“EMERGING TRENDS IN ALTERNATIVE DISPUTE RESOLUTION (ADR)IN INDIA: A STUDY”

By - SHUBHANSHU CHAWLA1

ABSTRACT –A good settlement is better than a good lawsuit ...

- ABRAHAM LINCOLN

Conflict is a fact. Not good or bad, the main concern is to use this technique to resolve this conflict in a friendly way. Alternative dispute resolution refers to simplified resolution techniques to more effectively resolve litigation issues when the normal negotiation process fails. This is an attempt to reduce the weight of the courts in cases where the issue can be easily settled out of court.

The legal system in India is often criticized for delays. Some studies have been conducted on

the reasons for this delay and on the need to develop ADR mechanisms to combat such

delays and delays in the courts.2 Alternative dispute resolution includes various forms of

resolving disputes that are not formal disputes. In principle, ADR refers to the multiplicity of

criminal actions that assist the parties in resolving their disputes without judgment.3 In

general, the ADR system includes processes such as arbitration, mediation and arbitration.

These processes are generally less exhaustive than traditional litigation.

CHAPTER-1INTRODUCTION

The ADR system in India is of great value because the alternative litigation resolution in India is

an attempt by the legislator and the judiciary as a whole to achieve the constitutional goal of

1 Researcher is pursuing, LL.M (Criminal Law) at Seedling School of Law & Governance, Jaipur National University,Jaipur, and also practicing as a Litigant under Senior Advocate Mr. Yogendra Singh Tanwar.

2 See, for example (1) 77th Report of the Law Commission on Delay's and Arrears in Trial Courts (1978);

3https://www.nycourts.gov/ip/adr/What_Is_ADR.shtml, Last visited on 06/05/2020.

achieving a goal total and complete justice in India. The pace of the judicial system in India is

very slow. In order to do justice to this and to guarantee complete justice, but also quickly

and without complications, the system of alternative disputes was introduced. In addition,

many people are dissatisfied with the traditional approach to resolving the dispute, so that,

over time, a system should be put in place to resolve the dispute more quickly and amicably.

System An alternative dispute resolution has been established.

1.1 Nature and Concept

INDIA has a proud tradition of dispute resolution based on consensus and conciliation.

The institution of Panchayats, the remnants of which are still found in our social system

is the symbol of indigenous administration, which covered not only dispute resolution,

but also other aspects of public administration. Colonization of India had had in its sway

uprooted many indigenous institutions including Panchayats and the very philosophy of

mediation and conciliation was replaced by adjudication necessitating the

establishments of courts of law based on adversarial philosophy.

The blending of administration and adjudication which had been the imprint of colonial

administration was resorted to suit the requirement of efficient tax collection. This

approach had had its impact on the efficacy of the system in the maintenance of law and

order in the society. Delay in justice delivery was rampant. Inefficiency was abundantly

evident. The result was docket–explosion that continues to haunt us even today.

India despite the need could not experiment with any alternative system while other

democracies like the U.S were constrained to try several modes like plea bargaining,

arbitration etc. The need to cope with the increased volume of litigation later made India

also to experiment with ADR. The Arbitration and Conciliation Act, 1996 was enforced

with all earnestness. But no study worth the name on its efficacy has so far been done.

Here is an attempt to do it with the help of data collected from various Institutions.

Section 89 (1), of the Civil Procedure Act 1908, aims to define an alternative dispute resolution

method. Article 89 (1), of the Civil Procedure Act 1908 refers to out-of-court dispute resolution.

This section states that if the court determines that there are elements of the agreement that the

Page | 2

parties can accept, the court must comply with the terms of the agreement and submit to the parties their comments and after receipt of the agreement, the court may rewrite and refer the terms of any solution to the parties:

I. Arbitration

II. Conciliation

III. Legal liquidation including liquidation of Lok Adalat.

IV. Mediation.4

Alternative Dispute Resolution (ADR) refers to a number of processes that help parties resolve disputes without judgment. Typical ADR processes include mediation, arbitration and arbitration. These processes are generally confidential,

less formal and less exhausting than traditional lawsuits.5

Any method other than the ordinary lawsuit to settle the dispute, i.e. usually

outside of court is an alternative method of dispute settlement.6

1.2.Advantage of Alternate Dispute Resolution:

1. It's cheaper.2. It's less time.3. It is free from techniques such as case management in the courts.

4. The parties may discuss their views without fear of revealing this fact before any right of the Court.

5. The last but least of them is that the parties consider that there is no loss or

victory between the parties at the same time as they consider that the

complaint is respected and that the relations between the parties parts vary.

1.3. Statement of research Problem

The research was conducted to understand that what the ADR system really meant as the growth

and development of the alternative dispute resolution system in India, and also to understand

4 Section 89(1) of Civil procedure code 1908.5https://www.nycourts.gov/ip/adr/What_Is_ADR.shtml , Last visited on 06/05/2020.6 https://www.law.cornell.edu/wex/alternative_dispute_resolution, Last visited on

06/05/2020.

Page | 3

why society needed to address the alternative dispute. Solve and carefully evaluate all the benefits of alternative dispute resolution.

The reason why the scientists chose this topic and chose to work on the current problem is that if

we talk about the judicial system in India, we can see that the judicial system in India is very slow

and also takes a long time and an expensive case because many of the which are not able to bear

the costs of litigation and for which no justice has been done. In addition, some cases are of a

very small nature, and there are also lawsuits in court, and these cases can easily be resolved

outside the courts. Therefore, in order to ensure full justice for all citizens of the nation, an

alternative dispute resolution system is needed in India, and so I have chosen all the advantages

and disadvantages of the alternative dispute resolution system. this topic.

1.4. Hypothesis

If we are talking about alternative dispute resolution methods, it is now necessary to

adopt these methods and put more emphasis on these types of methods because

courts are overloaded with pending cases and the ultimate goal is to do justice to all,

efficiently and quickly. If all these methods are adopted and implemented properly,

the burden of the court can be drastically reduced and justice can be prosecuted.

1.5. Objectives of the study

The main purpose of this research is to identify, review and analyze the concept of ADR system in India and monitor the effectiveness of this system in India and how the process is constantly evolving in India.

The study focuses on the effectiveness of ADR systems in India to reduce the number of

trials and concrete proposals for creating a strong ADR institutional mechanism in India.

According to the mandate, the Indian Legislature was required to study the following:

1. Review of existing laws and regulations that provide the regulatory framework for

resolving business disputes through ADR. This will include the 1996 arbitration review and

the conciliation procedure in order to recommend the removal of any irregularities and to

review the implementation of Article 89 of the Civil Procedure Act to improve the

Page | 4

use and possible role played by the ICADR in assistance. In the implementation of the provision.

2. Review of the mechanisms for the execution of national and international arbitration awards.

3. The incentive structures behind the use of ADR courts and mechanisms for resolving

certain forms of conflict and the multi-party incentive structure favor or oppose

certain types of dispute resolution mechanisms for certain types of resolution of

disputes. It was established that the study should not be based on data.

4. ADR experience in three selected cities, viz. Delhi, Mumbai and Bangalore and

the type and number of cases currently subject to arbitration / mediation;

average duration of their choices elimination case for these mechanisms; the

existence of traditional or modern methods of ADR has failed attempts to

introduce public awareness of the ADR of formal education and of RED's ADR

activities; group of trained / trained mediators / judges for training.5. The nature of cases that can be solved effectively by arbitrage / mediation and other

side effects, including their possible choice of ADR The possibility of including cases

of intellectual property rights in ADR mechanisms should also be investigated.

6. The impact of the judgment through arbitration / mediation and other out-of-court dispute resolution mechanisms to reduce the number of lawsuits.

7. Steps to improve case management and attract more ADR cases.

1.6. Research Questions?

1 Whether ADR system can help to traditional judicial system?2 Whether ADR system is also an effective way to resolve the dispute?3 Whether the ADR system is cost effective than that of judicial

system? 4 ADR system prevailing today its benefits and drawbacks?

1.7. Research methodology

Research means a scientific and systematic review of existing facts or knowledge to determine if

the existing discovery can be modified or not. Research will be conducted primarily on the basis

of the doctrinal method. The doctrinal / research method is also called traditional research,

Page | 5

involves analysis of jurisprudence, organization, arrangement and systematization of

invoices and investigations of legal institutions. Reference will be made to primary

and secondary sources. Primary sources include laws, legislation, reports, policies

and jurisprudence. Secondary sources are books, magazines, articles and electronic

resources. In order to realize this thesis, several libraries and internet services were

used at the Faculty of Law of the Jaipur National University.

1.8. Significance of the Study

The topic selected for the project work is very relevant as a very limited review of the OER system

in India has been undertaken at the national and international levels, particularly in terms of

governance and protection. rights of individuals. It will be crucial to examine and analyze the

issue simply because alternative dispute resolution laws are more or less complete in application

in the territory, but extraterritorial application and its consequences are more or less unexplored.

. While the government has taken steps to solve the current problems and with this

project study, the idea is to review the efforts made by the Council and to propose any

changes through an analytical examination of the corresponding provisions. in the

world. Given the above, this argument is therefore very relevant to the research part.

1.9. SCOPE OF ALTERNATIVE DISPUTE RESOLUTION.

The main limit of the study was insufficient time. The assigned topic is such that it requires a lot of field work. Although we have conducted field studies through questionnaires, we believe that interviews with people working in the field of law and the ministry of government would be more productive.

The second limit was the availability of books on this subject. We had to rely mainly on web

sources, newspapers, etc. Very few authors have addressed the problem in detail. Alternative

conflict resolution is a global concept that requires many comparative analyzes. Another aspect

of the thesis was that justice could not be done regarding the globalized vision of the lack of

books and software that would allow access to international material on the same subject. But

with resources available such as Westlaw, a sincere attempt was made to analyze international

sources and the position of the concept of alternative dispute resolution.

Page | 6

1.9.1. Matrimonial disputes

In a case before the commencement of an action before the court of first instance, if this is

possible depending on the nature and circumstances of the case, a rapprochement between

the parties must be sought.7 However, the vote can not be applied to cases where repayment

is required for one of the reasons set out in Section 13 (1) (c) of the Hindu Marriage Act of

1955. If the parties decide to do so, or if the court so does, it considers appropriate and

appropriate to suspend the proceedings for a reasonable period not exceeding 15 days and

to call the persons designated by them. that name or a person designated by the court, if

parities do not designate a person to instruct the court as to whether reconciliation is

possible or has already occurred, and the court duly considers the process in the report. The

preamble to the Family Court Act 1984 provides for the obligation of the family court to seek

reconciliation or agreement between the parties to the family dispute.8

1.9.2.Consumer Disputes Redressal Agencies

The Consumer Protection Act 1986 provides for the creation of central consumer protection

councils and public consumer protection boards to raise consumer awareness. The central

council is headed by the minister responsible for the consumption of central and state

governments. He is the minister responsible for consumption in the state and the president of the

council of state. There are also consumer contracts at the district level. The main purpose of

these councils is to protect and promote the rights of consumers, such as the right to security,

the right to information, the right to vote, the right to be heard, the right to refuse and the right to

educate consumers.9 To ensure better protection of consumer interests and early resolution of

7Section.23 (2) of the Hindu Marriage Act, 1955 reads thus: “In any proceeding under this Act, whether defended or not, if the court is satisfied that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties”.8 The proceedings of the court at the initial stage will be informal. Section 9 of the Act envisages the method to be adopted for a settlement. The role of family court's judge is very important here. He is expected to give an impression to the parties that he is their well wisher and his endeavour is to settle the dispute amicably. The Judge of a family court shall assist and persuade the parties to come to a settlement rather than sit at their loggerheads. In this connection he may take the help of experts and counsellors.9 Section 6 and 8 of the Consumer Protection Act, 1996.

Page | 7

complaints, the law provides for the establishment of District Court Protection

Boards in central, state and consumer offices.10

1.9.3. Intellectual Property Rights disputes

The IPR dispute is generally international due to the involvement of different legal systems.

In India, the arbitrariness of national IP applications is not very well regulated. Specific

legislation on intellectual property rights does not contain provisions on arbitration.11 These

laws are also omitted with respect to the applicability of arbitration rulings implying

conclusions as to the validity of an intellectual property or counterfeiting right. No Indian

court has ruled on the arbitration of intellectual property disputes.

At international level, many countries have already examined the possibility of introducing

alternative dispute resolution mechanisms, such as arbitration, to tackle intellectual property

issues. Disputes relating to forgery, licensing and the validity of an intellectual property claim can

be settled in the United States of America.12 It is also possible in Germany and the United

Kingdom. In examining the complexity and complexity of IPR disputes, it is proposed that

Arbitration Institutions, with their pool of IP experts, would be the best option for the initiative.

These institutions should provide a pleasant environment, infrastructure, special support, etc. for

the proper conduct of the arbitration. In general, know-how contracts relating to the transfer of the

right to use the intellectual or industrial secrets of inventions play a crucial and sometimes even

more important role than the underlying patent. It is therefore natural that in disputes where

secrecy is required the parties always demand the settlement of a dispute rather than a court.13

The reason for this is that in the courts where a larger group of people are involved in secrecy, the

risk of secrets is considerably increased and, more importantly, it is open to the public. They are

therefore accessible to all, including competitors. This can be avoided in arbitration or other ADR

procedures, as these are private forums that are selected by the parties and guarantee the

10Id., at Sections 4, 7 and 8A.11 For example, legislation like, Patent Act, 1970 or the Copyright Act, 1957 does not contain any specific provisions for arbitration of disputes arising out of it.12 In Rhone-Poulenc Specialties Chimiques v. SCM Corp., 769 F 2d. 1569 (Fed. Cir. 1985). Also, Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F. 2d 1191 (7th Circuit 1987) and NecchiSewing Machine Sales Corp. v. Necchi S.p.A. 369 F.2d 579 (2d Circuit 1966), Givenchy S.A. v. William Stuart Industries (Far East) Ltd., (1986) WL 3358.13 Well-known Patent Agents may be appointed as arbitrators in resolving disputes relating to IPR

Page | 8

highest degree of confidentiality throughout the procedure.14 It would be more appropriate

for separate provisions to propose the use of ADR dispute resolution mechanisms that

should be included in IPR. In addition, the courts should propose that the parties decide on

the various ADR procedures available to resolve their intellectual property disputes.15

1.9.4. Section 89 of Civil Procedure Code, 1908

The 1908 Code of Civil Procedure was also amended in 2002 with the reinstatement of section

89. This fact was further highlighted by a recent Supreme Court ruling.16 This section governs the

judicial settlement of disputes through arbitration, settlement or judicial mediation. Although the

legal community has welcomed the reinstatement of Article 89 of the Code of Civil Procedure,

critics are not lacking. In a national district and a consultation meeting with judges from all over

the country in New Delhi to gather their views on the merits and errors of Article

89 CPC, the following factors were identified to explain the failure of the conflict. The

consultation really made some useful suggestions for improving the system.17

1.9.5. Industrial and Labour law

The labor Law, the 1948 Labor Conflict Law, was the first way through which the conciliation

procedure was actually implemented and recognized by law. Reconciliation has been recognized

by law as an effective means of resolving disputes between workers and managers. According to

the law, the parties to the dispute have an interest in resolving their disputes through negotiations

and, if not, comparing them to a government representative before referring to a lawsuit. Various

provisions of the law guarantee the success of conciliation.

