A
Chartered Accountant can equip himself to enter into the field of
Arbitration with considerable advantage. A Chartered Accountant normally
represents the cases of his clients before various authorities,
including the Tribunals, Company Law Benches, SEBI, RBI etc. He can
definitely
specialize in arbitration matters, particularly those
connected with breach of contracts, insurance claims, loss of profit,
securities fraud, commercial disputes, rights of properties, lease
transactions etc. and represent his clients in Arbitration proceedings.
The objective of arbitration is to provide expeditious, efficient and
economic justice to the aggrieved parties as it is felt that too much
legality defeats the very purpose of arbitration.
THE REGULATORS – INDIAN COUNCIL OF ARBITRATION (ICA)
INDIAN COUNCIL OF ARBITRATION (ICA) is
registered under the Societies Registration Act, 1860.It was established
in 1965 as a specialized arbitral body at the national level with the
initiatives of the Govt. of India and apex business organizations like
FICCI etc. Based in New Delhi, the main objective of ICA is to promote
amicable, quick and inexpensive settlement of commercial disputes by
means of arbitration, conciliation,
regardless of location. This is a specialized arbitral body,
sponsored by Government of India and certain apex business
organizations, also recognize Chartered Accountants as arbitrators.
A WITH 15 YEAR EXPERIENCE IS ELIGIBLE FOR ARBITRATOR
ICA maintains a panel of arbitrators
drawn from various fields. Clause III (b) of the “broad categories of
qualification and experience for empanelment as an arbitrator indicate
that Chartered Accountants are eligible for empanelment. Clause III (b)
reads as follows:— III(b)“Chartered Accountants basically Valuers or
other technical consultants accountancy etc. with at least
15 years experience in government / private organization or in
professional practice, with adequate knowledge and experience in
arbitration matters.”
So, a Chartered Accountant having 15
years of post professional experience is eligible for empanelment as
an arbitrator. There are a large number of organizations, national
as well as international, which maintain a panel of arbitrators. The
job of an arbitrator is often challenging but satisfying.As on 31st May 2015, only 135 Chartered Accountants are registered as Arbitrator with the ICA.
ICAI LAUNCHED A CERTIFICATE COURSE ON ARBITRATION.
ICAI also maintains a panel of member arbitrators after successful completion of the training and course on arbitration. As of 1st
July 2015 , 648 are listed there as arbitrator and in the light of the
emerging diversities & opportunities as Arbitrator, ICAI have
designed a course to empower the members to be the leaders in the global
service market. The Institute claimed that apart from the comprehensive
theoretical aspects, this course will sharpen the expertise over the
new coming up professional opportunity. The objective of this Course is
to familiarize the members with the relevant laws which impact the
arbitration process and the practical procedural aspects and to build
the competency level of the
members of the Institute to position them as multidisciplinary
consultants in the global service market The course is targeted at
members who are desirous of building their expertise and skills in the
area Apart from the comprehensive theoretical aspects, this course cover
practical and procedural aspects of the arbitration process with case
studies and mock arbitration proceedings.
The course fee is Rs. 20000/- in New
Delhi, Mumbai, Chennai, Kolkatta and Bangalore Rs. 15,000/- for
Ahmedabad, Hyderabad, Jaipur, Kanpur, Lucknow, Nagpur, Pune,
Secundrabad, Chandigarh, Agra, Allahabad, Bhopal, Indore, Ludhiana,
Madurai, Patna, Surat, Tiruvanatapuram and Vadodara, and Rs 12,000/- for
Cities/ Towns other than the above. The duration of the course is 40
hours spread over 6 days. The CPE credit of 20 Hours will be given to the participants.
ARBITRATION AN OLD WINE IN NEW BOTTLE
In all walks of life, it is usual to
come across disputes, more so in business dealings. In olden days
informal system of Arbitration existed in the shape of Panchayats
[comprising “panch” meaning five wise men] headed by a Sarpanch. These
systems were perceptible in all villages, castes and circles where all
disputes were settled promptly and economically. The Father of Nation
Mahatma Gandhi was also a staunch believer of arbitral process for
resolving the problems in our predominantly rural society at affordable costs via Panchayats Raj. The word Arbitration’ appears to have originated from the word arbitrary.
