2020-2021

ALTERNATIVE
DISPUTE
RESOLUTION
 ROLE OF JUDICIARY IN
PROMOTING ADR

SUBMITTED BY- SUBMITTED TO-

HARSH BHAI PATEL DR. NITIN KUMAR
SECTION-A ASSISTANT PROFESSOR
ROLL NO.- 180010450033 FACULTY OF LAW
B.A. LL.B. HONS. UNIVERSITY OF LUCKNOW
FACULTY OF LAW
UNIVERSITY OF LUCKNOW
 TABLE OF CONTENTS

Contents

INDEX OF AUTHORITIES......................................................................................................2

Cases......................................................................................................................................2

Statutes...................................................................................................................................2

POLICY CONCERNS FACTORED INTO JUDICIAL DECISION MAKING | A

PRO ADR TREND....................................................................................................................3

INFORMATION DISSEMINATION THROUGH JUDGES | MAKING AWARENESS &

INDOCTRINATION CONFIDENCE.......................................................................................5

CASES AND ITS REFERENCE TO ADR..............................................................................7

CONCLUSION.........................................................................................................................9

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 INDEX OF AUTHORITIES

Cases

1. Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No.
6000 of 2010.

2. BALCO v. Kaiser Aluminium, Civil Appeal No. 7019 of 2005.

3. Bhatia International v. Bulk Trading SA, (2002) 4 SCC 105.

4. Chhotelal v. Kamala Devi, AIR 1967 Pat 269.

5. Sakri v. Chhanwarlal, AIR 1975 Raj 134.

6. Sangeetha v. Suresh Kumar, JT 2000(8) SC 521.

7. TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14

SCC 271.

Statutes

1. The Arbitration and Conciliation Act, 1996.

2. Code of Civil Procedure, 1908.

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 POLICY CONCERNS FACTORED INTO JUDICIAL
DECISION MAKING | A PRO ADR TREND
The judiciary, on numerous occasions has helped bolster the ADR cause through indirect
strategies. Associate example of those strategies is that the policy issues that the judiciary
uses as a guiding tool in deciding. On certain crucial problems, it may be moderately inferred,
that the judiciary renders choices that encourage and promote ADR strategies at a policy level
itself. Following examples would facilitate illustrate and substantiate the claim.

In Bhatia International v. Bulk Trading SA (“Bhatia International”)1, among alternative

things, the Supreme Court set down that the Indian judiciary was authorized to order interim
measures even in arbitrations that were seated in foreign countries. Quite clearly, the choice
was met with substantial criticism, primarily as a result of it vehemently went against the
liberty of international arbitration from domestic Indian judicial involvement. In response to
the present set of circumstances, with a read to rectify the name of being associate
“arbitration-unfriendly” jurisdiction, the Supreme Court later adopted a pro-arbitration policy
and overruled Bhatia International by the landmark call rendered in BALCO v. Kaiser
Aluminium (“BALCO”).2

By overruling Bhatia International in BALCO, the Supreme Court processed and explained
that behaviour was the first premise underlying the operation of the Arbitration and
Conciliation Act which thus Indian courts would be precluded from declarative jurisdiction,
even within the kind of interim relief orders, in offshore and international arbitrations.
Further, the Supreme Court control the Indian courts wouldn't possess jurisdiction to
intervene in or modify, or put aside awards of arbitration tribunals in respect of arbitrations
seated outside India. By doing therefore the Supreme Court has without ambiguity indicated
the pro- arbitration approach that's aiming to characterise judicial temperament during this
regard.

It is amply evident that the decision in BALCO was geared toward remedying the
inconveniences that were caused by preceding decisions like Bhatia International. A call
guided by policy issues, the Supreme Court’s finding of fact in BALCO was geared toward

1
Bhatia International v. Bulk Trading SA, (2002) 4 SCC 105.
2
BALCO v. Kaiser Aluminium, Civil Appeal No. 7019 of 2005. See, P. Nair, On the road to becoming
arbitration friendly: The decision of the Indian Supreme Court in BALCO v. Kaiser Aluminium, 1(1), LCIA
INDIA NEWS, (2012).
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promoting ADR strategies and at the same time assuaging the considerations of the
international business and legal communities alike in respect of Indian judicial interference in
international arbitration proceedings. A little question, BALCO doesn't address all the
challenges seen with respect to arbitration - for instance, BALCO doesn't address the rule set
down that in the Indian context that Indian parties cannot contract out of Indian substantive
law even though the contract provides for an overseas arbitration seat. 3 However, that all the
same, BALCO4 actually has been a good beginning in the pro-arbitration direction.

The landmark call in Afcons Infrastructure v. Cherian Varkey Construction Company 5

(“Afcons”) is yet one more example of the judiciary rendering choices geared toward
promoting the ADR movement. The 2010 Supreme Court decision thought-about certain
strictly contested problems revolving round the demand of consent among parties as a pre-
requisite for respect to arbitration beneath Section 89 of the Code of Civil Procedure.
Whereas addressing this issue and ruling that previous consent is critical within the context of
respect to arbitration however not in cases of reference to alternative ADR mechanisms, the
Supreme Court at the same time ascertained that Section 89 of the Code, an important
provision within the context of ADR, was inconveniently written. The drafting of the
availability, within the opinion of the apex court needed substantial correction.