1. Mediation is carried out by an official of the government's Ministry of Labor.

2. During the arbitration period, the parties must not attack or declare a block.3. The conciliator works to resolve the dispute by conciliation (Article 12 (2)).

14 H Stumpf,”Arbitration and Contracts Concerned with Scientific. Technical and Research work including agreements on the use of inventions, know-how, etc.” A Report presented to the Fourth International Arbitration Congress at Moscow in October 1972.15 Courts have the power to refer the disputes to ADR techniques under the provisions of S. 89 of Civil Procedure Code 1908.16 Salem Bar Association v. Union of India, (2005) 6 SCC 344.

17 National consultation meet of District and Sessions judges from all across the country organized under the auspices of Indian Law Institute, New Delhi from 12th –13th April, 2008.

Page | 9

4. The conciliation contract must be confirmed by the conciliator as equitable (point 12 (3)).

5. This regulation binds all other trade unions involved in the dispute and is invited to participate in the conciliation, but prefers to remain outside the conciliation procedure (Article 18 (3)).

6. The transaction is a self-executing document and failure to comply with the management termination conditions constitutes the basis for credit recovery in the simplified summary procedure (section 33 (C)).

All the parties involved in a labor dispute that had the misfortune of resorting to the litigation

knew that it was a long process that could go beyond the lives of some of the beneficiaries. This

factor has contributed significantly to the success of mediation in professional relationships.

Page | 10

CHAPTER-2HISTORICAL EVOLUTION OF THE ALTERNATIVE DISPUTE RESOLUTION

2.1. Concept of Alternate Dispute Resolution in Golden days in India

Before the introduction of law, the Indian court had settled disputes through mediation. The

mediation was usually directed by a person of high status and respected by the villagers.

This mediation was formerly called Panchayat. Panchayat is run by a person with superior

statues of quality and character, considered impartial by the local population, the head of the

village, and supported by people of the same character or cadres from different localities.

The dispute between individuals and families is heard by Panchayat and Panchayat decision

is accepted by the candidates. In case of dispute between two villages, the problem was

usually solved through mediation, including a person acceptable to both villages and the

inhabitants of two villages, and the decision of this mediation will be accepted by the two

villagers. Disputes in ancient times rarely came to court. They will even resolve complex civil

conflicts, criminal prosecutions, family disputes, etc. This dispute settlement mechanism

maintained friendly relations between disputes, even after the resolution of their disputes.

Yet this type of Panchayat failed due to political interference and common sense.

2.1.1 Post Vedic period:

At this era the Code of Conduct followed when lawyers at the school developed the philosophy of

fundamental laws. The learned speeches recognized the habits and practices in various societies

that contained a solution to disputes with unchallenged methods of population.

The court protested and was raised by a brilliant teacher Yagnavalkya, known as KULA,

who dealt with disputes between family members, communities, tribes, castles or races.

Another court named SHRENI, an artisan company that carried out the same activity, dealt with its internal disputes.

PUGA was a similar trade association in all sectors.

Ash Parashar, a teacher, explained that some questions from Parishads or clubs or a collection of decisions should be organized for students.

Page | 11

2.1.2. Pre-British period

Various forms of mediation and arbitration gained great popularity in the pre-British era. There was Mahajan (a respected class of businessmen). They were impartial and prudent businessmen who settled disputes over merchants through mediation. There have been establishment of business associations and all members must first refer to disputes for this association before referrals to the court, and any member directly

involved in litigation is excluded from the association.18

There was also the existence of the village of Panchayat, which also operates consistently, in which five trials were recognized and accepted as circles of reconciliation and / or decision-making. Like many of the old methods of dispute resolution, Panchayat has some mediation features and some arbitrage features.

2.1.3. British Era

In 1753, India was converted into a British colony and in 1775 Indian courts were

established in the British model. The British ignored local Indian court proceedings

and shaped the case before the British courts during that time. However, there has

always been a conflict between British laws and the laws of princely states.

2.1.4. Post-independence period

First, the concept of dispute resolution through alternative mechanisms, d. Alternative dispute

resolution mechanisms expressed the image when the concept of mediation in 1947 received

regulatory recognition in India for the first time. The mediators designated in Section 4 of the Act

are "required to disclose and promote the resolution of labor disputes." Arbitration, as a dispute

resolution procedure was already recognized in 1879 and also found a place in the civil procedure

code of 1908. When the arbitration law was adopted in 1940, the arbitration clause originally

contained in section 89 of the code of the civil proceedings has been repealed.

18http://www.inadr.org/wp-content/uploads/2014/10/Emerging-trends-in-Mediation-1.pptx , Last visited on 06/05/2020.

Page | 12

Today, when it comes to more than two and a half years crore (the law and the release of

the Ministry of Justice press is waiting 48,838 for the Supreme Court, Supreme Court

cases 38,82,074 are waiting and 2,52,40,185 treatment before for the judges on January

31, 2008 the case in our courts means that at least five million people are directly

involved in the litigation, about 4% of our population, and we have only 12,500 first-year

judges and 647 judges from the various courts of the Supreme Court and 26 judges of

the Supreme Court of India Our administration of justice is "inconsistent" because there

are two parties that face each other in court, and we have seen that it is not the legal

issues in most cases, instead that they are based on your ego that gets in the way, and

finally in the blood between the exams and the hate process ends.

It has also been found that our courts have a very limited time, for example. B. 10:00 a.m. to 5:00 p.m. We are in court, but right now we have to manage time for various things like signature files and daytime diaries, following the instructions of the superior courts and other various activities that need to see a judge.

In short, justice is something that an offended person deserves and was attacked by someone

else. Now our traditional justice system needs reforming and developing a new approach. ADR is,

if we take a step in the direction and have not yet developed a complete system in India, it is the

time we have to take as a judge the initiative in court, which plays the most important role in the

justice system, as the fruit of Justice Shetty Commission has 50 judges per million, we only have

10.5 judges per million, the judges are actually overestimated, overworked by the work and

therefore the work is overloaded and out of control, which is slightly systematic because an

approach can be controlled first, to increase the number of judges, not to turn all judges at the

same time now, but honored in several stages of the Supreme Court in its ruling that the

understanding of life subordinate judge must be improvised and deserve a better standard of life,

and all states and centers must take the initiative because we have implemented the laws adopted

by Parliament and the State Parliament and their responsibility jointly with the State and States.

Center to implement budget funds to meet the needs of the courts. I am sure that the President of

the Court can work more efficiently if his primary needs are met.

Page | 13

The work of the judge is the work of God, and justice is done by God, and we do a delegated work

of God. As judges, we must never forget that our judgments have a direct impact on society and

the public has high expectations about us and we must try to meet their expectations.

We have seen that all resorted to strikes, roadblocks and other forms of disobedience. This

did not happen overnight, but it is a constant development. People are slowly losing their

faith in the justice system and are finally experiencing a phase of justice too late, which is too

late because late justice is held back from justice. Today, the public has lost confidence in

the government and the police. Its FIR are not registered, it is an established law, the law is

social engineering and the role of judges is important in this episode, and the law is

governed by two rules, namely equality before the law, and no one is more the law .19

The Legal Services Act of 1987 has also been amended from time to time to authorize the use

of ADR methods. Section 89 of the Code of Civil Procedure, which was amended in 2002

introduced mediation, mediation and pre-litigation procedures for the effective resolution of

disputes. Mediation, conciliation, negotiation, mini Evidence, consumer forums Lok Adalats

and banking ombudsman were accepted as an effective alternative litigation and recognized.

Alternative dispute resolution has expanded significantly in recent years, covering many areas

that go beyond the traditional trade dispute in the form of arbitration. Mediation has become an

important first step in the dispute resolution process. Arbitrators and mediators play an important

role in resolving disputes. Mediators act as neutral agents to balance the differences between the

parties before arbitration or litigation is initiated. The arbitrators act as neutral third parties to hear

the evidence and decide the case. Arbitration may be binding or non-binding.

In simple terms, the alternative resolution of conflicts is that conventional courts use the formal

complaint system, the different legal standards apply, as we have already said, that our system is

disadvantageous. The ADR concept introduced a new conflict resolution mechanism that is not

contradictory. The litigation is basically "lis inter partes", and the Indian system of Verzichtung

has, in the form of ADR, found an alternative to the litigation process in which two parties contest

their case and one party wins and the other party loses the resolution dispute alternative (§ 89 -

Code of Civil Procedure, which can be divided into four broad categories

19https://www.arbitrationindia.com/pdf/tia_2_8.pdf . Last visited on 09/05/2020.

Page | 14

1. Arbitration2. Mediation3. Arbitration4. Billing including the invoicing of Lok Adalat.

It's a win-win situation and neither side wins a party. Today, we must also resort to

unconventional systems. We must not forget that it is nothing new to us, we have had many years

like panchayat, etc. It was the self - probably every village had Panchayat and it was a strong

authority to correct disputes. The best thing about ADR is that if the two sides face each other and

find a friendly solution, there is no chance that the case will be won or lost, which is a win-win

situation. And therefore the burden is reduced with the recurring tribunals, the arbitration

determined by the arbitration in 1996, and did not give the decree to the judge judged. It was a

step towards ADR. The Labor Code has already included the system of mediation and placement

in its rules in order to find a mutually acceptable solution in case of disagreement between work

and administration. In many cases, conventional courts are already overloaded and at least a

significant number of cases can be excluded from ADR. The CPC allows the use of ADR in Section

89 of the previously amended paragraph as mandatory, so that the court can refer the dispute to

settle disputes out-of-court (Article 7 of the CPC amendment (Bill), 1999). The 129th report of the

Indian legal committee recommended that alternative forms of conflict reduction be applied by the

courts after the problems have been solved. Only if the parties are unable to resolve their disputes

through any of the alternative dispute resolution procedures will the case be resumed at the court

in which it was filed.

The purpose of this particular provision seems to help the intervener resolve his out-of-court dispute

rather than sue the court. This is a special procedure for resolving out-of-court disputes in a simpler

and faster way. The litigation parties to initiate the procedure or procedure may request the court to

initiate disputes and, if the court deems there is a solution acceptable to the parties, it is possible to

address them to one of the forums at any stage of the process. In fact, due to the insertion of section

89 (2), 1, he added new provisions to order X20. These new rules, namely 1A, 1B and 1C, were included

in the amending act. Settlement can be performed using one of the methods described in section 89

CPC, which is inserted by the amending act. Under rule 1A, the

20Civil Procedure Code (1908)

Page | 15

parties are able to resolve the out-of-court dispute. When exercising their option, the

Parties determine the date of publication before the person who can be elected by

the Parties. In accordance with rule 1b, the parties indicate this forum of their choice.

Rule 1C requires the President of the Forum to refer the matter back to the Tribunal if

it considers that it should not continue the case in the interest of the judicial system.

Based on the analysis above, it is clear that ADR s the best and most effective solution to

reduce the slope of the Himalayas in vari21ous dishes of our country. We must not forget that

out-of-court dispute resolution is more effective because it is a friendly solution. Both parties

have a win-win position and establish a harmonious relationship with each other, unlike

conventional courts. It is therefore a permanent solution for all controversy as it does not

result in an appeal or review, which eases the burden of appellate courts and also allows

courts to gain valuable time and energy that can be used in other ongoing adjudicative and

judicial cases. But ADR saves time and a quick assessment is possible). As a judge, it is our

duty, as stipulated in the new CCP, to encourage civil suits to obtain justice. Despite the

many benefits of using alternative dispute resolution mechanisms, our society is reluctant to

give it the proper recognition. The predominant reason is that a prosecution based society is

generally unable to exploit the dialogue of conscience or to obtain an amicable solution. The

ADR practitioner then acts as a healing conflict instead of a fighter. It looks like the

Panchayat system we have in our villages. Dispute settlement is so effective and so widely

accepted that the courts (in Sitna v. Viranna, AIR 1934 SC 105) upheld the decision of

Panchayat and Sir John Wallis, so that the reference to a panchayat village is the method

tedious controversy) has more often recognized them. It avoids protracted litigation and is

based on the fundamental realities affirmed by successful bidders. The prize awarded is a fair

and honest regulation of unsafe solicitations based on legal and moral grounds.

Alternative dispute resolution mechanisms carry out the investigations and are gradually

recognized. The main advantage of ADR techniques is that the parties involved are not bound to

the technical aspects of a normal dispute. The company, the state and the interested parties are

both obliged to resolve the pending dispute disrupting the peace of the family, the company, the

21https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does, Last Visited on 09/05/2020.

Page | 16

company or the end of humanity in general, because in a civilized society, this must be the

case, the rule of law and the principles of natural justice must prevail and full justice must

arise. The chapter seeks to investigate other ADR mechanisms, eg. The judiciary, however,

offers alternative ways of resolving conflicts at ordinary courts and their various disciplines.

It should be considered when setting up a forum for the poor and needy who comes to

court to quickly resolve their complaint. The delayed justice is rejected and at the same

time justice is buried by hasty justice. Therefore, we need to look for a means of

communication between the two who want to ask the poor and needy to have their

request decided by the Court to bring social justice. Considering the delay in the solution

of Abraham Lincoln once he said: "You prevent litigation convincing your neighbors to

compromise when you can point out that the nominal winner is usually a real loser, in

installments, expenses and losses by time. "" Hand Likewise, judges taught: "I must say

that one must fear a court in court as a party, other than anything but illness and death."

