Copyright Law vs. Public Court Documents

Copyright Law vs. Public Court Documents

Sources:By Peter S. Vogel
E-Commerce Times
04/11/12 5:00 AM PT 

The public court system appears to have an implied right to distribute papers filed in lawsuits, related to those suits. Probably even the opposing parties in lawsuits have the right to make copies to provide as exhibits to papers filed in response, and to share with clients and expert witnesses. The question is, do commercial businesses have the right to copy documents filed in court and share these documents for commercial gain? That question may soon be answered.

In the aftermath of the Watergate scandal in the 1970s, state and federal governments moved to become more open, and the Internet has made the achievement of transparency even easier.

Information is now available to the general public on government websites or from federal agencies in response to requests made under the Freedom of Information Act (FOIA). Many states have open records laws (like the Texas Public Information Act ) requiring a similar provision of information on the state level.

Court Filings Are Public Documents

Lawyers file documents electronically in most federal courts using a system known as PACER, and in many state courts using a variety of systems. In Texas, for example, an eFiling System was instituted by the Texas Supreme Court Judicial Committee on Information Technology (of which I was the founding Chair, and continued in that role for 12 years).

As a result, the federal and state courts (and clerks of courts) maintain electronic copies of those pleadings. Under our open government, anyone can get a copy -- if not filed under seal for confidential reasons -- for some nominal fee, or for free. Interestingly, the author of the legal filing does not control access to the filing or the distribution of copies.

How Does the Copyright Act Protect Authors of Legal Documents?

The 1976 U.S. Copyright Act predates the advent of widespread use of the Internet and social media, and Internet-based copyright infringements. In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), but most of the cases dealing with the DMCA are copyright infringements arising from YouTube, music, movies and the like.

Yet under the Copyright Act, the moment the author creates a work, it is deemed protected by copyright without any further action by the author. Unless the author assigns his or her rights to another, the author retains the copyright.

When lawyers draft pleadings and briefs, they clearly appear to be the authors under the Copyright Act. Merely filing the papers in court does not appear to deprive them of their copyright.

The public court system appears to have an implied right to distribute papers filed in lawsuits, related to those suits. Probably even the opposing parties in lawsuits have the right to make copies to provide as exhibits to papers filed in response, and to share with clients and expert witnesses.

The question is, do commercial businesses have the right to copy documents filed in court and share these documents for commercial gain? That question may soon be answered.

Class Action Lawsuit Against West and LexisNexis

Two lawyers filed a class action suit against West and LexisNexis for violating the copyrights of authors of court filings. The lawsuit filed in Federal Court in New York City on Feb. 22, 2012 by Edward White (of Oklahoma City) and Kenneth Elan (of New York) starts with a description of the case:

"This is a copyright infringement action against West and LexisNexis based upon their unabashed wholesale copying of thousands of copyright-protected works, created by, and owned by, the attorneys and law firms who authored them."

White and Elan also allege that

"West and LexisNexis have engaged in wholesale unlawful copying of attorneys' copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits...."

Is this case appropriate for a Class Action?

The first step in this lawsuit will be for the Federal Court to establish whether White and Elan can actually claim a class of plaintiffs for this case. White and Elan seek court certification of a class that includes

"...all attorneys and law firms ... that authored works ... that are contained in the Defendants searchable databases.

If the U.S. District Court certifies the class, the lawsuit can proceed.

Can West and LexisNexis Rely on Their User Contracts?

The West (owned by Thomson Reuters) Terms of Service (ToS) grants its users a license to the content of materials, but there are limits found in West's Public Records Privacy Statement that

"All data in the WestlawNext, Westlaw Classic, and CLEAR (Consolidated Lead Evaluation and Reporting) public records databases are supplied by government agencies and reputable private suppliers.

Further, West defines Public Records, Nonpublic Information, and Publicly available information, and also has a Notice of Copyright and Trademarks that states that "MATERIALS IN THIS WEBSITE ARE PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND." So in plain English, West users have no promise that West has the right to the content at all.

