Professional Documents
Culture Documents
Arbitration
Arbitration is in private as opposed to being in public. An impartial professional is instructed
to make a decision on the dispute. This in turn means that it can be quicker for cases to be
resolved. However the arbitrator’s time is paid for by the parties unlike a Judge.
There are also limited grounds to appeal the arbitrator’s decision and the arbitrator has the
power to order costs.
The parties have to agree to arbitration. It is therefore often found in international overseas
contracts as it allows the parties to agree a neutral venue and mechanism for dispute
resolution at the outset.
Adjudication
Adjudication is widely recognised as being a “pay now argue later” mechanism for resolving
disputes. Adjudication is most often used for resolving construction disputes as the parties to
a construction contract cannot contract out of it.
Whilst it can be extended, the adjudication is generally a 28 day procedure which is started
by a party serving a Notice. There are strict limits to comply with when dealing with an
adjudication.
Generally an adjudicator has no power to award costs unless the parties have otherwise
agreed.
Adjudication awards are enforced by the Courts. The idea behind adjudication proceedings is
that it is designed to protect cash flow for businesses by preventing one party from
withholding payments for significant periods of time. Adjudication however, does not finally
dispose of the matter.
The adjudicator’s decision often last until practical completion, at which point it can be
arbitrated or litigated if not accepted. Generally, adjudication is appropriate for dealing with
claims relating to:-
Interim payments
Extensions of time for completion of works
Delay and destruction of works
Procedural law is the body of law that deals with the technical aspects, such
as duties and procedures for obtaining redress for a wrong. Procedural law is the rules of
conducting a legal action.
In simple terms, procedural law specifies the process that each case must go
through. It comprises the rules by which a court hears and determines what happens in civil,
lawsuit, criminal or administrative proceedings.
EXAMPLES:
Administrative Procedure
Appellate Procedure
Criminal Procedure
Evidence
Civil Procedure
Case laws:
Shiv Bhagwan Moti Ram Saraoji vs Onkarmal Ishar Dass And Ors.
AIR 1952 Bom 365, (1952) 54 BOMLR 330
In Shiv Bhagwan Moti Ram Saraoji’s case (supra) the Bombay High Court has
held procedural laws to be in force unless the legislatures expressly provide to the contrary.
JUDGEMENT: The court observed that “… Now, I think it may be stated as a general
principle that no party has a vested right to a particular proceeding or to a particular forum,
and it is also well settled that all procedural laws are retrospective unless the Legislature
expressly states to the contrary. Therefore, procedural laws in force must be applied at the
date when a suit or proceeding comes on for a trial or disposal…”
Substantive law:
WHAT IS SUBSTANTIVE LAW?
Substantive law is that body of law that handles the legal relationship
between individuals, or between individuals and the state. It also defines types of crimes and
their severity.
In simple terms, substantive law is the set of laws that governs how
members of a society are to behave.
EXAMPLES:
Agency
Contract
Criminal Law
Partnership
Torts
Powers
Application
Regulation
0• Deals with and lays down the ways and means by which substantive law can be
enforced.
1• No independent powers
3• By statutory law
0• Deals with those areas of law which establish the rights and obligations of individuals ,
what individuals may or may not do.
1• Independent powers to decide the fate of a case
2• Cannot be applied in non legal contexts
Correction and Interpretation of Arbitral Award- Section 33 of the Act deals with the
correction and interpretation of Arbitral award. It provides that the Tribunal may
correct the award within 30 days from the receipt of award. If the Tribunal finds the
request for correction to be reasonable, then it shall make a correction or
interpretation of a specific point or part of the award within 30 days of the receipt of
request. However, if the Tribunal deems it necessary it can also extend the period of
time within which it will make correction in the Award or interpretation of the Award.
Enforcement of Arbitral Award– Section 36 of the Act provides that if the time for
making application to set aside an award under Section 34 has expired or the
application has been refused then the Award shall be enforced under the Code of Civil
Procedure in the same manner as a decree of a Court.
D) Settlement. –
(1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to
encourage settlement of the dispute and, with the agreement of the parties; the arbitrat
tribunal may use mediation, conciliation or other procedures at any time during the
arbitral proceedings to encourage settlement.
(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitrat award on agreed terms.
(3) An arbitral award on agreed terms shall be made in accordance with section 31 and
shall state that it is an arbitrat award.
(4) An arbitrat award on a-reed terms shall have the same status and effect as any other
arbitral award on the substance of the dispute.
7. What are the different types of disputes suitable for Concilliation? When can be
the process of Concilliation can be terminated?
