Control de Calidad en el Concreto - CAPÍTULO II. MARCO TEÓRICO

2. CAPÍTULO II. MARCO TEÓRICO

2.3 Control de Calidad en el Concreto

Assignment Set – 2 2

Legal

Legal aspects aspects of of Business-MB0Business-MB0051 051 Assignment Assignment Set Set 2 2 page:1 page:1 of of 88 Question 1: What are the situations which cannot be referred to

Question 1: What are the situations which cannot be referred to aarrbbiittrratatiion?on?

Arbitration law is a process that involves the assistance of one or more neutral parties Arbitration law is a process that involves the assistance of one or more neutral parties known as arbitrators. Arbitrators are charged with hearing evidence from numerous involved known as arbitrators. Arbitrators are charged with hearing evidence from numerous involved parties in a dispute, and their main duty is to issue an award deciding who gets what in order to parties in a dispute, and their main duty is to issue an award deciding who gets what in order to resolve the situation. In some instances of arbitration law, an arbitrator may also issue an opinion resolve the situation. In some instances of arbitration law, an arbitrator may also issue an opinion in conjunction with the award, which is designed to explain the award and the reasoning that led in conjunction with the award, which is designed to explain the award and the reasoning that led to it. Arbitration law and mediation law are two different processes and should not be confused.

to it. Arbitration law and mediation law are two different processes and should not be confused.

The award and the opinion are not capable of being reviewed by a court, and there is no The award and the opinion are not capable of being reviewed by a court, and there is no availability for appeal. The purpose of arbitration law is to serve as a substitution to a trial and a availability for appeal. The purpose of arbitration law is to serve as a substitution to a trial and a review of the decision by a trial court.

review of the decision by a trial court.

Subject matter of arbitration:

Any commercial matter including an action in tort if it arises out of or relates to a Any commercial matter including an action in tort if it arises out of or relates to a contract can be referred to arbitration. However, public policy would not permit matrimonial contract can be referred to arbitration. However, public policy would not permit matrimonial matters, criminal proceedings, insolvency matters anti-competition matters or commercial court matters, criminal proceedings, insolvency matters anti-competition matters or commercial court matters to be referred to arbitration. Employment contracts also cannot be referred to arbitration matters to be referred to arbitration. Employment contracts also cannot be referred to arbitration but director - company disputes are abatable (as there is no master servant relationship here)5.

but director - company disputes are abatable (as there is no master servant relationship here)5.

Generally, matters covered by statutory reliefs through statutory tribunals would be Generally, matters covered by statutory reliefs through statutory tribunals would be non-abatable.

abatable.

Arbitration is an Alternative Dispute Resolution process whereby a person chosen as an Arbitration is an Alternative Dispute Resolution process whereby a person chosen as an arbitrator settles disputes between parties. Arbitration is similar to a court trial, with several arbitrator settles disputes between parties. Arbitration is similar to a court trial, with several exceptions:

exceptions:

The arbitrator makes the decision called an "arbitr

The arbitrator makes the decision called an "arbitration award”ation award”

The arbitration does not take place in

The arbitration does not take place in a courtrooma courtroom The arbitration award is

The arbitration award is binding. With rare exceptions, there is no right tbinding. With rare exceptions, there is no right to appealo appeal Arbitration is not a matter of public record. It is

Arbitration is not a matter of public record. It is private and confidentialprivate and confidential There is no court reporter or written transcripts

There is no court reporter or written transcripts

Lawyers generally prepare their cases in an extremely limited manner Lawyers generally prepare their cases in an extremely limited manner The rules of evidence are relaxed so that the parties have a broader

The rules of evidence are relaxed so that the parties have a broader scope, more expandedscope, more expanded opportunity to tell t

opportunity to tell thheieirr stories to present their casesstories to present their cases With very few exceptions, it

With very few exceptions, it is much less expensive than legal litigationis much less expensive than legal litigation

