Page 49 - Quick Insights Book 2022

Chap. 10 – Arbitration

• Conciliation – the conciliator authenticates the settlement OTHER AREAS
reached by parties and it is binding
 Drafting of Arbitration Agreements
• Arbitration – quasi-judicial method outside the court.
 Member of Arbitral Tribunal
REPRESENTING THE CLIENT IN THE ARBITRAL  Acting as arbitrator
PROCEEDINGS
 Acting as Arbitrator in different countries.
In recent times, there is a move all over the world to encourage
professionals and experts like Chartered Accountants, to play  Acting as arbitrator in Micro and Small Enterprises
an active role in arbitral processes. The objective of arbitration Facilitation Council u/s 18 of the Micro, Small and
is to provide expeditious, efficient and economic justice to the Medium Enterprises Development Act, 2006.
aggrieved parties as it is felt that too much legality defeats the  In Clause 14 of First Schedule to the Limited Liability
very purpose of arbitration. A Chartered Accountant can equip Partnership Act 2008 - All disputes between the partners
himself to enter into the field with considerable advantage. arising out of the limited liability partnership agreement
A Chartered Accountant normally represents the cases of which cannot be resolved in terms of such agreement
his clients before various authorities including the Tribunals, shall be referred for arbitration as per the provisions of
Company Law Benches, SEBI, RBI etc. He can definitely the Arbitration and Conciliation Act, 1996.
specialize in arbitration matters particularly those connected
with breach of contracts, insurance claims, loss of profit,  Assisting Indian Judiciary u/s section 89 of Code of Civil
securities fraud, commercial disputes, rights of properties, Procedure 1908, where there is possibility of settling of
lease transactions etc. and represent his clients in Arbitral dispute through arbitration
proceedings.
 Identifying, advising and solving pending disputes of
AS AN EXPERT clients which can be resolved by ADR.
Under Section 26(1) of the Arbitration and Conciliation Act, INTERNATIONAL COMMERCIAL ARBITRATION
1996 the Arbitral Tribunal may appoint expert/s to report
on any specific issue to be determined by it. It may also  Helping the clients in the process of Selecting an
require the parties to give the expert any relevant information, Arbitration Institution.
explanations, or to produce or provide access to any relevant  Helping the Clients in selecting the arbitration format
documents, goods or other property for inspection. An expert and structure without using an arbitration institution in
may be examined and cross-examined by a party on request the case of Ad hoc arbitration.
of a party and where an arbitral tribunal considers it necessary.
A Chartered Accountant can help the arbitral tribunal in  Helping the clients in determining the procedural law
the capacity of an expert in matters relating to accounts, to be applied to the arbitration depending on the
commercial transactions, lease transactions etc., where he has legislations relating to arbitration in various countries.
sufficient domain knowledge.  Drafting commercial trade agreements in consonance
with the principles of Alternative Dispute Resolution.
AS A CONCILIATOR
 Drafting Arbitration clauses in international contracts.
Conciliation is a process by which the conciliator endeavors
to bring the disputant parties to an agreement. A conciliator  Drafting of a proper arbitration agreement considering
is generally an independent third party who mediates for the the arbitration rules promulgated by various international
disputing parties in order to bring them to a mutually acceptable institutions, is a job to which the Chartered Accountant
settlement. A mediator is normally taken to be a person of the can apply his expertise.
disputant’s choice. The conciliator is instrumental in drawing
up the terms of settlement in the shape of an agreement, PROMISING OPPORTUNITY
consequent upon comprehensive discussions with the parties At a conservative estimate, there are more than 30 million
to the dispute. A Chartered Accountant in his day- to-day cases pending in various courts in the country. The criticism
practice often helps his clients in settling their disputes through against the justice delivery system is continuous. Arbitration
conciliation. CA’s can serve as professional conciliators. system is a means to provide an easy and expedient
With the acquisition of thorough knowledge on the process mechanism for dispute resolution without the need of resorting
of mediation, negotiating skills and related techniques of to a long-drawn litigation. Arbitration seeks to remove blockade
conciliation a Chartered Accountant can act as a successful caused by chocking legal pollution.
professional conciliator thereby adding to the array of services
he provides. As of December 2021, only 165 Chartered Accountants are
registered as Arbitrators with the Indian Council of Arbitrators
(ICA).
36 Quick Insights on Professional Opportunities for Chartered Accountants