Ans. What is conciliation?
Conciliation is the method of settling a dispute in which an impartial third party tries to get
the disputing parties to reach an agreement.
Mediation is a process in which the mediator, an external person who is neutral to the
dispute works with the parties to find a solution which is acceptable to all of them.
Qualities
Alertness
The mediator must be alert on several levels while mediating. He must concentrate on the
information being provided by the source and be constantly evaluating the information for
both value and veracity. Simultaneously, he must be alert not only to what the party says but
also to how it is said and the accompanying body language to assess the party’s truthfulness,
degree of cooperation, and current mood. He needs to know when to give the party a break
and when to press the party harder. In addition, the Mediator constantly must be alert to his
environment to ensure his personal security and that of the parties.
The Mediator must have patience and tact in creating and maintaining rapport between
himself and the party, thereby enhancing the success of the process. Displaying impatience
may:
Encourage a difficult party to think that if he remains unresponsive for a little longer,
the process will end.
Cause the party to lose respect for the Mediator, thereby reducing the Mediator’s
effectiveness.
Credibility
The Mediator must provide a clear, accurate, and professional product and an accurate
assessment of his capabilities. He must be able to clearly articulate complex situations and
concepts. The Mediator must also maintain credibility. He must present himself in a
believable and consistent manner, and follow through on any promises made as well as never
to promise what cannot be delivered.
The Mediator must also be totally objective in evaluating the information obtained. The
mediator must maintain an objective and dispassionate attitude regardless of the emotional
reactions he may actually experience or simulate during a questioning session. Without
objectivity, he may unconsciously distort the information acquired. He may also be unable to
vary his questioning and approach techniques effectively. He must have exceptional self-
control to avoid displays of genuine anger, irritation, sympathy, or weariness that may cause
him to lose the initiative during questioning but be able to fake any of these emotions as
necessary. He must not become emotionally involved with the party.
Adaptability
A Mediator must adapt to the many and varied personalities which he will encounter. He must
also adapt to all types of locations, operational tempos, and operational environments. He
should try to imagine himself in the party's position. By being adaptable, he can smoothly
shift his questioning and approach techniques according to the operational environment and
the personality of the party.
Perseverance
A tenacity of purpose can be the difference between a Mediator who is merely good and one
who is superior. A Mediator who becomes easily discouraged by opposition, noncooperation,
or other difficulties will not aggressively pursue the matter to a successful conclusion or
exploit leads to other valuable information.
The Mediator's personal appearance may greatly influence the conduct of any mediation and
attitude of the party toward the Mediator. Usually an organized and professional appearance
will favorably influence the party. If the Mediator's manner reflects fairness, strength, and
efficiency, the party may prove more cooperative and more receptive to questioning.
Initiative
Achieving and maintaining the initiative are essential to a successful questioning session just
as the offensive is the key to success in combat operations. The Mediator must grasp the
initiative and maintain it throughout all questioning phases. This does not mean he has to
dominate the party physically; rather, it means that the Mediator knows his requirements and
continues to direct the collection toward those requirements.
Trust
One can work as a mediator so long as he or she enjoys the trust of the parties. Appointment
of arbitrators can be fixed by an agreement between the parties; parties have no choice in
choosing their judge but the parties can pick a mediator only when they have a trust in the
mediator or they have a reason to believe that they can trust him.
Neutrality
One can work as a mediator so long as he or she enjoys the trust of the parties. Appointment
of arbitrators can be fixed by an agreement between the parties; parties have no choice in
choosing their judge but the parties can pick a mediator only when they have a trust in the
mediator or they have a reason to believe that they can trust him.
Confidentiality
One of the reasons that the parties opt for mediation is that they do not either want to wash
dirty linen in public or if it is a trade dispute they don’t want others to know their trade
secrets or they know that adjudication of dispute in the open forums like court may lead to
their making their financial condition public. The parties to the dispute approach the mediator
with the hope that what ever would come to the knowledge of mediator during the
proceedings will remain with him only.
Look dignified; dress appropriately
It is the appearance of the mediator, which conveys the first impression to the parties. They
should have a feeling that they are dealing with a person who is here to do business. He is
serious about his job. If the conduct of the mediator is not dignified he is not likely to earn the
respect of the parties. It is the respect for the mediator, which builds the trust of the parties in
the mediation. Yet it is important he should not sit with a stiff neck with a detached look, so
as to convey that he is indifferent to what is going around him.
