information in the inquiry under this act if such information falls under the 10 (ten) categories mentioned before. j) It shall be the responsibility of the Central Government to ensure that no person who has made a disclosure is victimised on the ground that such person had disclosed under this act. k) If any person is victimised or likely to be victimised on the grounds mentioned above, he may contact the Designated Agency, and the Designated Agency may pass appropriate directions in this respect. The Designated Agency can even restore the status quo ante with respect to the Public Servant who has made a disclosure. Also, the Designated Agency can pass directions to protect such complainants. l) If any Head of the Department has committed an offence under this act unless he proves that the offence was committed without his knowledge or that he exercised all due diligence in this respect. m) This Act extends to all the Companies as well. When a company has committed any offence under this act, every person who at the time of the offence was responsible for the conduct of the business of the company shall be deemed to be guilty of the offence unless he proves that the offence was committed without his knowledge or that he exercised all due diligence in this respect. n) No court can take cognizance of any offence under this act save on a complaint made by the Designated Agency. No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence under this act. The High Court shall be the appellate authority in this respect.

GOODS_MANUAL

4.10. Changes introduced by the Arbitration and Conciliation (Amendment) Act, 2015 4.10.1 Independence, Disqualification and Obligations of arbitrators at the time of appointment
1. Independence, Impartiality and Accountability of Arbitrators: A fixed fee structure ensures the independence of the arbitral tribunal and also provides a reasonable cost estimate to the parties entering into arbitration. The Amendment Act in the Fourth Schedule prescribes the model fees for arbitrators, and the High Courts have been assigned the responsibility of framing the rules for determining the fees and the manner of payment. The model fee varies from Rs 45,000 to Rs 30 Lakh (Rupees forty-five to rupees thirty lakh) for various slabs of disputed value from Rupees five Lakh to above Rs 20 (Rupees twenty) Crore (with a sole arbitrator entitled to 25% (twenty-five per cent) extra above the model fee). However, it is clarified that such fees shall not be applicable in International Commercial Arbitration and in cases where parties have agreed to the determination of fees as per the rules of an arbitral institution.
2. Disqualification from appointment: A long and exhaustive list of specific circumstances which shall act as a bar against any person from being appointed as an arbitrator in a dispute, have been enumerated in the seventh schedule. However, the parties to the dispute have been given the opportunity, after the dispute has arisen, to waive the applicability of the seventh schedule, by mutual written agreement, if they so deem fit. Especially of interest in Public Procurement is disqualification of past or present employees, consultant, advisors, or other related business relationship not only with the Procuring Entity but also with any allied entity thereof. Thus, the earlier practice of appointing serving officers of procuring entity as arbitrator is no more legal.
4.9. Recourse against Arbitral Award Recourse to a court against an arbitration award can be made by an application (within three months from the date of the arbitral award) only on the grounds specified in the act, that is, the party was under some incapacity; the arbitration agreement was not valid; the proper opportunity was not given to present the case; award deal with disputes not falling within the terms of reference of the arbitrator; composition of the arbitral tribunal is not as per agreement of parties; subject matter of the dispute is not capable of settlement through arbitration under the law, or the arbitral award conflicts with the public policy.
3. Disclosures: An arbitrator who is approached for an appointment is obligated to disclose as per the Sixth Schedule of the Act. The declaration as per a set format removes any ambiguity and ensures uniformity:
a) Conflict of Interest: Existence, either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality as per fifth schedule to the Act for arbitrator. b) Time constraints: An arbitrator shall disclose all circumstances which may affect his ability to deliver an award within 12 (twelve) months.
4.10.2 Fast-tracking Arbitration in India 1. Award within 12 (Twelve) months: The arbitral tribunal is statutorily obligated to deliver an award within 12 (twelve) months from the date when the arbitral tribunal enters into reference. The arbitral tribunal is said to have entered upon the reference on the date on which the arbitrator
(s) have received notice of their appointment. The award can be delayed by a maximum period of six months only under exceptional circumstances where all parties give their consent to such extension of time. Where the award is not made within the statutory period, the mandate of arbitrators shall automatically terminate. It is open for the courts to extend the period for making an award upon receipt of an application by any of the parties. Such extension is to be granted only for sufficient cause, and the court, in its discretion, may impose the following penalties depending on the facts and circumstances of the case: a) Reduce the fees of arbitrators by up to 5% (five per cent) for each month of delay. b) Substitute one or all the arbitrators. c) Impose actual or exemplary costs on any of the parties.
