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arbitration, conciliation and alternate dispute resolution methods

This document discusses arbitration, conciliation and alternative dispute resolution systems. It defines arbitration as a private dispute resolution process where parties agree to have their dispute decided by an impartial third party, the arbitrator, rather than going to court. Arbitration is preferred over litigation as it is less expensive, provides speedy resolution and is a simpler process. The document outlines different types of arbitrations based on jurisdiction and proceedings. It compares the Arbitration and Conciliation Act of 1996 to the Arbitration Act of 1940 and discusses key concepts such as arbitration agreements, appointment of arbitrators, and arbitration tribunals.

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PROFESSIONAL PRACTICE, LAW & ETHICS Arbitration, conciliation and ADR(Alternative dispute resolution) system SHUBHAM SHARMA Department of civil engineering BGIET, SANGRUR
What is Arbitration? ◦ Arbitration is a private dispute resolution process that parties may choose as an alternative to going to court. The arbitration process is consensual in that the parties must agree to refer their dispute to arbitration. The arbitration agreement (typically referred to as an ‘arbitration clause’) is usually contained in the main contract between the parties. However, parties may separately agree to arbitration after a dispute has arisen. ◦ In arbitration proceedings the dispute is decided either by a single arbitrator or a panel of arbitrators (usually three in number). An arbitrator performs a similar role to that of a judge in that they are responsible for managing the proceedings to ensure the parties to the dispute have a reasonable opportunity of presenting their case. At the conclusion of the arbitration, the arbitrator will deliver an award which is final and binding on the parties. ◦ Arbitration is preferred by the people as it is less expensive than litigation. It provides for speedy trials and settlement of the disputes is more informal and simpler compared to courtroom trials
Types of arbitrations on the basis of jurisdiction  Domestic Arbitration ◦ ‘domestic arbitration’ means an arbitration in which the arbitral proceedings must necessarily be held in India, and according to Indian substantive and procedural law, and the cause of action for the dispute has completely arisen in India, or in the event that the parties are subject to Indian jurisdiction. ◦ International Arbitration ◦ When arbitration happens within India or outside India containing elements which are foreign in origin in relation to the parties or the subject of the dispute, it is called as International Arbitration. The law applicable can be Indian or foreign depending upon the facts and circumstances of the case and the contract in this regard between the respective parties.
Types of arbitrations based on proceedings  Institutional arbitration ◦ Institutional arbitration is a process where specialized institution administers the arbitration. The parties involved in the arbitration agree on the institution that will administer the process the institution has its own rules and administration to help with the arbitration. Arbitration centre's : (e.g.) ICC, CRCICA, ICSID.  Ad-hoc arbitration ◦ If the parties agree among themselves and arrange for arbitration, it is called Ad - hoc Arbitration without having an institutional proceeding. It can either be domestic, international or foreign arbitration. Ad Hoc Arbitration means that the arbitration should not be conducted according to the rules of an arbitral institution. Since, parties do not have an obligation to submit their arbitration to the rules of an arbitral institution; they are free to state their own rules of procedure.  Fast track arbitration ◦ It is s a method, which is time dependent in the provision of the arbitration and conciliation act. Its procedure is established in a way that it has abandoned all the methods, which consume time, and uphold the simplicity which is the originally the prime purpose of such arbitration.
Arbitration and Conciliation Act 1996 vs Arbitration Act of 1940 Terms Arbitration and Conciliation Act, 1996 Arbitration Act, 1940 Objective to encourage and facilitate alternative dispute resolution (ADR) methods. Act was primarily focused on arbitration in India. Scope covers both domestic and international arbitration and conciliation. Cover only domestic arbitration. Arbitration Agreement Act emphasizes the importance of a written arbitration agreement. the 1940 Act did not provide as much clarity and flexibility as the 1996 Act. Appointment of Arbitrators It provides detailed procedures for appointing arbitrators. The appointment process for arbitrators was less defined. Conciliation The Act includes specific provisions for conciliation. The Act did not specifically address the process of conciliation.