An arbitration time frame is substantially less than that of litigation and going to trial An arbitration time frame is substantially less than that of litigation and going to trial No jury. The Arbitrator(s)

No jury. The Arbitrator(s) maintain neutrality and conflicts of interestsmaintain neutrality and conflicts of interests Generally, all paperwork and evidence presented are destroye

Generally, all paperwork and evidence presented are destroyed after the d after the ArbitrationArbitration

The arbitration and arbitration award does not have to adhere to Judicial Case precedent The arbitration and arbitration award does not have to adhere to Judicial Case precedent nor formality of traditional

nor formality of traditional court proceedingscourt proceedings

In India, Arbitration is one of the most effective and trusted proceedings in regard to In India, Arbitration is one of the most effective and trusted proceedings in regard to private dispute settlement are guided by the Arbitration & Conciliation Act, 1996.

private dispute settlement are guided by the Arbitration & Conciliation Act, 1996.

Kind of matters cannot be referred for arbitration:

As per general practice, matters involving moral questions or questions of public law cannot As per general practice, matters involving moral questions or questions of public law cannot be resolved by arbitration. For instance, the following matters

be resolved by arbitration. For instance, the following matters are not referred to are not referred to arbitration:arbitration:

Matrimonial matters Matrimonial matters

Guardianship of a minor or any other person under disabilit Guardianship of a minor or any other person under disabilityy Testamentary matters

Testamentary matters

Legal

Legal aspects aspects of of Business-MB00Business-MB0051 51 Assignment Assignment Set Set 2 2 page:2 page:2 of of 88 Insolvency, proceedings

The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927

The New York Convention of 1958 on the Recognition and Enforcement of Foreign The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral

Arbitral AwAwaardsrds

The Geneva Protocol on Arbitration Clauses of 1923 The Geneva Protocol on Arbitration Clauses of 1923

Question 2: What is the role of a Conciliator?

Conciliation:

Conciliation is a process in which the parties to a dispute, with the assistance of a neutra Conciliation is a process in which the parties to a dispute, with the assistance of a neutra third party (the conciliator), identify the disputed issues, develop options, consider alternative third party (the conciliator), identify the disputed issues, develop options, consider alternative and endeavour to reach an

and endeavour to reach an agreement.agreement.

The conciliator may have an advisory role on the content of the dispute or the outcome o The conciliator may have an advisory role on the content of the dispute or the outcome o its resolution, but not a

its resolution, but not a determinative role.determinative role.

The conciliator may advise on or determine the process of conciliation whereb The conciliator may advise on or determine the process of conciliation whereb resolution is attempted, and may make suggestions for terms of settlement, give expert advice o resolution is attempted, and may make suggestions for terms of settlement, give expert advice o likely settlement terms, and may activel

likely settlement terms, and may actively encouragy encourage the participants to reach an e the participants to reach an agreement.agreement.

In order to understand what Parliament meant by ‘Conciliation’, we have necessarily to In order to understand what Parliament meant by ‘Conciliation’, we have necessarily to refer to the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act.

refer to the functions of a ‘Conciliator’ as visualized by Part III of the 1996 Act. It is true, sectionIt is true, section 62 of the said Act deals with reference to ‘Conciliation’ by agreement of parties but sec. 8 62 of the said Act deals with reference to ‘Conciliation’ by agreement of parties but sec. 8 permits the C

permits the Courourt t ttoo refer a dispute for conciliation even where parties do not consent, providerefer a dispute for conciliation even where parties do not consent, provide the Court thinks that the case i

the Court thinks that the case iss onone fit for conciliation. This makes no difference as to the fit for conciliation. This makes no difference as to th meaning of ‘conciliation’ under sec. 89 because; it says that once a reference is made to a meaning of ‘conciliation’ under sec. 89 because; it says that once a reference is made to a

‘conciliator’, the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be gathere

‘conciliator’, the 1996 Act would apply. Thus the meaning of ‘conciliation’ as can be gathere from the 1996 Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act is, i from the 1996 Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act is, i may be noted, based on the UNCITRAL Rules for conciliation.

may be noted, based on the UNCITRAL Rules for conciliation.