Dressing up is yet another aspect of looking dignified. One, however, needs to be careful that
he is not overdressed as overdressing itself creates barriers of its own in the effective flow of
information between the mediator and the parties.
Punctuality
Traditional litigation is not only time consuming but also in such litigations the adhering to
schedules is very difficult. Most of the people who opt for mediation do so because they feel
that the mediation will yield early results. There object of coming for mediation would be
defeated if it becomes an equally time consuming process.
Knowledgeable
There can be situations like in the case of community mediations where it may not be
necessary for a party to be educated. It is sufficient that he/she can understand the legitimate
concerns of the parties. In case of, however, court annexed mediations or the mediations,
which have pronounced legal consequences, it is desirable and sometimes also necessary that
he should have some legal background or exposure. Once the negotiations are over a
mediator is required to help the parties draw the terms of settlement. These settlements should
be such that they would not fall apart once they are tested on the touchstone of law.
Duties
• Confidentiality
• Neutral / fair
• To avoid conflict of interest
Responsibility
Convener
The mediator may assist in contacting the other party(ies) to arrange for an introductory
meeting.
Educator
The mediator educates the parties about the mediation process, other conflict resolution
alternatives, issues that are typically addressed, options and principles that may be
considered, research, court standards, etc.
Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.
Translator
When necessary, the mediator can help by rephrasing or reframing communications so that
they are better understood and received
Questioner and Clarifier
The mediator probes issues and confirms understandings to ensure that the participants and
the mediator have a full understanding.
Process Advisor
The mediator comes to be trusted to suggest procedures for making progress in mediation
discussions, which may include caucus meetings, consultation with outside legal counsel and
consultation with substantive experts.
Angel of Realities
The mediator may exercise his or her discretion to play devil's advocate with one or both
parties as to the practicality of solutions they are considering or the extent to which certain
options are consistent with participants' stated goals, interests and positive intentions.
Catalyst
By offering options for considerations, stimulating new perspectives and offering reference
points for consideration, mediator serves as a stimulant for the parties reaching agreement.
9. What is Negotiation? What are the different types of Negotiation or what are the
different styles of Negotiation?
0• NEGOTIATION
1• What is negotiation?
2• Negotiation has been defined as any form of direct or indirect communication whereby
parties who have opposing interests discuss the form of any joint action which they
might take to manage and ultimately resolve the dispute between them through mutual
concern.
3• Characteristics of a negotiation
9• Types of negotiation
0• The role of Justice counsel in a negotiation will vary with the circumstances and the
mandate of the negotiating team. The extent to which Justice counsel will participate in
the negotiations will depend on a variety of factors, including whether or not legal issues
or issues of mixed fact and law are at stake as well as whether the client department
needs or simply wants Justice counsel to participate actively in the negotiation. For
example, counsel with Legal Services Units work with their clients and on their behalf
and help represent their views in a variety of situations,
1• When negotiating on behalf of the client, counsel must ensure that there is no divergence
between his or her negotiating stance and the mandate of the client. This is best done
through following the client's instructions and providing frequent updates to the client.
At other times, client departments may ask the Justice counsel to participate as a member
of the negotiating team
2• While the role of counsel will depend on the circumstances surrounding the negotiations,
she or he is always bound by the principles of professional ethics. For example when
acting as an advocate, the lawyer must treat the tribunal with courtesy and respect and
must represent the client resolutely, honourably and within the limits of the law.
Although no two negotiations are identical, counsel must apply these principles of
professional responsibility in each situation.
13• Elements of negotiation
14• Negotiation involves three basic elements
15• Process :- this refers to how parties negotiate the context of the negotiation the tactics
used by the parties and the sequence and stages in which all of this play out.
16• Behavior :- this refers to relationship among this parties and the communication process
style adopted by the parties.
17• Substance :- the substance refers to what the artist negotiate oh the agenda the issues the
options and the agreement reached at the end.
18• Reasons for negotiation
19• To reach agreement
20• To make a point
21• To settle an argument
22• To compromise
23• To beat the opposition
Facts
The legislature in 1999 and 2002 came up with the amendments to the Civil Procedure Code,
changing the nature of the statute.
These amendments provided for reforms which if uniformly
implemented could further the aim of justice as envisaged by our
Constitution makers. However, the practicability of the
amendments was questioned and a report for the same was
drafted. This report was challenged in the Supreme Court of India,
in the case of
Salem Advocates Bar Association
v.
Union of India.
The court affirmed the amendments and upheld the report. The
decision was appreciated by both academicians and scholars.
