July 31, 2016

In order to commence an Arbitration proceeding, primarily, there shall be an Arbitration Agreement.Secondly, either of the party to the agreement shall invoke the provisions of the Arbitration Agreement. However, there are certain circumstances under which the Arbitration Agreement cannot be invoked. They are;
  • Where the obligations under a contract are fully performed and discharged, the performance is acknowledged by full and final discharge voucher/receipt, nothing survives in regard to such discharged contracts.
  • Where the parties to the contract by mutual agreement, accept the performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations.
  • Where the parties to the contract by mutual consent absolve each other from performance of their respective obligation and consequently cancel the agreement and confirm that there are no outstanding claims or disputes.
  • A contract may be non est in the sense that, it never came legally into existence or it was void ab initio.
  • Though the Arbitration Agreement legally executed, the parties may put an end to it as if it had never existed and substituted a new contract for it, solely governing their rights and liabilities. In such an event as the original Arbitration Agreement is extinguished by the substituted one and the arbitration clause of the original agreement perishes with it.
If the Parties to a dispute wants to invoke the Arbitration Clause as a onetime measure, the arbitration clause can be recast making it clear that, the remedy of the arbitration can be taken recourse to only once at the conclusion of the work under the agreement or at the cancellation of the Arbitration Agreement and at the time expressly saving in claims from becoming stale or time barred for the reason alone being rendered non-arbitral.

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