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BY: ISAAC, OKORONKWO . C. HEM/1137 ABSTRACT This paper seeks to look into the issues concerning arbitration agreement under the Arbitration and Conciliation Act (ACA). It identifies the categories, forms, parties and highlights of the arbitration agreement. It also examines the enforcement of an arbitration agreement. This paper reveals that arbitration is a major attraction as being the most flexible way of settling dispute. Thus, it was suggested that arbitration agreement is a vital component of an arbitration proceedings. 1. 0INTRODUCTION

Arbitration has continued to maintain the lead as the preferred mechanism for resolution of domestic and international business disputes in the Nigerian legal system. An arbitration agreement means a voluntary agreement to submit to arbitration present or future disputes, “whether contractual or not”. It is clear; therefore, that a claim in tort or fraud may be the subject matter of an arbitration agreement (Udechukwu, 2008). An arbitration agreement can be included in the original or be in the form of a separate agreement, either at the time of the contract or subsequently.

Therefore, even in the absence of an original integrated arbitration clause the parties can still decide to settle a presently existing dispute by arbitration. The arbitration agreement is the document, which is normally in writing containing details about the reference of the disputes for resolution by the arbitrators. It is an agreement on paper containing information signed by the parties; containing and providing records of the arbitration agreement (Oyegbile, 2000). It is a very important document guiding the entire process of arbitration.

It also includes any reference in a contract to a document containing an arbitration clause which constitutes an arbitration agreement if such contract is in writing and the reference is such as to make that clause part of the contract. Unless a contrary intention is expressed in the arbitration agreement, it shall be irrevocable except:- i. By agreement of the parties ii. By leave of the court or a Judge iii. Even, the occurrence of death of either of the parties does not automatically revoke the arbitration agreement.

Rather, it shall be enforceable by or against the personal representatives of the deceased. In the past, arbitration agreement could be in oral but the present arbitration act only recognized written agreement to arbitrate. The implication of this is that only written agreements are enforceable by the courts or Judge. 1. 1AIM AND OBJECTIVES The aim of this work is to provide information on arbitration agreement under the Arbitration and Conciliation Act (ACA) CAP A18 2004.

To achieve the above aim, the specific objectives are to: * Identify the categories of arbitration agreement * Examine the enforcement of the arbitration agreement * Identify parties to the arbitration agreements * Identify the major highlight of Arbitration and Conciliation Act (ACA). 2. 0LITERATURE REVIEW 2. 1CATEGORIES OF ARBITRATION AGREEMENTS There are two basic types of agreement: [1] the arbitration clause and [2] the submission agreement.

An arbitration clause looks to the future, whereas a submission agreement looks to the past. The first, which is most common, is usually contained in the principal agreement between the parties and is an agreement to submit future disputes to arbitration. The second is an agreement to submit existing disputes to arbitration. Arbitration clauses are usually short, whilst submission agreements are usually long. This is not because of any particular legal requirement. It is simply a reflection of the practicalities of the situation.

An arbitration clause that deals with disputes which may arise in the future does not usually go into much detail, since it is not known what kind of disputes will arise and how they should best be handled. Indeed, although the parties to a contract may agree to an arbitration clause, they hope that there will be no need to invoke it. Usually they insert a short model clause, recommended by an arbitral institution, as a formality. By contrast, a submission agreement deals with a dispute that has in fact already arisen; and so it can be tailored to fit precisely the circumstances of the case.

In addition to indicating the place of arbitration and the substantive law, it generally names the arbitrators, sets out the matters in dispute and even, if thought appropriate, provides for exchange of written submissions and other procedure matters. 2. 2ENFORCEMENT OF THE ARBITRATION AGREEMENTS Nigerian Courts have adopted a positive approach to the enforcement of arbitration agreements. A review of the decided cases shows a general recognition by Nigerian Courts of arbitration as a good and valid alternative dispute resolution mechanism. In C. N.

ONUSELOGU ENT. LTD. V. AFRIBANK (NIG. ) LTD, the Court held that arbitral proceedings are a recognised means of resolving disputes and should not be taken lightly by both counsel and parties. However, there must be an agreement to arbitrate, which is a voluntary submission to arbitration. Where there is an arbitration clause in a contract that is the subject matter of Court proceedings and a party to the Court proceedings promptly raises the issue of an arbitration clause, the Courts will order a stay of proceedings and refer the parties to arbitration.