The LexisNexis (a division of Reed Elsevier) ToS are much like those of West. LexisNexis also has a separate Statement Regarding Copying, Downloading and Distribution Of Materials From The Lexisnexis® Services, which includes specific provisions dealing with whether the "fair use" provision of the Copyright Act may apply.

But is indexing and making copies of such works actually "fair use"? Fair use applies when a copyrighted work is used for certain noncommercial purposes, such as in a research paper or in giving a lecture at a university.

Soon after White and Elan filed their lawsuit, Don Cruse, in his Supreme Court of Texas Blog, shared a thoughtful opinion on why he does not support White and Elan's position on policy grounds, and he offered to opt out of a class action. He suggests this case probably will turn on the question of fair use.

Some Conclusions

This lawsuit, if fully adjudicated, may result in judicial or subsequent legislative redefining of public documents, at least as filed in courts.

Of course, there is a long way to go. If the court does not certify a class, each individual author will need to separately sue West and LexisNexis and other services, even if White and Elan win on their copyright infringement claims.

Company Incorporation

Procedure of Company Incorporation

Step 1: Obtain Director’s Identification No. 

Time Taken: 1 day

  Directors of an Indian company have to register and get the identification number which is called Director Identification Number or DIN. It can be obtained by filing Application form DIN-1. The provisional DIN is immediately issued. All the documents are verified by the concerned authority and thereafter a permanent DIN is issued.  The entire process takes about 4 weeks.

Step 2: Obtain Digital Signature Certificate:

Time taken:  1-6 days

  Directors are also required to get Digital Signature Certificate or DSC. Digital Signature Certificate (DSC) is required for all Directors or authorized representatives of the company and professionals who will be required to sign ROC forms or documents. This certificate can be obtained from one of six private agencies authorized by MCA such as Tata Consultancy Services. Company directors submit the prescribed application form along with proof of identity and address. Each agency has its own fee structure, ranging from INR 400 to INR 2650.

 Step 3: Registration of Company Name  

 Time to complete: 2-3 days

  The name of the company should be registered by the Registrar of Companies of the state where the registered office of the company will be located. The application should mention at least four names in order of preference. There should not be an existing company by the same name. Further, the last words in the name are required to be "Private Ltd." in the case of a private company and "Limited" in the case of a Public Company. The ROC generally informs the applicant within seven days from the date of submission of the application, about the availability of the desired name. After obtaining the name approval, it normally takes approximately two to three weeks to incorporate a company.

 Step 4: Stamping of Company Documents

Time to complete: 1 day

 Cost to complete: INR 1,300 which includes INR 200 for MOA + INR 1000 for AOA for every INR 500, 000 of share capital held by the company and also INR 100 for the stamp paper for declaration. 

 The Memorandum of Association and Articles of Association are the most important documents to be submitted to the ROC for the purpose of incorporation of a company. The Memorandum of Association is a document that states the constitution of the company, objectives, scope of activities of the company and also defines the relationship of the company with the outside world. The Articles of Association contain the rules and regulations of the company for the management of its internal affairs. These documents should be stamped and submitted to the ROC along with relevant forms and registration fee.

 Step 5: Get the Certificate of Incorporation

Time: 3 to 7 days

 The ROC scrutinizes the documents and, if necessary, instructs the authorised person to make necessary corrections. Thereafter, a Certificate of Incorporation is issued by the ROC, from which date the company comes into existence. It takes one to two weeks from the date of filing of the Memorandum of Association and Articles of Association to receive a Certificate of Incorporation. Although a private company can commence business immediately after receiving the certificate of incorporation, a public company cannot do so until it obtains a Certificate of Commencement of Business from the ROC.

