Alternate Dispute Resolution notes, Lecture notes of Law of Torts

Download Alternate Dispute Resolution notes and more Lecture notes Law of Torts in PDF only on Docsity! ALTERNATE DISPUTE RESOLUTION ADR • Alternative dispute resolution refers to any methods used to resolve a dispute between parties without resorting to litigation. • Origin 6th Century B.C. in Ancient Greek Society • Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute. • It is a method which enables individuals and group to maintain co-operation, social order and provides opportunity to reduce hostility. Benefits • One of the benefits of alternative dispute resolution is that it reduces the load on an overburdened court system. • In addition, it is often a less expensive solution for all parties, • It preserves the best interest of the parties. Few important provisions related to ADR • The Acts which deals with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and, • The Legal Services Authority Act, 1987 • Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people, if it appears to court there exist elements of settlement outside the court then court formulate the terms of the possible settlement and refer the same for: Arbitration, Conciliation, Mediation or Lok Adalat. • In some jurisdictions, arbitrators are assigned to a case, in others the parties have at least some say in the choosing of the arbitrator. • The process of Arbitration cannot exist without valid arbitration agreement prior to the emergence of dispute. • In this technique of resolution parties refer their dispute to one or more persons called arbitrators. • Decision of arbitrator is bound on parties and their decision is called ‘Award’. • The object of Arbitration is to obtain fair settlement of dispute outside of court without necessary delay and expense. NEGOTIATION • Negotiation is a voluntary process between the disputants directly to reach at a settlement by which one disputant strives to satisfy his or her needs which is under the control of the other disputant. • The result of a negotiation process is a settlement, and not a decision. MEDIATION • Mediation is a voluntary, disputant- centred, non binding, confidential and structured process controlled by a neutral and credible third party who uses special communication, negotiation, facilitative and social skills to assist in a binding negotiated settlement by the disputants themselves. Arbitrability • Although judicial power is an essential prerogative of states, the parties may, if they express the wish to do so, give jurisdiction to arbitrators to settle their disputes. • But on the other hand, the state retains the power to prohibit settlement of certain categories of disputes outside its courts. It is then claimed that the dispute is not arbitrable. • if an arbitration agreement is entered into, it will not be valid. • Arbitrability is indeed a condition of validity of the arbitration agreement and consequently, of the arbitrators' jurisdiction. • Arbitrability can be found in UNCITRAL Model Law, which permits the courts of the seat to set aside an arbitral awards on the grounds that the subject matter of the dispute is not capable of resolution by arbitration under the law of the State. Whether the disputes are covered by the arbitration agreement? • That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the excepted matters excluded from the purview of the arbitration agreement Whether the parties have referred the disputes to arbitration? • That is, whether the disputes fall under the scope of the submission to the arbitral tribunal, or whether they do not arise out of the statement of claim and the counter claim filed before the arbitral tribunal. The well recognized examples of non- arbitrable disputes • Disputes relating to rights and liabilities which give rise to or arise out of criminal offences; • Matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody • Guardianship matters • Insolvency and winding up matters The UNCITRAL Model Law • The UNCITRAL Model Law on International Commercial Arbitration was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985, at the close of the Commission's 18th annual session. • The General Assembly, in its resolution 40/72 of 11 December 1985, recommended "that all States give due consideration to the Model Law on International Commercial Arbitration, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice". • The Model Law constitutes a sound and promising basis for the desired harmonisation and improvement of national laws. • It covers all stages of the arbitral process from the arbitration agreement to the recognition and enforcement of the arbitral award and reflects a worldwide consensus on the principles and important issues of international arbitration practice. • It is advisable to follow the model as closely as possible since that would be the best contribution to the desired harmonisation and in the best interest of the users of international arbitration, who are primarily foreign parties and their lawyers. Conflict of laws KINDS OF ARBITRATION • Depending on the terms of arbitration agreement, the subject matter of the dispute in arbitration, and the laws governing such arbitrations, arbitrations can be classified into different types, such as: International Arbitration • An Arbitration, which may take place either within India or outside India but, where there are ingredients of foreign origin in relation to the parties, or the subject matter of the dispute. • In this process, the dispute is decided in accordance with substantive law in India or any other country, depending on the contract in this regard and the rules of conflict of laws are termed as International Arbitration. Institutional Arbitration • It means, an arbitration conducted by an arbitral institution in accordance with the prescribed rules of the institution. Some of the leading Indian institutions providing for institutional arbitration are: • The Indian Council of Arbitration (ICA), New Delhi, • The Federation of Indian Chamber of Commerce and Industries (FICCI), New Delhi and • The International Center for Alternative Dispute Resolution (ICADA). Some of the leading international institutions are: • The International Chamber of Commerce (ICC), Paris, • The London Court of International Arbitration (LCIA), London and • The American Arbitration Association (AAA). Foreign Arbitration • When arbitration proceedings are conducted in a place outside India and the Award is required to be enforced in India, it is termed as Foreign Arbitration.