SECTIONS 6(3) and 21 of the Lagos State Arbitration Law 2009, which “empowers the Court to grant interim orders or reliefs to preserve the res or rights of parties pending arbitration. ” Although the ACA in section 13 gives the arbitral tribunal power to make interim orders of preservation before or during arbitral proceedings, it does not expressly confer the power of preservative orders on the Court and Section 34 of the ACA limits the Courts’ power of intervention in arbitration to the express provisions of the ACA.

The usefulness of section 6(3) of the Lagos State Arbitration Law 2009 is seen when there is an urgent need for interim preservative orders and the arbitral tribunal is yet to be constituted. In this regard, such applications find no direct backing under the ACA and have always been brought under the Rules of Court and under the Court’s inherent jurisdiction to grant interim orders. However, in AFRIBANK NIGERIA PLC V HACO, the Court granted interim relief and directed the parties to arbitrate under the provisions of ACA.

Upon the publication of the award the parties returned to the Court for its enforcement as judgment of the Court. The Courts in Nigeria are often inclined to uphold the provisions of Sections 4 and 5 of the ACA provided the necessary conditions are met. A live case in point is the case of MINAJ SYSTEMS LTD. V. GLOBAL PLUS COMMUNICATION SYSTEMS LTD. & 5 ORS, in this case, the Claimant instituted a Court action in breach of the arbitration agreement in the main contract and on the Defendant’s application, the Court granted an order staying proceedings in the interim for 30 days pending arbitration.

In NIGER PROGRESS LTD. V. N. E. I. CORP. , the Supreme Court followed section 5 of the ACA which gives the Court the jurisdiction to stay proceedings where there is an arbitration agreement. In the owners of the MV LUPEX V. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD, the Supreme Court held that it was an abuse of the Court process for the respondent to institute a fresh suit in Nigeria against the appellant for the same dispute during the pendency of the arbitration proceedings in London. In AKPAJI V.

UDEMBA, the Court held that where a defendant fails to raise the issue of an arbitration clause and rely on same at the early stage of the proceeding but takes positive steps in the action, he would be deemed to have waived his right under the arbitration clause. 2. 3THE PARTIES TO AN ARBITRATION AGREEMENT The parties to a contract must have legal capacity to enter into that contract, otherwise it is invalid. The position is no different if the contract in question happens to be an arbitration agreement.

The general rule is that any natural or legal person who has the capacity to enter into a valid contract has the capacity to enter into an arbitration agreement. Accordingly, the parties to such agreements include individuals, as well as partnerships, corporations, states and state agencies. If an arbitration agreement is entered into by a party who does not have the capacity to do so, (the law where applicable) may be invoked either at the beginning or at the end of the arbitral process. If it is invoked at the eginning of the process, the party requesting for it would ask the competent court to stop the arbitration, on the basis that the arbitration agreement is null and void. Where the validity of the arbitration agreement is raised at the end of the arbitration process, the requesting party would ask that the competent court to refuse the recognition and enforcement of such an award, on the grounds that one of the parties to the arbitration agreement is “under some incapacity” under the applicable law. 3. 0MAJOR HIGHLIGHTS OF THE ARBITRATION ACT a) The Arbitration Clause: The Arbitration and Conciliation Act (“ACA”) CAP.

A18 2004 mandates that all arbitration agreements must be in writing and signed by the parties, in an exchange of letters, telex, telegram or other means of communication; or point of claim or defence. In Nigeria, arbitration clauses are irrevocable except by the leave of court or mutual agreement of parties. Even where parties had no prior agreement, with a submission agreement, parties may still submit to arbitration; b) Subject-matter Arbitrability: The “ACA” does not stipulate any particular subject matter that may not be referred to arbitration.

The question of whether or not a dispute is arbitrable has therefore been left at the discretion of the Courts. In ARAB REPUBLIC V. OGUNWALE(2002) 9 NWLR (PART 771) 127,the Court of Appeal held that the test for determining whether a dispute is arbitrable or not is that the dispute or difference must necessarily arise from the clause contained in the agreement. However not all disputes are necessarily arbitrable c) Binding Nature: The “ACA5” provides that every arbitration award in Nigeria shall be binding on the parties.

