1. What do you mean by alternative dispute resolution?

Explain the advantages and

development in India?

The Alternative Dispute Resolution in India has proven to be a viable alternative

mechanism. It resolves disputes away from the traditional courtroom. ADR
methods helped reduce the backlogs of courts, ensured speedy dispensation of
justice, and maintained harmony in society. Over time, these mechanisms have
gained popularity and recognition in the wake of India's robust push toward
efficient and alternative methods of dispute resolution that supplement the formal
judicial system.

ADR techniques include mediation, arbitration, conciliation, and negotiation. These

enable parties to amicably resolve disputes outside of the turmoil of litigation and
in a less adversarial environment. As cases are mounting in India, the judicial
system is in a predicament. ADR, being efficient and often cost-effective, is
therefore relevant in India's legal setting.

Are you interested in pursuing a career in Law? The Legal School in collaboration
with IndusLaw has created unique programs for a Certification in Mergers &
Acquisitions, Private Equity and Venture Capital Laws & Certification in
Mergers&Acquisitions for fresh law graduates as well as professionals looking to
advance in their careers! Enquire now for details!

Meaning of ADR

The collective term used to describe the methods of settling disputes other than
litigation in courts is ADR. Such methods include negotiation, mediation,
conciliation, and arbitration. ADR provides a forum where disputes are resolved
much more amicably than through litigation. They are more collaborative, faster,
cheaper, and under greater control by the parties involved.

ADR mechanisms are built to reduce the judicial workload, mechanize the legal
process, and help the parties in a dispute settle their case in the best possible,
 convenient, and customized way for themselves. The philosophy of ADR is party
autonomy, meaning that the parties have the right to choose the method and
procedures to resolve their dispute.
 Relationship Preservation: ADR methods are based on collaboration, not
confrontation, making it easier to maintain or even enhance relationships once the
dispute has been resolved.

Also, Read about the Companies Act 1956 and Companies Act 2013

Legal Framework for ADR in India

The primary legislation in India for ADR is the Arbitration and Conciliation Act of
1996, which specifically deals with arbitration and conciliation. The Arbitration
and Conciliation Act of 1996 is based on the UNCITRAL Model Law. The idea
behind its enactment is that the arbitration law in India should be at par with
international best practices. For mediation, the Mediation Bill of 2021 has been
brought in to put in place the methodology by codifying the practices followed
during mediation and encouraging their applications across different legal
contexts. Besides, Lok Adalats are supported by the Legal Services Authorities Act
of 1987 and offer a grassroots level to settle disputes.

