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  • 7/23/2019 ADR Record





    The dispute resolution processes, which are alternative to the traditional

    Court proceedings, are often referred to as alternative dispute resolution

    processes. A method of resolving a dispute can be considered as alternative if it

    resolves the dispute and provide justice, with a consensual process between the

    parties to the dispute.

    The present era is characterised by globalisation which has resulted in an

    unprecedented interaction between various markets across the globe. t has been a

    great tool for breaking economic barrier and envisioning world as a market for


    !hen economies and societies integrate it indubitably leads to the rise in

    various types of disputes such as"#

    a$ ndustrial disputes,

    b$ Commercial disputes,

    c$ nternational disputesetc.

    ubi jus ibi remedium% This legal ma&im rightly laid down the foundation of

    legal system in every human society. t means whenever any wrong is done to a

    person, he has a right to approach the court of law. This legal pattern of resolving

    dispute has resulted in abundance of pending cases, which rightly justifies the

    clich' justice delayed is justice denied. The legal proceedings in a court of law get

    stretched down the years consuming oodles of money and which ultimately leads to

    disruption in business and career.

    (ecourse to means outside the courts is prompted by the time consuming and

    long drawn process before the courts, involving decision of a court, appeal to higher

    courts, judicial review and revision. The search was a great success with the

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    discovery of alternate forum known as Alternate )ispute (esolution, which is

    commonly called by its generic acronym A)(.

    A)( is being increasingly acknowledged in the field of law and commercial

    sectors both at national and international levels. ts diverse methods have helped

    parties to resolve their disputes at their own terms cheaply and e&peditiously.

    n the present conte&t of market economy and of integrating ndian economy

    with the world economy, it became necessary for the *uick settlement and

    resolution of disputes between the parties, outside the judicial system.

    +enjamin ranklin once said- when will mankind be convinced and settle their

    difficulties by arbitration.


    The history of Alternate dispute resolution forum at international level can

    be traced back from the period of (enaissance, when Catholic opes acted as

    arbitrators in conflicts between /uropean countries. 0ne of the successful

    e&amples of the said mechanism is the international mediation conducted by former

    1.2 resident 3immy Carter in +osnia. A)( has given fruitful results not only in

    international political arena but also in international business world in settling

    commercial disputes among many corporate houses for e.g. 2ettlement of a

    longstanding commercial dispute between 4eneral 5otors Co. and 3ohnson 5atthey

    nc., which was pending in 12 )istrict Court since past few years.

    The biggest stepping stone in the field of nternational A)( is the adoption

    of 16CT(A7 81nited 6ation Commission on nternational Trade 7aw9 model on

    international commercial arbitration. An important feature of the said model is that

    it has harmoni:ed the concept of arbitration and conciliation in order to designate

    it for universal application. 4eneral Assembly of 16 also recommended its membercountries to adopt this model in view to have uniform laws for A)( mechanism.

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    0ther important internationalconventions on arbitration are"#

    ;. The 4eneva rotocol on Arbitration clauses of ;.

    =.The 4eneva Convention on the e&ecution of foreign award, ;.The 6ew @ork Convention of ;

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    n ndia credit for springing up A)( goes to /ast ndia Company. t gave the

    statutory recognition to the said forum under various acts such as" +engal

    (egulation Act of ;??= and +engal regulation act of ;?B; which provided parties to

    submit the dispute to the arbitrator, appointed after mutual agreement and whoseverdict shall be binding on both the parties.

    Alternate dispute redressal received legislative recognition in ndia, after

    the enactment of Civil rocedure Code, ;B< which provided %

    E 2ec >;= # reference to Arbitration in pending suit.

    E 2ec >;= % >= % laid down the procedure for arbitration.

    E 2ec >= % >=? % provided for arbitration without courts intervention.

    EArbitration is also recogni:ed under ndian Contract Act, ;B?= as the first

    e&ception to 2ection =B, which envisages that any agreement restraining legal

    proceedings is void.

