This document discusses various professional opportunities for Chartered Accountants in the field of alternate dispute resolution (ADR) in India. It outlines roles that CAs can play as arbitrators, counsel for clients, experts for arbitral tribunals, and advisors on selecting appropriate ADR processes. CAs are recognized under Indian law to act as arbitrators due to their objective and balanced approach. The document also discusses international commercial arbitration and how CAs can assist with drafting arbitration clauses and representing clients in international arbitration cases.
Project dispute avoidance and mitigation through conciliation and arbitrationDr K M SONI
Disputes are common in society so also in construction contracts. It is always beneficial to the parties and the Nation to resolve them at right time i.e. during execution of the project and if not through conciliation.
Project dispute avoidance and mitigation through conciliation and arbitrationDr K M SONI
Disputes are common in society so also in construction contracts. It is always beneficial to the parties and the Nation to resolve them at right time i.e. during execution of the project and if not through conciliation.
Drafting Arbitration Clauses commonly involves a lot of mental exercises. Many calibrations are required on the part of the drafters. The slides incorporate some common aspects which should inform the ones involved in drafting of Arbitration Clauses.
Alternative Dispute Resolution (ADR) [LLB -309] cpjcollege
Alternative Dispute Resolution has become the primary means by which cases are resolved now days, especially commercial, business disputes. It has emerged as the preferred method for resolving civil cases, with litigation as a last resort. Alternative Dispute Resolution provides an overview of the statutory, procedural, and case law underlining these processes and their interplay with litigation. A significant theme is the evolving role of
professional ethics for attorneys operating in non-adversarial settings. Clients and courts increasingly express a preference for attorneys who are skilled not only in litigation but in problem-solving, which costs the clients less in terms of time, money and relationship. The law of ADR also provides an introduction to negotiation and mediation theory.
Guide for Arbitration Clause in International Agreements in IndiaAnil Chawla
This Guide is useful for companies planning to develop international relationships. It gives an overview of arbitration clause that is an essential part of all international commercial agreements. It also gives an estimate of the costs involved under various options of international arbitration. The last chapter is about pre-arbitration clause which can help one avoid arbitration and associated legal costs.
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC Fund Holding Trust, as an international Capital Logistics Management company, owns and manages more than Five Trillion Dollars ($5T USD) of net tangible assets. We provide our clients with direct access to capital to actualize and/or enhance investment opportunities.
PROFESSIONAL OPPORTUNITIES FOR CHARTERED ACCOUTANT IN THE ALTERNATIVE DISPUTE...CA. (Dr.) Rajkumar Adukia
This article focuses upon certain practices and scheme of ADR in india in the form of question and answer format realted to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for the better understanding to the ADR practitioners as one of the professional opportunities for Chartered Accoutants.
This article focuses upon certain practices and scheme of ADR in India in the form of question and answer format related to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for a better understanding to commoners and budding ADR practitioners.
Drafting Arbitration Clauses commonly involves a lot of mental exercises. Many calibrations are required on the part of the drafters. The slides incorporate some common aspects which should inform the ones involved in drafting of Arbitration Clauses.
Alternative Dispute Resolution (ADR) [LLB -309] cpjcollege
Alternative Dispute Resolution has become the primary means by which cases are resolved now days, especially commercial, business disputes. It has emerged as the preferred method for resolving civil cases, with litigation as a last resort. Alternative Dispute Resolution provides an overview of the statutory, procedural, and case law underlining these processes and their interplay with litigation. A significant theme is the evolving role of
professional ethics for attorneys operating in non-adversarial settings. Clients and courts increasingly express a preference for attorneys who are skilled not only in litigation but in problem-solving, which costs the clients less in terms of time, money and relationship. The law of ADR also provides an introduction to negotiation and mediation theory.
Guide for Arbitration Clause in International Agreements in IndiaAnil Chawla
This Guide is useful for companies planning to develop international relationships. It gives an overview of arbitration clause that is an essential part of all international commercial agreements. It also gives an estimate of the costs involved under various options of international arbitration. The last chapter is about pre-arbitration clause which can help one avoid arbitration and associated legal costs.
What to Look out for while choosing Arbitration ahead of Regular Litigation.
Essentials of an Arbitration Agreement.
Arbitration Act | ad hoc |Institutional Arbitration |
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC Fund Holding Trust, as an international Capital Logistics Management company, owns and manages more than Five Trillion Dollars ($5T USD) of net tangible assets. We provide our clients with direct access to capital to actualize and/or enhance investment opportunities.
PROFESSIONAL OPPORTUNITIES FOR CHARTERED ACCOUTANT IN THE ALTERNATIVE DISPUTE...CA. (Dr.) Rajkumar Adukia
This article focuses upon certain practices and scheme of ADR in india in the form of question and answer format realted to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for the better understanding to the ADR practitioners as one of the professional opportunities for Chartered Accoutants.
This article focuses upon certain practices and scheme of ADR in India in the form of question and answer format related to ADR, its nature of conduct whether ad hoc or administered; available platforms or forums for a better understanding to commoners and budding ADR practitioners.
