ALTERNATIVE DISPUTE
'
RESOLUTION METHODS
PRESENTE BY
SAH L RANA(16MCE1008)
CHAND GARH UNIVERSITY
Methods of ADR
Arbitration
Mediation
Conciliation
Arbitration- History
• The earlier existing statutory provisions of Arbitration in India were
contained in three enactments namely:
• a) The Arbitration Act 1940
• b) The Arbitration (Protocol and Convention) Act 1937
• c) The Foreign Awards (Recognition and Enforcement) Act 1961
• The above mentioned acts were thereafter repealed by the
Arbitration and Conciliation Act 1996.
• In 2015, the Arbitration and Conciliation Act of 1996
further stood amended by the Arbitration and
Conciliation (Amendment) Act of 2015 to improvise the
face of arbitration in India.
• The Arbitration and Conciliation Act 1996 as amended in
2015 brings within its purview:
• a) Domestic Arbitration
• b) International Commercial Arbitration
• c) Enforcement of Foreign Arbitral Awards
Arbitration
• The dispute is submitted to an arbitral tribunal which
makes a decision (an "award") on the dispute
• “Arbitration is a process for settlement of disputes fairly
and equitably through a person or persons or an
institutional body without recourse to litigation”
• pursuant to an agreement
• Written agreement
• Consent of parties important
• “Arbitration is an alternative process to litigation, but it
does not replace the ordinary judicial machinery in all
its aspects”.
Arbitration
• Follows Arbitration and Conciliation Act, 96
• Binding in nature (Sec 35)
• Certain orders appealable to court (Sec 37)
Arbitration
• Parties can appoint Arbitrator
• Parties can choose the number of Arbitrators
• International Arbitration also provided in Indian
Statute.
• There are four requirements of the concept of
arbitration: an arbitration agreement; a dispute; a
reference to a third party for its determination; and
an award by the third party.
Types of arbitration
• Ad Hoc Arbitration
• not administered by an institution and therefore, the
parties are required to determine all aspects of the
arbitration like the number of arbitrators, manner of
their appointment, etc.
• can be more flexible, cheaper and faster than an
administered proceeding.
• The advantage is that, it is agreed to and arranged by
the parties themselves.
• (the ground realities show that arbitration in India,
particularly ad hoc arbitration, is becoming quite
expensive vis-à-vis traditional litigation).
• Institutional Arbitration: Administration of arbitration
in accordance with the rules of procedure of an
institution.
• The same provides for important aspects of arbitration
such as appointment of arbitrators, managing the
arbitration process, identifying venues for holding
arbitration hearings.
• There are at the moment 35 Arbitral Institutions in India
for a) Domestic; b) International; c) PSUs; d) Trade and
merchant associations; and e) City specific chambers of
commerce and industry
• Some of the prominent Indian arbitral institutions are
the Indian Council of Arbitration ("ICA"), the Delhi
International Arbitration Centre ("DIAC"), the Mumbai
Centre for International Arbitration ("MCIA") and the
ICADR.
• international arbitral institutions: Court of Arbitration of
the International Chamber of Commerce, the Singapore
International Arbitration Centre, and the London Court
of International Arbitration.
• Such institutions either have their own rules or are
governed by the rules of UNCITRAL (United Nations
Commission on International Trade Law).
• The New Delhi International Arbitration Centre Act,
2019, on 26th July 2019.
• Statutory Arbitration
• When a law specifies that if a dispute arises in a particular
case it has to be referred to arbitration, the arbitration
proceedings are called “statutory arbitration”.
• the Indian Electricity Act, 1910, the Land Acquisition Act,
1894, the Railways Act, 1890 and the Forward Contracts
Regulation Act, 1956. Many State Acts also provide for
arbitration in respect of disputes covered by those Acts,
including Acts relating to co-operative societies.
• Section 2(4) of the Arbitration and Conciliation Act 1996
provides, with the exception of section 40(1), section 41
and section 43.
• Advantages of Arbitration: (Without reference to the Act)
• When the subject matter of the dispute is highly technical,
arbitrators with an appropriate degree of expertise can be
appointed (as one cannot "choose the judge" in litigation)
• Arbitration is often faster than litigation in court.
• cheaper and more flexible for businesses.
• Arbitral proceedings and an arbitral award are generally non-
public, and can be made confidential
• in arbitral proceedings the language of arbitration may be chosen,
whereas in judicial proceedings the official # language of the
country of the competent court will be automatically applied.
• in most legal systems there are very limited avenues for appeal
of an arbitral award, which is sometimes an advantage because it
limits the duration of the dispute and any associated liability
• Some of the disadvantages include: (Without reference to the Act)
•
# Arbitration may become highly complex arbitration may be subject to
pressures from powerful law firms representing the stronger and
wealthier party.
•
# Arbitration agreements are sometimes contained in ancillary
agreements, or in small print in other agreements, and consumers and
employees often do not know in advance that they have agreed to
mandatory binding pre-dispute arbitration by purchasing a product or
taking a job.
# parties are required to pay for the arbitrators, which adds to legal cost
•
# If the arbitrator or the arbitration forum depends on the corporation for
repeat business, there may be an inherent incentive to rule against the
consumer or employee.
•
# There are very limited avenues for appeal, which means that an
erroneous decision cannot be easily overturned.
•
# Although usually thought to be speedier, when there are multiple
arbitrators on the panel, juggling their schedules for hearing dates in long
cases can lead to delays.
TO BE CONTINUED
IN “ADR -4” PPT
