THE LAW OF ARBITRATION (old law)
(THE LAW ON PUBLIC NOTICE PROCEDURE AND ARBITRATION PROCEDURE)
CHAPTER VIII: ARBITRATION PROCEDURE
- Section 786.
- An Agreement to submit a controversy to one or more arbitrators is valid only where the parties have the right to make a compromise regarding the subject matter in dispute.
- Section 787.
- An agreement to submit a future controversy to arbitration shall have no effect unless it relates to a particular relation of right and a controversy arising therefrom.
- Section 788.
- If in an arbitration agreement no provision is made for the nomination of arbitrators, each party shall nominate an arbitrator.
- Section 789.
- (1)Where both parties are entitled to nominate arbitrators, the party initiating the arbitration procedure shall in writing signify to the other party the arbitrator of his own nomination and call upon that other party to take the corresponding steps on his side within a period of seven days.
- (2)In default of nomination of an arbitrator within the period specified in the preceding Sub-Section the competent Court, upon application by the party initiating the arbitration procedure, shall appoint an arbitrator.
- Section 790.
- A party having nominated an arbitrator shall be bound by such nomination in relation to the other party as soon as he has given to that other party notice of the nomination.
- Section 791.
- Where an arbitrator nominated otherwise than by an arbitration agreement dies, or his position is otherwise vacated, or he refuses to accept or exercise the office of arbitrator, the party who has nominated him shall, upon demand by the other party, appoint another arbitrator within a period of seven days. In default of appointment of an arbitrator within the specified period, the competent Court, upon application by the said other party, shall appoint an arbitrator.
- Section 792.
- (1)The parties may challenge an arbitrator on the same grounds and on the same conditions as they were entitled to challenge a Judge.
- (2)Apart from the provisions of the preceding Sub-Section, an arbitrator nominated otherwise than by an arbitration agreement may be challenged if he unduly delays the exercise of his office.
- (3)Persons who are under disability, deaf, dumb, or deprived of or suspended from the enjoyment of public rights may, if nominated to be arbitrators, be challenged.
- Section 793.
- An arbitration agreement shall be void unless by mutual consent of the parties provisions are made therein against the following contingencies:-
- That, specified persons being nominated arbitrators in the arbitration agreement, any one of them dies, or his position is otherwise vacated, or he refuses to act, or withdraws from the agreement entered into by him, or unduly delays the discharge of his duties;
- That the arbitrators notify the parties that their opinions are equally divided.
- Section 794.
- (1)The arbitrators, before making an award, shall hear the parties and make such enquiries into the causes of controversy as they deem necessary.
- (2)Where the parties have no agreement on the arbitration procedure to be followed, the arbitrators shall adopt such procedure as they think fit.
- Section 795.
- (1)The arbitrators may examine such witnesses and experts as may voluntarily appear before them.
(2)The arbitrators have no power to administer an oath to a witness or an expert.
- Section 796.
- (1)Any act which the arbitrators consider necessary in the course of the arbitration procedure but which they are unable to perform shall, upon application by the parties, be performed by the competent Court, provided such application is deemed proper.
- (2)If a witness or an expert refuses to give evidence or expert opinion, the Court which ordered him to do so shall have the power to make such adjudication as may then be necessary.
- Section 797.
- If the parties contend that the arbitration procedure entered upon is not one which is to be allowed, or in particular, that no legally binding agreement of arbitration has been made, or that the arbitration agreement does not relate to the controversy to be settled, or that the arbitrators have no power to exercise their office, nevertheless the arbitrators may proceed with their function and make an award.
- Section 798.
- When an award is to be made by several arbitrators, it shall be decided by a majority vote of the arbitrators, unless otherwise provided in the arbitration agreement.
- Section 799.
- (1)The award shall bear date of the day on which it was prepared, and be signed and sealed by the arbitrators.
- (2)Authentic copies of the award signed and sealed by the arbitrators shall be served on the parties, and the original document of award accompanied by a certificate of service shall be deposited with the Office of Clerks of the competent Court.