This is to preclude a recalcitrant party from preventing a successful party from enjoying the fruits of his judgment. d) Number of Arbitrators: In Nigeria, the number of arbitrators is either one or three. The parties to an arbitration agreement may determine their preferred numbers of arbitrators to be appointed under the agreement, but where no such determination is made, the number of arbitrators shall be deemed to be three. e) Challenge of an arbitrator: Parties may determine the procedure to be followed in challenging an arbitrator. Where no such procedure is determined a party who intends to challenge an arbitrator shall, within ifteen days of becoming aware of the constitution of the arbitral Tribunal or becoming aware of any of the grounds, send to the arbitral Tribunal a written statement of the reasons for the challenge. f) Preservative Orders: The provisions of the ACA cloths the members of a Tribunal with the requisite powers to grant preservative orders during an arbitration reference. These orders however do not include granting injunctions etc. The Act provides that in such circumstance, the Tribunal can remit that portion of the reference to a proper court for the grant of such injunctive relief. ) Language to be used in Arbitral proceedings: In Nigeria, the parties may, by agreement determine the language or languages to be used in the arbitral proceedings. But where they do not do so, the arbitral Tribunal shall determine the language to be used bearing in mind the relevant circumstances of the case. h) Legal Representation: In Nigeria, the parties to an arbitral proceeding may appear for themselves or be represented or assisted by a legal practitioner of their choice. i) The Award: An Award may be interim, interlocutory, or final. Any award made in Nigeria must adhere to the following: * It must be in writing; It must be signed by all the arbitrators (if they are more than one); * It must be delivered with a reason (except where parties agree otherwise); * The place where the Award was made must be stated on the award. j) The enforcement of an Award: An arbitral award shall, irrespective of the country in which it is made, be recognised as binding on the parties. This is made possible by the Foreign Judgments (Reciprocal Enforcements) Act, Cap 152, Laws of the Federation of Nigeria 2004, which makes foreign arbitral awards registerable in Nigerian Courts if at the date of registration it could be enforced by execution in Nigeria. . 1THE DOCTRINE “SEPARABILITY” It is also known as the doctrine or principle of autonomy or independence of the arbitration clause. Separability means the arbitrability clause in a contract is considered to be separate from the main contract of which it forms part and as such, survives the termination of that contract. It noteworthy to mention that arbitration agreement can be in form of an arbitration clause in a contract or in a separate agreement addressing disputes that have already arisen.

The doctrine of separability is most relevant to arbitration clause in a contract an underlying contract. At the outset it must be recognised that this doctrine is inextricably linked with the doctrine of kompetence-kompetence which empowers the arbitrator to decide his own jurisdiction in the first instance. While kompetence-kompetence empowers the arbitration tribunal to decide on its own jurisdiction, the doctrine of separability affects the outcome of this decision.

The doctrine of separability is provided for under Section 12(2) of ACA: For purposes of subsection (1) of this section, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract and a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the validity of the arbitration clause. For arbitral tribunals whose seat is in Nigeria (including under domestic arbitration) the source of this doctrine is article 12(2) of ACA quoted above which is a mandatory provision.

Parties cannot therefore as a matter of contract, derogate from this provision and agree otherwise. Finally, separability thus ensures that if, for example one party claims that there has been a total breach of contract by the other, the contract is not destroyed for all purposes. Instead: “It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract. ” 4. 0DATA AND METHOD

In bid to gather information for this study, the secondary source of data collection was utilized, which includes – journals, textbooks and other relevant document from the internet (web sites and e-library). 5. 0CONCLUSION The importance of the arbitration agreement is imperative and vital to the success of an arbitration proceeding. The arbitration agreement represents the wishes of the parties to submit future dispute to arbitration while submission clause attends to disputes that have already arisen. REFERENCES ACA. (2004). Arbitration and Concilation Act CAP A8, Laws of the Federation of Nigeria (LFN) .