Terms Arbitration and Conciliation Act, 1996: Arbitration Act, 1940: Challenging Awards The grounds for challenging arbitration awards are more clearly defined. The grounds for challenging arbitration awards were not as clearly specified. Interim Measures and Remedies It grants arbitrators the authority to issue interim measures to protect parties' rights during arbitration. The 1940 Act did not have as comprehensive provisions for interim measures. Confidentiality The Act emphasizes the confidentiality of arbitration and conciliation proceedings. The concept of confidentiality was not as explicitly addressed. Enforcement of Awards Awards issued through arbitration are enforceable as court judgments. Awards had to go through a separate process for enforcement, unlike the 1996 Act, which treats them like court judgments. International Perspective The 1996 Act incorporates the UNCITRAL Model Law on International Commercial Arbitration for international arbitration. It does not Act incorporates the UNCITRAL Model Law on International Commercial Arbitration.
expert determination ◦ Expert determination is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one [or more] experts who make a determination on the matter referred to it. The determination is binding, unless the parties agreed otherwise. Technical or other non-legal experts often play an important role in solving commercial disputes. ◦ In state courts and arbitration proceedings, experts are frequently appointed by judges and arbitrators to assist them in making decisions to do with technical and other non-legal issues requiring expert knowledge. During arbitration proceedings, parties often seek the support of party-appointed experts to assist them in arguing their case
extent of judicial intervention ◦ when a dispute arises with regard to the appointment of an arbitrator, necessarily requires the court’s intervention. During the proceedings, the court’s intervention is required to assist the proceedings. The court can provide assistance by providing interim protection or otherwise. Finally, when the arbitral award is declared, judicial intervention is required for either the enforcement of the award or to challenge it. ◦ The arbitration process is successful if there is minimum judicial interference; the key principle of arbitration is less judicial interference. It can only be accomplished if the judiciary has no significant impact on the arbitral awards. How much the court should interfere in the arbitration process is the question to be answered. Too much interference would hinder the proceedings and development of the arbitration. Too little might lead to the infringement of the principle of natural justice.
International commercial arbitration ◦ International commercial arbitration is a means of resolving disputes arising under international commercial contracts. It is used as an alternative to litigation and is controlled primarily by the terms previously agreed upon by the contracting parties, rather than by national legislation or procedural rules. Most contracts contain a dispute resolution clause specifying that any disputes arising under the contract will be handled through arbitration rather than litigation. The parties can specify the forum, procedural rules, and governing law at the time of the contract. ◦ International commercial arbitration helps to resolve disputes among the international parties arising out of the internal commercial agreements. Arbitration and Conciliation Act defines international commercial arbitration as disputes arising out of the legal relationship where one of the parties is a citizen, resident, or habitually residing out of India. International commercial arbitration is used by the traders of different countries as a way of settling their business conflicts.
Benefits of international domestic arbitration 1. IA resolve disputes more swiftly than traditional court litigation since there are only limited appeals from arbitration awards. 2. IA is less expensive than traditional court litigation. 3. IA provide better-quality justice, since many domestic courts are overburdened, which does not always allow judges sufficient time to produce legal decisions of high quality. 4. Clients can play an active role in selecting an arbitrator who is an industry expert in International Arbitration, rather than a generalist like many domestic court judges. 5. IA is flexible, and the individual parties to a dispute play a significant role in selecting the procedure that is most appropriate for resolving their international dispute, deciding on whether to include procedures such as document production. 6. International Arbitration is neutral. This is very important for cross-border transactions, since it avoids the possibility of a “home court” advantage for one party.
Arbitration agreement ◦ Arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not. The parties make an agreement that instead of going to the court, they shall refer the dispute to arbitration. Kinds of arbitration agreement Arbitration clause Submission agreement Future disputes Disputes which have already arisen Short and broad Detailed and specific setting out the exact dispute Provide clause in the main contract After dispute arisen
Essentials of an Arbitration Agreement 1. There must be a dispute that should take place, only then the agreement will be valid. The presence of a dispute amongst the parties is an essential condition for the contract to take place. 2. Another essential is the written agreement. An agreement related to the arbitration must always be in writing. An arbitration agreement will be considered as a written agreement when: 1. It has been signed by both parties and it is in the form of a document. 2. It can be the exchange of the telex, the letters, the telegrams, or any other means of communication which provides the record of the exchange and the agreement for arbitration. 3. There must be an exchange of statements between the parties. 3. The third essential intention. The intention of the parties while forming the contract is of utmost importance and it forms the basis of the agreement. 4. The fourth essential element is the signature of the parties. The signature of the parties is an essential element to constitute an arbitration agreement. The signature can be in the form of a document signed by both the parties to the contract which comprises all the terms and conditions
Validity of the Arbitration Agreement 1. Without a valid arbitration agreement, no arbitration can take place or award can be rendered. In other words, a valid arbitration agreement is the cornerstone of any arbitration proceedings. 2. The agreement be in writing, meaning —according to Article II(2) of the NY Convention— “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”. 3. It be as simple as possible, dealing with any existing or future disputes in connection with a legal relationship (standard clauses tend to use very broad language). 4. The parties check in advance that it concerns a matter capable of settlement by arbitration. 5. It be analysed in advance that the parties to the arbitration agreement have legal capacity under the law applicable to them. 6. The agreement be valid under the generally applicable principles of contract law, with special consideration for the law that the parties have chosen and, if there is no such choice, the law of the seat of the arbitration.