    E The 7egal 2ervice Authorities Act, ;

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    T!e "ain o#$e%tives o& t!e A%t are:-

    A$To cover international and domestic arbitration comprehensively.

    +$To minimi:e the role of courts and treat arbitral award as a decree of court.

    C$To introduce concept of conciliation.

    )$7astly, to provide speedy and alternative solution to the dispute.

    Code of Civil rocedure ;

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    The reali:ation of concepts like speedy trial and free legal aid by ape& court

    in various cases has also helped in the up gradation of alternate dispute redressal

    mechanism. 0ne of the biggest steps in the lines of development of the said

    machinery was maintaining the validity of fast track courts scheme as laid downin +rijmohan vJs 10.

    ast track court scheme has done wonders in disposing number of pending

    cases. These courts have disposed of ?.

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    the first Dague eace Conference.The CA encourages the resolution of disputes

    that involve states, state entities, intergovernmental organi:ations, and private

    parties by assisting in the establishment of arbitration tribunals and facilitating

    their work. The CA is different from the nternational Court of 3usticewhich ishoused in the same building, the eace alacein The Dague.

    The CA is not a court in the conventional understanding of that term, but

    an administrative organi:ation with the object of having permanent and readily

    available means to serve as the registry for purposes of international arbitration

    and other related procedures, including commissions of en*uiry and conciliation. t

    is a permanent framework available to assist temporary arbitral tribunals or

    commissions. The judges or arbitrators that hear cases are officially called

    O5embersO of the Court

    Dispute settlementis regarded by the World Trade OrganizationHWTO$ as

    the central pillar of the multilateral trading system, and as the organi:ationPs

    Ouni*ue contribution to the stability of the global economyO. A dispute arises whenone member countryadopts a trade policy measureor takes some actionthat one or

    more fellow members considers to a breach of !T0 agreements or to be a failure

    to live up to obligations. +y joining the !T0, member countries have agreed that if

    they believe fellow members are in violation of trade rules, they will use the

    multilateral system of settling disputesinstead of taking action unilaterally Q this

    involves abiding by agreed procedures H)ispute 2ettlement 1nderstanding$ and

    respecting judgments, primarily of the )ispute 2ettlement +odyH)2+$, the !T0

    organ responsible for adjudication of disputes. A former !T0 )irector#4eneral

    characteri:ed the !T0 dispute settlement system as Othe most active

    international adjudicative mechanism in the world today.O

    n ;

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    ursuant to the rules detailed in the )21, member states can engage in

    consultations to resolve trade disputes pertaining to a Ocovered agreementO or, if

    unsuccessful, have a !T0 panel hear the case. The priority, however, is to settle

    disputes, through consultations if possible. +y 3anuary =GGB, only about ;> of thenearly >< cases had reached the full panel process.

    The operation of the !T0 dispute settlement process involves the parties

    and third parties to a case and may also involve the )2+ panels, the Appellate +ody,

    the !T0 2ecretariat, arbitrators, independent e&perts, and several speciali:ed

    institutions. The 4eneral Council discharges its responsibilities under the )21

    through the )ispute 2ettlement +odyH)2+$. 7ike the 4eneral Council, the )2+ is

    composed of representatives of all !T0 5embers. The )2+ is responsible for

    administering the )21, i.e. for overseeing the entire dispute settlement process. t

    also has the authority to establish panels, adopt panel and Appellate +ody reports,

    maintain surveillance of implementation of rulings and recommendations, and

    authori:e the suspension of obligations under the covered agreements. The )2+

    meets as often as necessary to adhere to the timeframes provided for in the )21.

    0* T!e United Nations Co""ission on International Trade Law

    , UNCITRAL :- was established by the 1nited 6ations 4eneral Assemblyby its

    (esolution ==G HRR$ of ;? )ecember ;

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    contribute to the work since decisions are taken by consensus, not by vote. )raft

    te&ts completed by these wor