2. Oral arguments to be held on a day-to-day basis: Oral arguments as far as possible shall be heard by the arbitral tribunal on a day-to-day basis and no adjournments shall be granted without sufficient cause. Provision for imposition of exemplary cost on the party seeking adjournment without sufficient cause has also been made.
3. Fast Track Procedure: The parties to arbitration may choose to opt for a new fast track procedure either before or after the commencement of the arbitration. The award in fast-track arbitration is to be made out within six months.
a) Arbitral Tribunal can decide to follow documents only Arbitration, especially in case of lowvalue arbitrations, to fast track the arbitration. b) Where the Arbitral Tribunal delivers the award within a period of six months the arbitral tribunal shall be entitled to additional fees. The parties shall determine the quantum of such additional fees. c) The salient features of the fast-track arbitration are: i) Disputes are to be decided based on written pleadings only. ii) The arbitral Tribunal shall have the power to call for clarifications in addition to the written pleadings where it deems necessary. iii) Oral hearing maybe held only if all the parties make a request or if the arbitral tribunal considers it necessary. iv) The parties are free to decide the fees of the arbitrator(s).
4. Appointment within 60 (sixty) days: Whenever an application for appointment of Arbitrator
(s) is moved before a court such application shall be disposed of as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party. The court while appointing arbitrators shall confine itself to the examination of the existence of an arbitration agreement.
4.10.3 Procedural and Jurisprudence simplified. 1. Arbitration to commence within 90 (ninety) days of interim relief: Where the court grants interim relief before the commencement of arbitration, the arbitration must commence within 90 (ninety) days from such order of interim relief. The court however has been given the authority to extend the period within which the arbitration must commence if it deems such extension necessary. The Act prohibits courts from entertaining any application for interim relief once the arbitration has entered into reference, unless the court finds that circumstances exist which may not render the remedy provided under section 17 efficacious. 2. Powers of Interim Relief in Section 9 also to Arbitral Tribunal: The parties to arbitration can now directly approach the arbitral tribunal for seeking interim relief on the same grounds as were available to the parties under section 9 of the previous act. Further, the tribunal has now been granted the powers of a court while making interim awards in the proceedings before it. 3. Arbitral tribunal not bound to rule in accordance with terms of the contract: The arbitral tribunal was previously bound to deliver an award in accordance with the terms of the agreement and was required to take into consideration the ‘usages of the trade applicable to the transaction.’ Vide the Amendment the arbitral tribunal has been freed of the obligation to only rule in accordance with the terms of the agreement. The arbitral tribunal is only required to take the agreement into account while delivering its award and is free to deviate from the terms of the agreement if the circumstances so warrant. 4. The act made applicable on International Commercial Arbitration with even seat outside India: Part I of the act has been made applicable for limited purposes (listed below) on International Commercial Arbitrations even in instances where the seat of the arbitration is outside India; however, giving freedom to exclude the applicability the Act by agreeing to this effect: a) Seeking interim relief from courts [section 9] b) Seeking the assistance of the court in taking evidence [section 27] c) Appealing against the order of a court where the court refuses to refer the parties to arbitration. [section 37(1) (a)] d) Restricting the right to second appeal and preserving the right of parties to approach the Supreme Court in appeal. [section 37 (3)]
5.0The Mediation Act, 2023 1. This Mediation146 Act, 2023 applies to mediations conducted in India, particularly when the ‘mediation agreement/ clause’ provides that any dispute shall be resolved in accordance with the provisions of this Act; or when in a commercial dispute one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations, and local bodies, including entities controlled or owned by such Government. Thus, it specifically covers dispute resolution in Public Procurement. 2. The Act provides for a Mediation Council of India (MCI) to be created and an enabling provision for registration of Mediation Service Providers (MSP) by MCI. The parties are free to determine the mediation's venue, manner, and language. 3. Like arbitration agreement, a mediation agreement shall be in writing recorded in any document (including the Contract) signed by the parties; or as exchange of communications or any pleadings in any proceedings in which existence of mediation agreement is alleged by one party and not denied by the other. However, unlike the Arbitration and Conciliation Act, the Mediation Act does not prevent a party from agitating a dispute in Court before seeking a resolution; hence, the nature of Mediation is voluntary. Nevertheless, if Mediation is provided contractually and, instead, one party seeks recourse to courts, the other party can inform the Court of the mediation agreement and request a reference to Mediation. 