Section 89, clumsily written, mixes up definitions of varied ADR mechanisms, associated
expressly imposes an obligation upon the courts that not solely hugely overburdens the
courts, however additionally defeats terribly the purpose of the provision in question. Section
89 needs judges of trial courts, in cases whereby the judge believes that there could also be an
opportunity that the parties may hit a settlement, to formulate terms of such settlement and
forward these terms to the parties for thought and observation. After such thought and
creating of observations, the parties are to return the developed settlement terms to the judge
for more reconsideration, so the judge is to reframe these settlement terms before referring
the dispute to ADR strategies mentioned within the provision.

3
TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14 SCC 271.
4
A. Chugh, The Bharat Aluminium Case: The Indian Supreme Court Ushers in New Era, KLUWER
ARBITRATION BLOG, available at http://kluwerarbitrationblog.com/blog/2012/09/26/the-bharat-aluminium-
case-the-indian-supreme-court-ushers-in-a-new-era/
5
Afcons Infrastructure Limited v. Cherian Varkey Construction Company, Civil Appeal No. 6000 of 2010.7

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Clearly, the provision imposes associate reserve, redundant and cyclic obligation on the
courts that defeats the very purpose of the provision. Invoking doctrines of purposive
interpretation and alternative canons of statutory interpretation, the Supreme Court
ascertained that the sole practicable way to correct the deficiencies and absurdities of Section
89 was to comprehensively redevelop the provision. The Court did away with the
inconvenient and redundant demand of framing and reframing attainable terms of settlement.
The Supreme Court redefined the assorted ADR strategies, printed the procedure to be
adopted in cases that fell beneath Section 89 and provided varied thoroughgoing tips during
this regard.

As was the case in the BALCO judgement, the Afcons decision is another such decision that
paves the method for a lot of ADR friendly legal setting and statutory framework. The
judiciary has consistently, with policy-based objectives in mind, rendered choices that clear
many hurdles and statutory impediments that have and will come in the method of the
expansion of the ADR movement, and intrinsically thereby has been bolstering and
promoting the cause through rendering such choices and making a favourable legal climate.

INFORMATION DISSEMINATION
THROUGH JUDGES | MAKING
AWARENESS & INDOCTRINATION
CONFIDENCE

Judges have used alternate channels to push the explanation for ADR strategies. Whereas
accentuating the problems plaguing the judiciary within the variety of huge backlog and
pendency, judges have, through formal and informal channels promoted ADR mechanisms.
Justice Sinha of the Supreme Court in his paper on ADR strategies inspired the employment
of such strategies citing the varied benefits that such strategies supply, as well as that of
delivering speedy and effective justice to litigants and at the same time reducing court case
burden. In his paper, the Judge additionally explained that ADR strategies will be best
enforced if there was an energetic and necessary reference of cases to such strategies by the
judiciary, and effective case management by judges.

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Justice Khanwilkar of the Bombay High Court in his paper on ADR strategies outlines the
importance and edges of ADR strategies and proposes that so as to any the advantages
provided by such strategies of dispute resolution it's imperative that additionally to providing
speedy justice through these channels, efforts are taken to confirm that the standard of justice
is additionally remains uncompromised. Further, to push ADR strategies, the Bombay High
Court has affected a novel variety of case management. Therefore, not solely will the High
Court insist and promote ADR strategies by referencing cases to such mechanisms, however
it additionally assures the parties that within the event settlement by these ADR strategies
fails for any reason the case can forthwith be haunted for hearing by the court.6

Justice Chandrachud of the Bombay High Court has developed various ways aimed and
associated developing the effectualness of mediation as an ADR tool and given these ways in
public at conferences7 with a read to possess such data percolate through numerous channels
and consequently enhance the standard, efficacy, and potency of mediation practice.
Alternative informal channels have additionally been utilized by senior members of the
judiciary to push the explanation for ADR.

The consequence of such data dissemination is that ADR mechanisms currently relish the
endorsement of the judiciary and also the judiciary often refers matters for resolution to such
channels. It's imperative that such ADR strategies relish judicial backing so as to push
confidence in such a system. Further, courts should take efforts to visualize thereto that
recourse is taken to those ADR strategies before proceeding is invoked, specifically,
negotiation and conciliation before arbitration.8 A strenuous challenge that ADR strategies
face is that the lack of awareness and confidence in such systems. This lack of awareness and
confidence will be remedied by the judiciary’s consistent endorsement and encouragement.

CASES AND ITS REFERENCE TO ADR

6
A. M. Khanwilkar, Need to Revitalise ADR Mechanism, 4(3), NYAYADEEP, (2005).
7
D. Y. Chandrachud, Mediation – Realizing the Potential and Designing Implementation Strategies, presented
at, Law Commission of India International Conference on ADR and Case Management, (New Delhi, May 3 to
May 4, 2003).
8
F. S. Nariman, Arbitration and ADR in India, in P. C. Rao and W. Sheffield,
ALTERNATIVE DISPUTE RESOLUTION: WHAT IT IS AND HOW IT WORKS, (1st edn., 1997).