TERMS USED IN KARNATAKA LAND RECORDS

 TERMS USED IN KARNATAKA LAND RECORDS

1. Adangal.—The Register showing the area, classification value and assessment of a holding with the name of its holder.

2. Diversion phody.—Cases dealing with conversion of agricultural lands for non-agricultural purpose.

3. Alluvial land.—Land formed by water's action through a
gradual process of accretion.

4. Asmanitari.—These are unregistered or dry lands on which paddy is cultivated. They have no recognised source of irrigation, public or private but are entirely dependent on the rain.

5. Atchkat Bagayat.—Means any garden below a tank, without a right to a direct supply of water therefrom, or. situated within the sphere of influence of the water spread of a tank or on the bank of a river or a halla with certain benefits to such lands by percolation. "Atchkat" implies a station in proximity to a tank or nala or stream containing water or springs for sometime at least after rains cease, so as to allow of adjecent wells, if any deriving some benefit therefrom, such wells must in short be within the sphere of influence of such irrigational sources.

6. Akarband.—A Register showing the area and rate of
assessment of holdings.

7. Abandoned River Bed.—River bed that is abandoned due to change of course of the river.

8. Amrit mahal.—The original name for the Civil veterinary department.

9. Bandharas.—Earthern bunds constructed normally temporarily across the channals for the purpose of diversion of water for irrigation of
lands.

10. Bajra.—A kind of Millet (Sajje).

11. Banjar.—Land which is lying fallow and includes land which its occupant at his own option has allowed to lie waste.

12. Batai.—Rent taken by division of crop.

13. Bigha.—A measure of area. Bigha is three fourth of an acre or 30 guntas.

14. Boundary Mark.—Means any erection, whether of earth, stone or other material and also any hedge, unploughed ridge, or vacant strip of ground, other object, whether natural or artificial set up, employed, or specified by a survey officer, or other Revenue Officer having authority in that behalf, in order to designate the boundary of any division of land.


15. Bane.—Forest land granted for the service of the holding of wet land to which it is allotted, to be held free of revenue by the Cultivator for grazing and to supply leaf manure, firewood and timber required for the agricultural and domestic purposes of the cultivator, so long as he continues in possession of the wet land. Such land was alloted by the Rajas for each warg in blocks varying from a few acres to 300 acres or more in Coorg District. These allotments were recorded in revenue accounts of Rajas' "Sists" under the name "bane". This land may not ordinarily be cultivated, and only the usufruct of the tree growth is allowed.

16. Barike.—Lowlying bane land capable of being brought under rice cultivation is known as Barike but is unassessed until brought under cultivation. Banes and Barikes were only granted in Coorg Proper.

17. Bandh Map.—The length of a boundary of a field between any two adjacent points on the boundary line.

18. Bhudki.—A bhudki is a well or pit sunk near the bed of a river or nala or halla into which water either percolates direct, or is led by means of a channel cut from the stream. It is a hollow pit excavated against the bank of stream from which water can be drawn by hand or by lift or any sort.

19. Bandhpahni,—Inspection of boundary marks.

20. Bagayat Thakta.—A statement showing the particulars of water sources and garden crops raised, prepared at the time of Classification of garden lands.

21. Bechirak.—This word literally means "unlighted or without lights", hence it has come to be associated with the word "uninhabited" when applied to a village.

22. Class of Land.—Dry, Wet, Garden and Plantation lands.

23. Classification Compartment.—The portion of land resulting from the division of a survey number into compartments for the purpose of determining its soil value. This portion or compartment is called Kasti.

24. Classification of Soil.—This is a process by which the value of any piece of land used for agriculture can be determined taking into consideration the natural fertility. This is done for fixing of assessment.

25. Classification Value.—The relative value of soils determined as a result of their classification and expressed in terms of Bhaganas. The soil of 100 per cent value is reckoned to be of 16 annas value.

26. Chakkubandi.—Schedule of boundaries.

27. Classer Register.—Classer Register is a Register showing the survey numbers, sub-divisions the tenure on which they are held, the total area and the nature of the land whether dry crop, wet or garden with the classification valuation per acre of each kind.