Reference and interim measures by court ◦ Interim measure means any temporary measure, by which, at any time prior to the delivery of the final award, to provide a means of preserving assets out of which a subsequent award may be satisfied or to preserve evidence that may be relevant and material to the resolution of the dispute. ◦ Arbitration has become the most preferred method of alternative dispute resolution which parties resort to for resolution of any commercial dispute in a contract which contains an arbitration clause or an arbitration agreement that exists between the parties. Although it is well known that the time required for resolution of disputes through arbitration is much lesser than the time required by any court of law, still it takes considerable time to complete the entire process of arbitration – right from invocation of arbitration to enforcement of award. Therefore, it is imperative that some interim measures or interim relief be granted by the arbitral tribunal or the court in order to protect the rights of the aggrieved party. In some particular instances, the interim relief may involve directives to some third parties also. Interim relief is like an urgent remedy granted in exceptional circumstances.
Arbitration Tribunal ◦ "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators. An arbitral tribunal is a panel of one or more adjudicators which is convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include either a chairman or an umpire.
Appointment of arbitrators ◦ A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. ◦ The parties are free to agree on a procedure for appointing the arbitrator or arbitrators. ◦ Failing any agreement in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. ◦ A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, The appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. ◦ A decision on a matter entrusted by the Chief Justice or the person or institution designated by him is final. ◦ In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
Grounds for challenge ◦ When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. ◦ An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances unless they have already been informed of them by him. ◦ An arbitrator may be challenged only if- ◦ (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, (b) He does not possess the qualifications agreed to by the parties. ◦ (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
JURISDICTION OF ARBITRAL TRIBUNALS ◦ It would not be appropriate to say that an arbitral tribunal has statutory jurisdiction. The tribunal determines its jurisdiction to adjust the needs of the parties. The arbitral agreement mainly determines the ambit of jurisdiction of the arbitral tribunal. The focal of party-autonomy declares that when the two parties have the remedy to resolve their disputes on their own then they have the remedy to show this right to any third party, to determine overt that squabble. ◦ Thus it is very essential to contemplate a well-drafted agreement because it results in giving complete strength to the tribunal to determine matters related to the jurisdiction. ◦ The Arbitration and Conciliation Act, 1996 also specifically mentions the jurisdiction to determine explicit matters in Section 17 of the Act. 1. Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. 2. The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).
POWERS OF AN ARBITRATOR ◦ The arbitrator is the one who will give the arbitral award, therefore, The Arbitration and Conciliation Act, 1996 provides several powers to him in order to decide the award. 1. The arbitrator has a power to administer an oath to the parties. It is necessary for him to act as a quasi-judicial authority. 2. Power to take interim measures 3. An arbitrator has an power to proceed to ex-parte. 4. Power to appoint an expert 5. Power to make awards
DUTIES OF AN ARBITRATOR 1. To be independent and impartial 2. To fix a time and place for arbitration, which is convenient to the parties 3. Duty to disclose 4. Duty to efficiently resolve the dispute 5. Duty to determine the rules for the procedure
Procedure and court assistance ◦ There may be situations when parties do not cooperate with the tribunal during the evidence stage. For example, they may not produce a document, or a witness may not appear before the Tribunal despite being summoned multiple times. ◦ Although the Tribunal is not bound to follow the rules of the Code of Civil Procedure and the Evidence Act, there is no provision under the Arbitration and Conciliation Act that gives the tribunal the power to compel production of documents and summon witnesses in the same way that a civil court can. In contrast, there are several other bodies (not connected with arbitration) such as Lok Adalat's or Internal Complaints Committees or regulatory bodies which have the power to compel attendance of witnesses and production of documents. ◦ The arbitral tribunal has the power to issue orders to parties to call a witness or produce a document, but where something is not directly in control of the parties, the tribunal cannot compel its production or attendance of a witness. Hence, in such situations, for an arbitral tribunal, assistance of the court may be necessary to obtain evidence.
