The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
section 34(4) of the Arbitration Act – Section 34(2) deals with in which situation the arbitral award should be set aside. Section 34(2) of the Arbitration act provides two sets of grounds on which an award may be set aside. The Section 34(2) An arbitral award may be set aside by the court only if, the party making an application furnishes proof that (a) sets out grounds of the challenge such as the incapacity of a party. The invalidity of the arbitration agreement. Lack of proper notice of appointment of the arbitrator or of the arbitral proceedings. Or the inability of a party to present the case. An award that deals with disputes not submitted to arbitration, the improper composition of the arbitral tribunal or procedure contrary to the agreement between the parties, etc.
Theses grounds must be establish by the party challenging the award on the basis of the record of the arbitral tribunal. In simple words, if the first party is prove that the second party is incapable of taking the award. If the person is unsound mind, insane, minor in this situation the arbitral award should be set aside. In section 34 deals with set aside the application for the arbitration award.
ii. The invalidity of the arbitration agreement under laws. The validity of an arbitration agreement can be challenge in the same way on the same grounds on which the validity of a contract is challeng. In cases where the agreement clause is add in a contract by the parties to it, the arbitration will be considered invalid if the contract is invalid. The arbitration agreement is not valid under the law to which the parties have subjected it or
failing any indication thereon, under the law for the time being in force.
iii. The party making the application was not give the proper notice of the appointment of an arbitrator or of arbitral proceedings or
was unable to present his case.
iv. An award not falling within the terms of submission to arbitration. The testimonials of a dispute in an agreement determine the limits of the authority and jurisdiction of an arbitral tribunal. If the jurisdiction does not come within the ambit of the tribunal, then the award to the extent to which it is beyond the arbitrator’s jurisdictional powers would be considered
as invalid and such award would be liable for setting aside.
An arbitrator cannot act in contradiction to the terms of the contract. The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains a decision on matters beyond the scope of the submission to arbitration. Provide that, if the decision on matters submit to arbitration can be submit, only that part of the arbitral award which contains
decision on matter not be submit to arbitration may be set aside.
v. Composition of tribunal not in accordance with the agreement. Sec 34(2) lays out an award can be discard or challenge if the composition of the arbitral tribunal was not in obedience with the agreement of the parties or if the procedure of conduct of proceedings was not follow properly. If the arbitrator passes a decision of an award that is in deviation from the terms of reference and the arbitration agreement, then this would lead to the award being set aside and will amount to the misconduct of the arbitrator. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties unless such agreement was in conflict with a provision of this part from which the parties cannot derogate, or
failing such agreement, was not in accordance with this part.
vi. Disputes not arbitral– the nature of the dispute should be capable of settlement by arbitration. Generally, all disputes which can be decide by a civil court involving private rights can be refer to arbitration.
2(b) the court finds that
The subject matter of the dispute is not capable of settlement by arbitration. Under the law for the time being in force:
The arbitral award is in conflict with the public policy of India.
Explanation: without prejudice to the generality of sub-clause. ii. It hereby declares. For the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award induce or
affect by fraud or corruption or was in violation of sec 75 of sec 81.
[2a] an arbitral award arising out of arbitrations other than international commercial arbitrations, may also is set aside by the court if the court finds that the award is vitiated by patent illegality appearing on the face of award:
Provide that an award shall not be set aside merely on the ground of an erroneous application of the law or by the appreciation of evidence.
Sec 34(4) On receipt of an application under subclause (1), the court may, where it is so request by a party. Adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal. An opportunity to resume the arbitral proceedings or to take such other action
as in the opinion of the arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
An application for setting aside may not be make after three months have elapse from the date on which the party making that application has receive the arbitral award or if the request had make
under sec 33 from the date on which that request has been dispose of by the arbitral tribunal:
Provide that if the court is satisfy that the applicant was prevent by sufficient. Cause from making the application within the said period of three months it may entertain the application. Within the further period of thirty days, but not thereafter.
The ground under section 34(2) (b) of the arbitration act is substantive and goes to the root of the award. If an award deals with a dispute which cannot be settled by arbitration, then this is logically not a ground
that is capable of elimination and the court must set aside the award in such a case. Notwithstanding an application under sec 34(4) of the arbitration act.
The ground of conflict with public policy is not also capable of elimination by the arbitral tribunal that it may not only be wasteful, but possibly prejudicial, to send parties back to an arbitral tribunal that has passed an award in conflict with public policy. Even if sending back an award that is in conflict with the public policy were neither wasteful nor prejudicial. The intention of the parliament could never have been to give an arbitral tribunal
a second bite at the cherry by reviewing and rewriting the awards on merits.
Section 34(4) of the Arbitration act invoke by a party before the award is set aside by the court. Once the main proceedings under section 34 of the arbitration act are dispose of the court becomes functus officio. If the party fails to request the court to defer
the section 34 proceeding before the award is formally sets aside. Then the party is preclude from moving an application under section 34(4) of the arbitration act. The application under section 34(4) of the arbitration action must be in writing, by a party to the arbitration proceedings. The power under section 34(4) of the arbitration act cannot be exercise by the court suo moto.
MMTC v. Vicnivass Agency 2009
Suresh Prabhu v. Bombay Mercantile Co-op Bank Ltd. Ors. 2007
section 34(4) of the Arbitration Act – Arbitration and conciliation act, 1996 provides that mere delivery amount
would be deem receipt of the award. And the limitation period for the purpose of setting aside the award could be calculated from the delivery. Only on actual receipt of the award can an application for setting aside the arbitral award be file in India. The say period of 3 months can be condon for a further period of 30 days. If the applicant satisfy the court that there has sufficient ground that prevent him to move the application.
Read about : Are WhatsApp Chats Admissible In court As Evidence?
Drop your comment