4. While the Act does not require the mediator to have any qualifications, it dictates that a mediator of foreign nationality shall possess such qualifications, experience, and accreditation as may be specified by the MCI. The Act provides for registration of Moderators with the Mediation Council of India (MCI); or empanelled by a court-annexed mediation centre; or empanelled by an Authority constituted under the Legal Services Authorities Act, 1987; or empanelled by a mediation service provider (MSP) recognised by MCI. Either the parties mutually agree to select an agreed candidate for mediator or else they may refer the mediation to Institutional Mediation through MSP registered with the MCI. MSP would then provide a mediator considering the suitability and preference of the parties. 5. The Act provides for confidentiality of Mediation Proceedings, and for declaration of mediators regarding ‘Conflict of Interest’ if any. Mediation can also be done online/ virtual mediation, provided the integrity and confidentiality of the process is maintained. 6. Mediator only facilitates the party to arrive at a mutually agreed resolution but does not have authority to impose any suggestion. 7. There is a time limit of 120 days (extendable by 60 days), after which the Mediator can provide a non-resolution report to the party or the MPS, as the case may be. Otherwise, if successful, moderator provides a Mediation Settlement Agreement (MRA) to the parties or MSP. A jointly signed MSP, countersigned by the Mediator becomes a decree of the court and can be enforced in the court like a decree. 8. The moderator of the dispute under resolution cannot subsequently be associated with any resolution process or with either party in the same dispute in any forum, judicial or otherwise.
6.0 Salient Features of Competition Act, 2002 relating to Anti-competitive Practices. 1. The Preamble of the Competition Act, 2002, provides for the establishment of a Commission keeping in view of the economic development of the country to promote and sustain competition in markets; prevent practices having adverse effect on competition; protect consumer interest; and ensure freedom of trade carried on by participants in Indian markets. 2. The Act was amended by Competition (Amendment) Act, 2007 and again by Competition (Amendment Act), 2009. 3. In India, Competition Commission of India (“CCI”), formulated under the Competition Act is a quasi-judicial and regulatory body entrusted with the task enforcement of the Competition Act, 2002. Apart from specific functions under the Competition Act, 2002 the CCI also has extraterritorial jurisdiction, inquiry into anticompetitive conduct, sector-specific regulatory work, competition advocacy, power of appointment of professional and experts, and procedure for investigation (in terms of regulating its own procedure). 4. Section 8 dealing with composition of Commission provides for a chairperson and not less than two and not more than six members which are to be appointed by Central Government. The CCI is vested with inquisitorial, investigative, regulatory, adjudicatory, and also advisory jurisdiction. Vast powers have been given to the Commission and under Section 64, the Commission can frame regulations. 5. The National Company Law Appellate Tribunal (NCLAT)147 is the body entrusted with the responsibility of hearing and disposing of appeals against any direction or decision or order of the CCI. It also adjudicates on compensation claims arising from the findings of the CCI or its own findings on appeals against the CCI orders and passes orders on the recovery of compensation. 6. Any person aggrieved by the order or decision of the CCI may prefer an appeal to the NCLAT within 60 (sixty) days from the date of communication of such order or decision. The second and final appeal under Section 53(T) lies before the Supreme Court of India from the orders of the NCLAT within a period of 60 (sixty) days from the date of communication of the order by the NCLAT. 7. CCI may initiate an inquiry: a) On its own motion based on information and knowledge in its possession or b) On receipt of any information, in such manner and accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association, or c) On receipt of a reference from the Central Government, a State Government, or a statutory authority
8. The Act provides for Director General (DG) office as a separate investigative wing to assist the CCI. The DG investigates the complaints received from the CCI and submits all findings to it. DG is solely responsible for making enquiries, for examining documents and for making investigations into complaints. The DG is vested under the Act with powers of summoning of witnesses, examining them on oath, requiring the discovery and production of documents, receiving evidence on affidavits, issuing commissions for the examination of witnesses etc.
9. The Act in Section 49 (3) lays down the advocacy function of CCI and lays down that the CCI shall take suitable measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues. Section 32 of the Act grants the CCI extra-territorial jurisdiction over anticompetitive conduct which has an appreciable adverse effect on competition within India. Any anticompetitive activity taking place outside India but having an appreciable adverse effect on competition within India shall be subject to the application of the Competition Act.