28. Darya.—River.

29. Dastur-Ul-Amal.—Hand Book for the guidance of Revenue Officers in carrying out the provisions of the Revenue and Settlement Rules.

30. (a) Dofasla.—Land irrigated in both Abi and Tabi (Double Crop).
(b) Doab.—Country lying between two rivers.

31. Diluvial Land.—means land washed away by the current of a river, stream etc.,

32. Devarkadus.—are sacred forests usually assigned to some particular deity or temple. The right to take firewood for temple worship, materials for constructing pandals and (with special permission) timber for repairing the temple are allowed to the temple authorities and servants, while the villagers generally have the rights to way and water, of grazing, of hunting, especially during the Keil Muhurat and Hutri festivals.

33. Dhruvapairu.—Areca, Coconut, Plantain, Pepper, Cardamom, Betal leaves, Mulbery, whether irrigated from wells or other sources.

34. Dharsod.—Margin of allowance. It also means the fractional part of the assessment left out of account in calculating the same.

35. Dharwari.—In this the survey numbers of the village are arranged in groups, according to their classification valuation. Thus under the head "Sixteen annas valuation" all numbers of that classification value are brought and their areas are added together and so with all numbers classed as 0-15-6, 0-15-0 and so on. It is an important guide to a Settlement Officer since by applying trial rates to the total area under each head of the the classification value he is enabled to work out final rates which would produce the total assessment of the whole Taluk.

36. Damasha.—A proportionate share.

37. Durasti.—Restoration or incorporation in or correction of or
insertion in survey records.

38. Ek Fasal.—Yielding one crop in each agricultural year.

39. 'F' line.—Band Map.

40. Fragment.—A holding less in extent than the standard area determined under "the Prevention of Fragmentation and Consolidation of Holdings Act, 1966".

41. Ghatti Ceremony.—A symbolical ceremony, whereby a ryot resigning his "Jama" land delivers to the Revenue Officers accepting the resignation a handful of soil (Ghatti) from the land and whereby a ryot acquiring Jama land receives "Ghatti" from the granting authority, and is required to pay a "Ghatti hana" or fee of one rupee in Coorg District.

42. Grazing rate.—An assessment of 4 annas per acre imposed upon forest land used only for grazing and allied purposes in Coorg District.

43. G-Line: Lambi.—Base Line.

44. Gomal.—Lands set apart for grazing purposes.

45. Goshwar.—An abstract or summary for the purpose of assessment of Land Revenue.
46. Gramathana.—Village site.

47. Group.—Group means all lands in the zone which in the opinion of the State Government or an officer authorised by them in this behalf or sufficiently homogeneous in respect of the factors enumerated in Section 116 of the Karnataka Land Revenue Act 1964, to admit of the application to them of the same standard rates.

48.g(a). Hitlu.—Forest land granted in connection with a wet holding, to be held free of revenue by the cultivator as a site for houses, cattle sheds and garden so long as it is not separated from the wet land.
(b) Hiduvali.—Holding.

49. Hobli.-—The normal territorial jursidiction of a Revenue Inspector variously known as Nad, Revenue Circle or Firka.

50. Hitlumanedalas and Uruguppes.—Portions of bane land
specially nlloted for dwelling places and farm yards are known as "Hittlu Manedals", while land set apart for a collective village site is termed "Uruguppe".

51. Holas or Sariges.—Assessed dry lands in Coorg District are known as Hola or Sarige.

52. Hudbust.—Fixation of boundary.

53. Hath.—A cubit measured from the elbo to the tip of the middle finger 18" or 45 cm.

54. Inamdar.—When a person's name is entered in Government records as holding Inam lands he is called the Inamdar of that land,

55. Jahagir.—An estate held free of payment to Government in the shape of Land Revenue.

56. Jama Bane.—Bane attached to Jama wet land.

57. Jama Land.—Wet land assessmed at one half the normal (sagu) rate of assessment (Coorg District).

58. Jodi.—A favourable rent or light assessment the proportion of which to the full rates varies in Coorg District. However Jodi pertaining to grants to Major religious Institutions and the allowance of the assessment was 50 per cent.