The parties involved in the disputes refer them to a peer who is
supposed to be a person of nobility having capability to resolve the
disputes. Presently amendments to
the arbitration Act is pending with the Parliament and it is expected
that after the amendments, the intent of the present government is to
establish INDIA as hub for International Arbitration.
CA AS AN ARBITRATOR
A Chartered Accountant is required to
maintain a high degree of professional competence and technical
standard. He is bound by the code of conduct framed by the Institute of
Chartered Accountants of India. Section 2(2) of the Chartered
Accountants’ Act, 1949 read with Regulation 191 of the Chartered
Accountants Regulations, 1988 specifically provides that a Chartered
Accountant in his professional capacity is allowed to act as an
arbitrator.
Viewed in this perspective, the role of a
Chartered Accountant as an Arbitrator has now gained vast coverage and
hence it is necessary to study the same. The Act has specifically
recognised the objects underlying the agreements of the parties. The
whole aim is to expedite justice at an affordable cost
because the judiciary system of our country is already reeling under
unprecedented workload and mire of paperwork and procedures.
CA TO ACT AS AN EXPERT
Under Sec 26(1) of the Arbitration and
Conciliation Act, 1996 the Arbitral Tribunal may appoint expert/s to
report on any specific issue to be determined by it. It may also require
the parties to give the expert any relevant information, explanations,
or to produce or provide access to any relevant documents, goods or
other property for inspection. An expert may be examined and
cross-examined by a party on request of a party and where an arbitral
tribunal considers it necessary. A CA can help the arbitral tribunal in
the capacity of an expert in matters relating to accounts, commercial
transactions, lease transactions etc where he has sufficient domain
knowledge.
CA TO ACT AS A CONCILIATOR
Conciliation is a process by which the
conciliator endeavors to bring the disputant parties to an agreement. A
conciliator is generally an independent third party who mediates for the
disputing parties in order to bring them to a mutually acceptable
settlement. A mediator is normally taken to be a person of the
disputant’s choice. The conciliator is instrumental in drawing up the
terms of settlement in the shape of an agreement, consequent upon
comprehensive discussions with the parties to the dispute. A CA in his
day-to-day practice often
helps his clients in settling their
disputes through conciliation. CA’s can serve as professional
conciliators. With the acquisition of thorough knowledge on the process
of mediation, negotiating skills and related techniques of conciliation a
CA can act as a successful professional conciliator thereby adding to
the array of services he provides.
CA TO ACT IN OTHER CAPACITY
A Chartered Accountant can also advise
the client whether a particular case is arbitrable or not. In case of
arbitrable disputes, he can provide various services like, advising
the clients on selection of arbitrator, initiating the
arbitral proceedings, preparation of statement of claims or defence,
pleadings etc. He can help in deciding which ADR process the client
should choose. After enough experience in arbitration and other ADR
methods, he can also play an important role in solving the pending
disputes of his clients by identifying those cases that are suitable for
resolution through ADR. It will not be out of place to mention that the
field of ADR is bound to grow by leaps and bound in times to come. Nani
Palkhivala had once said “If I were appointed a dictator of this
country, in the short period between my appointment and my
assassination, I would promulgate a law making all commercial disputes
compulsorily referable to arbitration.” The Code of Civil Procedure,
1908 has been recently amended and amendment Act of 1999 has recognized
ADR as an effective tool for resolving disputes. The purpose of the
amendment is to speed up the judicial process and get over the problem
of backlog of civil cases.
PROMISING PROFESSIONAL OPPORTUNITY
There are an estimated 30 million cases
pending in various courts in the country. The criticism against the
justice delivery system is continuous when we here, ‘Back Breaking
delay’, Elusive Justice’, and ‘System on the verge of brink’.
Arbitration system is a means to provide an easy and expedient mechanism
for dispute resolution without the need of resorting to a long drawn
litigation. This is meant to be Justice without law. It is meant to be
far superior to a black letter law. Arbitration seeks to remove blockade
caused by chocking legal pollution. Arbitration started as a reform to
resolve conflict with mutual love and trust. Even late Shri Nani
Palkhiwala remarked succinctly, “If I were appointed a dictator of this
country, in the short span of my appointment and assassination, I would
promulgate a law making all commercial disputes compulsorily referable
to arbitration.”