Get all the information related to companies act 2013/1956 including its rules, draft rules, forms, notifications, circulars, orders, definitions, guidelines, schedules, etc.
https://www.nclt.in/about.php
Get all the information related to companies act 2013/1956 including its rules, draft rules, forms, notifications, circulars, orders, definitions, guidelines, schedules, etc.
https://www.nclt.in/
This presentation discusses the question as to whether a statute on mediation is required to be enacted in India. It argues that an ADR code has to be enacted so that dispute and its resolution are seen holistically.
India offers risk and reward. IndusLaw partner, Gaurav Dani and Saurav Kumar spoke on some of the key issues to think about in the context of an equity investment and the pitfalls to be aware of in structuring joint ventures in Tokyo earlier in April
Describe a detail research on how judiciary in each and every possible way has help in promoting and uplifting the working system in Alternative Dispute Resolution
Microstructure Analysis of Inlet and Exhaust Valves used in LPG fueled Retrof...IJMER
Mechanically operated poppet valves are used, both as inlet and exhaust, for most conventional
automotive engines in passenger cars. These valves are subjected to high temperatures throughout their operating
cycle. A valve originally designed for a gasoline engine, when used for an LPG fueled retrofitted engine, goes
through considerable mechanical damage, corrosion, erosion, wear and tear. It also demonstrates significant
changes in its microstructure. This investigation focused on microstructure analysis and quantitative metallography
of such inlet and exhaust valves using Atomic force microscopy (AFM) technique. The surface morphology of the
valve material was studied and AFM measurements were used for quantitative characterization of the structure as
also to gain useful information about crystallographic orientation of individual grains, the formation of cracks,
identification of potential crack initiation and fracture sites, etc. A comparative evaluation of microstructure of worn
- out valves with new valves was also carried out.
Global role of ca in the whole gamut of succession and transfer of asset incl...CA. (Dr.) Rajkumar Adukia
The article gives insight about will document and execution of same. The author believes that the chartered accountant in the capacity of an executor can better assist with the process of working through the planning of the estate along with administration from an accounting and taxation perspective once the estate commences.
Being appointed as, and accepting the role of an executor typically comes with many responsibilities, however a chartered accountant with their expert knowledge in finance are able to ace the role as an executor of the estate distribution made in the form of will by the testator
Opportunities for CAs as independent directors to enhance the credibility and...CA. (Dr.) Rajkumar Adukia
The concept of Independent Directors is a welcome step for corporate governance in India. Independent directors are expected to use their capacity, knowledge, and resources towards the maximization of stakeholders’ value and well-being. They ensure the progress of mankind through transparency, accountability, and truthful disclosure of the state of affairs of the company. The Companies Act, 2013 has conferred greater empowerment upon Independent Directors to ensure that the management and affairs of a company are being run fairly and smoothly.
The co-operative movement that was started to help the rural indebtedness has now made noticeable progress. The sector has grown in size and expanses, resulting in creating a space for itself in the economic framework of the country. Professionals like chartered accountants can too contribute to the nation by serving such cooperatives and reaching out to society. With their excellent technical and soft skills, they are well fitted for the role of assistance to cooperatives banks, multi-state cooperative societies, cooperative societies, and can serve the cooperative sector ultimately serve the nation.
Professional services a chartered accountant can provide in preventing money ...CA. (Dr.) Rajkumar Adukia
The implementation of PMLA is conferred on several authorities as mentioned such as Director or Additional Director or Joint Director, Deputy Director, Assistant Director, and such additional directors/officers whose appointment may be deemed necessary under the provisions of the PMLA. Professionals like chartered accountants are more conversant with the business environment and hold special expertise in finances that gives them an additional advantage to fit into the role of assisting, serving such authorities.
Audit will be there as long as economic or non economic activities are ther...CA. (Dr.) Rajkumar Adukia
Auditing and assurance services are the basic bread and butter
of any professional. Until a few years back, for the general public
an image of a Chartered Accountants that of an audit, and on
our side very few professionals thought of fields beyond auditing.
But with the passage of time, things have changed. Many
more fields of work have merged. But still, rarely do we find a
chartered accountant who is not into any type of audit.
It is common knowledge that contracts are heart and soul of any business activity. A full proof contract requires vast knowledge of the business world, a thorough understanding of drafting knowledge. Commercial contracts form the backbone of many commercial transactions from vendor agreements to client engagement agreements.
In this article we will be discussing the significance of financial planning, how every individual must – must make effective use of money, and why/how the professional may consider this as another unique area of service to use their expertise for
Corporate social responsibility an opportunity to improve the status of soc...CA. (Dr.) Rajkumar Adukia
This article will provide us the overall idea about corporate social responsibility from root level to top level. The main motive behind the formation of this concept is the economic contribution of companies to society
The Chartered Accountants contribution in protecting minority interest for th...CA. (Dr.) Rajkumar Adukia
In order to function the corporate affairs effectively and successfully and to increase the corporate governance, the interest of the minority need to be protected.