A committee was formed under the Indira Gandhi government, which recommends action at

national level to ensure democracy, human resources and easy access to justice. In one of these

committee meetings, the Commission presented a dialectic diagnosis of pathology the Anglican

process as follows: "When most people have a social and economic status behind, it is the

national goal but social justice the rule of law and financially fulfilled, despite Of their majestic

likeness approaching their task is not whether there are any plans to bring justice closer.

Therefore, it is a democratic duty to make the legal process a safer way to social justice.22 "

All of this means that we have found a way to resolve the dispute between the parties in a different way rather than using the Court of Justice, which is called Alternative Dispute Resolution.

2.1.5. Traditional ADR methods

22Https://Www.Academia.Edu/18631329/Clinical_Final_By_Ut_9th_Sem, Last Visited On 06/05/2020.

Page | 17

Indeed ADR in many countries have a long tradition, and India has a long tradition of resolving

disputes through mediation and arbitration.23 In ancient India, the Panchayats remained a forum

for conflict resolution in rural areas of India. In villages, disputes should not be brought to justice;

instead, they were called "panchayats" composed of village elders who had great respect. The

village panchayats were so called because they consisted of five elders, conflicts, penalties and

settled family civilizations and "Panch parameswar" were mentioned. This system worked

successfully in the villages and was independent of state authority and control. The concept of

the parties to resolve their binding differences by referring to one or more persons of their choice

or to private courts, was known in ancient and medieval India. The decisions of these people or

tribunals were often appealed to the court appointed by the king and finally to the king himself.

However, arbitration, as known in modern India, owes its development to British rule in India. With

the advent of the Government of the East India Company in India, the British legal system was

introduced in our country. They have institutionalized the justice distribution system through the

creation of courts and tribunals. As a result, the shortcomings and inefficiencies of the formal

legal system led to the creation of OER mechanisms that found recognition in India. This study

analyzes the various dispute resolution procedures available within the ADR.

Dispute resolution by the courts is inevitable, but in no case is a satisfactory or amicable

solution.24 Arbitration, mediation and arbitration are some of the other accepted types of

alternative dispute resolution mechanisms. However, an ordinary man, especially in rural

areas, only benefit from such mechanisms in which people who understand his

mentality, in an appropriate and comfortable environment to interact with him, to resolve

conflicts at minimal costs. Some types of disputes, such as marriage and family

disputes, disputes with neighbors, particularly in rural areas, as well as various other

categories of small civil and criminal cases, which account for a significant percentage

of the ongoing litigation may occur are satisfactory and resolved satisfactorily. Mediation

or mediation through the intervention of conscientious, respected and elderly citizens.

23 In ancient India there were three categories of arbitration viz., (i) Puga: Board of different sects of tribes (ii) Sreni: Assembly of traders and artisans of different classes (iii) Kula: Meeting point of family ties. This was followed by the Panchayat system.24 As has been stated in the previous chapter, despite the working of ADR techniques supplementing the functions of ordinary courts, the data collected indicate huge number of pending cases resulting in the case load and arrears.

Page | 18

When we talk about the alternative dispute resolution mechanism in India, the mechanism is

not new, we can prove its origins from ancient history. In the Vedic period, there were many

ways to resolve the dispute through mediation and arbitration. Indian mythology cites similar

passages to resolve a dispute between Mahabharata and Ramayana, in which Krishna and

Lord Hanuman tried to mediate on behalf of the party in question.

These kinds of dispute resolution processes favored the Buddha's appearance when

Buddha said, "Better than a thousand empty words are a word that gives a piece."

Page | 19

2.2.Alternate Dispute Resolution in Modern India

2.2.1 Arbitration

Arbitration is a settlement of disputes between the parties by a neutral person who has been

appointed as arbitrator by the parties and to decide the case. The parties may agree on the

procedure to be followed for such arbitration. In India, the Arbitration Act is the 1996 Arbitration

and Conciliation Act, based on the UNCITRAL Arbitration Model of 1985. In the past, arbitration

legislation was included in three regulations. The Arbitration Act of 1940, the Arbitration (Protocol

and Convention) Act of 1937, and the Arbitral Awards (Recognition and Enforcement) Act, 1961

were different. The Arbitration Act of 1940 established the internal arbitration framework. In India,

the other two laws were treated with external prices. By the 1996 Arbitration, the 1940 Arbitration

Act and the 1937 and 1961 Acts were lifted to consolidate national arbitration law (International

Arbitration Act, International Commercial Arbitration and Enforcement)), as well as in the

Arbitration Act. The 1996 Arbitration Act consists of three main parts. Part I concerns national

arbitration, Part II international commercial arbitration and Part III arbitration provisions. The law

does not define arbitration as such. It simply says that arbitration means arbitration, whether

directed by a standing arbitration board.25 This means that arbitration can be ad hoc26 or

institutional. Institutional arbitration is arbitration conducted according to the rules of an

established arbitration board.27 These rules are intended to supplement the provisions of the

Arbitration Act and other elements of the legal authorization. They can provide national arbitration

or international arbitration or both, and disputes can be general or specific. To facilitate the

implementation of arbitration, the parties or the arbitral tribunal should provide for

25 Section 2(a) of the Arbitration and Conciliation Act, 1996.26 An ad hoc arbitration is arbitration agreed to and arranged by the parties themselves without recourse to any institution. The proceedings are conducted and the procedures are adopted by the arbitrators as per the agreement or, with the concurrence of the parties. It can be a domestic27, international27 or foreign arbitration27. In case of disagreement on the appointment of an arbitrator under ad hoc arbitration cases, Section 11 0f the Arbitration and Conciliation Act’1996 empowers the Chief Justice of High Court or Chief Justice of India, as the case may be, to appoint the arbitrators. The Chief Justice is also empowered to designate any person or institution to take the necessary steps for the appointment of arbitrators. A scheme made by the Chief justice may designate a person by name or ex-officio or an institution, which is specializing in the field of arbitration. The new provision has really given recognition to the role of arbitral institutions in India.27 For example, International Centre for Alternate Dispute Resolution (ICADR), New Delhi.

Page | 20

the assistance of an appropriate institution28 with the consent of the parties and

may, inter alia, facilitate the adoption of institutional rules.29

Other types of arbitration include specialized judicial arbitration, mandatory government arbitration and permanent arbitrators.

Specialized arbitration is arbitration, which is conducted under the auspices of

arbitration institutions that have established specific rules to meet specific arbitration

requirements with respect to disputes over certain types of arbitration. in particular

disputes relating to the transport of, construction, certain fields of technology, etc.

Statutory arbitration is an arbitration conducted under the provisions of certain special laws, including arbitration, in disputes arising from matters governed by those statutes. The provisions of the 1996 Act generally apply to such arbitration unless they are contrary to the specific purpose of the arbitration. In this case, the provisions of these acts apply.Government contracts generally provide for compulsory arbitration of disputes. As a

general rule, arbitrators who adjudicate such disputes are senior officials. A standing

committee of senior officials ensures that any litigation related to such a dispute is

accepted by a court without the matter having been previously considered by this

committee. It is necessary that the commissions be approved. This process solved

various conflicts in a friendly way that would otherwise have been challenged.

A permanent arbitration mechanism for the settlement of commercial disputes has been created within the public enterprise service, with the exception of taxation between public enterprises and between a state-owned enterprise and a department or ministry of the central government.

2.2.1.1 Arbitration and Conciliation Act, 1996: A new era

The highly technical and formal dispute has in fact strengthened the need for less formal and

contemporary conflict resolution mechanisms. The Arbitration Act of 1940, which was adopted for

the early and effective resolution of disputes, has become obsolete. The Supreme Court of

28 Section 6 of the Arbitration and Conciliation Act, 199629 Section 2(8) ibid.

Page | 21

India has emphasized its ineffectiveness in Gurunanak v. Rattan Singh and sons.30 In the

context of the liberalization of the economy and the globalization of world markets, the Indian

government has recognized that it is necessary to implement legal reforms so that economic

reforms can be effectively implemented Business. As part of this effort, changes have also

been made to the Arbitration Act in India. The Arbitration and Conciliation Act of 1996, as well

as the Model Arbitration Act of UNCITRAL, has been promulgated to ensure that disputes in

international trade relations are resolved in a fair, efficient and rapid manner.31 This can be

considered as one of the reasons why the resolution of international arbitration disputes has

had a significant impact in recent years. There is also a contrary view that the standardization

of the courts, due to the changing dimensions of world trade, has led to practical difficulties

in arbitration.32 Here is an attempt to analyze these problems using an educational study.

As mentioned earlier, the 1996 law sought to reduce judicial intervention in arbitration. The

early settlement of disputes in itself implies the absence of long and delayed technical

procedures by the ordinary courts. In the current Constitution, the judiciary plays a crucial

role in safeguarding people's rights. The right to request judicial control is a recognized

fundamental right and each party can freely exercise it. The scope and extent of this freedom

is a significant problem in the context of alternative dispute resolution mechanisms.

Although the judiciary has a role in arbitration,33 it is known that undue interference in

arbitration would certainly result in a delay in arbitration, which would be of great importance

to the parties involved. Our experience in arbitration in relation to legal proceedings has

already led the Indian legal commission to propose some amendments to the Arbitration Act

in India. But the recommendations have not arrived yet.34

30 (1981) 4 SCC 634. The Court observed as follows, “ Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternate forum, less formal, more effective and speedy for resolution of disputes avoiding procedural delays and this led them to Arbitration Act, 1940. However, the way in which the proceedings under the Act were conducted and without an exception challenged in the court had made lawyers laugh and legal philosophers weep”.31 Konkan Railway Corporation Ltd. v. Mehul Construction Ltd., (2000) 7 SCC 201.

32 Janak Dwarkadas, “A Call for institutionalised arbitration in India: A step towards certainty, efficiency and accountability”, (2006) 3 SCC (jour) 1.33 See ss. 9 and 11 of the Arbitration and Conciliation Act, 1996 dealing with interim orders by the court and appointment of arbitrators respectively..

34 The 16th Law Commission of India in its 176th Report on Arbitration (2002). The Arbitration and Conciliation Bill, 2003 placed before the Rajyasabha was withdrawn on 12th May, 2008.

Page | 22

2.2.1.2 The Arbitration and Conciliation Act, 1996: Major policy issues involved

The Indigenous Arbitration and Compensation Act of 1996 combined domestic and international

arbitration provisions into a single document.35 The law provides for ad hoc and institutional

arbitration, which may be obtained by agreement between the parties or in accordance with the

law. In practice, however, it has been shown that relevant areas have not been adequately defined

by law, certain gray areas that policy makers certainly rewarded. In examining the various factors

affecting the proper functioning of the law36, we can say that the jurisdiction of the court is an

important element that determines the validity of an arbitral award rendered in which Act.37 In

general, irregular appointment of arbitrators, their element incompetence and prejudice or

misconduct in turn can become a solid foundation for the prize.38 Likewise, the principles of

natural justice are the basic principles upon which the entire arbitration process rests upon. For

this reason, irregularities in the conduct of arbitration and their effects on the validity of the award

are equally important. An arbitration award that meets the requirement of fairness must be

presented. Likewise, issues of legality and justice are important to consider the validity of a price

that may be national or international.39

Arbitration awards that do not meet the parameters set by law can be easily replaced by

the provisions of the 199640 Arbitration Act at least. In order to have a holistic approach

towards these main issues, a detailed analysis of each one of them is imperative.

2.2.1.3 Judicial interpretation

The law provides that the parties may freely determine the number of arbitrators, if

that number is not straight.41 If two arbitrators are appointed by each of the parties, the designated arbitrators are free to appoint a third arbitrator to serve as the

presiding arbitrator.42 The parties may agree in their agreement on the nationality of an arbitrator. A person of any nationality can be designated as a referee.

35 Part I of the Act deals with domestic arbitrations whereas Part II deals with international arbitrations.36 The Arbitration and Conciliation Act, 1996. Herein after referred to as the Act.37 Section 16 of the Act deals with the jurisdiction of the Act to rule on its own jurisdiction.38 Sections 10, 11 and 12 of the Arbitration and Conciliation Act, 1996.39 Dhyan Chinnappa, “Enforcement of Arbitral Awards”, (2002) 8 SCC (Jour) 39.40Id., ss. 34 and 45.41 Section 10(1) of the Arbitration and Conciliation Act, 1996.42 Id., at s. 11(3).

Page | 23

In the Grid Corporation of Orissa Ltd. v. AES Corp.43 The question concerned the nationality

of the presiding arbitration. In that ruling, the Supreme Court found that the presiding

arbitrator may have a different nationality than the parties in international commercial

arbitration. Once again, the court explained the main reasons for the appointment of the

office. It was considered that the requirement of the law is fulfilled (1) when it is actually

done, (2) when done in consultation between the two original arbitrators, and (3) when the

information about the appointment of one or both Be transmitted to parties.

If an application for appointment of an arbitrator is made, the court may decide whether the clause

in question is an arbitration agreement or not. The Supreme Court Wellington Associates v. Kirti

Mehta44, say it. 16 of the law did not exclude the jurisdiction of the Indian public prosecutor for the

decision on the existence of a valid arbitration agreement.45 Under Article 11 of the Law, it is

therefore permissible to rule on the existence or non-existence of the arbitration agreement. This

trend was not consistently identified in later cases, as there were also opposite cases. At Konkan

Railway Corporation c. The Apex Court, Rani Construction Pvt. Ltd.46, stated categorically that the

authority exercised by the President of the Supreme Court in the appointment of arbitrators is an

administrative power and not a judicial authority. The Court further stated that the main task of the

Tribunal at the appointment stage should be to facilitate arbitration by assisting the parties in the

selection of arbitrators rather than deciding the merits of the case or the validity of the agreement.

Arbitration. This view was reiterated in Food Corporation of India v. Indian Council of

Arbitration,47 the Indian court found that the purpose of the law was to minimize the court's

oversight role in arbitration and the swift appointment of the arbitrator, leaving any controversial

issues for him.