Nigeria. National Open University. (n. d. ). Alternative Disput Resolution II. Retrieved 02 23, 2013, from www. noun. edu. ng Oyegbile, S. O. (2000). An Introduction to Arbitration and Conciliation. Minna: Jameson Graphic Publishers. Tolulope, A. (2012). Arbitration in the Emerging Markets. The International Charmber of Commerce Clyde & Co. Conference (pp. 2-4). London: Aron. Udechukwu, C. E. (2008). Professional Practice for Real Estate Professionals. Lagos: Treem Nigeria Limited. Wikipedia. (2013). Web Encylopedia. Retrieved 02 14, 2013, from www. wikipedia. com: http://www. wikipedia. com

The Jamaican Constitution (hereinafter “the Constitution”) came into effect with the Jamaica Independence Act of 1962. The Act was tabled to ‘make provision for and in connection with, the attainment by Jamaica of fully responsible status within the Commonwealth. ’ This document formed the framework for Jamaica’s political independence and created the premise on which this fledgling nation could carve out its own legal system based on its own moral, cultural and political experience.

The Constitution though largely reflective of the previous colonial relationship, has within it an innate balance of power between the arms of government that is theoretically and fundamentally positioned to support the country’s self-governance. This balance is so designed, to facilitate the critical functions of government while ensuring that no single body so fully controls the reins of power that it’s will can be imposed without the acquiescence of the other parties, and the greater society.

This balance is grounded in the principle of the Separation of Powers, implied by the Constitution. With the complex interplay of relationships, and the significance of power within the Executive, the Legislature and the Judiciary, the latter emerges as the keepers of the gate in maintaining this equilibrium through its function as the arbiters of justice. The Doctrine of the Separation of Powers was first proposed by the Greek philosopher Aristotle (384-322BC), and made popular in the 17th century by French writer Charles Louis de Montesquieu.

Montesquieu argued that for an independent judiciary to exist, the three arms of government must have separate and independent powers within their areas of responsibility, otherwise we run the risk of there being no liberty, arbitrary control, violence and oppression. This principle may be applied to varying degrees in any legal system and may or may not be a legal restriction; however it is a very effective tool used to protect the rights and liberties of citizens from tyranny.

The Constitution by virtue of Section 34, establishes Parliament (the Legislature) as the first arm of government and comprises the Queen (represented by the Governor General) and two Houses: the Senate and the House of Representatives. Under Sections 48 –50, it is given power to make laws for the peace, order and good governance of Jamaica, decide special rights, immunities and powers of the Senate, the House of Representatives and its members; and the conditional power to alter the Constitution.

By virtue of Section 68, the Governor General is given Executive power to be used on the Queen’s behalf either directly or through officers under him. Section 69 establishes the Cabinet as the main body to direct policy. The Cabinet, consisting of the Prime Minister and other Ministers chosen by him, manages the general administrative functions of the Government and is accountable to Parliament. The Governor General together with the Cabinet comprises the Executive arm of Government, the second arm of government.

The Judiciary is the third arm of Government. It comprises judges and magistrates from the network of courts that form the legal system. Sections 97 and 103 of the Constitution establish the Supreme Court and the Court of Appeal, respectively. The Chief Justice and the President of the Court of Appeal are appointed by the Governor General on the advice of the Prime Minister in consultation with the Leader of the Opposition.

The other Puisne Judges are appointed by the Governor General on the advice the Judicial Services Commission. It is important to note that there is some degree of inter-connectivity between the Executive and the Legislature, as members of the Cabinet are also members of Parliament. The sharing of personnel between these two bodies compromises the strict application of the doctrine of the separation of powers. It is therefore imperative that the Judiciary executes its functions in an independent manner.

The Constitution supports the assertion that the Judiciary has not only the right, but the responsibility to review the affairs and policies of the Executive and Legislature to ensure that their powers are being exercised within the limits of the Constitution. In exercising this duty, a court can declare a law unconstitutional and therefore null and void as in the case of Adrian Nation, Kereen Wright v DPP and the Attorney General of Jamaica. In Moses Hinds v. The Queen it was underscored that the fair and effective dministration of justice constitutionally rests only within the powers of the Judiciary and in Independent Jamaica Council for Human Rights Ltd. and Others v. Marshall-Burnett and the Attorney General of Jamaica, the Privy Council overruled the judgment of the Jamaican Appellate Court in finding that the three Bills attempting to remove the Privy Council as the final appellate court were unconstitutional. This decision was based on their previous ruling in Hinds.