Challenges Faced in the ADR Process in India

Even though ADR has many advantages, still several challenges do form part of
the ADR process in India:
 Lack of Awareness: People are heavily unaware of the alternative forms of
dispute resolution and rely on courts.
 Inadequate Enforcement: Arbitral awards may be challenged in courts. This
allows the dispute to remain open in courts for years, which is counter to the very
objective of ADR.
 Lack of Professional Arbitrators, Mediators, and Conciliators: The rural
India, along with others, lacks trained arbitrators, mediators, and conciliators.
 Infrastructure: Facilities for ADR are not available at all and remain largely
deficient in smaller cities and other rural areas.
 International Standards: It must harmonize ADR practices with international
standards without offending the prevailing local legal principles, especially in
commercial arbitration.
Ancient ADR Systems: The Roots of Dispute Resolution
ADR is not a modern innovation. Societies around the world have long employed
non-judicial means to resolve conflicts. The idea of settling disputes without the
intervention of courts is as old as human civilisation itself, and evidence suggests that the
first forms of ADR date back thousands of years.
Ancient India and ADR
India has a rich tradition of resolving disputes through non-adversarial means. Before the
formalisation of the legal system under the British Raj, informal justice systems based on
community leadership played a central role in dispute resolution.
Ancient Indian societies relied on village councils or “panchayats” to resolve disputes
between villagers. These panchayats, comprising village elders, acted as informal
mediators, providing resolutions based on local customs, ethics, and fairness. The
decisions of these panchayats were widely respected and accepted, and court
interventions were rare.
Apart from village-level panchayats, there were other traditional institutions such as
“kulas” (clans), “srenis” (guilds), and “pugas” (associations), which resolved
disputes within their respective communities. These systems were deeply ingrained in the
social and cultural fabric of India and functioned as the primary method for dispute
resolution, especially in family, trade, and property disputes. The key feature of these
systems was the emphasis on reconciliation, community harmony, and the amicable
settlement of disputes.
The roots of mediation and arbitration in ancient India are also reflected in religious texts.
The Manusmriti, an ancient legal scripture, mentions arbitration and negotiation as valid
methods for resolving disputes. It emphasises reconciliation and compromise,
underlining the importance of harmony over adversarial outcomes.
ADR in Ancient Rome and Greece
The use of ADR was not limited to India. In ancient Greece, various methods of informal
dispute resolution were practised. For instance, arbitration was a common method of
settling conflicts between Greek city-states and individuals. Prominent figures were
appointed as arbitrators to render decisions that were often binding on the disputing
parties.
Similarly, in ancient Rome, conciliation and mediation were used to resolve civil disputes.
Roman law recognised arbitration as a legal process, and arbitrators were empowered to
provide judgments in civil matters. This practice carried forward through the Roman
Empire, and arbitration continued to be an essential part of European legal traditions.
Medieval Europe and ADR
During the Middle Ages in Europe, disputes were often settled by local lords, religious
authorities, or guilds, which functioned as informal judicial bodies. These institutions
mediated and arbitrated disputes, particularly those involving trade and commerce.
The growing complexity of trade during the medieval period necessitated efficient
dispute-resolution mechanisms, and arbitration quickly became the preferred method
among merchants and traders. Arbitration allowed disputes to be resolved swiftly and
with minimal interference from local courts, which were often slow and unpredictable.
The Hanseatic League, a powerful confederation of merchant guilds in northern Europe,
relied heavily on arbitration to resolve commercial disputes. These guilds preferred
arbitration over litigation to ensure faster resolutions, protect commercial interests, and
preserve relationships between traders.
ADR During the British Colonial Period in India
The history of ADR in India took a significant turn during British rule. As the British East
India Company consolidated its political and administrative control over India, the
traditional panchayat system and other indigenous dispute-resolution mechanisms began
to lose prominence. The British sought to impose their legal framework, leading to the
introduction of formal courts and codified laws.
However, even under British rule, ADR was not entirely abandoned. The British recognised
the effectiveness of arbitration, especially in commercial disputes. Early legislative
attempts to formalise ADR mechanisms can be traced back to the Bengal Regulations of