59. (a) Jama Malles.—are portions of the reserve forests on the western ghats in which the heriditary right of growing cardamoms on the indigenous system is admitted. These mallas have been separately resettlled.
(b) Wanti holas.—In the North Eastern tract inferior dry lands known as "Wantiholas" which are cultivated once in three or more years were fomerly allowed to be held free of assessment but in the summary settlement a nominal rate of three annas per acre was imposed. It is possible that the grant of these lands originally resembled the grant of banes in South Coorg and it is not worthy that in the adjoining Manjarabad portion of Mysore State dry lands known as "Vanti" were granted in former times on very easy terms as a means of the cultivation of abandoned wet lands.

60. Jama.—Land Revenue Demand.

61. Janthri.—Ready Reckoner of assessment.

62. (a) Kabja Possession, Kabjedar.—Occupant. (b) Kandaya.—Assessment (Land Revenue).

63. (a) Katcha.—Rough,
(b) Katri.—Inter section point of fields junction.

64. Khariff.—Autumn harvest.

65. (a) Khasra.—List of fields—Field Register, (b) Khalsa.—Government.

66. Khandam.—Part.

67. Karda or Khatedar.—Signifies the occupant or the eldest or principal of several joint occupants, whose name is authorisedly entered in the Government records as holding unalienated land whether in person or by his co-occupant, tenant, agent, servant or other legal representatives.

68. Kumri.—Signifies land on the mountain slopes in the Malnad on which the jungle is cut down and burnt previous to land being sown. These are cultivated only one or two years, and then allowed to lie waste, until the jungle grows up again.

70. Kuravu, Gerekadu and Hullugavalu.—In order to protect the margins of wet lands from ingression of cattle, damage by overhanging branches of trees, etc., the Rajas granted the adjoining narrow strips of highlying land, 5 to 10 metres wide, under the name of "Kuravus", free of assessment. No such grants were specified for the wargs in Coorg proper, but it is an established custom that each wet land can claim a "Gerekadu" which indicates a narrow strip of high land not more than 5 metres in breadth and adjoining wet lands. In the sampajinad below the ghats, grazing lands, known as Hullugavalus were granted by the Rajas under similar circumstances.

71. Khsetra.—The measurement sketch of a number drawn to scale.

72. Khsetra Book.—The measurement book containing such khsetras.

73. Kammi Jasti Patrike.—Statement showing the variations in extent and assessments prepared at the time of Durasti.

74. Kayam dara Takta.—A statement showing the bhaganna of a holding, the rate applicable to it and the assessment leviable on it.

75. Land Records.—Means records maintained under the provision of or for the purposes of, the Karnataka Land Revenue Act, 1964. The term includes survey records, the record of rights and the village records.

76. Lambi.—Base line.

77. Lavani Faisal Patrik.—Record of the final settlement of each survey number in the village.

78. Mafi.—Revenue Free.

79. Malguzari.—Land Revenue Demand.

80. Mauza.—Mouje—village.

81. Minjumla.—Part out of a whole.

82. (a) Misrit Shet.—is land containing more than one of the three kinds of crops, viz., dry, rice and garden.
(b) Motasthal.—Lands irrigated by Moats (Lift).

83. Mahewar.—Statement showing the monthly performance of the Surveyors.

84. Mutation.—As understood in this department is a transfer of right.

85. Mutation phodi.—Sub-division of lands as a result of transfer of right.

86. Malki.—Value of trees standing on agricultural land.

87. Nanje.—Nanje is the equivalent of vernacular expression thari.

88. Neemtana.—Inspection.

89. Nirsardi.—Water rate.

90. Pakka Book.—Field Book.

91. Patta.—Certificate of title.

92. Patwari.—Shanbhogue, Karnam or Talathi—a Village Accountant.

93. Parampoke.—means rocky portions of land void of earth, which cannot be ploughed if and on which even grass does not grow, and also'iaiid which in consequence of being with thick jungle cannot be cultivated.