The Company law had given a protection to such minority shareholders by giving an option to go to Tribunal for relief and the tribunal on such application shall take to prevent such oppression and mismanagement.
Go global with the knowledge of IPSAS the internationally accepted accounting...CA. (Dr.) Rajkumar Adukia
In sum, the article explains that the knowledge of the IPSASs is going to be a great opportunity for accounting professionals worldwide. So it is time to gear up and acquire knowledge in this relatively new domain.
This article tells you about how the Audit to Enterprises of all sizes is an important aspect.
With essential features of auditor like independence,
professional skepticism, documentation skills, and continuous knowledge up-gradation any
Chartered Accountant can make a name for himself in the field of the Audit profession.
Let us go together go through this book and see what it has in store for us. Why do we generally fail in our resolutions? Why are we not able to achieve our dreams? why do we always fall short of our targeted income?
Hopefully, all these questions will be answered in the process.
My thoughts on nfra consultation paper on statutory audit and auditing standa...CA. (Dr.) Rajkumar Adukia
The importance of Audit of an organization is perhaps as same as what is oxygen for human beings. It is a 360-degree review of all the organizations working.
I find the NFRA consultation is an opportunity to tell the world how auditing is not just a statutory requirement but a value addition for any entity.
It is a chance to relook at our services, to enhance the
quality and benefit of our services to stakeholders and overall society.
The pious period of Diwali gives us the impetus to destroy all ignorant, fearful, negative and self-limiting thoughts and light up our life with knowledge, fearlessness, positive and self-empowering thoughts.
Let us discover the Inner light in us on this auspicious day of Diwali !!!!
Have a Sparkling, Prosperous, Healthy, and Beautiful Diwali to you all !!!!!!
The role of chartered accountants in the capacity of auditors assures a smooth-running business that helps to reduce fraud and accounting. The article unfolds its crucial role in terms of the stock audit process.
Business and Risk go hand in hand, the professionals like chartered accountants with expertise in finance, management and audit are well suited for the role of forecasting, evaluating, and mitigating prospective risk involve in any organization’s activity and seize opportunities to take the growth of business on next level. This article brings you in-depth details of the role of a chartered accountant in Enterprise Risk Management.
UNFOLDS NEW PROFESSIONAL OPPORTUNITIES AVAILABLE FOR THE CHARTERED ACCOUNTANT...CA. (Dr.) Rajkumar Adukia
The expertise in subjects like Finance, advisory, management, audit, etc. puts the Chartered Accountants in an advantageous position creating an ability to plays a huge role in the Insolvency Resolution process on the same line unfolds the excellent unique opportunities that the Insolvency regime brings.
The role of Chartered Accountant in capacity as Virtual Entrepreneur Mentor t...CA. (Dr.) Rajkumar Adukia
A chartered accountant in the capacity of a virtual Entrepreneur Mentor can act as a trusted confidante over an extended period of time with an objective to provide advice, counseling from a fresh perspective, collaborate and help you as an entrepreneur stay focused on their long-term goal of making their venture a success.
Role of Chartered Accountant’s in assisting startup to reach to the UNICORN ...CA. (Dr.) Rajkumar Adukia
"Unicorn Startups are the ones that beat the odds" with the right business model for profit generation, and financial knowledge CAs can better use their expertise in assisting startups to reach Unicorn Startups.
Digital Transformation and IT Strategy Toolkit and TemplatesAurelien Domont, MBA
This Digital Transformation and IT Strategy Toolkit was created by ex-McKinsey, Deloitte and BCG Management Consultants, after more than 5,000 hours of work. It is considered the world's best & most comprehensive Digital Transformation and IT Strategy Toolkit. It includes all the Frameworks, Best Practices & Templates required to successfully undertake the Digital Transformation of your organization and define a robust IT Strategy.
Editable Toolkit to help you reuse our content: 700 Powerpoint slides | 35 Excel sheets | 84 minutes of Video training
This PowerPoint presentation is only a small preview of our Toolkits. For more details, visit www.domontconsulting.com
Improving profitability for small businessBen Wann
In this comprehensive presentation, we will explore strategies and practical tips for enhancing profitability in small businesses. Tailored to meet the unique challenges faced by small enterprises, this session covers various aspects that directly impact the bottom line. Attendees will learn how to optimize operational efficiency, manage expenses, and increase revenue through innovative marketing and customer engagement techniques.
Business Valuation Principles for EntrepreneursBen Wann
This insightful presentation is designed to equip entrepreneurs with the essential knowledge and tools needed to accurately value their businesses. Understanding business valuation is crucial for making informed decisions, whether you're seeking investment, planning to sell, or simply want to gauge your company's worth.
Implicitly or explicitly all competing businesses employ a strategy to select a mix
of marketing resources. Formulating such competitive strategies fundamentally
involves recognizing relationships between elements of the marketing mix (e.g.,
price and product quality), as well as assessing competitive and market conditions
(i.e., industry structure in the language of economics).