In that position, the Supreme Court apparently maintained its previous position in the Wellington

Associates case48, as the recent decision in S.B.P. & Co. / Patel Engineering Ltd.49 argues that the

nature of the powers exercised by the Supreme Judge in the appointment of arbitrators is

43 (2002) 7 SCC 736.44 AIR 2000 SC 1379.45 The Arbitration and Conciliation act, 1996, s. 16 reads,” the arbitral tribunal may rule on its own jurisdiction, including ruling on any objection with respect to the existence or validity of an arbitration agreement.46 (2002)2 SCC 38847 (2003) 6 SCC 564.48Supra n 30.49 (2005) 8 SCC 618

Page | 24

judicial and non-administrative, while repealing the previous decision in the Konkan Railway. This

decision had far-reaching consequences as it extended the scope of judicial interference in

arbitration. Unfortunately, the current situation contradicts the objective of minimal interference of

justice with the Arbitration Act, which has opened a new path for the parties concerned by

appeal.50 The Law of the Konkan Railway may be the last decision in S.B.P. preferable & Co.

2.2.2. Conciliation

The settlement procedure is dealt with in Articles 61 to 81 of the 1996 Arbitration Act. The purpose

of this Act is to allow the arbitration of settlement proceedings or other proceedings during the

arbitration to facilitate liquidation of disputes. This law also provides that an agreement that the

parties have made after arbitration has the same status and effect as an arbitral award under the

terms agreed by an arbitral tribunal in a dispute. The settlement applies to disputes arising out of

legal, contractual or other relationships and all related procedures.51

Unlike a referee, the arbitrator’s main task is to encourage the parties to reach an agreement.

An arbitrator must conduct a hearing of the parties, but a conciliator does not attend a formal

hearing, although he may informally inform the parties separately or together.

The referee has the power of the final decision, and in this sense his contribution becomes compulsory. On the other hand, a mediator must encourage the parties to come to an agreement amicably. A party initiating mediation may send a written complaint to the other

party.52 The settlement begins when the other party accepts this invitation in writing. If you

do not accept it, there will be no mediation.53 If the agreement is an intermediary with all the

paperwork formalities confirmed by the intermediary on paper, it is a price and therefore a

decree that can be executed immediately.54 Failure to comply with this obligation would

encourage the party concerned to submit the enforcement application directly.

50 Once the process of appointment of arbitrators by the Chie justice is said to be of judicial nature and not of administrative character, it is amenable to judicial review under Article 136 of the Constitution of India.51 Section 61 of the Arbitration and Conciliation Act, 1996.52Id., at s. 62.53Ibid.54Id., at s. 73 and 74.

Page | 25

2.2.3 Mediation

In general, mediation is a negotiation conducted by a third party. It is a private, voluntary,

informal, non-binding and cost-effective process that creates an environment conducive

to constructive communication. The essential value of mediation is that the process

provides parties with the opportunity to negotiate with a neutral third party, the mediator,

to discuss and explore opportunities to determine in depth whether an agreement is

possible. In mediation, conflicts are resolved rather than resolved.

The consultation meeting also finds that the out-of-court settlement of disputes through

mediation is very satisfactory and successful. It resolves not only the particular controversy

related to mediation, but also the present and future dispute. It focuses on past and future

relationships between the parties. Parties may disclose the facts to neutral facilitators, with

the entire process ensuring confidentiality. There is no rigid regulatory framework for

mediation. It's a very flexible process. A person acceptable to both parties would act as an

intermediary. In the beginning, it is important to determine the cost of the mediation. The

mediator must indicate the potential costs and obtain the consent of the parties to share

them equally. Otherwise, the costs of mediation would become a problem of conflict between

the mediator and the party. Although this is not widely recognized, negotiation for any reason

can also be described as a kind of mediation.55

2.2.4. Lok Adalats

Lok Adalat, created by the government, resolves the dispute through arbitration and compromise.

Cases pending or pending, as regards the court, the competent authority or the commission

concerned refers to them, if the dispute is in advance and not before a court, Lok Adalat can be

called.56 The Parliament adopted the Law on Legal Services of 1987, one of the objectives was to

organize Lok Adalat for the functioning of the judicial system to promote fairness on the basis of

55 Negotiation is a communication process. It is voluntary and non-binding. It has control over procedure and outcome since there is wide range of possible solutions. Aims at maximum joint gains, which is quick, inexpensive, private and less complicated. Negotiation is possible where parties must cooperate to meet these goals. Parties can influence each other to act in ways that provide mutual benefit or avoidance of harm.56 Here comes the significance of Lok Adalat, which has showed its significance by settling huge number of Third Party claims referred by Motor Accident Claim Tribunal (MACT). Except matters relating to offences, which are not compoundable, a Lok Adalat has jurisdiction to deal with all matters.

Page | 26

equal opportunities. The law legally recognizes the resolution of disputes through the

compromise and approval of Lok Adalats. The concept was taken from the Panchayat system,

which has its roots in the history and culture of this country. The legal provisions, which are

based on the concept of decentralization of justice, complete the judicial system. They will do a

lot to resolve disputes almost for free and for the parties as soon as possible. At the same time,

the law should not replace and replace the legal system. The Law on Legal Services of 1987

(amended by Law No. 37 of 2002) provides for the creation of a "permanent adalat locomotive" to

which all parties may be called in a dispute over "public services". under the law57 (as amended)

include transport services for the transportation of passengers or goods by air, road or sea;

Postal, telegraph or telephone services; Insurance, hospital or pharmaceutical services,

electricity, water or public water and public or sewage protection systems.

2.2.5. Plea bargaining

The Penal Code (2005) introduced a new negotiating chapter58 that makes it applicable to crimes

for which the sentence is valid for up to seven years. The court settlement can be defined as a

preliminary hearing between the accused and the prosecutor, during which the accused agrees to

plead guilty to certain prosecution costs. The purpose of the agreement is to reduce the risk of

unwanted requests from both parties. One of the main reasons for filing a complaint in our system

is that most criminal courts are overburdened and unable to correct suspicious cases.59 In

addition to regular meals, this technique is now practiced in Lok Adalats.

57 Section 22A of the Legal Services Authorities Act, 1987.58 Chapter XXIA of the code of Criminal Procedure, 1973.59 To reduce the delay in disposing criminal cases, the 154th Report of the Law Commission first recommended the introduction of plea- bargaining as an alternative method to deal with huge arrears of criminal cases.

Page | 27

CHAPTER-3Alternative Dispute Resolution In Current Scenario

The 1996 Arbitration and Reconciliation law60 marked a time in the struggle to find an alternative to the traditional system of conflicting causes in India. This marked the start of a new system of negotiated settlement and consensus settlement of disputes as a way to tackle the insurmountable obstacles imposed by the decrepit and anachronistic civil justice system. The descendants of the law Article 89 of the Code

of Civil Procedure61, which obliged the Court to submit some disputes to other legal remedies, formed a springboard for achieving the inefficient ideal of efficiency court.

Progress over time has led to a growing awareness that the judiciary must perpetuate economic

growth and financial stability. The role of the judiciary goes beyond simply creating precedents.

Ordinary litigants do not worry about the most subtle considerations of the law, but prefer a quick

resolution of their disputes. Market reforms, globalization and liberalization, encouraging foreign

direct investment and various other institutional reforms of the Indian economy have led to the

emergence of global partnerships and commercial interests that transcend national borders.

These concerns are of particular concern for the management of efficient, effective and timely

justice. The court must therefore promote and encourage economic development.

The purpose of this chapter is to emphasize the feasibility of alternative methods of conflict

resolution to achieve the aforementioned ideals of institutional effectiveness. The usefulness

of ADR to solve the problems of the traditional legal system was underlined and attention

was also paid to the success of mediation and arbitration mediation.

Alternative dispute resolution mechanisms have been developed to provide full justice to those

involved in litigation or litigation. It is a legally recognized voluntary process for a period of time.

ADR is currently a global movement aimed at responding to endless controversies and never

finding solutions to a global phenomenon. The society, the state and the dispute are also obliged

to resolve the dispute before it disturbs peace in the family, in the business world, in

60 Act no. 26 of 1996 [hereinafter the Act].61As amended by Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999). The earlier section was repealed by Act 10 of 1940.

Page | 28

society or, ultimately, in the whole of humanity. Because in a civil society the rule of law

must prevail, the principles of natural justice must be applied and justice must be total.

3.1.Essential Elements of Alternative Dispute Resolution

Rule of Law

Democracy must absolutely guarantee the rule of law. The prince does not inherit governance

from people, but from principles. It is the dynamic concept of the supremacy of the law, d. H.

The legal norms that restrict government action negatively and is also an affirmative legal

obligation. In the legal context, the rule of law refers to an independent judiciary.

Principles of Natural Justice

The rule of law and the principles of natural justice are intrinsically linked. It is a

protection against the excessive power of the authorities or management positions. It

means justice, equality and equality, reason. This is also called the natural law.

Constitutional Foundation

These principles have a constitutional basis. Articles 21 and 14 of the Indian Constitution

establish these principles of natural justice and the rule of law. These articles involve a

substantial and procedural process. Equality where the accused is deprived of liberty

Article 21. Absence of discriminatory collective bargaining legislation

Two Basic Principles

The sole basis of ADR is based on two basic principles. They are: 1. Nemo judex in his case

=No one should be appointed judge in his case (rule against prejudice) and 2. audi alterum partem (hear the other side)

The enemy of justice is prejudice, which consists of four types: 1-financial interest or 2. personal interest, a) kinship or b) marital relations, c) friendship, 3. hostility 4. official bias, 5. Prejudice

Rule Of Fair Hearing

Page | 29

No one can be deprived of his acquired right or punished without the possibility of explanation. Everyone has the right to receive a communication, the right to present a case and evidence, and the right to reject unfavorable evidence. No evidence should be presented on the back of another party.

Audi Alteram Partem

The maxim in its broadest meaning means that the relationship must be subject to

investigation, reasoned decision or order of the application to the other party, and it is very

important that there are institutions or a decision it makes. It's a rule against dictation.

The ad should be appropriate. According to paragraph 5 of Article 22, everyone

has the right to know and present the reasons, which are themselves supported

by another paragraph 2 of Article 311, which protects the rights of workers within

the labor market. government by offering procedural guarantees such as

homework. The doctrine provides the powers of the president or the executive.

Procedural Due Process

These two principles are common in all procedural laws such as Cr.P.C. and Code

of Civil Procedure. Communication, convocation, information exchange in the

form of memoirs, discovery, conflict resolution, witness analysis, arguments and

sentences explain the growing need for parties. The process of indebtedness is

essential for settling disputes in both litigation and alternative litigation.

Problems In Litigation

Thus, these procedural safeguards and the natural principles of justice, when imposed by

the state, have caused serious problems for the resolution of the conflict. I am:

Inappropriate delay

Climbing fees

Assembly waste

Generalized corruption

Page | 30

Inequalities in the system.

Merits Of ADR

Not just another mechanical dispute resolution process

• Not just a philosophy of militant legal assistance• Promoting the rule of law in society• promoting the participation of people• promoting independent development• Creating legal awareness and respect for the rights of others

Dispute Resolution

There are two types of dispute resolution: the procedure and the non-final procedure.

The dispute resolution process is the future dispute resolution mechanism.

Involves the collection of strategies outside the normal processes of the process

Because the risks of legal actions are as follows: the dispute is expensive, open, with

uncertain timing and decisions, and prevents the parties from controlling the transaction.

And finally, we fear the process of illness and death

Creative Dispute Resolution

• It can be formal or informal, regardless of what you do to stay away from the field

• as an open-door policy or for billing mass demands• Arbitration, negotiation and mediation developed and mixed in dozens of variants

• Preliminary neutral assessment, summary jury procedure, court reports such as court proceedings, court arbitration, interim proceedings

3.2.Travails Of The Litigation System

Our legal system is based on a model of Anglo-Saxon jurisprudence, which is a contradictory

legal system. According to this model, two other parties, represented by their respective advisers,

oppose views as an essential complement to the search for justice. This system is based on the

Page | 31

idea that such negative views and conflicts will eventually reveal the truth. However,

the accusatory system proved to be an obstacle to efficiency and navigation.

Clearly, the purpose of adopting an alternative dispute resolution system is to find a way to circumvent and eliminate the enormous problems facing the controversial system. These problems can be classified in:

1. Delay;2. Costs;3. Intensity Of Procedures; And4. Reduce The Role Of Participation Of The Parties.

1. Delay

Delays and delays go hand in hand. An era typical of civil litigation reflects a bleak picture of

the litigation system in India. Parliament's internal affairs committee found that there were 21

higher courts in the country in 2001 and 35 cases pending.62 The situation in the sub-courts

was greater than ever, as there was a collection of two-way records from 25 to 30 years. This

large accumulation results in too many problems over 15 or 20 years.

Any delay in a country's judicial system results in the loss of public confidence in the

concept of justice. This has a corrosive effect on the principles of public interest, he says:

"delaying justice, denying justice". As a result, this applies to people who have been legally

injured because they remain out of court and are afraid that time is wasted in court.

2. Expense

The Supreme Court of the United States, Brennan, said: "Nothing in the heart of the

person is more than an unjust injustice ... when only wealth enjoys the law as luxury and

the people with few needs can be there. " because these are costs that come back."63

62J. Venkatesan, "Panel Concern over Backlog in Courts", The Hindu, New Delhi, March 10th, 2003.63Quoted by S.S. Visweswariah in Legal Services presented at the National Seminar on service sectors organized under the auspices of the Institute of Management Education and Research, Belgaum, Karnataka, on the 22nd and 23rd of March, at p.2

Page | 32

The costs normally borne by the candidate, such as legal fees, legal fees, etc., exclude the poor from the call, but those who need it most. The increase in treatment costs is compounded by numerous procedures and unusual delays.

3. Rigidity of Procedures

The activities of the courts are governed by various laws or regulations. Over time these methods have achieved considerable rigidity the rigidity of the procedures tends to be fair, but this goal is achieved with disastrous costs.

By maintaining these strict procedures, we are abandoning the possibility of

resorting to justice, which can only be achieved with modest flexibility. In addition to

the delay in the judicial system, strict procedures are needed to arrest ordinary

citizens who fear the courts and fear the Saxon lawsuits they do not know.

