Declyn Gomes, Graduate Christ University, Bangalore. Daksha Fellow & Anushka Singh, Graduate Symbiosis Law School, Pune. Daksha Fellow
Abstract
Arbitration is a form of alternate dispute resolution. There have been many benefits to why the pendulum has been shifting from the traditional litigation to the new and upcoming alternative dispute resolution. One of the benefits of arbitration is that the party has complete autonomy. The Arbitration and Conciliation Act, 1996 has undergone changes over the years and could however, still undergo certain changes.
This paper will deal in specificity with Section 28(3) of the Act. The section in itself was a very controversial section and parties have time and again taken the stand that section 28 (3) has been used as a shield or a protective weapon for asymmetric power between two parties.
The reason that section 28 (3) of the Arbitration Act has come into scrutiny is because the idea of arbitration was to be on a horizontal platform as that of litigation. However, there is continuous interference from the Judiciary and this had negated the entire principle underlying arbitration.
Initially arbitrators or arbitral tribunals did not have the discretionary power to interpret the contractual agreement. They had to follow the letter of the contract. Upon the amendment coming into place, the tribunals now have the power to interpret the contractual agreement between the parties as well as take into consideration the intent of the parties as well as the nature of the profession.
In this paper we will examine and analyze whether there was any requirement for the law to have been amended. We will also look into the intricacies of whether the amendment would solve the issues that initially required it or whether new issues would creep up as a result of this amendment.