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As an Army veteran dedicated to lifelong learning, I bring a disciplined, strategic mindset to my pursuits. I am constantly expanding my knowledge to innovate and lead effectively. My journey is driven by a commitment to excellence, and to make a meaningful impact in the world.
[Note: This is a partial preview. To download this presentation, visit:
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Sustainability has become an increasingly critical topic as the world recognizes the need to protect our planet and its resources for future generations. Sustainability means meeting our current needs without compromising the ability of future generations to meet theirs. It involves long-term planning and consideration of the consequences of our actions. The goal is to create strategies that ensure the long-term viability of People, Planet, and Profit.
Leading companies such as Nike, Toyota, and Siemens are prioritizing sustainable innovation in their business models, setting an example for others to follow. In this Sustainability training presentation, you will learn key concepts, principles, and practices of sustainability applicable across industries. This training aims to create awareness and educate employees, senior executives, consultants, and other key stakeholders, including investors, policymakers, and supply chain partners, on the importance and implementation of sustainability.
LEARNING OBJECTIVES
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3. Identify and define best practices and critical success factors essential for achieving sustainability goals within organizations.
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1. Introduction and Key Concepts of Sustainability
2. Principles and Practices of Sustainability
3. Measures and Reporting in Sustainability
4. Sustainability Implementation & Best Practices
To download the complete presentation, visit: https://www.oeconsulting.com.sg/training-presentations
Recruiting in the Digital Age: A Social Media MasterclassLuanWise
In this masterclass, presented at the Global HR Summit on 5th June 2024, Luan Wise explored the essential features of social media platforms that support talent acquisition, including LinkedIn, Facebook, Instagram, X (formerly Twitter) and TikTok.
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2. The Chartered Accountant (CA)
• The advancement of the CA profession has its roots
connected to the economic development of the country
• Today’s CAs are key players in business, industry and
financial services in India and around the world.
• The increasing awareness and demands of society is
compelling more organisations to seek professional help to
cater to diverse needs.
• From healthcare to software, its hard to find any business
without the presence of CAs.
• However new opportunities keep emerging and it is wise
to explore further.
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3. Professional Opportunities
• S. 2 (2) (iv) of the Chartered Accountants’ Act, 1949 read
with Regulation 191 of the Chartered Accountants’
Regulations, 1988 specifically provides that a Chartered
Accountant in his professional capacity is allowed to act as
an Arbitrator.
• Chartered Accountants with their objective, independent
and balanced in their approach to a problem can be ideally
placed to act as arbitrators or conciliators and play a
mediator’s role in resolving conflict situations between
partners, business associates, employers and employees etc
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4. As an Arbitrator
• A Chartered Accountant is required to maintain a high
degree of professional competence and technical standard.
He is bound by the code of conduct framed by the Institute
of Chartered Accountants of India.
• There are a large number of organisations, national as well
as international, which maintain a panel of arbitrators.
• Indian Council of Arbitration, a specialized arbitral body,
sponsored by Government of India recognise Chartered
Accountants as arbitrators. Clause III (b) of the “broad
categories of qualification and experience for
empanelment as an arbitrator” indicate that Chartered
Accountants having 15 years of professional experience
are eligible for empanelment as an arbitrator.
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5. As a Counsel for the client
• A Chartered Accountant normally represents the
cases of his clients before various authorities
including the Tribunals, Company Law Benches,
SEBI, RBI etc. He can specialize in arbitration
matters particularly those connected with breach
of contracts, insurance claims, loss of profit,
securities fraud, commercial disputes, rights of
properties, lease transactions etc. and represent his
clients in Arbitration proceedings.
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6. As an Expert
• Under Sec 26(1) of the Arbitration and
Conciliation Act, 1996 the Arbitral Tribunal may
appoint expert/s to report on any specific issue to
be determined by it.
• A CA can help the arbitral tribunal in the capacity
of an expert in matters relating to accounts,
commercial transactions, lease transactions etc
where he has sufficient domain knowledge
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7. In Other Capacity
• A Chartered Accountant can also advise the client
whether a particular case is arbitrable or not. In
case of arbitrable disputes, he can provide various
services like, advising the clients on selection of
arbitrator, initiating the arbitral proceedings,
preparation of statement of claims or defence,
pleadings etc. He can help in deciding which ADR
process the client should choose. After enough
experience in arbitration and other ADR methods,
he can also play an important role in solving the
pending disputes of his clients by identifying those
rajkumarfcacases that are suitable for resolution through ADR.
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8. Role under Arbitration &
Conciliation Act, 1996
•
•
•
•
•
•
•
•
Drafting of Arbitration Agreement
Representing either of the party (plainant/defendant) to
the dispute in the arbitral proceedings
Assisting Arbitrator in drafting arbitral award
Assisting both parties to go to Court of Law
Assisting in preparing submissions to arbitrator
Member of Arbitral Tribunal
Assisting Trade and Industry associations in setting up
Alternate Dispute Redressal (ADR) mechanism.