Arbitration award ◦ An arbitration award is a judgement given by the arbitrator or an arbitration tribunal that is considered to be binding and enforceable unlike other alternative dispute resolution i.e., mediation, negotiation and conciliation. ◦ An award is considered as an award of damages which may constitute payment of a sum of money, declaration as to any matter to be determined in proceedings. It is quite clear that an arbitration tribunal has similar powers as that of the court of law. Just like a judgement given by the court, an arbitral award must: 1. Be in writing 2. Be signed by the arbitrator or Arbitration Tribunal 3. Give reasons for giving such an award 4. Mention date and place of arbitration
additional award ◦ An additional award is a type of award which is given after the principal award has been delivered. Generally, it is considered as an award that contains all the corrections and interpretations of the provisions provided in the principal award. But to acquire an additional award one has to write to the tribunal requesting to schedule a further hearing.
Form and Contents of Arbitral Award 1. An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal. 2. For the purposes in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated. 3. The arbitral award shall state its date and the place of arbitration and the award shall be deemed to have been made at that place. 4. After the arbitral award is made, a signed copy shall be delivered to each party. 5. The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award. 6. Unless otherwise agreed by the parties, - A. the costs of an arbitration shall be fixed by the arbitral tribunal; B. the arbitral tribunal shall specify - I. the party entitled to costs, II. the party who shall pay the costs, III. the amount of costs or method of determining that amount, and IV. the manner in which the costs shall be paid.
Grounds for setting aside of an Arbitral Award ◦ Under the Arbitration and Conciliation Act 1996, when two parties sign the arbitration agreement, the agreement has a binding effect on both the parties. Later on, when a dispute arises and the parties opt for arbitration, in this case the award provided by the appointed arbitrator will be binding on both the parties. ◦ But there are instances when both the parties or either of the party is not satisfied with the award, in that case a recourse is also provided in the Act. In such cases they have an option to address there concerns. For this, Section 34 of the Act provides certain grounds in which application for setting aside of an award can be made and further Section 37 provides for the provision of appeal regarding certain orders. ◦ The following grounds are: ◦ Incapacity of a party. ◦ Unlawful agreement. ◦ No notice to the other party. ◦ Subject matter extent to the scope of the arbitration agreement. ◦ Formation of Tribunal not as per the agreement. ◦ Subject matter not under the arbitration law. ◦ Award in conflict with the public policy of India.
Enforcement ◦ Enforcement is the proper execution of the process of ensuring compliance with laws, regulations, rules, standards, and social norms. ◦ In India, an arbitral award is enforced in the same way as a court decree. This is in accordance with the code of civil procedure, 1908. ◦ To enforce an arbitral award, the party must go to court. Arbitration allows the parties to avoid national courts and have a private dispute resolution procedure.
Appeal against Arbitral award ◦ In India aggrieved party can appeal an arbitral award in a law court. The appeal can be filed under section 96 of the civil procedure code, 1908. The award can also be declared void, set aside, or cancelled under section 34 of arbitration and conciliation act 1996. ◦ The grounds for appeal are limited. The party must have a concrete reason to challenge the award in court if the arbitration is binding, the party can appeal without a reasonable ground. ◦ To initiate an appeal, the party must file an appeal notice in the court within the 28 days of the award being made. The appeal notice must include the ground for appeal and the relief sought. The party must also serve a copy of the appeal notice on the other party.
Revision of arbitral award ◦ Section 33 of the arbitration act provides that a party, with notice to the other party, may within 30 days of receipt of the arbitral award (unless another time limit has been agreed by parties) request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other.