Role of conciliator:

The conciliator shall assist the parties in an independent and impartial manner in thei The conciliator shall assist the parties in an independent and impartial manner in thei attempt to reach an amicable settlement of

attempt to reach an amicable settlement of their dispute.their dispute.

The conciliator shall be guided by principles of objectivity, fairness and justice, givin The conciliator shall be guided by principles of objectivity, fairness and justice, givin consideration to, among other things, the rights and obligations of the parties, the usage consideration to, among other things, the rights and obligations of the parties, the usage of the trade concerned and the circumstances surrounding the dispute, including an of the trade concerned and the circumstances surrounding the dispute, including an previous business practices between the parties.

previous business practices between the parties.

The conciliator may conduct the conciliation proceedings in such a manner as he The conciliator may conduct the conciliation proceedings in such a manner as he considers a

considers approprppropriateiate,, taking into account the circumstances of the case, the wishes thetaking into account the circumstances of the case, the wishes the

Legal

Legal aspects aspects of of Business-MB0Business-MB0051 051 Assignment Assignment Set Set 2 2 page:3 page:3 of of 88 parties may express, including any request by a party that the conciliator hear oral parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speed

statements, and the need for a speedy settlement of the dispute.y settlement of the dispute.

The conciliator may, at any stage of the conciliation proceedings, make proposals for a The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement

settlement of of tthhe dispute. Such proposals need not be in writing and need not bee dispute. Such proposals need not be in writing and need not be accompanied by a statement of

accompanied by a statement of the masons therefore.the masons therefore.

Conciliators do not:

Force parties to participate in the conciliation process.the conciliation process.

Question 3: What are the unfair trade practices under the MRTP Act?

THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES ACT, 1969 THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES ACT, 1969 -OBJECTIVES AND POLICY:

OBJECTIVES AND POLICY:

The Monopolies and Restrictive Trade Practices Commission has been constituted under The Monopolies and Restrictive Trade Practices Commission has been constituted under Section 5(1) of the MRTP Act, 1969. The Commission is empowered to enquire into Section 5(1) of the MRTP Act, 1969. The Commission is empowered to enquire into Monopolistic or Restrictive Trade Practices upon a reference from the Central Government or Monopolistic or Restrictive Trade Practices upon a reference from the Central Government or upon its own knowledge or information. The MRTP Act also provides for appointment of a upon its own knowledge or information. The MRTP Act also provides for appointment of a Director General of Investigation and Registration for making investigations for the purpose of Director General of Investigation and Registration for making investigations for the purpose of enquiries by the MRTP Commission and for maintenance of register of agreements relating to enquiries by the MRTP Commission and for maintenance of register of agreements relating to restrictive trade practices.

restrictive trade practices.

The MRTP Commission receives complaints both from registered consumer and trade The MRTP Commission receives complaints both from registered consumer and trade associations and

associations and also from individuals. Complaints regarding Realso from individuals. Complaints regarding Restrictive Trade Practices orstrictive Trade Practices or Unfair Trade Practices from an association are required to be referred to the Director General of Unfair Trade Practices from an association are required to be referred to the Director General of Investigation and Registration for conducting preliminary investigation. The Commission can Investigation and Registration for conducting preliminary investigation. The Commission can also order a preliminary investigation by the Director General of Investigation and Registration also order a preliminary investigation by the Director General of Investigation and Registration when a reference on a restrictive trade practice is

when a reference on a restrictive trade practice is received from the Central/State Government, orreceived from the Central/State Government, or when Commission's own knowledge warrants a preliminary investigation. Enquiries are when Commission's own knowledge warrants a preliminary investigation. Enquiries are instituted by the Commission after the Director General of Investigation and Registration instituted by the Commission after the Director General of Investigation and Registration completes preliminary investigation and submits an application to the Commission for an completes preliminary investigation and submits an application to the Commission for an enquiry.

enquiry.

