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Alternate Dispute Resolution

Alternate Dispute Resolution

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Published by sameershanbhogue

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Published by: sameershanbhogue on Sep 14, 2009
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05/05/2013

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 “ “ ALTERNATE DISPUTE ALTERNATE DISPUTERESOLUTION TECHNIQUES “RESOLUTION TECHNIQUES “
 
 
 
ADR – Historical use in IndiaDR – Historical use in India
 
Not a new concept – Historically recognizedNot a new concept – Historically recognized
 Ancient India - 3 types of popular courts Ancient India - 3 types of popular courts
 –Puga (local courts)Puga (local courts) –Sreni (local business guilds)Sreni (local business guilds) –Kula (social matters of community)Kula (social matters of community)
Medieval IndiaMedieval India
 –Panchayats : Territorial or SectarianPanchayats : Territorial or Sectarian –Held in great veneration (Panch Parameshwar)Held in great veneration (Panch Parameshwar)
British IndiaBritish India
 –Lord William Bentick (Act VIII of 1859), had SectionsLord William Bentick (Act VIII of 1859), had Sections312 – 327 dealing with arbitration)312 – 327 dealing with arbitration) – Above provisions formally separately enacted under Above provisions formally separately enacted under Arbitration Act 1940 Arbitration Act 1940
 
 
Litigation Usual Methoditigation Usual Method
 
 ADR did not catch on and took a Back Seat to ADR did not catch on and took a Back Seat toLitigationLitigation
Reasons :Reasons :
 –Quick availability of interim relief (preliminary injunction,Quick availability of interim relief (preliminary injunction,seizure of goods) especially relevant in IP rights : Half seizure of goods) especially relevant in IP rights : Half the battle wonthe battle won –Flaws in Arbitration Act 1940, namelyFlaws in Arbitration Act 1940, namely
No interim power in the arbitratorNo interim power in the arbitrator
Too many grounds for judicial intervention at all stages –Too many grounds for judicial intervention at all stages –
 –Pre-arbitral,Pre-arbitral, –During arbitration,During arbitration, –Post awardPost award
Result – defeated the whole object of speedy and cost effectiveResult – defeated the whole object of speedy and cost effectivedispute resolutiondispute resolution
Substituted in 1996 by the Arbitration and Conciliation Act, 1996Substituted in 1996 by the Arbitration and Conciliation Act, 1996which is ADR friendlywhich is ADR friendly

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