Acting as arbitrator where required. In some legislations,
redressal of dispute or particular kind of disputes are
mandatorily to be resolved through Arbitration.
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9. Contd…
• Acting as arbitrator in Micro and Small Enterprises
Facilitation Council u/s 18 of the Micro, Small and
Medium Enterprises Development Act, 2006.
• In Clause 14 of First Schedule to the Limited Liability
Partnership Act 2008 - All disputes between the partners
arising out of the limited liability partnership agreement
which cannot be resolved in terms of such agreement shall
be referred for arbitration as per the provisions of the
Arbitration and Conciliation Act, 1996.
• Assisting Indian Judiciary u/s section 89 of Code of Civil
Procedure 1908, where there is possibility of settling of
dispute through arbitration
• Acting as Arbitrator in different countries
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10. Role in International Commercial
Arbitration (ICA)
• To help clients in the process of Selecting an Arbitration
Institution.
• Issues to consider at the time of selection of an Arbitration
Institution include:
· History of the institution's administration of
international arbitrations.
· Experience in handling disputes
· Selection of Arbitrators
· Procedures adopted by the Institution
· Cost of the Institution
· Services of the Institutions Staff
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11. Contd…
• Act as arbitrator for international commercial disputes
• Determining the procedural law to be applied
• Draft commercial trade agreements in consonance with the
principles of Alternative Dispute Resolution
• Draft Arbitration clauses in international contracts.
• Standard Arbitration Clauses are of the Following Types:
– a.
ICC Arbitration Clause
– b.
AAA Arbitration Clause
– c.
London Court Arbitration Clause
– d.
Stockholm Chamber Arbitration Clause
– e.
Ad Hoc Arbitration Clause
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12. Contd…
• Drafting of a proper arbitration agreement
considering the arbitration rules promulgated by
various international institutions
• Parties may either develop their own rules or
select established arbitration rules to govern the
arbitration. Parties may use the rules of an
arbitration institution without submitting the
dispute to that institution.
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13. Contd…
• Unless parties select an arbitration institution that
requires use of its own rules, parties may use the
rules of some major International Institutions.
Major International Arbitration Rules are:
–
–
–
–
a. UNCITRAL Arbitration Rules
b. AAA Arbitration Rules
c. ICC Arbitration Rules
d. London Court Arbitration Rules
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14. Contd…
• Where the parties select the arbitration format and
structure without using an arbitration institution
(Ad Hoc Arbitration) - CA should ensure:
• Parties specify in the arbitration clause all aspects of
the arbitration, including applicable law, rules under
which the arbitration will be carried out, the number
of arbitrators, the method for selecting the
arbitrator(s), the language in which the arbitration
will be conducted and the place of arbitration.
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15. Dispute Resolution
• The Oxford Dictionary defines the term ‘Dispute’
as an argument or a disagreement between two
people, groups or countries.
• A dispute must be resolved. Unresolved disputes
in business hinder the smooth flow and future
growth not only of domestic trade but also of
international trade.
• A dispute is normally resolved by way of
– Litigation; or
– Alternative Dispute Resolution (ADR) mechanism.
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16. Litigation
• In litigation a dispute is referred to a court
of Law.
• Litigation is expensive, time consuming and
full of complexities.
• Besides, the constant rise in the costs of
litigation coupled with time delays
continues to plague the litigants.
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17. Alternate Dispute Resolution
(ADR)
• Alternate or Alternative Dispute Resolution
("ADR") refers to any means of settling disputes
outside of the courtroom.
• ADR includes dispute resolution processes and
techniques that act as a means for disagreeing
parties to come to an agreement short of litigation.
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18. Forms of ADR
• Negotiation - where interested parties resolve disputes,
agree upon courses of action, bargain for individual or
collective advantage, and/or attempt to craft outcomes
which serve their mutual interests.
• Mediation - where a third party attempts to arrange a
settlement between the two sides.
• Conciliation - the disputing parties resolve their disputes
with the help of one or more conciliators. The settlement
agreement reached by the parties and authenticated by the
conciliator is binding upon the parties
• Arbitration - disagreeing parties agree to be bound by the
decision of an independent third party
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19. The Code of Civil Procedure
1908
• The legislature by the Code of Civil Procedure
(Amendment) Act, 1999, amended section 89 of the CPC
with effect from 1.7.2002 to promote alternative methods
of dispute resolution.
• Section 89(1) of the Code of Civil Procedure
(Amendment) Act, 1999- Settlement of disputes outside
the court –
Where it appears to the court that there exist elements of a
settlement which maybe acceptable to the parties, the court
shall formulate the terms of settlement and give it to the
parties for their observations and after receiving the
observations of the parties, the court may reformulate the
terms of a possible settlement and refer the same for —
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21. Where a dispute has been
referred
• For arbitration or conciliation - the provisions of
the Arbitration and Conciliation Act, 1996 shall
apply as if the proceedings for arbitration or
conciliation were referred for settlement under the
provision of that Act;
• To Lok Adalat - the court shall refer the same to
the Lok Adalat in accordance with the provisions
of sub-section (1) of section 20 of the Legal
Services Authority Act, 1987 and all other
provision of that Act shall apply in respect of the
dispute so referred to the Lok Adalat;
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22. Contd…
• For Judicial settlement - the court shall refer the
same to a suitable institution or person and such
institution or person shall be deemed to be a Lok
Adalat and all the provisions of the Legal Services
Authority Act, 1987 shall apply as if the dispute
were referred to a Lok Adalat under the provisions
of that Act;
• For Mediation - the court shall effect a
compromise between the parties and shall follow
such procedure as maybe prescribed.
