Waiver – Voluntarily giving up or removing the conditions.
Waiver — Voluntarily Giving Up or Removing Conditions
I. What is Waiver?
Waiver means the voluntary and intentional relinquishment or abandonment of a known right, claim, or privilege. In simple terms, it is when a party chooses not to enforce a condition, right, or requirement that it is entitled to enforce.
It can be express (clearly stated) or implied (inferred from conduct).
It usually requires that the party knows about the right and intends to give it up.
II. Waiver in Arbitration & Contract Law
Parties may waive procedural requirements (e.g., time limits, formalities).
Waiver can apply to arbitration clauses — if a party acts inconsistently with arbitration (e.g., participates in court proceedings without objection), it may waive its right to arbitrate.
Similarly, waiver can occur regarding conditions precedent, contractual warranties, or notices.
III. Key Elements of Waiver
| Element | Explanation |
|---|---|
| Knowledge | The party must know the right/condition. |
| Voluntariness | The party voluntarily gives it up. |
| Intention | Clear intention to waive (express or implied). |
IV. Types of Waiver
Express Waiver:
A party clearly states they waive a right (e.g., “We waive our right to arbitrate.”).
Implied Waiver:
Actions or conduct indicate waiver (e.g., a party joins court proceedings without raising arbitration).
V. Important Case Law on Waiver in Arbitration
1. National Thermal Power Corporation Ltd. v. Singer Company, AIR 1992 SC 998 (India)
The Supreme Court held that if a party voluntarily participates in the court proceedings without raising objection about arbitration, it may be held to have waived the right to refer the dispute to arbitration.
2. Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums, (1995) 2 SCC 684
The court held that if a party behaves in a manner inconsistent with the arbitration agreement, waiver can be implied.
3. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (US)
The U.S. Supreme Court reaffirmed that parties can waive their rights to arbitrate, but courts will enforce arbitration agreements according to their terms unless waiver is clear.
VI. Waiver vs. Estoppel
Waiver: Voluntary relinquishment of a right.
Estoppel: A party is prevented from asserting a right because of their previous conduct or representations.
VII. Practical Implications
Parties should be careful not to lose arbitration rights by engaging in litigation without objection.
To avoid unintended waiver, parties must raise arbitration or contractual objections promptly.
Waiver helps prevent unfair surprise or procedural gamesmanship.
VIII. Summary
| Waiver Aspect | Description |
|---|---|
| Definition | Voluntarily giving up a right or condition. |
| Requirement | Knowledge + voluntariness + intention. |
| Forms | Express or implied by conduct. |
| Effect | The waived right cannot be later enforced. |
| Key Concern | Avoiding unintentional waiver through inaction. |
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