1.
Introduction
The
law of arbitration is not a new law in Pakistan. It was applied in British India
through various regulations promulgated by the Presidency Governments of
Bombay, Bengal and Madras. Then in 1859, it emerged in the form of an enactment
known as Act VIII of 1859. In 1899 came the Arbitration Act of 1899, which was
based on English Arbitration Act of 1899, which was applied to the Presidency
towns and to such other local areas to which the Act was made applicable by the
appropriate provincial Govt. while the
Arbitration in other parts of the country was governed by schedule II of the
code of the Civil Procedure 1908 to remove the state of inconsistency, the
present Act of 1940 has been passed and it came into force on 1st July,
1940 with object to promote settlement of disputes amicably through person, in
whom both parties have trust.
2.
Meaning of Arbitration
The
word arbitration has not been defined by the Act, so it may be defined as under
The
determination of disputes by the decision of one or more person nominated by
the parties to a dispute.
3.
Nature of Arbitration Act 1940
Arbitration
Act, 1940 is a consolidating Act and is a complete code relating to the matter
of Arbitration. The provisions of this Act follow two main acts, though with
some changes
i.
Provisions relating to arbitration without intervention of court follow the English
Act.
ii.
The remaining provisions follow the provisions of second schedule to the code
of Civil Procedure, 1908.
4.
Scope of Arbitration Act 1940
The
Act lays down the rules to be followed by the parties, arbitrators and courts
but it is not exhaustive as some of its provisions may be excluded by parties
by an express agreement between them. This act is applicable only to awards
made as result of a reference made under this Act and not to awards filed under
any other Act.
5.
No Retrospective effect
By
virtue of Section 48 of the Arbitration Act, 1940. This act has not
retrospective effect and it is inapplicable to any reference, pending at the
commencement of this Act.
6.
Condition Precedent for Arbitration
The
existence of arbitrable dispute is an essential condition for the purpose of
arbitration. If there is no dispute, there can be no right to demand
arbitration.
7. Objects and Purposes of Arbitration Act, 1940
Following
are the objects and purpose of Arbitration Act, 1940
i.
To give Expeditious Relief
One
of the object of the Act is to give expeditious relief to parties unhampered by
rules of procedure liad down in C.P.C 1908 and Evidence Act.
ii.
Not to prolong proceedings
The
arbitration has its purpose to not to prolong proceedings and to provide
speedier remedy to the parties.
iii.
To consolidate the law of Arbitration
One
of the object of the Act is to consolidate and amend the law relating to
arbitration so it may be taken as exhaustive Act of the law of Arbitration.
iv.
Enforce the Arbitration Agreement
One
of the object of the Act is to enforce the Arbitration agreement by which
parties have decided and agreed to resolve their disputes through arbitrators.
v.
To give uniformity to the law
The
object of the Act is to give uniformity in the application of the law over the
whole of the country.
vi.
To remove points of Differences Inexisting law
The
Arbitration act, 1940 has also a purpose to remove the points of differences in
the existing law under CPC 1908 judgment entered in accordance with the award
and a decree follows but under an act of 1899, an award was executable as a
decree but it was not a decree for all purposes.
vii.
To give effect the choice of parties
The
Arbitration Act, 1940 give effect to the choice of the parties as regard the
forum to which their disputes shall be taken.
viii.
To curtail litigation
The
purpose of Arbitration Act, 1940 is to curtail litigation in courts and promote
settlement of disputes amicably through persons in whom both parties have
trust.
Conclusion
To
conclude, I can say that the law favours a speedy and expeditious relief to the
parties and also favours to avoid technicalities in the disposal of justice
Arbitration Act 1940 fulfills these aims of law and provide the procedure to be
followed by the parties and courts in deciding the dispute arising out of
transaction in respect of which arbitration clause has been put in such an
agreement. Arbitration in substance outsets jurisdiction of Court accepts for
the purpose of controlling arbitrates, preventing misconduct and for regulating
procedure after award.
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