1772, 1780, and 1781. These regulations encouraged arbitration as a means of resolving
disputes in the British-administered territories of Bengal, Bombay, and Madras. Arbitration
was seen as a politically safe and convenient method to maintain order and manage
disputes within the growing trading community.
In 1899, the Indian Arbitration Act was passed, based on the English Arbitration Act of
1889. It was the first comprehensive legislation on arbitration in India. However, its scope
was limited to the presidency towns of Calcutta, Bombay, and Madras. The Act provided
for arbitration in civil disputes, but it was criticised for being deficient and was subject to
various judicial criticisms.
Despite these shortcomings, arbitration continued to develop, particularly in the
commercial sector. Over the years, subsequent legislations were introduced to expand
the scope of arbitration. For example, Act VIII of 1857 codified the procedure of civil
 courts, including arbitration in certain suits, and in 1940, the Arbitration Act replaced the
1899 Act, consolidating the law on arbitration across British India.
ADR Post-Independence: The Modern Legal Framework
After India gained independence in 1947, the country inherited the legal framework
established by the British, including the judicial system and ADR mechanisms. The
post-independence era saw a renewed focus on ADR, particularly in response to the
increasing backlog of cases in Indian courts.
The 1980s marked a significant period in the evolution of ADR in India. In 1982, the
concept of Lok Adalats (people’ s courts) was introduced in the state of Gujarat to
promote out-of-court settlements. Lok Adalats were designed as informal tribunals where
parties could resolve disputes without the formalities of a courtroom. The success of the
first Lok Adalat held in Junagadh, Gujarat, led to the spread of this practice across the
country.
In 1987, the Legal Services Authorities Act was enacted, providing statutory recognition
to Lok Adalats and making them a permanent part of the Indian legal system. Lok Adalats
primarily handled small civil disputes, including family matters and petty criminal cases,
and their decisions were binding on the parties involved. The introduction of Lok Adalats
was a crucial step in institutionalising ADR mechanisms in India.
Arbitration and Conciliation Act, 1996: A New Era for ADR in India
In the context of increasing globalisation and India’ s integration into the world
economy, the need for a modern and effective ADR system became evident.
The Arbitration and Conciliation Act of 1996 was a landmark development in the history
of ADR in India. It replaced the Arbitration Act of 1940 and brought India’ s arbitration
laws in line with the UNCITRAL Model Law on International Commercial Arbitration.
The 1996 Act streamlined arbitration procedures and provided a comprehensive
framework for both domestic and international arbitration. It also introduced the concept
of conciliation, allowing parties to settle disputes through a neutral third party. The Act
aimed to make arbitration quicker, less expensive, and more efficient, catering to the
needs of both individuals and businesses.
Key features of the Arbitration and Conciliation Act, 1996, include:
 Recognition of international arbitration agreements.
 Binding nature of arbitral awards.
 Limited judicial intervention in arbitration proceedings.
 Provisions for the enforcement of foreign arbitral awards under the New York
Convention.
The introduction of the 1996 Act was a turning point in India’ s ADR landscape, as it
significantly enhanced the appeal of arbitration as a means of resolving commercial
disputes, particularly for multinational corporations and foreign investors.
Recent Developments: ADR in the 21st Century
The 21st century has witnessed significant advancements in the field of ADR in India. The
government and judiciary have increasingly recognised the role of ADR in reducing the
burden on courts and ensuring access to justice. Various legislative reforms have been
introduced to promote the use of ADR mechanisms in different sectors.
One such example is the Commercial Courts Act of 2015, which mandates pre-institution
mediation in commercial disputes. The Act aims to encourage parties to resolve disputes
amicably before approaching the courts, thereby reducing the backlog of commercial
cases in Indian courts.
Similarly, the Real Estate (Regulation and Development) Act of 2016 incorporates
provisions for the use of conciliation and arbitration in resolving disputes between buyers
and developers in real estate projects. These legislative measures reflect the growing
acceptance of ADR in sectors where quick and efficient resolution of disputes is critical.
Furthermore, the introduction of the Mediation Bill, 2021, in the Rajya Sabha marks a
significant step towards institutionalising mediation in India. The Bill seeks to establish a
framework for voluntary mediation, encourage the use of mediation in family and
commercial disputes, and promote the role of trained mediators in dispute resolution.

