PROFESSIONAL PRACTICES & ETHICS

UNIT -4
LEGAL ASPECTS

BY
JD
 ARBITRATION

• Method of resolving the disputes

outside the court
• Arbitration is a system whereby a
disinterested neutral person or panel
of three hears the evidence and
arguments of both sides in a dispute
and then makes a decision.
• Unlike litigation, arbitration is private
and confidential and arbitral awards
are not published.
• It’s an old established practice in
every civilized society (village
panchayat system)
DIFFERENCE BETWEEN ARBITRATION AND LITIGATION
 ARBITRATION AGREEMENT

• An arbitration agreement is a written contract in which

two or more parties agree to settle a dispute outside of
court.
• Arbitration agreement is ordinarily a clause in a
contract document.
• The dispute written on the agreement may be about
the performance of a specific contract, a claim of unfair
or illegal treatment in the workplace, a faulty product,
among other various issues.
• The Arbitration and Conciliation Act 1996 is an Act that
regulates domestic arbitration in India
 ARBITRATION BINDING

• Binding arbitration involves the submission of a dispute to a

neutral party who hears the case and makes a decision.
• Appeal is not possible in future if arbitration is binded .
• Arbitration takes the place of a trial before a judge or jury
(Arbitrator).
• Additionally, the grounds for appealing or setting aside the
arbitration decision are very limited and many times may not
be available at all.
• If a person signs a contract that has a mandatory, binding
arbitration agreement, he or she gives up the right to go to
court.
 ARBITRATION TRIBUNAL

• An arbitral tribunal is a panel of one or more

adjudicators to resolve a dispute by way of
arbitration.
• It consist of a sole arbitrator,or two or more
arbitrators which might include either a chairman or
an umpire.
• Ideal composition of an architectural tribunal should
include atleast one economist, particularly in cases
that involve questions of asset or damages
valuation.
 ARBITRATOR FEES STRUCTURE
• The fees of the Arbitrator and expenses of arbitration shall
be borne equally by the parties unless the Sole Arbitrator
otherwise directs in his award with reasons
• The lump sum fees of the Arbitrator shall be Rs. 40,000/-
per case for transportation Contracts.
• If the sole Arbitrator completes award within 5 months of
accepting his appointment, he shall be paid Rs. 10,000/-
additionally as bonus.
• Reasonable actual expenses for stenographer, etc. will be
reimbursed.
• Fees shall be paid stage wise i.e. 25% on acceptance, 25%
on completion of pleadings/documentation, 25% on
completion of arguments and balance on receipt of award
by the parties
 ARBITRATOR PROCEEDINGS
1)FILLING AND INITIATION FOR ARBITRATION
• An arbitration case begins when one party submits a Demand for Arbitration to the COA.
• The other party (the respondent) is notified by the COA and a deadline is set for response.
2)ARBITRATOR SELECTION .
• The COA works with the parties to identify and select an arbitration based on the criteria
determined by the parties.
3)PRELIMINARY HEARING
• The arbitrator conducts a preliminary hearing with the parties, to discuss the issues in the
case and procedural matters, such as witnesses, depositions, sharing information, and other
matters.
4)INFORMATION EXCHANGE AND PREPARATION
• The parties then prepare for presentations and exchange information.
5)HEARING
• At the hearing, both parties may present testimony and evidence to the arbitrator.
• Unless the case is very complex, this is usually the only hearing before the arbitrator.
6)POST HEARING SUBMISSION
• After the hearing, both parties may present additional documentation, as allowed by the
arbitrator.
7)THE ARBITRATION AWARD
• Finally, the arbitrator closes the record on the case and issues a decision, including an award
 ARBITRATOR AWARD

• It refers to a decision made by the arbitrator in

an arbitration proceedings
• Its similar to a judgment in a court of law.
• Award is of a non-monetary nature where all
of the claimant's claims fail and thus no
money needs to be paid by either party
 ROLE OF PROJECT ARCHITECT & EXCEPTED MATTERS

• Clause no 5 (ARCHITECTS INTERPRETATION) – Drawings furnished to the

contractor by the project architect, the decision of project architect or his
interpretation of his drawings will be final (discrepancies occurred may be
related to scale of drawing, dimension or certain finishes)
• Clause no 9 (ARCHITECTS INSTRUCTION) – Architect is empowered to
issue instructions to contractors from time to time, If the instruction is
given orally or on telephone, that has to be confirmed in written format.
• Clause no 19 (ARCHITECTS FIELD ORGANIZATION & EQUIPMENT) – If
there is a dispute about the manner of doing any work or provision of any
equipment or tools for a particular job, the decision of architect is final
• Clause no 25 (ASSIGNMENT & SUBLETTING) – This clause states that the
contractor will seek architects permission to either assign or sublet a part
of the work, architects will not un reasonably with hold such a permission,
but if he refuses to give such a permission, his decision his final, contractor
will be obliged to carry out that particular work himself, or find another
agency acceptable to project architect
• Clause no 26 (SUB CONTRACTORS) – Main contractor is responsible
for coordination of work of all sub contractors who are involved in
the project with the knowledge and consent of the project
architect,
-- Under certain circumstances the project architect can advise
owner to issue direct payments to sub contract and deduct the
same from main contractor bills.
-- Providing facilities like water, electricity, scaffolding, sanitary
facilities, workers storage facilities at the site my main contractor to
all subcontractor, given by the project architect is the final .
• Clause no 36 (MATERIALS & WORKANSHIP) -- Regarding the quality
of material, workmanship of various parts of building relating to
defective Work, level, color shades etc given by the architect is final.
• Clause no 40 (EXTENSION OF TIME TO CONTRACTOR) -- There are
10 grounds on which the contractor, request extension of time
-- Out of ten, five grounds are such that architects decision is the
final,
-- Remaining five grounds are follows:
 a) FORCE MAJEURE
• particular superior force prevents the contractor from fulfilling his duty
• for ex, extraordinary occurrence which could have been foreseen & which
couldn’t have been guarded against like natural disasters storm,
earthquake, big tide etc