10. Under Section 21 of the Act, any statutory authority can suo motto or on request of a party during a proceeding before it can make a reference to CCI. CCI shall give its opinion within sixty days of receipt of such reference by such statutory authority. Under the provisions of the Act, the authority which made reference shall consider the opinion of the Commission and thereafter, give its findings recording reasons on the issues referred to in the said opinion by CCI. Section 21A in the same language provides for such reference by CCI to any statutory authority.
11. The key provisions of the Competition Act include: a) Section 3 of the Competition Act, 2002 deals with anti-competitive agreements; b) Section 4 of the Competition Act, 2002 which discusses the abuse of dominance; c) Sections 5 and 6 of the Competition Act, 2002 deal with the regulation of combinations.
12. The term ‘agreement’ has been defined broadly in the Competition Act. It extends to a mere ‘arrangement,’ ‘understanding’ or ‘action in concert,’ none of which need be in writing or enforceable by law.
13. Section 3(1) of the Competition Act lays down that no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. The Act prohibits an anti-competitive agreement and declares that such an agreement shall be void.
14. Section 3(3) of the Competition Act deals with horizontal agreements as it covers the agreements between entities engaged in identical or similar trade of goods or provision of services. It also includes cartels. The section covers the following:
a) Agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise. b) The practice carried out by any association of enterprises or association of persons. c) Decision taken by any association of enterprises or association of persons.
15. Section 3(3) of the Competition Act enlists four broad classifications of horizontal agreements that are presumed to cause an appreciable adverse effect on competition (AAEC) in India.
a) Agreements regarding Prices b) Agreements regarding Quantity / Quality c) Market Allocation d) Bid Rigging 16. These four horizontal agreements are not presumed to have appreciable adverse effects on competition and are excluded from the provisions of Section 3(3) of the Competition Act, 2002, provided they are entered into by way of joint ventures and increase efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
17. Cartels, by their very nature are secretive and thus it is difficult to find the direct evidence of their presence. The orders of the CCI clearly point that CCI relies on circumstantial evidence, both economic and conduct-based, to reach its decision on the existence of a cartel agreement.
18. The Act defines bid rigging, and it covers agreements having the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding:
a) Collusive bidding: Agreement between firms to divide the market, set prices or limit production – involves, kickbacks and misrepresentation of independence. b) Bid Rotation c) Bid Suppression d) Complementary Bidding e) Subcontracting arrangements f) Market Allocation
19. The Act gives wide discretion to CCI to frame the remedies to overcome the anticompetitive situation: a) Declare Anticompetitive Agreements Void b) Impose Heavy Penalties i) Penalty can be up to 10% (ten per cent) of the average turnover for the last three preceding fiscal years upon each of such persons or enterprises which are parties to bid-rigging. ii) Cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or 10% (ten per cent) of its turnover for each year of the continuance of such agreement, whichever is higher. c) Order the parties to Cease & Desist. d) Modification of agreements e) Remedy Damage to reputation. f) Fix Individual Liability g) Grant Interim orders h) Any other order as CCI deems fit.
20. Who can file the information: Raising issues regarding anti-competitive behaviour for action by CCI under the act is called filing the information:
a) Any person, consumer, association, or trade association can file information before the Commission. b) Central Govt. or a State Govt. or a statutory authority can also make a reference to the Commission for making an inquiry. c) “Person” includes an individual, HUF, firm, company, local authority, cooperative or any artificial juridical person.
21. What are the issues on which information can be filed? a) The information can be filed on issues like anti-competitive agreements and abuse of dominant position or a combination. b) Class of consumers.
a) Rupees 5000/- (Five thousand only) in case of an individual, or Hindu undivided family (HUF), Non-Government Organisation (NGO), Consumer Association, Co-operative Society, or Trust duly registered under the respective Acts, b) Rupees 20,000/- (twenty thousand only) in case of firms, companies having turnover in the preceding year upto Rupees one Crore, and c) Rupees 50,000/- (fifty thousand only) in case not covered under clause
(a) or
(b) above.
1. The Act seeks to protect whistle blowers, i.e., persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant.
2. Any public servant or any other person including a non-Governmental organization may make such a disclosure to the designated agencies i.e., Central or State Vigilance Commission. The Time Limit for making any complaint or disclosure to the Competent Authority is seven years from the date on which the action complained against is alleged to have taken place.