94. Paradi Land.—Certain lands surrounding houses within a village site.

95. Pot.—Water course.

96. Patasthal.—Lands irrigated by flow irrigation canals, tanks etc.

97. Paisari Land.—All waste and forest lands which are declared to be the property of the Government and which have not been notified as protected forests or as forest reserved.

98. Patel.—The headman of a village.

99. Pattadar.—The registered holder of a land.

100. (a) Phot-Kharab.—Means a piece or pieces of land classed as unarable and included iri a survey number.
(b) Pherpali.—Rotation.
(c) Phahnisystem.—Measurement adopted in maintenance stage for effecting sub-divisions.

101. Punje.—The equivalent of vernacular expression Khushki.

102. Pahanisud.—A survey statement showing old and new survey numbers, names of fields, description of tenure and names of occupants.

103. Phodi.—Sub-divided fields.

104. Rabi.—Spring harvest.

105. Roznama.—Daily diary of a Surveyor.

106. Rundhi.—An offset.

107. Rujuwath Gunakar.—Calculation of area by compartments.

108. Revenue Survey.—By this it is meant the Survey of any land in any part of the state undertaken with a view to the settlement of the Land Revenue and to the recording and presentation of Rights connected therewith or for any other similar purpose.

109. Revision Survey.—Survey operations conducted at the instance of Government at any time after original survey.

110. Representative Village.—Means a village selected by the settlement officer for the purpose of holding a local enquiry.

111. Salesal.—Year to year.

112. Sanad.—A deed of grant.

113. Schadda.—Trijunction point of three villages.

114. Survey Number.—Means a portion of land of which the area and other particulars are separately entered under an indicative number in the land records.

115. Sub-division of a Survey number.—Sub-division of a survey number means a portion of a survey number of which the area and
assessment are separately entered in the land records under an indicative number subordinate to that of the Survey Number of which it is a portion.

116. Sagu Assessment.—The full or ordinary assessment of wet land-but, privileged tenures have for various reasons been so freely granted in the past that the sagu tenure only represents 43 per cent of the total holdings.

117. Saguvali.—Cultivation.

118. Shet.—All lands held by one khatedar and enclosed within a continuous line of boundary.

119. Settlement.—Means the result of the operation in a taluk or part of a taluk in order to determine the land revenue assessment.

120. Standard Rate.—Means with reference to any particular class of land in a group, the normal assessment per acre of land in that class of sixteen annas classification value.

121. Survey Mark.—A mark or object erected made employed or specified by a Survey Officer to indicate or determine or assist in determining the position or level of any point or points.

122. (a) Tabi.—Land irrigated in hot (summer). (b) Termim.—Correction.

123. Talepariges.—Water springs under which lands are cultivated by taking water.

124. Tippan.—The sketch of a number not drawn to scale but showing the measurements.

125. Tippan Book.—The book containing tippans.

126. Traverse Book.—A record prepared at the time of conducting survey by Theodolite. It gives the details of base lines on which the survey is conducted.

127. Tale Square.—Scale drawn graph paper by means of which the area of piece of land plotted to scale is computed.

128. Theodolite stone on station.—It is a survey mark fixed for the
purpose of running a traverse.

129.Urudves.—In the north eastern part of Coorg, where no banes were allotted, the system as allowed to graze their cattle in and take firewood and timber for agricultural purposes from communal lands known as "Urudves" i.e., village forests.

130. Urambals and Mandus.—Urambals and Mandus are communal village lands reserved for panchayat meetings and for dancing on festival occasions, the villagers have the right of grazing thereon.