b) EXCEPTIONALLY INCLEMENT WEATHER

• If the disruption caused by weather is on an unprecedented scale then
only it is termed as exceptional.
• same applies to heat waves or snowfall etc

c) CIVIL COMMOTION, STRIKES ETC

• Transport workers strike, railway strike, construction workers strike,
political, social violent disturbances can paralyze the entire construction
industry
• In above such cases request for extension of time is valid -but if there are
strikes which do not affect construction activity, there cannot be ground
for granting extension of time
d) DELAY ON THE PART OF NOMINATED SUB CONTRACTOR OR
NOMINATED SUPPLIER
• Claiming of extension of time may be due to the delay by either sub
contractor or supplier, same may be decided by the project
architect.
• At times delay on part of sub contractor or supplier may not affect
the progress of certain types of work, In such case project architect
would be justified if he refuses extension of time.

e) DELAY ON ACCOUNT OF ARTISTS AND TRADESMEN ENGAGED BY

THE OWNER
• Specialized works like signage, murals, display signs, sculptural
panels, decorative metal work etc the owner employs the
renowned artists or specialized tradesmen and agencies.
• Delay caused by such agencies may not affect the work of main
contractor, even if it does, to what extent the contractor should get
extension of time will finally depend upon the project architects
judgment
 EASEMENT
• Easements are a right given to another person or entity to
trespass upon or use land owned by somebody else.
• Easements are used for roads, for example, or given to utility
companies for the right to bury cables or access utility lines.
• Landlocked homeowners sometimes pay for an easement to
cross the land of another to reach their home.
• The payment can be made once, annually, or at any agreed-upon
schedule. Easements can also expire after a certain time period.
• The land on which the beneficial enjoyment is created is called
as dominant heritage and its owner is called dominant owner
• The land on which the easement is created is called as servient
heritage and the owner is called as servient owner.
• The word beneficial enjoyment refers to water supply, drainage
lines, electrical cables etc
 TYPES OF EASEMENT
1 - CONTINUOUS EASEMENT
• Continuous easements are those kind of easements that can be
enjoyed without a purposeful or deliberate act by an individual who
claims it.
• Continuous easements include easements for sewer pipes, drains,
light and air, or lateral support of a wall.
2 - DIS CONTINUOUS EASEMENT
• A discontinuous easement is one that needs the act of man for its
enjoyment.
• If A walks in B property is taken for enjoyment of easement right, but
his walking may not be a continuous process, it happens few times a
day
•If A builds a pucca road through property B , it becomes a continuous
easement.
3 - APPARENT EASEMENT

• An apparent easement is an easement that is self- continuing and

independent of human intervention. It means an easement which
can be enjoyed without an act on the part of the person entitled
thereto.
• Eg) Discharge of rain water.

4 – PERMANENT EASEMENT

•It is an easement which can be enjoyed by the dominant owner

permanently and without interruption caused by the servient owner.
•For ex, easement of light and air is enjoyed as long as the wall is built
by the servient owner
 EASEMENT OF RIGHT OF WAY

• Right to pass through someone’s property is acquired either

by express grand or through prescription
• When a person uses a portion of land without the knowledge
and consent of its owner such as pedestrian pathway or for
plying any vehicle for a period of 20 years without even once
being prevented from doing so, then the person acquires an
easement of right of way by prescription.
• Servient owner is obliged to keep that portion of land free for
movement of dominant owner’s vehicles.
• At times, servient owner may b erequired to pay financial
compensation or make other kind to extinguish the easement.
 EASEMENT OF LIGHT AND AIR

• Every owner is entitled to receive light and air for his building
which could come to his land in natural way.
• Each owner has to built his building in a manner which will
ensure light and air from his own property.
• Right to acquire light and air from the neighbouring land is a
prescriptive easement.
• If owner A constructs building touching his boundry and
receives light and air from neighbouring B property for period
of 20 years, he acquires the easement of light and air.
 EASEMENT IN A JOINT PROPERTY
• If a land belongs to two or more owners all have the same
rights and privilege of ownership and enjoyment of the
property, hence no single owner can claim any exclusive
easement.
PROJECTION OF EAVES
• If the eaves of roof of one owner projects over the land of
another for a continuous period for 20 years, it amounts to a
prescriptive easement
PARTY WALL
• A wall standing between the two houses which is their
common boundry is known as party wall
• Neither the owner cannot provide any opening in the party
wall without the permission of the other
 COPY RIGHT AND PATENTING

Architectural copyright means the right to use architectural

drawings,sketches,etc for publication,for building, for profit.
• All matters connected to copyright is governed by the copyright act 1957.
• The meaning of copyright is the exclusive right to reproduce the work in
any material to publish the work for profit or gain.
• It defines the first owner of copyright, it says that in case the author of the
design is employed or is to working as an apprentice his employer shall be
the first owner of the copyright.
• Period of the copyright is restricted to 50 years from the death of its
author.
• This section provides that no person unless he is authorized in writing by
the owner of copyright can publish any architectural drawings,photographs
and model of any building designed by the architect however drawings and
photographs printed and published as a part of architectural criticism are
excluded.