As demonstrated in other Commonwealth jurisdictions, the Judiciary may indirectly place pressure on the Legislature to ensure that laws are drafted intra vires, in the first instance. In attempting to avoid ultra vires rulings, the Legislative often times “…tests its own legislation in the courts. This occurred in Suratt et al v Attorney General of Trinidad and Tobago wherein the Trinidad and Tobago Government defended an action on the grounds that a Bill seeking to promote equality was unconstitutional by virtue of its being discriminatory. This challenge to legislation is another example of the check and balance of the Separation of Powers. The Judiciary is thus required to rule on complex issues that have direct implications for the members and institutions within society, including the other arms of government; with impartiality and in accordance with the Rule of Law. The rule of law as proposed by A. V. Dicey asserts that no man should be punished except for conduct in clear breach of the law. This assertion supports the fact that the legal system rests on the objectivity of the Judiciary.

Where we are governed under a system which rests upon the impartial application of laws, and under which citizens’ rights and obligations are regulated by those laws, there must be an established and accepted system for making law. The law must be publicly known. Interference with rights and obligations must be justified within the law as the perception of rights, freedoms and equality in society is influenced by the quality of Judicial rulings. In the spirit of Judicial Independence, the Judiciary must be impartial and may not be influenced by any source except the law.

Within the Constitution, security of tenure and security of salary are entrenched provisions designed to insulate the Judiciary from pressure intended to influence their rulings. Judicial Impartiality is defined as ‘the freedom of each individual judge to reach a decision within the law without undue interference or pressure from government, other judges, the media or any other source. ’ While attempts to directly interfere with the fair and effective administration of justice may be limited, it can be argued that several factors undoubtedly affect the court’s ability to properly execute its role.

Particularly within the Jamaican context, financial constraints arising out of cost-cutting measures of Parliament and limitations in Ministerial budgets have severely affected the resources and physical infrastructure required for the efficient operations of the machinery of the Judiciary. In recent times, influential voices in the Jamaican legal fraternity have highlighted the need to address the issue of limited resources. The Director of Public Prosecutions, Paula Llewellyn have stated that “the country is struggling with a low capacity court situation and that is affecting how the wheels of justice turn….. ou should have been building more courtrooms and making sure you have more personnel, court reporters, prosecutors, resident magistrates…. and that was not being done. ” The Judiciary also provides guidance to the citizens and other branches of government on matters relating to the Constitution, through statutory interpretation and application of general principles of law while settling disputes brought before them. Their ability to be fair and impartial is particularly challenged when called upon to interpret and rule on legal documents that are poorly drafted or ambiguous.

Although the law lends itself to flexibility and expediency, the question arises in some instances whether the ruling accurately represents the will of the Legislative as some appeals have been advanced on the grounds of statutory misinterpretation as in the case of R v East Berkshire Help Authority ex parte Walsh. Judges may find themselves inadvertently assuming the role of creating legal rights when required to make plain issues not explicitly addressed by legislation.

It has been debated that these so-called ‘created laws’ are not in fact created but are legal principles which lay dormant until judges’ interpretations unearth them. This was the position taken by Brett, M. R, in Munster v Lamb. However, the perception is that this ‘power’ does indeed exist as, in plural societies right and wrong are just as plural and judges must ensure that conclusions sufficiently represent a  fair carriage of justice. If the Judiciary were acting solely as the mouth piece of the Legislature and the Executive with no independent thought or justice-driven compass, this arm of government would hardly be relevant.

In Earl Pratt and Ivan Morgan v The Attorney General and The Superintendent of Prisons, Saint Catherine, the Privy Council interpreted inhumane treatment under section 17(1) of the Constitution of Jamaica to include delay between conviction and the carrying out of the death penalty though the constitution was silent on this matter. This interpretation created a legal right which had the effect of automatically commuting death penalty convictions for convicts on death row in excess of five years to life imprisonment.