METHODS UNDER ARBITRATION
Any dispute is normally resolved by way
of litigation in court or through Alternative Dispute Resolution [ADR]
mechanism involving four methods like negotiation, mediation,
conciliation and Arbitration. In negotiation, there are no outsiders to
resolve disputes .In mediation, there is a facilitator creating “win
win” situation but settlement is not binding. Whereas, the conciliator
authenticates settlement reached by the parties and is binding one. On
the other hand, arbitration is a quasi-judicial method outside the
court. Mediation is a procedure designed to resolve disputes through
agreement i.e. Mutual consent of the parties. The mediator is a neutral
person who facilitates discussions between the parties to reach an
agreement based upon their consent. Mediation involves the use of a
facilitator trend in conflict resolution. Arbitrator is called
“pramanpurush” in Hindi meaning by a man of substance in domestic forum.
Part I of the Act deals with domestic Arbitration, Part II deals with
International Commercial Arbitration, Part III deals with conciliation
and Part IV deals with supplementary provisions.
ADMINISTRATIVE FEE AND ARBITRATOR’S FEE
The Administrative fee (of ICA) and Arbitrator’s fee (for each
arbitrator) will be fixed separately with regard to the amount in
dispute including determined interest in each case, as under:
| Amount of Claim & Counter Claim | Arbitrator’s fee for each Arbitrator | Administrative Fee |
| Upto Rs. 5 lac (Rs.5,00,000/-) | Rs.60,000/- | Rs.45,000/- |
| From Rs.5 lac one to Rs.25 lac (Rs.5,00,001 to 2,500,000) | Rs.60,000/- plus Rs.3,000/- per lac or part thereof subject to a ceiling of Rs.1,20,000/- | Rs.45,000/- plus Rs.2,250/- per lac or part thereof subject to a ceiling of Rs.90,000/- |
| From Rs.25 lac one to Rs.1 crore
(Rs.2,500,001 to 10,000,000)
| Rs.1,20,000/- plus Rs.2,400/- per lac or part thereof subject to a ceiling of Rs.3,00,000/- | Rs.90,000/- plus Rs.1,800/- per lac or part thereof subject to a ceiling of Rs.2,25,000/- |
| From Rs.1 crore one to Rs. 5 Crore
(Rs.10,000,001 to 50,000,000)
| Rs.45,000/- per crore or part thereof subject to a ceiling of Rs.4,80,000/- | Rs.33,750/- per crore or part thereof subject to a ceiling of Rs.3,60,000/- |
| From Rs. 5 crore one to Rs.10 crore (Rs.50,000,001 to 100,000,000) | Rs.4,80,000/- plus Rs.30,000/- per crore or part thereof subject to a ceiling of Rs.6,30,000/- | Rs.3,60,000/- plus Rs.22,500/- per crore or part thereof subject to a ceiling of Rs.4,72,500/- |
| Over Rs.10 crores | Rs.6,30,000/- plus Rs.24,000/- per crore or part thereof | Rs.4,72,500/- plus Rs.18,000/- per crore or part thereof |
The arbitral tribunal shall be entitled
to allow fees and expenses of witnesses, expenses connected with the
selection and carriage of sample and examination of goods, Licensed
Measure’s Department charges, conveyance, hire, cost of legal or
technical advice or proceedings in respect of any matter arising out of
the arbitration incurred by the arbitral tribunal, and any other
incidental expenses and charges in connection with or arising out of the
reference or award as the arbitral tribunal shall, in its absolute
discretion, think fit.
The costs of the reference and the award
including charges, fees and other expenses shall be in the discretion
of the arbitral tribunal, which may direct to and by whom, and in what
proportion, such charges, fees and other expenses and any part thereof
shall be borne and paid, and may tax and settle the amount of costs to
be so paid or any part thereof and may award costs to be paid as between
solicitor and client. In the event, any administrative fees and
expenses are due to the Council, the arbitral tribunal may award them in
favour of the Council.
RELEVANT FORMS
- Application Form For Associate Membership
- Application Form For Individual Membership
- Form for Enrollment in the Panel of Arbitrator
Members interested in obtaining membership are requested to send
their email address and other contact details to ica@ficci.com post/ fax
their contact details to:
Indian Council of Arbitration
Room 112, Federation House
Tansen Marg
New Delhi 110001
Internal Phone No. 23738760-70
Email : ica@ficci.com
Room 112, Federation House
Tansen Marg
New Delhi 110001
Internal Phone No. 23738760-70
Email : ica@ficci.com
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