ADR THE CONCLUSION

BY:RISHABH PANDEY
AKHILESH PATRO
ADV. KARTHIK SIR
HARSHIT CHOWDHARY
KRISHNA PRIYA MS

UNDER SUPERVISION OF: SANJAY K. CHADDHA SIR

(FOUNDER AND MANAGING DIRECTOR OF BSK LEGAL)
INTRODUCTION

• Globalised and commercial era with the advent of technology.

• People can now contact each other and settle business deals and disputes
when they are sitting at the opposite ends of the world.
• Most people no longer have the time to go and file papers at the courts and then
wait long periods for a hearing.
• For Rapid approaching a stage where litigation is being replaced with alternative
dispute resolution (ADR), due to the inefficiencies and drawbacks of litigation
WHAT IS ADR (ALTERNATIVE DISPUTE
RESOLUTION )
• In one word we can say It is usually method of involving third party to settle
dispute between parties.
• These methods usually involve a third party, who helps them in settling the
disputes.
• In many cases, ADR methods are used alongside the litigation process as well
through court authorisation
HOW DID CONCEPT OF ADR ARISE?

1. Stated in the 222nd Report of the Law Commission of India, the Constitution has guaranteed
access to justice for all, primarily through Article 39A.
2. This must not be denied to any citizen by reason ( economic or other lack of
awareness, illeteracy, etc)
3. Pending cases
Due to these inefficiencies prompted Indian Govt.
To enact S.89 of the CPC , 1908 and replace the earlier Arbitration Act,1940 with The
Arbitration and Conciliation Act 1996, in accordance with the mandates of the United
Nations Commission on International Trade Law (UNCITRAL).
PROS

• Less expensive.
• Less time consuming.
• Free from techinacalities of court.
• No enimity b/w parties can give there opinion on single table.
• Flexible process(Informal) .
• Parties to put focus on practical solution.
• More suitable for multi party disputes.
CONS

• Not helpful where a dispute is to be decided on the basis of a precedent.

• When there is a need for court and interim orders, ADR would not be useful.
• ADR is less suitable when there is a need for enforcement
• When there is an imbalance of power, between the parties in the
dispute, then ADR would not work.
TYPES OF ADR
 TYPES OF ARBITRATION

Ad-hoc arbitration Institutional arbitration

Domestic INTERNATIONAL COMMERCIAL

Arbitration ARBITRATION
MEDIATION

• Third neutral party aims to assist two or more disputants in reaching a

settlement.
• The solution is given mutually, and the agreements are generally non binding.
• The parties can even go for litigation if they are not satisfied with the
mediation process.
CONCILIATION

• The Arbitration and Conciliation Act, 1996. Under Sec. 61, conciliation is
provided for disputes arising out of legal relationships, whether they are
contractual or not.
• Conciliator, talks to the parties involved separately.
• so that the parties can arrive at a mutually acceptable solution
• through facilitating talks between the parties
NEGOTIATION

• There is no third party to adjudicate the matter,

• therefore the parties work together to find a mutually acceptable solution or
a compromise.
• Parties may choose to be represented by their attorneys during their
negotiations.
• There are no set rules for conducting a negotiation.
COLLABORATIVE LAW

• Collaborative Law is a form of alternative dispute resolution whereby parties

agree at the outset not to go to Court.
• A separated couple and their lawyers come together in four-way meetings
and work cooperatively
• By which parties and their attorneys settle disputes using nonadversarial
techniques agreement about their legal, financial and emotional needs.
• Lok Adalats are governed under The Legal Services Authorities Act,1987.
Sections 19, 20, 21 and 22 specifically deal with Lok Adalats.
• The decision given by the Lok Adalat is binding and shall be treated
akin to the order of a civil court., thereby increasing poor people’s
access to justice.
RECENT APPROACHES

On the basis of J. AJeet shah recommendation 2015 amendment has been done
• Part 1A added where by arbitration council of India framed to regulate law practicing in field of arbitration.
• Part of council consist of
1. Retd.Judge of S.C or Judge of S.C
2. Academicians.
3. Arbitrator.
4. Recognised person from commercial bodies.
5. Two more secretary level bureaucrats
• 8th scheduled added which set out qualification of arbitrator.
• Time bound framework increases another 6 months to complete pleadings.
RECOMMENDATION OF J. KRISHNA

Not adopted yet also controversal due to advoactes

• There should be arbitral procedure.
• Demand for amendment in advocates act to open it for international lawyers for making India
as arbitration hub.
• 8th schedule should be amended as it restrict non Indian can’t be appoint as arbitrator .
• S.2(1) (c) emergency award provison.
• Aim of J. Krishna DELHI, MUMBAI, CHENNAI, KOLKATA TO BE HUB OF ARBITRATION IN
INDIA
RENUSAGAR POWER CO. LTD. V. GENERAL
ELECTRIC CO. (“RENUSAGAR”).
The case was related to the definition of public policy as prescribed under the section 7(1)(b)(ii)
of the Foreign Awards (Recognition and Enforcement) Act, 1961 which is in pari materia to
Section 48 of the Arbitration Act. The Supreme Court deliberated whether the narrower
concept of public policy as applicable in the field of public international law should be applied
or the wider concept of public policy as applicable in the field of municipal law. The Hon’ble
Supreme Court finally held that the term public policy was to be interpreted in the narrow sense
and stated that contravention of an Indian law would alone not attract the bar of public policy
and something more than contravention of law is required. Applying this it was held that the
enforcement of a foreign award would be refused on the ground that it is contrary to public
policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the
interests of India; or (iii) justice or morality.
ONGC V. SAW PIPES

• Almost ten years later, in ONGC v. Saw Pipes while dealing with an
application under Section 34 of Arbitration Act, the scope of public policy
was expanded. In addition to the criteria laid out in the Renusagar case
(supra), the court also included patent illegality as a sub-set of public policy
for setting aside awards. It was held that if the award is contrary to the
substantive provisions of law or the provisions of the Act or against the terms
of the contract, it would be patently illegal.
 IN SHRI LAL MAHAL V. PROGETTO GRANO SPA

• It was later clarified in Shri Lal Mahal v. Progetto Grano Spa that the patent
illegality ground was only applicable to domestic awards and so the
Renusagar position continued to apply to foreign awards
Thank you😊