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A long list of statutory provisions incorporated by the law-makers direct the courts, and
imposes an obligation on the courts to require an endeavour towards partitioning a dispute
before them by regard to ADR mechanism. Nevertheless, such legislative efforts, the
judiciary has suo moto gone ahead and set down many tips promoting the utilization of such
ADR strategies for dispute resolution.

The Supreme Court within the Afcons call set down certain tips which might facilitate courts
confirm broad classes of disputes that can be stated to ADR strategies for resolution before
trial. These embody disputes that area unit associated with trade and commerce, cash
disputes, disputes of carrying out, disputes between builders and customers, bankers and
customers, cases referring to actus reus liability, disputes between partners, disputes about
family law and so on.

The judiciary in consonance with legislative provisions and intent makes a major and sincere
effort to refer matters that precede it to ADR mechanisms for resolution. As has been seen in
the Bombay High Court, the court actively promotes these strategies by reassuring parties
that within the event of failure of such ADR strategies to resolve the dispute, the matter can
instantly be concerned for hearing by the court.9

Several statutory provisions urge to courts to endeavour to own the dispute before it resolved
through ADR mechanisms. In many cases, particularly in matters referring to family law, the
judiciary has actively promoted the ADR mechanisms by referring these matters to be
resolved through such channels. In Sangeetha v. Suresh Kumar10 in a divorce and
maintenance dispute between a man and woman, the Supreme Court was of the opinion that
there was a prospect that the dispute can be resolved through suggests that of reconciliation,
and consequently referred the bear on conciliation and adjourned the proceedings.

In Sakri v. Chhanwarlal11 the Rajasthan High Court remarked that the courts ought to
endeavour to motivate conciliation at the start of the proceedings, however within the event
that such efforts don't seem to be created at the start of proceedings, such efforts ought to be
created before granting relief. The efforts should be an affordable human effort and should be
9
Khanwilkar, supra note 8
10
Sangeetha v. Suresh Kumar, JT 2000(8) SC 521.
11
Sakri v. Chhanwarlal, AIR 1975 Raj 134.

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created in each case. Similarly, the Patna High Court in Chhotelal v. Kamala Devi12
discovered that before usual proceedings, the courts ought to endeavour to motivate
conciliation which such effort should be created albeit the advocates for the parties submit
that such reconciliation isn't possible.13

The judiciary’s endorsement of such ADR strategies is of tremendous significance and has
serious implications on the success of such strategies. a major impetus given to the ADR
movement by the judiciary was the 1984 experiment conducted by the Himachal Pradesh
High Court. Facing rising arrears in subordinate courts, the High court enforced a project that
geared toward disposal of unfinished cases by mandating required pre-trial conciliation in
new cases being brought before the courts. The experiment was on the lines of an analogous
experiment conducted in North American nation and was hugely thriving and recommended,
and it absolutely was counselled that different states follow the Himachal Project in their
courts likewise.

CONCLUSION

12
Chhotelal v. Kamala Devi, AIR 1967 Pat 269.
13
The experiment was commended in the Law Commission of India 77th and 13th Reports; the Conference of
Chief Ministers and the Chief Justices in their resolution in December, 1993; and the Calcutta Resolution of the
Law Ministers and Law Secretaries Meeting in 1994.

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The role of the judiciary as way as promoting ADR worries is multidimensional. Through the
course of this paper, the various approaches to promoting ADR that the judiciary has adopted
are examined and analysed. The necessity for the proliferation of ADR strategies is clear
given the large pendency and backlog of cases. So as to assist cut back the burden on the
court system and to supply speedy, effective and economical justice it's essential that
sustainable and sturdy ADR mechanisms are put into place.

On many occasions sure selections rendered by the judiciary within the context of ADR
appear to be target-hunting by policy concerns and appear to aimed toward promoting ADR
at a policy level. The judiciary has repeatedly smoothed out any impediments that may come
in the approach of ADR movement. Whether or not within the international context, or
domestic, the judiciary appears to be handing out selections that overcome legal hurdles,
statutory in character or otherwise. A number of these selections even have larger
implications within the context of international commerce and business.

Judicial promotion of ADR has additionally been extended to alternative channels, somewhat
epistemological in nature. Senior members of the judiciary have authored many papers and
articles delineating the benefits of such strategies of dispute resolution. These papers
additionally usually revolve around methods to assist further the usage of those strategies of
dispute resolution even more effectively. Not solely will such judicial endorsement produce
awareness of such strategies, however it additionally at the same time instils the boldness of
individuals in such strategies of dispute resolution.

The judiciary has through variety of choices ordered down that cases should be noted ADR
strategies on a daily basis and to this finish, the courts shall endeavour to push the resolution
of disputes that precede them through these strategies. In fact, in uncountable cases the courts
have assured litigants that within the event of failure of such mechanisms, the matter is
concerned like a shot by the courts. It's amply evident that the judiciary incorporates a
preponderantly favourable angle towards ADR strategies, and through various channels
makes an attempt to push the explanation for ADR.

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