Enforcement of Foreign Awards ◦ To enforce a foreign award party has to produce arbitral award, agreement of arbitration to the district court having jurisdiction over the subject matter of the award. The enforcement of award can be refused by court only in cases specified in law. Otherwise, the foreign award is enforceable through court as if it is a decree of the court. If the court declines to enforce the arbitral award, appeal can be made to the court where appeal normally lies from the district court. No further appeal can be made (except appeal to Supreme Court) . The courts can refuse to implement the award only on limited grounds.
General procedure for enforcement of a foreign arbitral award: ◦ The party seeking enforcement of a foreign award needs to supply in the court (a) the arbitral award and (b) the arbitration agreement. ◦ The party against whom enforcement is sought can object to the enforcement by submitting proof of one of the grounds for refusal of enforcement. ◦ The court may on its own motion refuse enforcement for reasons of public policy. ◦ If the award is subject to an action for setting aside in the country in which, or under the law of which it is made the foreign court before which enforcement of the award is sought may adjourn its decision on enforcement. ◦ Finally, if a party seeking enforcement prefers to base its request for enforcement on the court’s domestic law on enforcement of foreign awards or bilateral or other multilateral treaties in force in the country where it seeks enforcement, it is allowed to do so by virtue of the so-called more-favourable-right.”
The foreign awards which can be enforced in India ◦ New York convention award - made after 11th October, 1960. New York convention awards are enforceable in India. New York convention was drafted and kept in United Nations for signature of member countries on 21st December, 1958. The New York convention was excellently drafted by the United Nations and has been ratified by more than 150 countries, comprising of major countries which participate in international trade and economic transaction. The reach of the New York convention is much enlarged. Any arbitral award, in any state, in contracting countries or otherwise is shielded under the New York convention. ◦ Procedure of Enforcement ◦ According to Article 3 of the convention, “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards”. This article clarifies the provisions which interrelate to the enforcement of arbitral awards drooping under the convention. It encompasses the general duty for the contracting states to consider convention awards as mandatory and to enforce them as per their guidelines of the procedure.
◦ Geneva Convention Awards - Geneva convention awards contain four treaties and three supplementary protocols that institute international law for humanitarian dealing in war. The single expression Geneva convention usually signifies the pacts of 1949, which were negotiated after the massacre of world war II. The Geneva Convention expansively defined the crucial rights of wartime prisoners, instituted safeguards for the injured and sick, and instituted several protections for the civilian around the war zone. ◦ Application of Geneva Convention Awards ◦ The Geneva convention comes into the picture at times of war and armed conflicts with the government. Article 2 of the convention connotes the niceties of applicability. ◦ Relating to international armed conflicts, this article clarifies that the Geneva convention applies to all cases of international conflict where at least one of the warring states have consented to the conventions. ◦ The convention is imposed on all cases of avowed war among signatory states. This is the inventive sense of applicability, which precludes the 1949 version. ◦ The convention is imposed on all cases of armed dispute among two or more signatory states, even in the nonattendance of a declaration of war. This dialectal was summed up in 1949 to accommodate circumstances that have all the features of war without the presence of formal announcements of war, such as a police action.
Negotiation ◦ A negotiation is a strategic discussion that resolves an issue in a way that both parties find acceptable. In a negotiation, each party tries to persuade the other to agree with his or her point of view. By negotiating, all involved parties try to avoid arguing but agree to reach some form of compromise. ◦ Negotiations involve some give and take, which means one party will always come out on top of the negotiation. The other, though, must concede—even if that concession is nominal. ◦ Negotiation is a dialogue between two parties to resolve conflicts or issues so that both parties find the solution acceptable. Usually, it is a compromise involving give and take. Negotiation results when each party compromises to resolve a conflict for everyone's benefits.
Difference between arbitration and conciliation Arbitration Conciliation It means submission of a dispute to a third person, by parties, for decision by a 3rd party. It means settling a dispute without litigation. Arbitration or arbitral tribunal decides over a dispute A conciliator may settle the dispute. The arbitrator finally decides over the dispute referred to him. The conciliator only persuades the parties to reach an agreement. The law of arbitration is existed in Act of 1940. Conciliation is introduced in the Act of 1996. Arbitral tribunal must consist of odd no. It may have an even no. A dispute may or may not exist for an existing arbitration agreement. No conciliation exists before the dispute.