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23. Arbitration
• Arbitration is a process of ADR in which a neutral
third party (called the arbitrator) renders a
decision after a hearing at which both parties have
an opportunity to be heard. It is the means by
which parties to a dispute get the same settled
through the intervention of a third person, but
without having recourse to court of law.
• Section 2(1)(a) of the Arbitration and Conciliation
Act, 1996 defines "arbitration“ as - means any
arbitration whether or not administered by
permanent arbitral institution;
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24. International Commercial
Arbitration
• International Commercial Arbitration is one of the several
forms of ADR for International Commercial Agreements.
• International Arbitration in the context of India is
arbitration where at least one of the parties is an individual
national of or habitually resident in a country other than
India or a body corporate incorporated outside India or a
company or an Association or a Body of Individuals
whose central management and control is exercised from
out of India or by a Government of a Foreign Country.
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25. Contd….
• Section 2(1)(f) of the Arbitration and Conciliation Act,
1996 Act, defines “International commercial arbitration”
as an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as
commercial under the law in force in India and where at
least one of the parties is• (i) An individual who is a national of, or habitually
resident in, any country other than India; or
• (ii) A body corporate which is in corporate in any country
other than India; or
• (iii) A company or an association or a body of individuals
whose central management and control is exercised in any
country other than India;rajkumarfcaor
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•
26. Why Arbitration?
• " I realised that the true function of a lawyer was to unite
parties... A large part of my time during the 20 years of my
practice as a lawyer was occupied in bringing about
private compromises of hundreds of cases. I lost nothing
thereby - not even money, certainly not my soul.“ –
Mahatma Gandhi
• "Discourage litigation. Persuade your neighbours to
compromise whenever you can . . . the nominal winner is
often a real loser in fees, in expenses, and waste of time." Abraham Lincoln
• “Our litigation system is too costly, too painful, too
destructive, too inefficient for a truly civilised people.” Chief Justice Warren Burger of US Supreme Court
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27. How does Arbitration Work
• Arbitration procedures are very similar to court.
The only difference being that there are no hurdles
of the strict rules of procedure or law of evidence,
yet legally binding. After the claim is filed and the
opposite side responds; the parties exchange
information relevant to the case; the arbitrator
hears both sides, studies the evidence, and decides
the case.
• Arbitration often is contractual: two parties agree
to use arbitration to resolve a dispute. The parties
agree on what basis they want the arbitrator to
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28. What can be referred to
Arbitration
• Generally speaking, all disputes of a civil nature
or quasi-civil nature, which can be decided by a
civil court, can be referred to arbitration.
• It is necessary that there is a defined legal
relationship between persons, companies,
association of persons, body of individuals etc.
created or permitted by law, before a reference can
be made to arbitration.
• However, the relationship may not be a
contractual one. A dispute may arise out of quasi
contracts; .e.g., the division of family property.
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The same may be validly referred to Arbitration.
29. What cannot be referred to
Arbitration
• As per general practice, matters involving moral
questions or questions of public law cannot be
resolved by arbitration.
• For instance, the following matters are not referred
to arbitration:
– Matrimonial matters, like divorce or maintenance;
– Insolvency matters, like declaring a person as an
insolvent;
– Criminal offences;
– Dissolution or winding up of a company.
However, the above is not an exhaustive list.
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30. Contd…
• Section 2(3) of the Arbitration and Conciliation
Act 1996 provides that: — This part shall not
affect another law for the time being in force by
virtue of which certain disputes may not be
submitted to arbitration.
• Thus if a matter is governed by any other law
which excludes reference to Arbitration, this Act
will not apply. Since in those cases, the law has
given precise jurisdiction to specified courts or
tribunals only and those cases cannot be decided
through the mechanism of Arbitration
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31. Sources of Arbitration Law
• States regulate arbitration through a variety
of laws. The main body of law applicable to
arbitration is normally contained either in
the national Private International Law Act
(as is the case in Switzerland) or in a
separate law on arbitration (as is the case in
England). In addition to this, a number of
national procedural laws may also contain
provisions relating to arbitration.
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32. International Instruments on
Arbitration Law
• By far the most important international instrument on
arbitration law is the 1958 New York Convention on
Recognition and Enforcement of Foreign Arbitral Awards.