3. The Designated Agency cannot entertain any disclosure relating to any inquiry ordered under the Public Servants (Inquiries) Act, 1850andCommissions of Inquiry Act, 1952.
4. Similarly, the Amendment Act 2015 prohibits the reporting of a corruption-related disclosure if it falls under any 10 (ten) categories, including information related to:
a) The sovereignty, strategic, scientific, or economic interests of India or the incitement of an offence b) Records of deliberations of the Council of Ministers c) That which is forbidden to be published by a court or if it may result in contempt of court; d) A breach of privilege of legislatures; e) Commercial confidence, trade secrets, intellectual property (if it harms a third party); f) That relayed in a fiduciary capacity; g) That received from a foreign Government; h) That which could endanger a person’s safety etc.; i) That which would impede an investigation, etc.; j) Personal matters or invasion of privacy.
5. However, if information related to b), e), f), and j) above is available under the Right to Information Act, 2005, then it can be disclosed under the Act.
7.0Salient Features of the Whistle Blowers Protection Act, 2011 and the Whistle Blowers Protection (Amendment) Act, 2015
a) Any public interest disclosure received by a Competent Authority will be referred to an authorised authority if it falls under any of the prohibited categories above. This authority will decide on the matter, which will be binding. b) The Identity of the Complainant must be included in the Complaint or the Disclosure. However, the Designated Agency shall conceal the identity of the complainant unless the complainant himself has revealed his identity to any other office or authority while making public interest disclosure or in his complaint or otherwise. However, the Designated Agency can reveal the identity of the complainant in circumstances where it becomes inevitable or extremely necessary for the enquiry. c) The Designated Agency may, with the prior written consent of the complainant, reveal the identity of the complainant to such office or organization where it becomes necessary to do so. If the complainant does not agree to his name being revealed, in that case, the complainant shall provide all documentary evidence in support of is complaint to the Designated Agency. d) Any person who negligently or with malafide reveals the identity of the complainant shall be punished with imprisonment up to three years and a fine not exceeding Rs. 50,000 (Rupees fifty thousand). e) Similarly, any disclosure made with mala fide and knowingly that it was false, or misleading shall be punished with imprisonment up to two years and a fine not exceeding Rs. 30,000 (Rupees thirty thousand). f) After receipt of the report or comments relating to the complaint, if the Designated Agency is of the opinion that such comments or report reveals either wilful misuse of power or wilful misuse of discretion or substantiates allegations of corruption, it shall recommend to the public authority to take appropriate corrective measures such as initiating proceedings against the concerned public servant or other administrative and corrective steps. However, in case the public authority does not agree with the recommendation of the Designated Agency, it shall record the reasons for such disagreement. g) While dealing with any such inquiry, the Designated Agency shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, with respect to matters like receiving evidence, issuing commissions, discovery, and production of any document, etc. Also, every proceeding before the Designated Agency shall be deemed to be a judicial proceeding under the Code of Criminal Procedure148 (CrPC), 1973, and Indian Penal Code149 (IPC) 1860. h) No obligation to maintain secrecy or other restrictions upon the disclosure of information shall be claimed by any Public Servant in the proceedings before the Designated Agency. i) However, no person is required to furnish any information in the inquiry under this act if such information falls under the 10 (ten) categories mentioned before. j) It shall be the responsibility of the Central Government to ensure that no person who has made a disclosure is victimised on the ground that such person had disclosed under this act. k) If any person is victimised or likely to be victimised on the grounds mentioned above, he may contact the Designated Agency, and the Designated Agency may pass appropriate directions in this respect. The Designated Agency can even restore the status quo ante with respect to the Public Servant who has made a disclosure. Also, the Designated Agency can pass directions to protect such complainants. l) If any Head of the Department has committed an offence under this act unless he proves that the offence was committed without his knowledge or that he exercised all due diligence in this respect. m) This Act extends to all the Companies as well. When a company has committed any offence under this act, every person who at the time of the offence was responsible for the conduct of the business of the company shall be deemed to be guilty of the offence unless he proves that the offence was committed without his knowledge or that he exercised all due diligence in this respect. n) No court can take cognizance of any offence under this act save on a complaint made by the Designated Agency. No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence under this act. The High Court shall be the appellate authority in this respect.

Para 4.9 — GOODS_MANUAL

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Para 4.9 — GOODS_MANUAL

Original Rule Text