2. Advantages of ADR
3. The advantages of ADR are:
4. 1. Cost-Effectiveness
5. One of the primary advantages of ADR is that it is generally more cost-effective
than traditional litigation. Court proceedings can be expensive, with costs
including attorney fees, court fees and other related expenses. ADR, on the other
hand, often involves fewer formalities and can be completed in a shorter
timeframe, resulting in lower costs.
6. 2. Time Efficiency
7. ADR processes are typically faster than court litigation. Traditional legal
proceedings can take months or even years to resolve, whereas ADR methods like
mediation or arbitration can often be completed in a matter of days or weeks. This
can be particularly beneficial in business disputes where a speedy resolution is
desired.
8. 3. Flexibility
9. ADR offers more flexibility compared to the rigid structure of court proceedings.
Parties have the freedom to choose the ADR method that best suits their needs
and can tailor the process to their specific dispute. This flexibility extends to
scheduling, location and even the choice of the neutral third party (mediator or
arbitrator) who will oversee the process.
10.4. Confidentiality
11. Unlike court cases, which are typically public, ADR proceedings are private and
confidential. This is particularly advantageous in disputes where the parties wish
to keep sensitive information out of the public domain. Confidentiality can also
help preserve business relationships and reputations.
12.5. Control over the Outcome
13. In ADR, the parties have more control over the outcome of the dispute. For
example, in mediation, the parties work together to reach a mutually acceptable
agreement, rather than having a decision imposed upon them by a judge. This can
lead to more satisfactory and sustainable resolutions.
14.6. Preservation of Relationships
15. ADR methods like mediation focus on collaboration and communication, which
can help preserve and even improve relationships between the disputing parties.
This is especially important in disputes involving ongoing business relationships or
family matters.
16.Disadvantages of ADR
17. The disadvantages of ADR are:
18.1. Lack of Precedent
19. Decisions made in ADR do not set a legal precedent, which can be seen as a
disadvantage in certain cases. Precedents are important in the legal system as
they provide guidance for future cases. Without precedents, there may be less
certainty and predictability in the law.
20.2. Limited Scope for Appeal
21. In some forms of ADR, such as binding arbitration, the opportunities for appealing
the decision are limited. This can be problematic if one of the parties believes the
decision was unjust or if there was an error in the process.
22.3. Enforcement Issues
23. While court judgments are enforceable by law, enforcing the outcome of an ADR
process can sometimes be more challenging. For instance, if a party does not
comply with the terms of a mediation agreement, the other party may need to go to
court to enforce the agreement.
24.4. Power Imbalances
25. In disputes where there is a significant power imbalance between the parties, ADR
may not provide a fair resolution. One party may dominate the process, influencing
the outcome in their favor. This is less likely to happen in a court setting, where
there are more formal checks and balances.
26.5. Lack of Legal Representation
27. In some ADR processes, parties may not have legal representation, which can be a
disadvantage, especially for those who are not familiar with legal matters. This can
 lead to one party being at a disadvantage if the other party is more knowledgeable
or has legal counsel.
28.6. Inconsistency
29. Since ADR processes are less formal and more flexible, there can be inconsistency
in how disputes are resolved. Different mediators or arbitrators may have different
approaches, which can lead to varying outcomes for similar disputes.