4. Participatory Role of Parties

The controversial system often leads to the exclusion of parties whose participation in

the process has ceased. Without legal advice, the parties to court are often exposed to

their courts, opinions, opinions and interests that are irrelevant to the courts.

Therefore, the simple law requires a dispute resolution system that takes into account

the feelings, opinions, perceptions and interests of the parties to the agreement.

3.3. Alternative Dispute Resolution

In developing an alternative conflict resolution system, two principles must be met. Firstly,

such a system must solve the self-reinforcement problems associated with the traditional

process system. However, it is very important that legal norms are not lost as responsibility

and integrity in the same attempt to obtain an alternative. It is therefore imperative that the

ADR system goes beyond the obstacles contested by the methods allowed to ensure that the

columns of justice in the name of an alternative system do not become effective.

It should be noted that the ADR should not replace or replace the courts of the country. "Another

option" is not in a restrictive sense. The need for public jurisprudence and normative judicial

Page | 33

declarations on important day-to-day issues is critical to the development of the laws of the country. ADR is required to integrate and maintain this role of the courts. The purpose of ADR is to provide a point of sale where small and non-contentious disputes can be resolved easily and quickly.

Therefore, an ADR system has a number of instrumental and intrinsic functions. This

is important because it allows for disputes to be resolved by means not available to

the courts. It is fundamental because it allows the parties to resolve their disputes.

3.3.1.The Comparative Failure of Arbitration

The arbitration was the first alternative dispute resolution procedure legally established in India.64

If the need for a speedy settlement of disputes to improve the business prospects is understood,

the Parties have decided to conclude arbitration agreements to settle disputes between them in

the performance of the contract. The arbitration recognized the central role of the parties in

settling their own disputes, and for the first time, the role of the parties' involvement was

strengthened by allowing them to elect an arbitrator appropriate to their needs.

Although some of the problems in the process system were resolved through arbitration, it did

not fulfill the true function of ADR without being an end in itself. The judicial interference granted

under the 1940 Act exceeded the goal of a speedy judiciary, meaning that "lawyers laughed and

jurassic philosophers beat us".65 The Supreme Court of Calcutta insisted more on this failure of

arbitration: "The Arbitration Act is a crypt that is constantly at the cross of a legal precedent." It is

not an exaggeration when almost all say The arbitration is controversial, which is still important

and the second litigation before the public courts, which creates the truth of the old cynical claim

that only a fool performs arbitration because he has two Games paid before the umpires and the

others before the courts where they returned home."66

The 1996 law corrected some of the shortcomings of the 1940 Act Arbitration relieved the

ordinary courts of law because the Civil Procedure Code and the Indian Evidence Act were

excluded from arbitration. The judicial intervention under the new law was limited to:

64 The Arbitration Act of 1940 (10 of 1940) [hereinafter the 1940 Act].65 Guru Nanak Foundation v. Rattan Singh, AIR 1981 SC 2075.

66 Saha & Co. v. Ishar Singh, AIR 1956 Cal 321 at 341.

Page | 34

1. A reference to parts of an arbitration in the case of an arbitration agreement [Section 8];

2. Issue provisional orders as "protective measures" [Section 9];3. The appointment of arbitrators [Section 11];4. Termination of the mandate of the arbitrators [paragraph 14 (2)];5. Provide evidence to the tribunals [§ 27];6. The annulment or the adoption of the judgment [§ 34];7. Power to hear appeals [§ 37];8. Power to order the General Court to pay the costs [§ 38 (2)];

9. Power to enforce arbitration costs if the judgment does not provide for an appropriate provision [§ 39 (4)];

10.The power to take decisions on insolvency proceedings in certain circumstances (Article 41 (2));

11.Power to extend time for reference to arbitration to time barred future disputes [Section 43 (3)].

However, the term "out-of-court dispute resolution" is not used by justice. First, according to

the model of Anglo-Saxon jurisprudence, the traditional antagonistic system continues in

arbitration, in which there is a claimant and a defendant. Secondly, the arbitration has been

delayed because both parties have put forward their arguments, which has led to delays and

delays in the last sentence. Third, the mediation costs are as high as those of the legal

system, without automatically excluding the poor from arbitration. Finally, the satisfactory

role of the parties, despite being an improvement on the process system, is unsatisfactory,

as the supporters of the parties almost always respond.

4.2.5. Gaps in Alternative Dispute Settlement

Despite the improvement of ADR's position in India, the system still seems to be lacking in some

respects. Article 89 of the Code of Civil Procedure must be amended urgently. The problem is that

this article stipulates that, if the Court finds that there is an element of resolution acceptable to

the parties, it must define the terms of settlement and upon receipt of the parties' observations

- conditions of a possible agreement according to which the parties can be arbitrated, negotiated,

etc. This imposed function gives considerable weight to the courts. The Court must define the

Page | 35

conditions for a possible agreement. The purpose of mediation is to submit the parties to the mediation function, which allows them to examine the options available to them for the negotiated solution.

In addition the development of mediation as a viable alternative in the early days of India. ADR

has encountered considerable disgust for legal fraternity. Successful implementation strategies

must be carefully considered and a conscious effort must be made to promote the development

of a process acceptable to society as a whole. The main problems in this regard are:

(1) Develop consciousness;(2) Profession of lawyer;(3) Building capacity;(4) Create an institutional framework;(5) Effective implementation.

The law derives its authority from the obedience of the people.67 However, because of the high volume of receivables and the slow backlog of our processing system, a fair and equitable system is not necessary. The rigidity of the process and the extravagant costs associated with the process system permeate our legal framework, while public confidence in our justice system is slowly weakening.

Alternate methods of conflict resolution, including mediation, will ensure that your

service restores public confidence in our system. Mediation provides people with a

dispute resolution system free from the delays, costs and rigidity associated with our

process system. It focuses on its interests and gives them the right to self-determination.

However, mediation has not yet reached the position it deserves. Great progress must be made to ensure a system without antipathy or resistance.

67Aristotle's Politiks 1269a.

Page | 36

In this context, it is worth mentioning an incident, Judge Oliver Wendell Holmes found in

a train.68 A young conductor entered the train and asked the man to enter. Judge Holmes

tried, but could not find it. The young chief recognized the famous judge:

"All right, Judge Holmes, we are very happy to have guided you on our train, so if you find your ticket, send it to us at the railway office."

Judge Holmes replied:

"Young man, the question is not where is my ticket, but where am I going!"

For the holmesian question "Where is the alternative settlement of disputes in India?" The answer should always be:

"We hope in the right direction."

Ambiguities in Arbitration and Conciliation (Amendment) Ordinance, 2015

Access to justice has become slow, costly and complex due to the excessive number of

courts, lengthy procedures and outdated laws that undermine the sanctity of courts, leading

to frustration among litigants. The parties therefore welcomed the changes made to the ADR,

which allow a simpler, cheaper, more efficient and timely solution to disputes.

3.3.2Legislative Overview

The Arbitration Act of 1940 did not reflect the changed attitude and was generally considered

obsolete and incompatible with the arbitration available in many developed countries. For

example, the Law of Mediation as an ADR mechanism does not grant legal recognition. In

this regard, the law was repealed and the 1996 Arbitration Act was enacted. The law of 1996

consolidated and amended the laws on the domestic arbitration and the enforcement of

foreign arbitration awards. The law of 1996 also redefined the role of the tribunals by giving

them more authority and power to increase their effectiveness.

68 See The Arbitration and Conciliation Act, 1996, V.A. Mohta: Prefatory Comments by F.S. Nariman.

Page | 37

However, in practice, arbitration as an alternative dispute resolution procedure has not

yet been successful, as the legislation has inherent inconveniences and shortcomings

that not only weakened the process but also increased the burden on the courts.

Seek temporary protective

measures; Appoint referees; and

Cancel the awards.

Due to the large number of pending cases, these requests could not be resolved swiftly,

which considerably impeded the conduct of the arbitration. This led to the announcement of

the Arbitration and Conciliation Regulation of October 2015 (2015). The 2015 amendment

amended the 1996 Act to ensure economic arbitration and reduce court action. This update

reviews the rules governing the appointment of arbitration tribunals and the remuneration

structure of arbitration tribunals under Articles 11, 11A and 29B of the 2015 amendment.

3.4.Appointment Of Arbitrators

Applications under Section 11

Previously, the parties to an arbitration agreement under section 11 of the law could (and may still) request the appointment of arbitrators by filing an application in the competent court (for example, the Supreme Court of Arbitration). the 2015 amendment and the Supreme Court of Arbitration), if:

• None of the parties has appointed an arbitrator within 30 days of receiving the request

(if three arbitrators are appointed, no agreed arbitration procedure has been agreed);

• the parties have not approved an arbitrator within 30 days of receiving a request (if a

single arbitrator has been appointed in the absence of an agreed appointment procedure);

• One of the parties did not act as expected in the agreed appointment procedure. or

The parties have not reached an agreement in accordance with the agreed appointment procedure.

Page | 38

3.5. Negotiation

• It is a communication processVoluntarily

• non-binding• Control over procedure and result• Wide range of possible solutions to maximize shared profits• fast, cheap, private, less complicated

3.5.1. Negotiation Is Possible.

• where parties must work together to achieve goals• Parties can influence each other and act in a way to create mutual benefits or avoid harm

• Parties are affected by time constraints• Parties can identify and agree on issues• Not completely incompatible interests• external restrictions (reputation, costs, controversial decision risk) promote ADR

5.1.2. The Negotiation Works When

1. The parties are ready to cooperate and communicate to achieve their goals.2. The parts can interfere or avoid interfering with each other.3. The parties know they have time restrictions4. The parties recognize that any other procedure will not produce the desired result

5. The parties can identify problems that require a solution6. The parties agree that their interests are not inconsistent7. The parties knew that it was preferable to participate in a private cooperation

process instead of being subject to strict external restrictions such as loss of

reputation, excessive costs and the possibility of a contradictory decision.

5.1.3. A Mixed Motive Exchange:

Trade is an exchange of mixed motives. The motivations of the two parties are mixed and offer

an exchange. Interests are combined and treated together. The value is shared and the

Page | 39

other values are created first. First, the parties understand each other, understand the problem and the ultimate interests, and come together to solve the problem with the greatest possible benefit.

The concept of mixed motivation exchange can be explained with the following prepositions.

1. Negotiators have two options: compete or cooperate. Competition negotiations

may be necessary to avoid exploitation while the nature of cooperation is required

to maintain relations. If the negotiators believe that preventing exploration is the

most important priority, this can start with a competitive attitude. If the report

considers the creation of long-term contracts and peaceful business relationships

to be essential, the only cooperative approach is preferable.

2. The participant's negotiator can demand or enforce an individual victory, the existing value is claimed by the parties here.

3. The cooperative negotiator is different. He prefers the common profit, in addition to the existing value, an additional value is created in cooperation.

5.1.4 The Needs Of Good Negotiator:

A good negotiator must know his subject well, must be an expert, demonstrate personal integrity and know how to use power. Negotiation is a combination of all the skills and the constant exercise of these skills.

The following tasks are the responsibility of the negotiator:

What do you want to get?

Check your hypotheses - are they wrong?

Follow the facts, research and collect data. Brainstorming (generating many ideas without evaluating them) can generate data.

Define problems, determine your positionDetermine your position, the needs of your opponents and determine your strategy.

How to make concessions

Page | 40

If the negotiations involve a series of concessions and mutual respect of interests, there is a way to make such concessions. I am:

Starts difficult and weakens systematically

Make smaller concessions than the opponent

Avoid frequent concessions, except where absolutely necessary. Limit the instinct of being too friendly

Have sufficient grounds for a final commitment.

Tactics used by Negotiator:

Successful negotiation depends on how the negotiator uses his cards, applies

appropriate strategies, and deals in the interests of the other party. The experienced

professional does not use predictable tactics. It will show very good and effective

opening tactics. In fact, the negotiator can visualize the final outcome of the opening

sentence and also understand the opponent's expansion as soon as it is started.

An effective communicator, with the ability to understand the whole problem, including

the interests of the opponent, will be an excellent negotiator. For this reason, a personal

relationship, a visual contact, a silence, which is required at the relevant moments, is an

effective justification of the offers. Requirements vary from culture to culture, from

application to application and from person to person. It requires self-confidence.

Good Location And Surroundings:

A good negotiator should always know the best and worst alternatives for the solution

process he wants to achieve. The best alternative to the negotiated solution and the worst

alternative to the negotiated solution are important points that a negotiator must discover

and discuss at all levels of discussion. If you do not argue, you should be aware of this.

This understanding will guide you properly in overcoming difficulties.

3.6. Mediation

• Negotiation by third parties

Page | 41

• Private, voluntary, informal and non-binding cost / benefit ratio• different forms of mediation• Create an environment for constructive communication

• At the beginning of colonial America, M was the dominant guard and the visit of children is taught in many states to this day.

3.6.1. What is mediation?

Mediation is a process, a relief, an empowerment. The key value of mediation is that the

process provides the parties with the opportunity to negotiate with a neutral third party,

the mediator, to speak and explore options to fully determine whether an agreement is

possible. It's about empowering the parties to control their fate in their dispute.

Mediation involves an interest: the interests of the parties. An often lacking concept in the

lexicon of the litigator, interests are the needs, desires and desires that are important to the

parties - the answer to the question, "What is that really for you?" In addition, mediation

basically offers a forum for negotiations. These negotiations can sometimes become

frustrating and disturbing, but with the help of the mediator, the parties go further. Policy-

based negotiation fosters the exploration of settlement solutions and the ability to evaluate

such solutions by assessing them based on the likely outcome of the process and proposals

against the reality goals. Mediation is a real move for security and purpose compared to

litigation, prosecution and appeal. If the dispute leads to mediation, it is determined on a basis

acceptable to the parties. the spectrum of the process is removed; and the danger of being

tied to the resource is eliminated. Strategies and Methods:

Meeting of participants: near the mediator.

Opening statement of the intermediary

presentation of the participantsPraise her for her willingness to work together

Explain the process and goals of mediation

Set the confidentiality rules -

create How are topics presented?

Finally, get a joint agreement to get started.

Page | 42

Collect the preliminary statement of the parties

It is important to organize a composite list of problems, written submissions and opening instructions.