• Some other relevant international instruments are:
– The Geneva Protocol of 1923
– The Geneva Convention of 1927
– The European Convention of 1961
– The Washington Convention of 1965 (governing
settlement of international investment disputes)
– The UNCITRAL Model Law (providing a model for a
national law of arbitration)
– The UNCITRAL Model Rules (providing a set of rules
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for an ad hoc arbitration)
33. United Nations Commission on
International Trade Law
(UNCITRAL)
• UNCITRAL was established by The General Assembly
1966 ( Resolution 2205(XXI) of 17 December 1966) as a
subsidiary body of The General Assembly of the United
Nations.
• It was established with the purpose of removing obstacles
in the flow of International Trade.
• In regard to its Mandate, UNCITRAL has prepared a wide
range of conventions, model laws and other instruments
dealing with the substantive law that governs trade
transactions or other aspects of business law which have
an impact on International Trade.
• At present, India is a member of UNCITRAL and its
membership expires in 2016
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34. Law regulating Arbitration in
India
• The statutory provisions on arbitration are
contained in the Arbitration and Conciliation Act,
1996
• The Arbitration and Conciliation Act,1996 came
into force with effect from 25th January 1996. The
Act of 1996 was enacted to update the Law of
Arbitration in India on the lines of the United
Nations Commission on International Trade Law
(UNCITRAL) Model Law on International
Commercial Arbitration.
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35. Contd…
• Before the enactment of the Arbitration and Conciliation
Act 1996, statutory provisions on arbitration were
contained in three different enactments:
– the Arbitration Act, 1940,
– the Arbitration (Protocol & Convention) Act, 1937; and
– the Foreign Awards ( Recognition & Enforcement) Act,
1961.
– Domestic arbitrations were conducted under the 1940
Act while the other two acts dealt with foreign awards.
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36. Contd…
• The Arbitration and Conciliation Act, 1996 has
repealed these three Acts and consolidated and
amended the law relating to domestic arbitration,
international commercial arbitration and
enforcement of foreign arbitral awards on the
basis of the Model Law on International
Commercial Arbitration adopted by the United
Nations Commissions on International Trade Law.
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37. The Arbitration and Conciliation
Act, 1996
• The 1996 Act contains 86 sections besides the preamble
and three Schedules.
• The Act is divided into four parts.
– Part I - contains general provisions on arbitration.
– Part II - deals with enforcement of certain foreign
awards.
– Part III - deals with conciliation and.
– Part IV - contains some supplementary provisions.
• The three schedules reproduce the texts of Geneva
Convention on the execution of Foreign Arbitral Awards,
1927, the Geneva Protocol on Arbitration Clause, 1923
and the New York Convention on the Recognition and
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Enforcement of Foreign Arbitral Awards, 1958.
38. Types of Arbitration
• Ad hoc Arbitration - An arbitration proceeding conducted
without recourse to an institution is commonly known as
“Ad hoc Arbitration”. It may be: —
– Domestic Arbitration
– International Arbitration
– Foreign Arbitration
• Institutional Arbitration - An institutional arbitration is one
in which a specialized institution intervenes and assumes
the functions of aiding and administering the arbitral
process, as provided by the rules of that institution. It is
pertinent to note that these institutions do not arbitrate the
dispute, it is the arbitrators who arbitrate, and only the
rajkumarfcarules of the institution apply.
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39. Contd…
• There are number of national and international
organisations set up with the main object of
settling commercial disputes by way of Arbitration
and other Alternative Dispute Resolution
mechanism. These organisations lay down rules
for the conduct of arbitration. These rules,
however, cannot override the Act. These
organisations handle the arbitration cases of the
parties and provide valuable services like
administrative assistance, consultancy and
recommending names of arbitrators from the panel
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40. Arbitration Agreement
• As per section 2(b), an “Arbitration agreement” means an
agreement referred to in section 7 of the Act
• An Arbitration Agreement is the very foundation on which
the whole arbitration procedure rests. If there is no valid
Arbitration Agreement, there can’t be a valid arbitration.
• An Arbitration Agreement need not be in a particular form.
What is important is that there should be an intention of
the parties to refer the dispute to Arbitration.
• An Arbitration Agreement maybe in the form of an
arbitration clause in a contract or in the form of a separate
agreement.
• An Arbitration Agreement shall be in writing.
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41. Arbitration Agreement – A
Contract
• An Arbitration Agreement is a contract and it must satisfy
all the essential elements of a contract.
• As per the Contract Act, 1872, an agreement between two
parties which is enforceable by law is a contract. Section
11 of the Contract Act provides that all agreements are
contract if they are:—
– made by the “Free Consent” of parties competent to
contract
– for a Lawful Consideration and with Lawful objects,
and
– are not expressly declared to be void.
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42. Contd…
• Free Consent:Means consent not caused by coercion,
undue influence, fraud, misrepresentation or mistake.
• Competent to contract:Every person is competent to
contract who is of the age of majority and of sound mind
and not disqualified from contracting by any law.
• Lawful consideration:It should not defeat the provision of
any law, and lawful objects: involve injury to other person
or property, be immoral or opposed to public policy.