- Section 800.
- As between the parties the award shall have the same effect as a final and conclusive judgement of a Court of Justice.
- Section 801.
- (1)Application to set aside an award may be made in any of the following cases:-
- Where the arbitration was one which ought not to have been allowed;
- Where the award orders a party to do an act which is prohibited by law;
- Where in the arbitration procedure the parties were not lawfully represented;
- Where the parties were not heard in the arbitration procedure;
- Where the award does not show the ground on which the decision was made;
- Where for any of the reasons specified in 4, 5, 6, 7 and 8 of Section 338(1) of the Code of Civil Procedure a motion for a new trial is to be allowed.
- (2)Where otherwise agreed between the parties, an award cannot be set aside for the reasons specified in 4 and 5 in the preceding Sub-Section.
- Section 802.
- (1)Execution by virtue of an award can be carried out only if it is pronounced to be allowed by an execution-judgement.
- (2)No such execution-judgement as is referred to in the preceding Sub-Section shall be given, if there exists any ground upon which application for setting aside an award can be made.
- Section 803.
- After an execution-judgement has been given application for setting aside the award can be made only on the ground specified in 6 in Section 801, and then only if it is shown that the party has, not owing to any fault on his part, been unable to plead the ground for setting aside the award in the previous procedure.
- Section 804.
- (1)In the case mentioned in the preceding Section, an action for setting aside an award must be instituted within a peremptory term of one month.
- (2)The term referred to in the preceding Sub-Section shall commence to run from the day on which the party becomes aware of the ground for setting aside the award, but not before the execution-judgement becomes conclusive. After the expiration of five years from the day on which the execution-judgement becomes conclusive, this action cannot be brought.
- (3)When setting aside an award, the Court shall also pronounce the setting aside of the execution-judgement.
- Section 805.
- (1)The Court competent to entertain an action having for its object the nomination or challenge of an arbitrator, the termination of an arbitration agreement, the disallowance of arbitration, the setting aside of an award, or the giving of an execution-judgement shall be the Summary Court or District Court designated in the arbitration agreement. In the absence of such designation, the action may be brought before such Summary or District Court as would be the competent Court if the claim were judicially made before a Court of Justice.
- (2)In case there are two or more Courts having jurisdiction according to the preceding Sub-Section, the Court to which the parties or arbitrators first resorted shall be the competent Court.
THE CODE OF CIVIL PROCEDURE: NEW TRIAL
- Section 338.
- (1)For any one of the following reasons, except where the party has in an appeal pleaded it or knowingly has not pleaded it, a final judgement which has become conclusive may be appealed against in the form of a motion for a new trial:-
(2)In the case of 4, 5, 6, or 7 of the preceding Sub-Section, a motion for a new trial may be made only when a judgement of conviction or a decision imposing a non-criminal fine has become conclusive in regard to the punishable act, or when a conclusive judgement of conviction or a decision imposing a non-criminal fine cannot be obtained for a reason other than the lack of evidence.
- If the Court which gave judgement was not so constituted as the law prescribed;
- If a Judge who was precluded by law from participating in the decision participated therein;
- If the legal representative or process-attorney or agent was not vested with the necessary power to do acts of procedure;
- If a Judge who participated in the decision was guilty of an offence relating to his official duties in connection with the case tried before him;
- If the party by a criminally punishable act of another person was led to make a confession or prevented from producing a means of attack or defence calculated to affect the decision;
- If a document or any other object which was produced in evidence and on which the judgement was based was a forged or fraudulently altered matter;
- If the judgement was based on a false statement of a witness, expert, or interpreter or a sworn party or legal representative;
- If a civil or criminal judgement or any other judicial decision or an administrative decision on which the judgement was based has been altered by a subsequent judicial or administrative decision;
- If no adjudication was made of a material fact which would have affected the judgement;
- If the judgement appealed against conflicts with a conclusive judgement previously pronounced.
(3)If judgement on the subject-matter of the action was given by the Court of second resort, a motion for a new trial against the judgement given by the Court of first instance cannot be made.