3.6.2.Mediation and Conciliation: A Better Alternative

Mediation is a structured negotiation. This is an informal, confidential, consensual

and non-binding process that allows the parties involved in the dispute to discuss

their confidential differences with the assistance of a neutral third party.

The process is oriented towards interest, farsighted and aims at a sustainable situation in

which everyone wins. It should be noted that there is little difference between the terms

"mediation" and "mediation",69 since they are legally recognized by the law of 1996.70

Mediation is absolutely consensual. The procedure must be initiated at the written

request of both parties and each party may withdraw at any time. All information sent

to the intermediary can be treated confidentially if the party providing it requests it.

Furthermore, the mediation process cannot be started in court or the mediator can

testify in a lawsuit. This allows the parties to communicate without risk, thus

promoting a favorable and healthy environment, favorable to the companies.

It often happens that two parties with healthy business relationships want to continue their

relationship, despite a general dispute between them. The contradictory system in traditional

courts breaks the relationship by juxtaposing one side to the other. Furthermore, a court decision

generally tends to "win" the dispute and "lose" the dispute. Mediation is characterized by the fact

that both parties "win" the dispute if they find solutions that satisfy the basic needs of each party.

The mediator does not make binding decisions and this decision is not imposed on the parties. It

can suggest a solution for the parties, rephrase it, etc., and this solution can be accepted or

rejected by both parties. This inevitably leads to a lasting business relationship and promotes it.

69Bryan A. Garner, A Dictionary on Modern Legal Usage, p. 5554, 2nd Edition, 1995.70Part III, sections 61-81, the Arbitration and Conciliation Act, 1996.

Page | 43

3.6.3.Role of the mediator

The mediator is not an arbitrator. The intermediary role of the mediator means the quintessence

of mediation. The mediator is neither a specialist nor an arbitrator in disputes. The intermediary's

task is to create an environment in which the parts that appear in a purely voluntary agreement or

agreement facilitate the resolution of the dispute. The mediator can invite the parties to a meeting

or ask each party to meet separately to open the communication channels. The mediator must

examine the dispute from a commercial, professional or personal point of view.

A broker has certain trading tools that are not available to a court judge:

A. Negotiation by position

The mediator can reduce the differences between the parties and their different legal positions. This can be achieved by exposing the uncertainties of the judicial process and the possibility of amicably resolving their differences.B. Interest-based negotiations

Interest-based negotiations can be illustrated by the apocryphal story of the two

girls, each of whom wanted an orange. The judge will examine the questions: who

got the first one? (Property), who bought it? (Contract), who else do you need?

(Equity). The referee shares the difference by giving half of each of the girls.

However, the mediator asks the girls why they need orange. If one wants juice and

the other skin, girls will quickly accept a distribution that suits their interests.

C. Integrative negotiationThe mediator can integrate the interests and needs of both parties to find a mutually

acceptable solution. Our daily life is an example: two law students needed the same book for a

writing competition. After a long discussion, an older student eventually asked them to write

the essay together to increase their chances and allow them to participate in the competition.

Equipped with these negotiating tools, the intermediary must have personal qualities that

allow him to establish peaceful relations with the parties. He must have the humility not to

judge the mental state of each party and be ready to show empathy for their respective

points of view. In essence, it is an information gatherer, a reality tester and a problem solver.

Page | 44

3.6.4.Why does mediation work?

Therefore, mediation can be considered an effective and real alternative for the following reasons:

(1) Facilitates communication and separates people from the problem;(2) Helps overcome emotional attacks and blockages;(3) Restores the negotiation process;(4) Identifies and focuses on the real issues and needs of the parties;(5) Get the right people and the right information on the table;(6) Help the parties summarize their case;(7) Increases the resolution options;(8) Retains ownership of the problem and agreement with the parties;(9) Restores relationships and protects them.

Call for mediation:

The mediator may need to plan the best strategy carefully to bring the parties to the table. If a

party is unwilling to send the invitation to the other party, it is the provider's responsibility to

initiate an invitation to the parties. If the parties are rigid with the opponent, it is up to the

supplier to find a suitable place to negotiate in his presence or absence, which does not cause

problems for both parties. If the first meeting between him and one of the parties was separate

or a joint meeting of both parties took place? This question must be decided according to the

circumstances and attitudes of the parties.

Flexible Process:

There is no rigid structure of mediation rules. It is a very flexible process. A person

accepted by both parties acts as mediator. He is understood to be neutral and able to

understand the problems of his controversy and to be sufficiently informed about the

mediation processes as well as the term time and attitude to problem solving.

Page | 45

It is important to determine the initial investment costs. The mediator must indicate the potential costs and obtain the consent of the parties in order to share them equally. Otherwise, mediation costs would become a conflict problem between the mediator and the party.

Issues to be addressed:

The parties should also decide on the mediation process. In this context, the parties can indicate which topics should be discussed and which should be avoided. It is also necessary to decide on the confidentiality or secrecy of certain procedures or aspects of negotiable disputes.

With the help, advice or knowledge of the facilitator, the parties should decide which topics

should be discussed and which should not be discussed. In family matters, mediation

between spouses would normally lead to such problems. The spouses may agree to discuss

custody of the children and the distribution of the common part or the amount of child

support. At the same time, they cannot agree to discuss their relationships with other people.

Required parties:

The parties must identify all necessary parties that are affected by, or are likely to be

affected by, the decision in relation to the points below. If a necessary part does not

join, the decision cannot be binding and the entire process can be wasted. People

who can compromise can be the stakeholders of the process. It must also be

determined in advance whether the parties represent or represent a lawyer.

Introduction:

The mediator has difficult tasks to perform at the beginning of mediation. He has to contact

the remote and complex parties in their place and convince them of the advantages and

disadvantages of mediation compared to other processes. The mediator must create the

credibility and atmosphere necessary to confirm that he has the courage and credibility to

help resolve the conflict. In addition, the mediator must establish a connection between the

dispute parties. It must prove its personal credibility, establish its institutional credibility, and

Page | 46

demonstrate its procedural credibility so that the parties are ready to establish the relationship that unites them.

The Beginning:

The beginning of the mediation session is very important. The atmosphere of the first session defines the atmosphere required for the solution. The greetings and seats of the participants, their strategic position at the table, whether opposite or combined, the opening speech of the mediator and the initial statements of the parties are very important to the process.

Collect And Analyze Relevant Information:

The mediator receives the required information from the opening statements of the parties and

develops additional information at this level to help focus and direct the solution process. A

common method is to collect summaries of the parties, identify the nature of the dispute, and

contribute to the understanding of issues and positions in conflict. The original explanation,

the circumstances of the conflict, the sum and the content of the problems to be solved must

be collected by the parties in the first or second phase of the mediation.

Agenda Definition:

The mediator must strategically project the list of issues, circulate among the

parties, seek their proposals, and reach consensus by listing and prioritizing the

issues in order of preference. If necessary, the problems must be reformulated,

the list realigned, or the problems prioritized. It should make sure that all the

interests and concerns of all the parties involved in the problems listed are

expressed or not. This completes the planning configuration.

Communication Process:

The next step in mediation is the flow of communication between the parties to the dispute. It

is important to understand the parties' views and the mediator's understanding of questions

and interests, which requires perfect communication. The language of the body, the

adaptation, the paraphrase, the abstract are the elements of communication. To understand

Page | 47

communication, one must go beyond the boundaries of cultural challenges, gender,

personality, language and perception. Communication can be restored through frequent

discussions, closed, open and operational issues, active listening problems, preparation

questions, clarification questions, confirmation questions, conflicting questions, hypothetical

questions and questions. Mediator questions to create the needed information bridge. If you

are not listening, it is difficult to understand the message. There are four levels of listening:

ignoring, feigning, selective and attentive listening. The listener must give up the feeling of

being more important than the speaker, and at least for a while give him the essence. He must

suppress his desire to speak. He should end his judgment and find out what is really

important to the speaker, and he should focus on the main event.

Page | 48

CHAPTER-4JUDICIAL APPROACH TO ADR IN INDIA

Arbitration is the only area in which Indian courts have recognized ADR. Arbitration was

originally governed by the provisions of the Indigenous Arbitration Act of 1940. The courts

were very concerned about the control of arbitral tribunals and with the fact that the

arbitrator exceeded his jurisdiction in deciding the arbitral tribunal. Which he referred to for

mediation. The decision of the Indian Food Corporation Vs. Jogindarlal Mohindarpal, 1989 (2)

SCC 347, dealt with the scope of the arbitration award decided by arbitration:

"Arbitration, as a means of settling disputes between the parties, has a long tradition in India,

has a social purpose today, and is urgently needed nowadays in case of increased litigation

in courts established by the courts. however, fairness, legal equality and fair play must be

respected, and arbitration must be in accordance with the principles of natural justice and

must be consistent with that practice and procedure, which will lead to an appropriate

resolution of the dispute and to the The burden is placed on the Court to ensure that the

arbitrator acts in accordance with the law and that the judgment is clear, fair and honest. As

far as possible and oblige the parties to comply with the decision and to obey their elected

judges.The scope and limitation of the correction made by the judge in a sanction imposed

by the arbitrator should be simple, less technical and more responsible in the circumstances,

but responsible for the canon of justice and fair play. The arbitrator must be required to

respect such processes and standards that create trust, not only through justice between the

parties, but also through the sense that justice has been done. "

The courts were anxious to know whether the arbitrator was competent to rule on such a dispute by interpreting the arbitration clause of the convention. The power to decide the arbitrator's jurisdiction to decide a particular issue was transferred to the court (see SCC 568 (Union of India Vs.GSalwal & Co.) and 1996 (2) SCC 216 (Status) 'Orissa and another Vs.Damodar Das).

Page | 49

There were significant delays in settling disputes between courts, which prevented other

countries from investing in India. Furthermore, the Indian Arbitration Act of 1940

contained no provision to settle a dispute between an Indian and a non-Indian because

the contract between the parties was different in law, which made it difficult to refer such

matters to arbitration. To avoid this difficulty, India has initiated significant reforms in its

arbitration law in recent years in the context of the 1991 economic reforms. At the same

time, many measures have been taken to initiate reforms in the country, in order to

minimize the efforts of the courts to interfere in arbitration, by adopting the United

Nations Commission on International Trade Law (UNCITRAL). In this context, the

government created new legislation called the "Arbitration and Conciliation Act of 1996".

As far as the 1940 law is concerned, this law contains peculiarities.

1. If there is an arbitration agreement, the court shall instruct the parties to have recourse to arbitration under the agreement (section 8).

2. The reason why the arbitration award can be challenged is reduced to a minimum due to

the nullity of the contract, the lack of competence of the arbitrator due to lack of

communication with a party of the appointment of the arbitrator or an arbitral tribunal or

arbitral tribunal may present his case . At the same time, cash prizes may be reserved if

this contradicts "public order in India, a country that includes fraud and corruption."

3. The referee's powers have been strengthened by the inclusion of specific provisions

on various subjects, such as: These include, for example, the law applicable to it, the

power to determine the place of arbitration, the failure of the agreement, the power to

appoint experts, the power to act, the power to ask the court for assistance in

gathering evidence, the power to defend interests allot, and so on.

4. The willingness to take an explicit approach to this undermines the readiness of the parties to take the precarious approach.

5. The role of the arbitral tribunal in promoting arbitration was first recognized in the law.

6. The appointment of the referee by the Judge-in-Chief was scheduled. The court chooses the arbitrator as such outside the litigation and makes it an administrative act. The parties are free to choose the arbitrator, and if the parties do not appoint their arbitrator, the court should be requested.

Page | 50

7. The deadline for carrying out the arbitration has been deleted. This is a radical change of the new law compared to the old law, according to which the court should extend the deadline.

8. The formal arbitration agreement under the old law has now been relaxed.

9. Although the parties to the Agreement have arbitrated in India, the parties are free to determine the law applicable to the dispute.

10.The arbitrator has the power to issue interim measures.11. The arbitrator has the power to decide on the jurisdiction of the arbitral tribunal.

12.The law contains a number of other guarantees, such as the obligation for an arbitrator to disclose an infringement within the borders (Article 12).

13.Even if a referee is replaced, the procedures he carries out are saved. This reduces the delay.

14. The referees are responsible for motivating their degree, unless otherwise provided for in

the contract. In addition, it is not necessary for the Arbitration Panel to receive the

sentence imposed by the court in accordance with the old law, and the Arbitration award

approved by the Arbitrator shall be endowed with a regulatory power in the Council.

Further action was taken in connection with international arbitration, which was not provided

for in the old law. The other matters disclosed to the arbitrator were protected from

disclosure unless required by law. This allows the parties to express their opinions freely.

4.1. Family Law

The other area where Alternative Dispute Resolution is recognized in India is family law.

Article 5 of the Family Court Act provides that the government requests the Welfare

Organization to support the Family Court in reaching an agreement. Article 6 of the Act

provides for the appointment of permanent advisors to maintain the family scheme. Another

part 9 of the law requires the Court to work on the settlement before the evidence is

collected. The practice of the family court indeed shows that the majority of cases occur

suddenly between family members and spouses and settled during mediation. To this end,

alternative dispute resolution was widely identified in the area of family dispute resolution.

Similar determination was made in Order XXXII A of C.P.C. who treats family problems.

Page | 51

4.2.Code of Civil Procedure.

By modifying the Civil Procedure Code in 2002, Section 8 is included in the Code, which places

particular emphasis on mediation, mediation and arbitration. This section obliges the Court to

refer the case to Lok togo or to one of the methods listed in this section for regulation.

4.3.Legal Services Authority Act

The rest of the legislation that places greater emphasis on out-of-court dispute resolution is the

legal services law in 1985. Although Lok Nyayalayas concluded the agreements before this law,

they did not receive any legal recognition. The Court has previously determined the issues

resolved at Nyayalayas in which the case was resolved on the basis of an agreement between the

parties. However, under the new law, an agreement in Lok Adalat obtained the power of the decree

which the court can enforce as if it were a decree granted by a competent court.

Additional provisions have been included in the law to resolve initial disputes through

these assistants. The Lok Adalats established by law had the power to determine the

dispute, resolve the dispute by mediation and, in the case of an agreement between the

parties, draft a draft based on the compromise and sign it. Adalat members who are

working or retired bonds, a lawyer and a member of the social assistance society, if

possible, will be provided with a copy free of charge to the parties. This reduced the time

to get a copy of the parties' decree. Lok Adalats has been widely accepted by the public

as the results are quick, inexpensive and the Lok Adalats Award is not appealed.