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43. Arbitral Tribunal
• As per Section 2(1)(d) - arbitral tribunal" means a
sole arbitrator or a panel of arbitrators;
• The parties are free to determine the number of
arbitrators, provided that such number shall not be
an even number.Failing the determination the
arbitral tribunal shall consist of a sole arbitrator
• A person of any nationality may be an arbitrator,
unless otherwise agreed by the parties.
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44. Duties and Responsibilities of an
Arbitrator
• Any person can be appointed as an arbitrator. No
qualifications are prescribed. It is fundamental that
an arbitrator act fairly. The Arbitration Act
requires the arbitrator to be impartial and
independent, and adhere to the rules of natural
justice during the procedure and in making the
award. It is important for the person appointed to
have a good knowledge of the law and practice of
arbitration.
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45. Arbitral Award
• The document that gives and explains the decision(s) of an
arbitrator is called an award.
• An award is a decision of the arbitrators in writing duly
signed by them.
• An award is binding on both parties.
• An arbitrator has authority to issue interim, partial and
final awards.
• As per section 2(1)(c) of the Act “Arbitral Award”
includes an interim award.
• Having issued a final award, the arbitrator has no further
duty or authority upon the arbitration, except for the right
to correct any minor slips.
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46. Proposed Amendments to the
Arbitration and Conciliation Act
1996
• In the year 2001, the Law Commission of India undertook
a comprehensive review of the working of the Arbitration
and Conciliation Act, 1996 and recommended many
amendments to the Act in its 176th Report submitted to the
Government.
• The Government after considering the recommendations of
the Report and after consulting the State Governments and
certain institutions, decided to accept almost all the
recommendations.
• Accordingly the Arbitration and Conciliation
(Amendment) Bill 2003 was introduced in Rajya Sabha on
22nd December, 2003.
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47. Contd…
• In July 2004, Government constituted a Committee under
the Chairmanship of Justice Dr.B.P.Saraf to make in-depth
study of the implications of the recommendations of the
Law Commission made in its 176th Report and all aspects
relating to the Arbitration and Conciliation (Amendment)
Bill, 2003.
• The Bill was then referred to the Departmental Related
Standing Committee on Personnel, Public Grievances,
Law and Justice for examination and report. The said
Committee after taking oral evidence of eminent advocates
and the representatives from trade and industry, Public
Sector Undertakings, representatives of this Department,
submitted its report to the Houses of Parliament on 4th
rajkumarfcaAugust, 2005.
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48. Contd…
• In view of the large number of amendments
recommended by the Committee and
because many provisions of the Bill were
contentious, the said Bill was withdrawn
from the Rajya Sabha.
• A fresh legislation may be brought after
considering the recommendations of the
Committee.
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49. Other Updates
• Amendments to the Arbitration & Conciliation Act, 1996 –
A Consultation Paper has been published by the Ministry
of Law & Justice, Government of India on 8th April 2010.
• The Hon’ble Supreme Court of India has held in “Union of
India v. Singh Builders Syndicate” (2009), that it is
necessary to find an urgent solution for the problem to
save arbitration from the arbitration cost and opined that
Institutional arbitration has provided a solution, as the
Arbitrators' fees is not fixed by the Arbitrators themselves
on case to case basis, but is governed by a uniform rate
prescribed by the institution under whose aegis the
Arbitration is held
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50. Contd…
• The Hon'ble Supreme Court of India has in the landmark
decision "Salem Advocate Bar Association, Tamil Nadu v.
Union of India" (2005) directed that all courts shall direct
parties to alternative dispute resolution methods like
arbitration, conciliation, judicial settlement or mediation.
The draft "Civil Procedure Alternative Dispute Resolution
and Mediation Rules 2003" was also considered by the
Supreme Court, for enactment by respective High Courts.
Direction was issued to all High Courts, Central
Government and State Governments for expeditious
follow-up action.
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51. Related Websites
• Indian Council of arbitration:
http://www.ficci.com/icanet/
• Indian Institute of Arbitration & Mediation:
http://www.arbitrationindia.com/
• The International Centre for Alternative Disputes
Resolution:
http://www.icadr.org/
• Permanent Court of Arbitration:
http://www.pca-cpa.org
• United Nations Commission on International Trade Law:
http://www.uncitral.org
• International Chamber of Commerce
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52. Key to Effectiveness
• Commitment
– If you think you can or think you cannot you are
probably right-Henry Ford
• Create Partnership
– A single arrow is easily broken but not ten in a bundle
–Japanese proverb
• Be responsible
– Believe that every right implies a responsibility;every
opportunity , an obligation; every possession, a duty
• Decide
– A man with feet in two boats falls into the riverChinese proverb
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53. Contd…
• Be Honest
- The truth is inconvertible ;Panic may resent it:
ignorance may deride it; malice may distort it; but there it
is - Sir Winston Churchill
• Express Support
- One who never asks either knows everything or
nothing - Malcolm Forbes
• Take risks
- Life is either a daring adventure or nothing at all Helen Keller
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