The Judiciary also exercises its constitutional mandate through a process of Judicial Review which is the means by which “Government departments, local authorities or others with law-making and administrative powers are confined by the courts within powers granted by the [Constitution]. .  Although Jamaica does not have a specific Judicial Review Act, provisions for judicial and constitutional claims fall under Administrative Law Claims in section 56 of the Supreme Court of Civil Procedure Rules, 2002. Judicial Review is an important tool of the Judicial Branch.

It is considered a grave and ominous “responsibility which the courts must not shirk from or attempt to shift to Parliament” “as this responsibility in and of itself is a system of checks and balances thus seen as the: last bulwark of citizenry. ”  The grounds for Judicial Review includes error of law, failure to observe the principles of equity, abdication of functions, improper delegation of authority, and unreasonableness of a decision. All are supporting grounds for the argument that the maintenance of fair justice is eally what is at the heart of the function of the Judiciary. “Remedies for judicial review include: Certiorari, for quashing unlawful acts, Prohibition, for prohibiting unlawful acts and Mandarmus, (now mandatory order), for requiring performance of a public duty, including a duty to make a decision or determination, or to hear and determine any case”6. The fair administration of justice by Jamaica’s courts is influenced by the fact that its final court of appeal rests outside its jurisdiction.

According to the principle of stare decisis or Judicial Precedence, courts are bound follow the ruling of higher or equal courts. With the Privy Counsel being retained by the Constitution as Jamaica’s final appellate court, the discussion arises whether the rulings of that external body are sympathetic to the Caribbean experience and thus a fair and effective administration of Justice. According to Sharma JA of the Trinidadian Court of Appeal in Boodram v.

AG and Another, “even after our independence, our courts have continued to develop our law very much in accordance with English jurisprudence. The inherent danger and pitfall in this approach is that, since Independence our society has developed differently from the English and now requires a robust examination in order to render our Constitution and common law meaningful. ” The Jamaican Constitution was so designed to support and to be supported by the Doctrine of Separation of Powers between the Legislative, the Executive and the Judiciary.

Though not free of limitations, the Doctrine effectively balances power among the three bodies, ensuring that encroachments that are not in the interest of justice are held somewhat in check. The sharing of personnel between the Executive and the Legislative bodies in the Jamaican Parliament, however, can lead to cynicism and has the potential for corruption. It is therefore imperative that the Judiciary be allowed to function independently and be protected from interference from those who would seek to influence its decisions.

Despite the intent of the Constitution’s authors, the justice system can only be determined to be fair or faulty based on human factors, the judges. The Constitution is a function as well as a reflection of the society it serves and as such our moral, cultural and economic experience will determine how our justice system evolves and whether the tenets on which it is founded are sufficiently strong and rooted to support Jamaica’s political and legal independence.

THE ADVOCATES ACT, 1961 The legal profession as it exists today was created and developed during the British period. However, it is notable that in earlier days of the British period the legal profession was not paid due attention and it was not well organized. Actually the east India Company was not interested in organizing the legal profession. There was no uniform judicial system in the settlements of the east India Company.

After introduction of so many charters by the company it enacted The Indian High Courts Act, 1861 (commonly known as the Charter Act) passed by the British Parliament enabled the Crown to establish High Courts in India by Letters Patent and these Letters Patent authorized and empowered the High Courts to make rules for advocates and attorneys (commonly known as Solicitors). The law relating to Legal Practitioners can be found in the Legal Practitioners Act, 1879 and the Indian Bar Councils Act, 1926. Legal Practitioners Act, 1879 came into force with effect from 1st January, 1880.