4.4. Time And Cost involved in Alternative dispute Resolution.

There are many assumptions about the average time Indian courts spend resolving disputes,

but none of them are based on scientific studies. A study in Mumbai71 reveals few interesting

facts. The study indicates that between 2006 and 2008, the delay between the proceedings in

court is 1420 days. This period can be divided into three phases. First, from the deposit to the

convocation, it takes 20 days. Secondly, the following judgment and decree take 1095 days,

and the third, enforcement of the decree requires 305 days.

71 International Finance Corporation, “ Doing Business Study” 2008, www.doingbusiness.org, Last Visited :07/05/2020

Page | 52

In terms of costs, the study shows that the cost of the trade dispute in Mumbai accounted for

39.6% of total demand over the same period. The lawyers' fees were the highest, with 30.6%

of the total amount of the complaint. The costs incurred in the courts amounted to 8.5% and,

for the enforcement of the decree, 0.47% of the total value of the quota.

4.5.Contributions Made My Judiciary And Executives.

Section 7

Whether Arbitration Agreement can be binding on Non-Signatory to the Agreement?

R.V. Solutions Pvt. Ltd. v. Ajay Kumar Dixit & Ors. 2019 SCC Online Del 6531 CS Comm 745/2017?The Delhi High Court held that a non-signatory or third party could be subjected to

Arbitration without its consent, only in exceptional cases. There needs to be either a

direct relationship to the signatory party of the Arbitration Agreement, or commonality of

the subject matter, or composite transactions in the agreement between the parties.

Purushottam S/o Tulsiram Badwaik v. Anil & Ors. Civil Appeal No.4664 of 2018.The Bench of Justice Arun Mishra and Justice UU Lalit of the Supreme Court observed that even if

an arbitration agreement entered into after the 1996 Act had come into force were to make a

reference to the applicable provisions of those under Indian Arbitration Act or 1940 Act, such

stipulation would be of no consequence and the matter must be governed under the provisions of

1996 Act. Further, the Court held that an incorrect reference or recital regarding the applicability

of the 1940 Act would not render the entire arbitration agreement invalid.

Section 8

Whether Arbitration Clause can oust the jurisdiction of consumer forums?

M/S Emaar MGF Land Limited & Anr. v. Aftab Singh, 2018 SCC Online SC 2771

The Supreme Court upheld the NCDRC’s decision whereby it ruled that an Arbitration

Clause in a Buyer’s Agreement cannot circumscribe the jurisdiction of a Consumer

Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act.

Page | 53

Section 9

Section 9 of the Arbitration Act cannot bypass Section 41 of the Specific Relief

Act Parsoli Motor Works (P) Ltd. v. BMW India P Ltd. 2018 SCC Online Del 6556.

The Delhi High Court held that injunctions that cannot be granted under Section 41 of the

Specific Relief Act, cannot be granted under Section 9 of Arbitration Act, 1996 either.

Section 11

Arbitral Clause to be strictly construed

Oriental Insurance Company Limited v. M/s Narbheram Power and Steel Pvt. Ltd. Civil Appeal No. 2268 of 2018.The Supreme Court held that an arbitration clause is required to be strictly construed.

Any expression in the clause must unequivocally express the intent of arbitration.

Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. Civil Appeal No.3631/2019The Court held that the High Court must impound the instrument which has not borne stamp duty

and hand it over to the Authority who will then decide issues qua payment of stamp duty and

penalty (if any) as expeditiously as possible, and preferably within a period of 45 days from the

date on which the authority receives the instrument. As soon as the stamp duty is paid on the

instrument, any of the parties can bring the instrument to the notice of the high court which will

then proceed to expeditiously hear and dispose of the Section 11 application. “

Jurisdiction of Court

BHEL v. Uttar Pradesh Rajya Vidhyut Utpadan Nigam Limited Arb. P 78/2019Relying on AAA Landmark Pvt. Ltd. vs. AKME Projects Ltd. & Ors, the Supreme Court held

that where the parties agree not to insist upon the exclusive jurisdiction clause in an

Agreement or raise such objection, and by their conduct, waive such condition/submit

themselves to another Court’s jurisdiction, it cannot be said that the Court other than the one

in which exclusive jurisdiction has been vested, would be without jurisdiction.

Section 12 &13

Page | 54

Whether disclosing only the major requirement of Schedule VI of the Arbitration

Act, 1996 and leaving other relevant aspects of the said Schedule would amount to

improper disclosure? Manish Anand & Ors. v. Fiitjee Ltd., 2018 SCC Online Del 7587

The Court held that though the disclosure is not in terms of the Sixth Schedule of the Act, if it Whether after the coming into force of the Arbitration and Conciliation (Amendment) Act, 2015 and in view of Section 12 (5) of the Act, the appointment of the arbitrator by the Managing Director is null and void.

Worlds Window Infrastructure & Logistics Pvt. Ltd. v. Central Warehousing Corporation [ARB.P. 437/2018] O.M.P. (T) (COMM.) 45/2018The Delhi High Court held that that the amendment to the Act does not in any way take away the power vested in one of the parties to the Arbitration Agreement to appoint an Arbitrator. In such agreements, the burden of ensuring that the person so appointed shall not fall foul of any of the provisions of the Fifth or the Seventh Schedule of the Act will be even higher and open to greater scrutiny.Section 14 & 15

National Highways Authority OF India v. Gammon Engineers and Contractor Pvt Ltd O.M.P. (T) (Comm.) 39/2018The Court held that the Arbitral Tribunal cannot accept the appointment in part and rewrite the arbitration agreement between the parties.

Section 26

Precious Sapphires Ltd v. Amira Pure Foods Private Ltd. EX.P. 330/2015It was held that the Arbitration and Conciliation Act, 1996, being a special statute, shall

prevail over the Delhi High Court Act, which would be a general statute dealing with the

jurisdiction and procedure of the High Court. Further, it was held that Section 26 of the

Amending Act does not exclude the application of the amended Explanation to Section

47 of the Act to proceedings pending in the High Court on that date.

Section 29 A

Republic of India v. Agusta Westland International Ltd. 2019 SCC Online Del 6419

Page | 55

Section 29A of the Arbitration and Conciliation Act, 1996 is not applicable to proceedings already initiated in terms of Section 21 of the Principal Act i.e. prior to coming into force of the 2015 Amendment Act.Section 31

Whether An Arbitral Award Can Be Set Aside On The Ground That One Of The Members

Of The Arbitral Tribunal Had Withdrawn From The Arbitration Proceedings Prior To The

Pronouncement Of The Award? CIMMCO LTD. Vs. Union of India O.M.P. (COMM) 297/2016

The Court held that if this question is answered in the affirmative, then any party which is unhappy with the manner in which the Arbitral Tribunal is proceeding in a given matter can inspire its nominee-Arbitrator on the Arbitral Tribunal to withdraw from the arbitration proceedings at the last hour.

Further, the Court relied on Section 31(2) of the 1996 Act to hold that where the Arbitral Tribunal comprises more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal would be sufficient for framing an Award, so long as reasons are given for any omitted signature.Section 33

M/s Chandok Machineries v. M/s S.N. Sunderson & Co. 2018 SCC Online Del 12782

In this case, the Arbitral Award was signed by the Third Arbitrator after the mandate of the

Arbitral Tribunal had terminated. However, the reasons for the delay in signing the Award

were set out in an order on an application under section 33(1)(a) filed by the respondent.

The challenge under Section 34 was raised on the ground that mandate of the Arbitral Tribunal

had terminated prior to the signing of Award by the third Arbitrator. The Court observed that a

procedural irregularity of this nature ought not to vitiate the entire decision-making process,

particularly when it is capable of being cured. Since the reasons for the delay in the signing were

stated in the Order of application under section 33, the lacuna of the Award was cured.

Section 34

Scope Of Interference With Arbitral Award In India

Mmtc Ltd. V. M/S Vedanta Ltd. (Civil Appeal No. 1862/2014)

Page | 56

As far as section 34 of the Arbitration Act, 1996 is concerned, the position is that Court

does not sit in appeal over the arbitral award and may interfere on merits on the limited

grounds provided under Section 34(2) (b) (ii) i.e. if award is against public policy of India.

Further, an arbitral award may not be interfered if the view taken by the arbitrator is a

possible view based on facts. However, position changed after 2015 Amendment

whereby Explanation 1 was inserted to Section 34(2) and the scope of contravention of

public policy was modified to the extent that it now means fraud or corruption in the

making of the award etc. Additionally, in domestic arbitrations, violation of Indian Public

Policy also includes patent illegality appearing on the face of the award. [Section 34 (2A)]

Interference under Section 37 cannot travel beyond the restrictions laid down under Section 34.

While interpreting the terms of a contract, conduct of parties and correspondences exchanged

would also be relevant factors and it is within the Arbitrator’s jurisdiction to consider the same

Whether In A Section 34 Petition The Court Has The Jurisdiction To Remand The Matter To

The Arbitrator?Radha Chemicals V. Union Of India Civil Appeal No. 10386 Of 2018.

The Supreme Court reaffirmed its stand taken in Kinnari Mullick and Another vs. Ghanshyam Das Damani, (2018) 11 SCC 328, and held that the court while deciding a Section 34 petition has no jurisdiction to remand the matter to the Arbitrator for a fresh decision. Further, it was held that the discretion of the Court under Section 34(4) to defer the proceedings for specified purpose is limited and can be invoked only upon request by the party prior to setting aside of the Award.

Limit On Fresh Evidence For Adjudicating Challenge To Arbitral AwardM/S Emkay Global Financial Services Ltd. V. Girdhar Sondhi Civil Appeal No. 8367 Of

2018 The court held that an application for setting aside an arbitral award will not

ordinarily require anything beyond the record that was before the Arbitrator. However, if

there are matters not contained in such record, and are relevant to the determination of

issues arising under Section 34(2)(a), they may be brought to the notice of the Court by

way of affidavits filed by both parties. Cross examination of persons swearing to the

affidavits should not be allowed unless absolutely necessary, as the truth will emerge on

a reading of the affidavits filed by both the parties.

Page | 57

Limitation Period For Setting Aside An AwardAnilkumar Jinabhai Patel (D) V Pravinchandra Jinabhai Patel Civil Appeal No. 3313 Of 2018

Arising Out Of SLP (C) No.15668 Of 2012Limitation period prescribed under Section 34(3) of the Arbitration Act, 1996 would

commence only from the date of signed copy of the award delivered to the party

making the application for setting it aside. Further, the court held that Section 31(5)

of the Act requires a signed copy of the award to be delivered to each party.

Section 34 (3) Of The Arbitration Act Tantamount To An “Express Exclusion” Of Section 17 Of limitation Act

P Radha Bai V Ashok Kumar 2018 SCC Online SC 1670The court held that the phrase “but not thereafter” in Section 34(4) of the Act nails the legislative intent of giving “finality” to the Arbitral Award by fixing an “outer boundary period” for challenging an award.

Whether Prior Notice Of An Application Under Section 34 Is Directory Or Mandatory? The State Of Bihar & Ors. V. Bihar Rajya Bhumi Vikas Bank Samiti

Civil Appeal No. 7314 Of 2018Contrasting Section 34(5) with Section 80 of the Code of Civil Procedure, the court

observed that to construe such a provision as being mandatory would defeat the

advancement of justice and therefore, prior notice to other party before filing

application to set aside arbitral award is not mandatory and is merely directory.

Whether No Particular Evidence Is Required For Awarding Loss Of Profits And The Same Could Be Awarded By Estimating The Same At 10%?

GTM Builders & Promoters Pvt Ltd. V. Sneh Developers Pvt Ltd O.M.P. (COMM) 10/2016

Taking a note of the judgments of the Supreme Court relied upon by the Arbitral Tribunal,

the court held that none of the referred decisions are authorities for the proposition that

claim for loss of profits can be awarded without any rudimentary evidence or material

indicating the same. Further, it is open to the courts to estimate the quantum of loss of

profits; however, it would be necessary for a party to establish that in the normal course,

the contract would have yielded profits to the extent as claimed.

Page | 58

Whether An Award Adjudicating Excepted Matters Would Violate Section 34?Triune Energy Services Pvt Ltd V. Indian Oil Petronas Pvt Ltd O.M.P. (Comm) 5/2016

Relying upon the judgement of the Supreme Court in J.G. Engineers Private Ltd. v. Union of India

& Another: (2011) 5 SCC 758, the court held that an award adjudicating claims, which are excepted

matters would violate Section 34 (2)(a)(iv) and 34(2)(b) of the Act. Further, the court held that the

Petitioner’s claim for work done could not have been rejected only on the ground that the

termination of the contract was legal. The court observed that notwithstanding the legality of the

termination of the contract, a contractor is entitled to the value of the work done.

If an issue is conclusively determined prior to the final award, the same constitutes an ‘interim award’Section 36

Jurisdiction Of Court In Enforcement Proceedings

M/S Arss Infrastructure Projects Ltd V. Calcutta Haldia Port Road Company Ltd. O.M.P. (Enf.) (Comm) 55/2017The Court held that in exercising its power under Section 36 of the Act it cannot substitute such award or make amendments thereto. Further, in enforcement proceedings the Court has no jurisdiction to modify the Award. The jurisdiction of the Court is limited only to ensure that the Award is implemented.Section 37

Whether An Order On The Application For Discovery Is Appealable Under Section 37? Union Of India V Reliance Ltd. & Ors. 2018 Scc Online Del 13018The court held that an Order directing disclosure of documents is not appealable under

Section 37 (2) (b) of the Arbitration Act. The court held that power of an Arbitral Tribunal

to order discovery was not contained in section 17 (1) (ii) (c) of the Arbitration Act, 1996

rather it can be understood to be sourced in Section 19(4) read with Section 27 of the

1996 Act. It was further held that an appeal was not maintainable against a procedural

order seeking disclosure/discovery of documents passed by the Arbitral Tribunal.

Section 47

Whether An Application Under Section 47 Of The Act Seeking Enforcement Of A Foreign

Award Is Liable To Be Dismissed If It Is Not Accompanied By An Arbitration Agreement?