Unfair Trade Practices:

An unfair trade practice means a trade practice, which, for the purpose of promoting any sale, use or supply An unfair trade practice means a trade practice, which, for the purpose of promoting any sale, use or supply of any goods or services, adopts unfair method, or unfair or

of any goods or services, adopts unfair method, or unfair or deceptive practice.deceptive practice.

1) False False Representation:Representation:

The practice of making any oral or

The practice of making any oral or written statement or representation which:written statement or representation which:

Falsely suggests that the goods are of a particular standard quality, quantity, grade, Falsely suggests that the goods are of a particular standard quality, quantity, grade, composition, style

composition, style oror model;model;

Falsely suggests that the services are of a parti

Falsely suggests that the services are of a particular standard, quantity or grade;cular standard, quantity or grade;

Legal

Legal aspects aspects of of Business-MB00Business-MB0051 51 Assignment Assignment Set Set 2 2 page:4 page:4 of of 88 Falsely suggests any re-built, second-hand renovated, reconditioned or old goods as new Falsely suggests any re-built, second-hand renovated, reconditioned or old goods as new goods;

goods;

Represents that the goods or services have sponsorship, approval, performance, Represents that the goods or services have sponsorship, approval, performance, characteristics, accessories

characteristics, accessories, uses or benefits , uses or benefits which they do not have;which they do not have;

Represents that the seller or the supplier has a sponsorship or approval or affiliation Represents that the seller or the supplier has a sponsorship or approval or affiliation which he does not have;

which he does not have;

Makes a false or misleading representation concerning the need for, or the usefulness of, Makes a false or misleading representation concerning the need for, or the usefulness of, any goods or

any goods or sseervrviceicess;;

Gives any warranty or guarantee of the performance, efficacy or length of life of the Gives any warranty or guarantee of the performance, efficacy or length of life of the goods, that is not

goods, that is not bbaasseedd on an adequate or proper test;on an adequate or proper test;

Makes to the public a representation in the form that purports to Makes to the public a representation in the form that purports to

be-•

• warranty or guarantee of the goods or services,warranty or guarantee of the goods or services,

•

• a promise to replace, maintain or repair a promise to replace, maintain or repair the goods until it the goods until it has achieved a specifiedhas achieved a specified result,

result,

If such representation is materially misleading or there is no reasonable prospect that If such representation is materially misleading or there is no reasonable prospect that such warranty, guarantee or promise will be fulfill

such warranty, guarantee or promise will be fulfilleded

Materially misleads about the prices at which such goods or services are available in the Materially misleads about the prices at which such goods or services are available in the market; or

market; or

Gives false or misleading facts disparaging the goods, services or trade of

Gives false or misleading facts disparaging the goods, services or trade of another person.another person.

2) False False Offer Of Offer Of Bargain PBargain Pricerice::

Where an advertisement is published in a newspaper or otherwise, whereby goods o Where an advertisement is published in a newspaper or otherwise, whereby goods o services are offered at a bargain price when in fact there is no intention that the same may b services are offered at a bargain price when in fact there is no intention that the same may b offered at that price, for a reasonable period or reasonable quantity, it shall amount to a

the price stated in the advertisement in such manner as suggests that it is lesser than the the price stated in the advertisement in such manner as suggests that it is lesser than the ordinary price, or

ordinary price, or

The price which any person coming across the advertisement would believe to be better The price which any person coming across the advertisement would believe to be better than the price at

than the price at whwhicichh such goods are ordinarily sold.such goods are ordinarily sold.

3) Free Gifts Free Gifts Offer And Offer And Prize Prize SchemeScheme::

The unfair trade practices under this category are:

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