JUDICIAL PROCESS ARBITRATION MEDIATION Judicial process is an adjustable process where a third party (judge/ other authority) decides the outcome. Arbitration is a quasi – judicial adjudicatory process where the arbitrators appointed by the court or by the parties decide the dispute between the parties. Mediation is a negotiation process and not an adjudicatory process. The mediator facilitates the process. Parties participate directly in the resolution of their dispute and decide the terms of settlement. Procedure and decision are governed, restricted, and controlled by the provisions of the relevant statutes. Procedure and decision are governed, restricted and controlled by the provisions of Arbitration & Conciliation Act, 1996 Procedure and settlement are not governed or restricted by statutory provisions there by allowing freedom and flexibility. The decisions is binding on the parties. The award in an arbitration is binding on the parties. A binding settlement is reach only if parties arrive at a mutually acceptable agreement. Adversarial in nature, as focus on past events and determination of rights and liabilities of parties. Adversarial in nature as focus is on determination of rights and liabilities of of parties. Collaborative in nature as focus is on the present and the future and resolution of disputes is by mutual agreement of parties irrespective of rights and liabilities. Difference between judicial process, arbitration and mediation
JUDICIAL PROCESS ARBITRATION MEDIATION Personal appearance or active participation of parties is not always required. Personal appearance or active participation of parties is not always required. Personal appearance or active participation of the parties are required. A formal proceeding held in public and follows strict procedural stage. A formal proceedings is held in private following strict procedural stages. A non judicial and informal proceeding held in private with flexible procedural stages. Decision is appealable. Award is subjected to challenge specified grounds. Decree/order in terms of the settlement is final and is not appealable. No opportunity for parties to communicate directly with each other. No opportunity for the parties to communicate directly with each other. Optimal opportunity for parties to communicate directly with each other in the presence of mediator. Involves payment of court fees. Does not involve payment of court fees. In case of settlement, in a court annexed mediation the court fee already paid is refundable as per the rules.
confidentiality agreement ◦ Confidentiality has not been specifically defined anywhere in the Arbitration Act. Oxford Dictionary defines the word “Confidentiality” as “a situation in which you expect someone to keep information secret”. ◦ A confidentiality agreement is a legal agreement that binds one or more parties to non-disclosure of confidential or proprietary information. A confidentiality agreement is often used in situations wherein sensitive corporate information or proprietary knowledge is not to be made available to the general public or to competitors. A non-disclosure agreement (NDA) is a particular type of confidentiality agreement. ◦ A confidentiality agreement may be contrasted with a waiver of confidentiality, whereby parties involved give up guarantees of confidentiality.
Resort to arbitral or judicial proceedings ◦ Section 77 of Arbitration and Conciliation Act of 1996 discusses resort to arbitral and judicial proceedings. It states that parties cannot initiate arbitral or judicial proceedings for a dispute while conciliation proceedings are ongoing. However, the parties can initiate these proceedings if they are necessary for preserving their rights.
Dispute Resolution Board ◦ A dispute resolution board is a group of impartial professionals who help resolve issues and reduce the impact of disputes during construction projects. Dispute Resolution Board is not the absolute cure for all disputes in the construction industry. Currently, DRBs are usually only used for massive projects. They have been particularly helpful for highway and other large infrastructure projects, as well as other projects that combine public and private resources — a project structure that’s commonly known as a P3 project. ◦ The DRB is the creature of the contract. Usually, the contract will provides for three members, two technical and one legal, usually the chairman. This formulation allows for technical disputes to be fully understood and resolved without the need for external advice, and similarly disputes involving or including legal issues being capable of resolution without external advice. This is for the board to be able to deal with any dispute that arises. Clearly each board member needs to be a respected member of there own profession, with qualifications and experience to match the project in hand. ◦ Essentially, the DRB can be likened to a project management tool that is used to ensure that the project remains on track influencing the parties to the project to carry out there contractual obligations properly. The 3 member DRB will visit the project regularly and deals with any difficulties that have arisen.
Lok Adalat ◦ Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Lok Adalat's have been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the award (decision) made by the Lok Adalat's is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law. If the parties are not satisfied with the award of the Lok Adalat though there is no provision for an appeal against such an award, but they are free to initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required procedure, in exercise of their right to litigate. ◦ There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties. The persons deciding the cases in the Lok Adalat's are called the Members of the Lok Adalat's, they have the role of statutory conciliators only and do not have any judicial role; therefore they can only persuade the parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or settle cases or matters either directly or indirectly.
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