Page | 59

P.E.C. Limited V. Austbulk Shipping Sdn Bhd 2018 Scc Online Sc 2549The court held that the Arbitration Agreement need not be filed at the time of filing an application seeking enforcement of Foreign Award.Sections 48 & 49

Whether Non-Stamping Of A Foreign Award Would Render It Unenforceable? Shriram Epc

Limited V. Rioglass Solar Sa 2018 Scc Online Sc 1471

The Supreme Court held that since a foreign award, is not contained within the expression “award” in Item 12 of Schedule I, it is not taxable under the Indian Stamp Act, 1899 and thus, non-stamping of foreign award would not render it unenforceable under section 49 of the arbitration actSection 50

Whether An Appeal Not Maintainable Under Section 50 Of The Arbitration And Conciliation

Act Is Nonetheless Maintainable Under Section 13 (1) Of The Commercial Courts Act? Kandla

Export Corporation & Anr. V. M/S Oci Corporation & Anr. 2018 14 Scc 715

In this the Supreme Court held that appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone and not Section 13(1) of the Commercial Courts Act. Hence, Foreign Awards cannot be challenged under Section 13(1) of the Commercial Courts Act, 2015.

Parameters For Grant Of Anti-Arbitration Injunctions Himachal Sorang Power Private Limited & Anr. Versus NCC Infrastructure Holdings Ltd. (CS COMM

12/2019)1) Principles governing anti-suit injunction are not identical to those that

govern an anti-arbitration injunction.2) Court’s are slow in granting an anti-arbitration injunction unless it comes to

the conclusion that the proceeding initiated is vexatious and/or oppressive.

3) Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata.

Page | 60

4) The fact that in assessment of the court a trial would be required would be a factor which would weigh against grant of anti-arbitration injunction.

5) Aggrieved should be encouraged to approach either the Arbitral Tribunal or court which has the supervisory jurisdiction in the matter. An endeavour should be made to support and aid arbitration rather than allowing parties to move away from the chosen adjudicatory process.

6) Arbitral Tribunal could adopt a procedure to deal with “re-arbitration complaint”

(depending on rules/procedure governing the proceedings )as a preliminary issue –

Basis and Principle to decide the place of ‘Seat’ of Arbitration Union of India v.

Hardy Exploration and Production (India) Inc Civil Appeal No. 4628 of 2018.

The court held that when a place is agreed upon, it gets the status of seat which means juridical

seat. Further, the terms “place” and “seat” are used interchangeably. When only the term “place”

is stated or mentioned and no other condition is postulated, it is equivalent to “seat” and that

finalises the facet of jurisdiction. But if a condition precedent is attached to the term “place”, the

said condition has to be satisfied so that the place can become equivalent to seat. The court

concluded that the word “place” cannot be used as seat. An illustration was also given by the

court that a venue can become a seat if something else is added to it as a concomitant. But a

place unlike seat, at least as is seen in the contract, can become a seat if one of the conditions

precedent is satisfied. It does not ipso facto assume the status of seat.

If the parties do not comply with the agreed appointment procedure (if any) or the normal

assembly procedure referred to in Article 11, an application may be submitted. The parties,

therefore, preferred to choose the arbitrators in good faith, often with long and costly causes.

Impact of Sections 11(13) and (14), read with Fourth Schedule

Given the change in 2015, the main issue now is whether the parties may deliberately fail to comply with the agreed procedure or lack of an appointment process to ensure timely and cost-effective arbitration.

Page | 61

New section 11 (13) states that applications for the appointment of arbitrators

must be "withdrawn as soon as possible" and that "an effort is made to resolve

the matter within 60 days of the date of the referee's notification. the other side ".

Therefore, parties should no longer be concerned that the filing of an Article 11

application would result in undue delays and therefore encourage the court (or

the designated person or entity) to designate the arbitral tribunal.

In addition, new subsection 11 (14) provides: "The Supreme Court may, for the

purposes of determining the panel of arbitrators and the terms of payment to the

Arbitral Tribunal, set the rules required by the tariffs of the fourth program".

Considerations

The fourth list, read in conjunction with Article 11, paragraph 14, should be examined, in particular as regards:

• its applicability;

• discretion of the supreme courts to establish the rules after the revision of the fourth annex; is

• Empty spaces in the fourth calendar.

Applicability

It is unclear to what extent the fourth program of arbitration applies. Subsection 11 (14)

seems inappropriate, as there are no further explanations in paragraph 11. Before the parties

can benefit from the sample tariffs, their applicability must be clarified. The fourth table and

possible provisions of the Supreme Court, referred to in paragraph 11 (14), may be:

all domestic and international arbitration proceedings in India, regardless of whether the

parties are prepared to refer to institutional rules with their own arbitrator compensation

structure; However, legislators cannot seek to ignore or deny such agreement or agreement.

Page | 62

Arbitration procedures initiated on the basis of the appointment of arbitrators in accordance with Article 11. This interpretation seems most appropriate since the fourth program is specified in Article 11.14 (and not as a separate provision) and is subject to the principle of interpretation at the same time; or

Arbitration initiated as a result of the appointment of arbitrators pursuant to Section 11, with

the exception of expedited arbitration by a single arbitrator, such as the Commission, shall

be decided by the arbitrator and the parties in accordance with the provisions of Article 29b

(6) in the light of the principle of legal interpretation of harmonic construction.

The margin of discretion conferred on the courts to impose taxes and payment

methods on arbitration tribunals under Article 11 (14) raises the following problems:

If the Supreme Court decides not to exercise its discretion, or if it exercises it during the transitional period but the rules are not yet in force, it is not clear whether the fourth table is being used.

If, under international commercial arbitration, an application under Article 11 is submitted to

the Supreme Court (which is not empowered to adopt rules, in contrast to the courts referred

to in Article 11 (1) 14), it is not clear if the Fourth Schedule will apply or not.

Unclear basis

The foundation of the fourth moment is not clear and, strangely, the model rates provided here

seem to satisfy a main criterion: the quorum. This simplification does not take into account:

The term "disputed value" is not defined and can be interpreted. The amount in dispute is well defined as the amount requested by the applicant. However, it is not clear whether a value targeted by the respondent is also included in this value or excluded to determine the appropriate model rate to be paid to the arbitrators.

Other factors must be considered before determining the arbitrator's fees, including:

• The Subject Of The Dispute;• The Complexity Of The Dispute (Including Extensive Tests);

Page | 63

• The Number Of Parts; Is• The Volume Of The Document.

As a result, the parties to the arbitration agreements face difficulties because the higher

courts establish rules and take into account the relevant factors and the shortcomings of the

fourth appendix. However, if the parties make good use of the 2015 amendment mechanism,

they can take full advantage of the advantages of low-cost arbitration and rapid arbitration.

How to benefit

It is likely that the parties will use the new legal framework and a combination of Articles 11 and 29b to obtain timely and convenient arbitration.

Under Article 29b, parties to an arbitration agreement may, at any time before or at

the time of designation of the tribunal, agree to apply the accelerated arbitration

procedure provided for in Article 29b (3). B. In the case of this procedure, prices shall

be awarded at the request of all parties within six months, on the basis of written

declarations and an oral hearing. All parties may consider using the accelerated

procedure (eg arbitration by a single arbitrator or tribunal) to save time.

Article 29B (6) states that 'the arbitrator's commission and the conditions of payment

between the arbitrator and the parties must be agreed'. Therefore, in choosing the

accelerated procedure, the parties waived the benefit of the model schemes of the

fourth program, since no application for Article 11 (including Article 11 (14)) could

have been granted. in the light of the derogation provided for in § 29 (B) (6).

However, the use of the term "arbitrator" instead of "arbitration tribunal" (i.e. a sole

arbitrator or a group of arbitrators) in section 29 (B) (6) makes it clear that in addition

a sole arbitrator is decided between the arbitrator and the parties. However, if the

parties agree to the accelerated procedure using a three-party arbitration tribunal,

they may use the prescribed fee structure through intentional or actual bankruptcy

pursuant to Section 11 (4) (a) (11.5) 11 (6) (a) (b) of the 1996 Law the reason for the

omission of three-member arbitration tribunals according to § 29B (6) is unclear.

Page | 64

While it appears that parties need to decide whether to save time or save arbitrary

fees, this is wrong. Parties accepting expedited arbitration by a panel of arbitrators

may still request a request for appointment of arbitrators under the new Section 11.

Expected outcomes

In consideration of the above, the parties to the arbitration and arbitration proceedings must proceed as follows.

Parties' behavior

The parties to an arbitration agreement now accept intentional and actual violations of the appointment of an arbitral tribunal in order to avail themselves of the judicial interference provided for in the new Article 11, thereby avoiding excessive arbitrary fees and extended arbitration.

In addition, if the parties opt for an arbitral tribunal of three, they may initiate an expedited

and expeditious arbitration procedure if they make use of Article 29B and the new Article 11:

• Accept the accelerated arbitration procedure by an arbitral tribunal of three persons, as provided for in the new Section 29B (as opposed to the expedited arbitration of an arbitrator); and

• The filing of an application under the new Article 11 for the appointment of an arbitral tribunal (due to a willful or deliberate omission of the appointment of an arbitral tribunal) as there would probably be a sample fee.

Arbitrators' behavior

Arbitrators may tend to guarantee timely arbitration because the duration of an arbitration proceeding is no longer directly related to their fees and, on the contrary, may result in a reduction in their fees, as Article 29 (A).

In addition, arbitrators may impose fees on hearings as proof of their compliance with the

spirit of the law and may indicate them as arbitrators designated by the party.

Page | 65

Judiciary's Reaction

The burden on the courts will increase if the parties submit requests for

Arbitration under the new Article 11, which contradicts the 1996 legislative intent

of limiting the interference of judges in arbitration and arbitration. promote the

early settlement of disputes. As a result, courts may begin designating

institutions that use arbitration to strengthen the objectives of the 1996 Act.

Page | 66

CHAPTER-5CONCLUSIONS

The discovery of alternative modes of conflict resolution provides a new way to resolve their

conflicts. Dispute resolution at Lok Adalat is extremely popular with the public and has

created a new alternative dispute resolution force, which will undoubtedly reduce reliance on

the courts. The supreme judge in India prepared the scope of ADR in his speech at the

conference of the Prime Minister of State and Chief Justice of Supreme Courts in Vigyan

Bhavan, New Delhi, on September 18, 2004, as well as before the courts for the effective

resolution of cases. use an alternative dispute resolution system to reduce the excessive use

of court cases. The resolution of other conflicts will achieve the goal of social justice for the

parties involved in the conflict and achieve the success of the justice system.

The analysis of the literature indicates that ADR procedures have the potential to reduce the

accumulation of courts. At the same time, empirical evidence from the study shows that,

despite all the efforts made, the number of cases handled per year differs considerably from

the number of cases pending before the courts. There are many reasons. They are analyzed.

Drugs are also considered as potential side effects to reduce the burden if it strongly

depends on how they are used in a system. In the judicial process, alternative dispute

resolution methods could be better used with the help of support judges. It is desirable that

the two systems complement each other. Without exception, this requires the attention of

bailiffs on the systematic use of ADR techniques. Dispute resolution exists

a fundamental characteristic of peace in society, friendship, society and harmony and access

to justice for the poor. Socio-economic conditions in India justify highly motivated and

sensitized programs for legal services, such as a large number of consumers. The State is

therefore obliged to ensure that the functioning of the judicial system promotes justice based

on equal opportunities. Another litigation option would provide additional legal assistance as

an important tool for a quick and easy resolution of disputes.

Page | 67

5.1.Recommendations.

I. India should promote institutional arbitration to make India an important forum for national and international arbitration.

II. A national facility will be set up to promote the ADR system in India. This institution provides training for mediators / mediators and provides the necessary infrastructure for mediation / mediation.

III. Ad hoc arbitration in India can be regulated to ensure the responsibility of the mediators and to promote the current mediation system in India.

IV. The 1996 Arbitration may be amended to take account of the following provisions:

a) Deadline for the submission of arbitration.

b) The authority may also be delegated to district judges and arbitrators appointed under § 11 of the Act.

c) The Law Society has separated from the full-time referees / facilitators.d) Compulsory registration of these intermediaries / mediators in the government.

e) An internationally recognized code of ethics for arbitrators to guarantee their responsibilities.

f) The referee fees are fixed.

g) The reasons for the termination of the arbitration awards referred to in section 34 are still limited by the liquidity limits.

h) Costs for the party involved in the frivolous challenge of carrying out the award.

i) Provision should be made for the regulation of ad hoc arbitration in India.

j) Provisions for a strong mechanism for self-regulation.

The Code of Civil Procedure may be amended to include the following provisions in Article 89:

a. There is a limited time limit for the settlement of the out-of-court dispute.

b. The term "institution or relevant person" referred to in Article 89 (2) (c) may include, for the purposes of judicial resolution, government-approved ADR institutions, including intervention agencies, in each State.

Page | 68

c. The sentence is amended in Article 89 (2) (d) "Obligations of the Court" in order to participate in the resolution of the major intervention institutions under Article 89 of the CCP.

d. The phase in which a case can be referenced to ADR must be specified in the section.

There will be a change that sets out where it may be acceptable to the parties or may be seen by the parties when it appears in court.

In addition to these recommendations, I have given the following general recommendations:

The general reasons to discourage people from ADR are:

b. Lack of sanctity in the process.c. Trocaire the judges.d. cost factorse. Lawyers and parties capture.f. Lack of information on alternative dispute resolution until the party is fully supported.

After reading the opinion of many authors, these are the following valuable suggestions:

1. The need for a preliminary procedure for ADR.2. The need to take over the public and the parties involved.3. The need to amend the 1996 Arbitration Act and Mediation Procedure.4. Training options for referees.5. Need for cooperation between lawyers and litigants to select ADR.6. A shorter ADR procedure is required.7. Proactive process forum, lawyer, courts.8. The need for an adequate ADR.9. Responsibility of the referee.10.Friendly and efficient costs.11.Prerequisite for completing the ADR within the specified deadline.12.Easy to use.13.The safety of the process should be equal to that of the courts or better.

14.The brokerage fees must be determined in accordance with the law and must not be left to the parties to the dispute.

Page | 69