131.Udafa.—The term Udafa means a non-contiguous survey number which cannot be found in its serial order on the map of a village.

132. Umbli Lands.—Inam lands given to persons from whom generally some service real or nominal, is expected.

133. Varga Mul.—Square roots.

134. Vasala.—The triangles and trapezia into which survey numbers
are divided for the purposes of calculation of area.

135. Vazai Vasala.—A vasala due to an offset passing outside the number and which has to be deducted in making out the area.

136. Vasulbaki.—Statement showing the full particulars of each occupants' entire holdings under the old and new systems.

137. Wahivat.—Enjoyment.

138. Wat Hukum Bagayet.—Dry land where coconuts are grown without irrigation.

139. Warg.—A holding of wet land.

140. Wargdar.—A holder of a warg.

141. Zonal.—Means a local area comprising a Taluk or group of Taluks or portion thereof of one or more districts of which in the opinion of the State Government or an officer authorised by it in this behalf is contiguous and homogeneous in respect of
(1) Physical configuration,
(2) Climate and Rainfall,
(3) Principal Crops grown in the area,
(4) Soil characteristics.

Registration of Marriages

Registration of Marriages: 

   The parties to a Hindu (Including Virashaiva, a Lingayat Buddhist, Jaina or Sikh by religion) Marriage may have the particulars relating to their marriage entered in a register and prepare and sign a memorandum in form 1 in duplicate and either deliver them in person or send them by registered post to the Registrar of the area in which the marriage took place or in which the bridegroom or the bride ordinarily reside.

   Every such memorandum shall be delivered or sent along with an application in form 1A.

   The memorandum and its duplicate shall be signed by three witnesses.

   On receipt of the memorandum and the duplicate, the Registrar shall make an endorsement in form II on the reverse and then paste the memorandum in the register which shall be in the form of a paste book consisting of blank butts serially numbered, beginning with figure 1

   On filing the memorandum along with the application and completion of registration, the Registrar shall immediately issue a certificate of registration of marriage in From IIA and communicate it either to the presenter in person or send it by post to the parties to the marriage.

ARBITRATION AGREEMENT

ARBITRATION

Arbitration is a process of dispute resolution in which a neutral third party (Herein after called the arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. It is the means by which parties to a dispute get the same settled through the intervention of a third person, but without having recourse to court of law.

WHAT IS AN ARBITRATION AGREEMENT?

1. Arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not.
2. The parties make an agreement that instead of going to the court, they shall refer the dispute to arbitration.
3. The arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Where an arbitration clause is included in a contract and the contract is avoided due to misrepresentation or fraud, the arbitration clause may still continue to be binding.
4. Where, however, there was no contract at all between the parties or contract was void ab initio, the arbitration clause cannot be enforced.
5. An arbitration agreement/clause must be in writing. Although no formal document is prescribed, however, it must be clear from the document that the parties had agreed to the settlement of dispute through arbitration.
6. Where the arbitration agreement or clause is contained in a document, the parties must sign the document. Besides, the arbitration agreement may be established by-
1. an exchange of letters, telex, telegram or other means of telecommunication; or
2. an exchange of statements of claim and defence in which the agreement is alleged by one party and is not denied by the other.

 

WHAT DISPUTES MAY BE REFERRED

 The parties to an arbitration agreement may refer to arbitration, a dispute which has arisen or which may arise between them, in respect of a defined legal relationship, whether contracted or not.

Thus, all matters of civil nature whether they relate to present or future disputes may form the subject matter of reference. The dispute, however, must be the consequence of legal relationship arising out of an obligation, the performance of which is a duty under the law and for its breach a remedy is provided.

BAR TO SUIT 

When the parties have entered into an arbitration agreement, they cannot file a suit in a court of law in respect of any matter covered by the agreement; otherwise the very purpose of arbitration will be frustrated. The court will normally not intervene except where so provided by the Act.