In 1879, the legal practitioners act was passed to consolidate and it amend the law relating to the legal practitioners. Under the legal practitioners act, 1979 the term “legal practitioner” has been used for advocate, vakil or attorney of a high court and pleader, Mukhtar or revenue agent. All these were brought under the jurisdiction of high court. A Person who is qualified to be pleader / vakil / muktas has to appear for examination and after obtaining the certificate he / she may apply under Sec. of the Legal Practitioners Act and Register their name in any Court or Revenue Office situated within the local limits of the Appellate Jurisdiction of the High Court. As Per Sec. 11 of this Act, the High Court may frame the rules declaring what shall be deemed to be the functions, powers and duties of pleaders / vakils / muktas. As per Sec. 13 of this Act, the High Court has Disciplinary control over Pleaders / Vakils / muktas by suspending / dismissal / by withdrawing the certificate granted by it. The Indian Bar Council Act 1926 came into force with effect from 9. . 1926. The main object of the act was to provide for the constitution and incorporation of bar councils for certain courts, to confer powers and impose duties on such councils and also to consolidate and amend the law relating to the legal practitioners of such courts. As per Sec. 4(1), every Bar Council shall consist of 15 Members, one shall be the Advocate General, 4 shall be persons nominated by High Court of whom not more than 2 may be judges of High Court and 10 shall be elected by the Advocates who are practicing at High Court.

As per Sec. 8 of Indian Bar Council Act a person may enrol as an advocate in the High Court. After admission as an Advocate he/she has to undergo One year Apprentice training with any senior advocate and he has to issue certificate that training period is completed successfully. After Independence it was deeply felt that the Judicial Administration in India should be changed according to the needs of the time. The Law Commission was assigned the job of preparing a report on the Reform of Judicial Administration.

In the mean while the All India Bar Committee went into detail of the matter and made its recommendations in 1953. To implement the recommendations of the All India Bar Committee and after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendation relate to the Bar and to legal education, a Comprehensive Bill was introduced in the Parliament. The Advocate Bill was passed by both the Houses of Parliament nd it received the assent of the President on 19the May,1961 and it become The Advocates Act,1961 (25 of 1961). The main salient features of this Bar Council is to enroll the candidates who have obtained law degree, disciplinary control over the advocates, to promote legal education to junior advocates and provide financial assistance to the Advocates on medical ground and also the bereaved family of the Advocates. Objective of the Act

The establishment of an All India Bar Council and a common roll of advocates and advocate on the common roll having a right to practice in any part of the country and in any Court, including the Supreme Court; The integration of the bar into a single class of legal practitioners knows as advocates; The prescription of a uniform qualification for the admission of persons to be advocates; The division of advocates into senior advocates and other advocates based on merit; The creation of autonomous Bar Councils, one for the whole of India and on for each State.

The Bill, being a comprehensive measure, repeals the Indian Bar Council Act, 1926, and all other laws on the subject.

The system of law can be a determining factor in how the citizens of a country behave towards and show respect towards the law.

Many countries are always embroiled in conflicts, civil wars, and law and order there is usually a fight for survival and protecting innocent citizens. However, in a mature and developed country like ours, law and order is respected and Australia is said to be one of the safest places in the world.

Our law and order system is quite mature and strong in implementation, perhaps this is the effect of the money we pour into our system along with the strict requirements we have for people who can or cannot serve on the judiciary or any of its branches.

In spite of all the good work that has gone into our judicial system, there are still calls for us to change from the Adversarial to the Inquisitorial system of justice. I will talk about the systems and give an overview of their pros and cons and then talk about if we should change the system or not, what is to be gained, what can be lost.

The Adversarial system has its roots in the idea where two opposite sides are pitted against one another. There is one side supporting the accused and the other side trying to prove him as guilty. The main idea is that the two sides being pitted against one another are going to lead to the truth.

The judge has the role of facilitating the procedure of law and pit the opposing sides against one another while maintaining decorum and respect for the law. However, it is left entirely on the sides on how they want to present their case and what they do in their research. This system is used widely across the world and is prevalent in the US, UK and Australia.

In the inquisitorial system, the judge is the main person and practically the whole system is dependent on how he investigates the case. If the judge is good, he can find out the truth completely and sort out the case, while if he cannot find out the fact, then the case might never be sorted out.

He can take help of the law and its branches or agencies like the police etc, but the onus of solving the case and finding the facts lies on him. This kind of system is primarily used in France. The system has its benefits as you are pitting a skilled investigator to solve the case and putting the system of the law in the hands of some hand picked highly professional and competent people.

However, the first thing that comes to mind is the fact that this system is easier to manipulate as its very easy for a rich person who is accused to at least ‘try’ and pay himself out of the position, as there is only one major person that he has to corrupt. While in an adversarial system, the opposition is paid to have the accused sent to jail or punished for his or her crimes.