However, despite the judgment bringing a change in civil litigation
in India, it also suffered from certain flaws.
Provisions Involved:-
•
Brief facts
•
The parties also raised a contention with respect to the
costs in a suit. It was contended that unscrupulous parties
take advantage of the fact that either there is no awarding
of costs by the Court or nominal costs are awarded on the
unsuccessful parties. It was submitted that only costs
which are reasonably incurred by successful parties
should be granted.
•
Report Two-
•
11. Gurunanak Foundation Vs Ratan Singh and Sons 1981 AIR 275
In this particular case dispute had arisen between the parties with regard to a building
contract dated 4th April 1972. An application for the appointment of an arbitrator in terms of
Clause 47 of the arbitration agreement was filed before the Delhi High Court. The Delhi High
Court by an order dated August, 14th 1974 appointed II respondent Sri M. C Nanda, retired
chief engineer, as the sole arbitrator.
The appellant moved once again to the court for the removal of the arbitrator and
appointment of another person in his place. The petition was dismissed, but by an appeal on
special leave to the supreme court made by an order that was with the consent of the parties,
III respondent Shri U. P Mallick, retired chief engineer, was appointed as the sole arbitrator.
III respondent acting on the advice tendered by the officer of the supreme court filed the
award in the Delhi High Court and inform the parties. The first respondent moved to the
supreme court seeking a declaration that the award had to be filed in the Supreme court and
for the direction that the award had to be collected from the Delhi High Court and filed
before the Supreme court. The appellant filed the counter affidavit and contested that Delhi
High Court is the court where the award had to be filed.
This being the facts of the case, what was more important in this case was the observation
made by the Supreme court with regard to the functioning of courts in general in India. The
Supreme court made an observation that the common man has lost faith in the Judiciary for
the following reasons that :
1)It is a very long and tedious process.
2)Expensive in nature
3) Difficult procedure to be followed
4) There are a lot of backlog of cases pending
5) The difficulty in understanding the court procedure because of low legal literacy rate
6) Time consuming process and have to wait for a very long time
It is because of these reasons that the Supreme court made a suggestion that it would be
better for the parties to refer the matter to Alternative Dispute Resolution so that the entire
process becomes easy.
It was in this case that the seeds of ADR or another word Alternative Dispute Resolution was
sown. In today's time at present we find the litigants to be happy to approach either
mediation, negotiation, arbitration, conciliation or Lok Adalat etc., for speedy disposal of
cases.
Thus the Supreme court directed the first respondent to approach the registrar of Delhi High
Court to collect the award along with the record of proceedings.
12. Ranji Dayawala and Sons Pvt Ltd Vs Invest Import 1981 AIR 2085
Judgement
The Single Judge granted the petition of the respondent and stayed further
proceedings in the suit filed by the appellant, and vacated the ad interim
injunction granted in favour of the appellant.
The appellant preferred two appeals. One against the order of the single Judge
granting stay of the suit of the appellant and the other against the order vacating
the ad interim injunction. A Division Benchof the High Court dismissed both the
appeals by a common judgment holding that there was a valid subsisting
arbitration agreement between the parties and that it was binding on both. It also
held that the claims made by the appellant in the suit arose out of the sub-contract
which included the arbitration agreement and, therefore, the appellant must be
bound by the bargain undertaken by him. It negatived the appellant's contention
that on the facts and circumstances of the case discretionary relief of
grant of stay of suit would cause irreparable hardship and deny justice.
In appeal to this Court against the order of stay ofthe suit granted by the High
Court, it was contended on behalf of the appellant:
(1) there was no concluded arbitration agreement between the parties to refer
the disputes arising out of the sub-contract dated July 10, 1961 to arbitration
and, therefore, the suit cannot be stayed;
(2) even if the Court came to the conclusion that there was such a subsisting
arbitration agreement between the parties, prayer for stay having been made
under section 51 of the
Code ofn Civil Procedure and/or undernsectionn34 of the Arbitration Act, 1940,
read with Section 151 CPC, the Court should not enforce it in its discretionary
jurisdiction as it would result in miscarriage of justice;
(3) in view ofthe provisions contained in the Arbitration (Protocol and
Convention) Act, 1937 the Court could not invoke its inherent jurisdiction under
section 151 CPC and the Special Act would not assist the respondent as the case
was not covered by its provisions. It was also contended that the undermentioned
circumstances when properly evaluated would unmistakably indicate that the
instant case is not a fit case in which the Court should decline to adjudicate upon
the dispute brought to it by granting stay in favour of the respondent