2. What is conciliation? State the process of commencement of conciliation

processding? State how it is terminated?

A. Conciliation is a non-adjudicatory alternative dispute resolution (ADR) process to

resolve conflicts between parties. It is a voluntary and confidential method of resolving
disputes to facilitate communication, understanding, and agreement between the parties
involved.
In conciliation, a neutral third party, known as the conciliator, assists the parties in
reaching a mutually acceptable resolution. The conciliator acts as a facilitator, helping
the parties identify and explore the issues in dispute, understand each other’ s
perspectives, and find common ground for agreement.
Conciliation is governed by specific procedures and guidelines, which may vary
depending on the jurisdiction or the applicable laws. In India, the process of conciliation is
regulated by legislation such as the Arbitration and Conciliation Act.

Principles of Process of Conciliation

The principles of conciliation as discussed under the Arbitration and Conciliation Act are:
Independence and Impartiality (Section 67(1))
The conciliator must maintain independence and impartiality throughout the conciliation
process. They should assist the parties unbiasedly and fairly while striving to reach an
amicable settlement.
Fairness and Justice (Section 67(2))
The conciliator should adhere to principles of objectivity, fairness, and justice. This
involves considering the rights and obligations of the parties, relevant trade practices, and
the circumstances surrounding the dispute, including any prior business dealings
between the parties.
Confidentiality (Sections 75, 70, proviso)
All matters relating to the conciliation proceedings are to be treated as confidential by the
conciliator and the parties involved. If a party provides information with the condition of
confidentiality, the conciliator must not disclose that information to the other party
without consent.
Disclosure of Information (Section 70)
When the conciliator receives information regarding any facts related to the dispute from
one party, they should disclose the substance of that information to the other party. This
allows the other party to provide an appropriate explanation.
Cooperation of Parties with Conciliator (Section 71)
The parties are expected to cooperate in good faith with the conciliator. This includes
submitting written materials, providing evidence, and attending meetings as requested by
the conciliator.
Rules of Procedure (Section 66)
The conciliator is not bound by the procedural rules outlined in the Code of Civil
Procedure, 1908, or the Indian Evidence Act, 1872. However, while not strictly bound by
technical procedural rules, the conciliator should still uphold the principles of natural
justice.
Place of Meeting (Section 69(2))
The parties can agree upon the location for meetings with the conciliator. In the absence
of such an agreement, the conciliator will determine the meeting place after consulting
with the parties, considering the circumstances of the conciliation proceedings.
Communication between Conciliator and Parties (Section 69(1))
The conciliator may invite the parties to meet, communicate with them orally or in writing,
and may choose to engage with the parties collectively or separately as necessary.
What is the Process of Conciliation under the Arbitration and Conciliation Act 1996?
Part 3 of the Arbitration and Conciliation Act 1996 discusses the process of conciliation,
which is an alternative method of resolving disputes outside of court. Conciliation is
governed by the provisions outlined in the Arbitration and Conciliation Act, 1996 (26 of
1996), as defined in Wharton’ s Law Lexicon.
Step 1: Commencement of Conciliation Proceedings
Section 62 of the Act addresses the initiation of conciliation proceedings. To begin the
process, one party must send a written invitation to the other party. The conciliation
proceedings can only proceed if the other party accepts the invitation. If no response is
received within 30 days of sending the invitation, it will be deemed non-acceptance.
Step 2: Appointment of Conciliators
Once the parties have agreed to engage in conciliation proceedings, appointing a
conciliator is next. Section 64 covers the appointment of conciliators. If the parties agree,
they can appoint a single conciliator. If the parties opt for two conciliators, each party will
appoint one. In the case of three conciliators, each party will appoint one conciliator, and
the parties together can agree upon a third conciliator who will act as the presiding
conciliator.
Step 3: Submission of Written Statements to the Conciliator
The conciliator may request both parties to provide written statements detailing the
relevant facts pertaining to the case. Both parties must submit their written statements to
the conciliator. Additionally, the parties are required to exchange their written statements
with each other.
Step 4: Conduct of the Conciliation Proceedings
Sections 67(3) and 69(1) describe the conduct of conciliation proceedings. The
conciliator has the discretion to communicate with the parties through written or oral
means. They can choose to meet with the parties collectively or separately. The conduct
of the proceedings will be tailored to suit the case’ s specific circumstances.
Step 5: Administrative Assistance
Section 68 of the Act addresses the option of seeking administrative assistance. The
parties or the conciliator may seek assistance from an institution or individual if
necessary. However, the consent of the parties is required to engage in such
administrative assistance.
Termination of Conciliation Proceedings – Section 76
Section 76 of the Arbitration and Conciliation Act provides four ways in which conciliation
proceedings can be terminated:
Termination by Signing of Settlement Agreement (Section 76(a))
Conciliation proceedings end when the parties involved sign a settlement agreement. The
date of termination is considered to be the date on which the settlement agreement is
signed.
Termination by Conciliator’ s Declaration (Section 76(b))
The conciliation proceedings can be terminated if the conciliator declares in writing that
further efforts at conciliation are no longer justified. The date of termination is the date of
the conciliator’ s declaration.
Termination by Written Declaration of Parties (Section 76(c))
The parties have the authority to terminate the conciliation proceedings by providing a
written declaration to the conciliator stating that they wish to end the proceedings. The
date of termination is the date of the declaration.
Termination by Party’ s Written Declaration to Other Party and Conciliator (Section
76(d))
A party can unilaterally terminate the conciliation proceedings by sending a written
declaration to both the other party and the conciliator, expressing their intention to
terminate the proceedings. The date of termination is the date of the declaration.
Case Laws Relating to Conciliation Process
Haresh Dayaram Thakur v. State of Maharashtra and Ors.
In the case of Haresh Dayaram Thakur v. State of Maharashtra and Ors. (AIR 2000 SC
2281), the Supreme Court examined the provisions of Sections 73 and 74 of the
Arbitration and Conciliation Act 1996. In paragraph 19 of the judgment, the court made
the following observations:
According to the statutory provisions mentioned above, it is evident that a conciliator’ s
role is to assist the parties in settling their disputes amicably. The conciliator is granted
broad powers to determine the procedure to be followed without being bound by
procedural laws such as the Code of Civil Procedure or the Indian Evidence Act 1872.
When the parties are able to reach a mutual agreement, and the conciliator believes that
there is a potential settlement acceptable to the parties, the conciliator should follow the
procedure outlined in Section 73. This involves formulating the settlement terms and
presenting it to the parties for their observations. The final step for the conciliator is to
draft the settlement based on the parties’ observations.
The settlement becomes legally binding only when the parties themselves draw up the
settlement agreement or request the conciliator to prepare it and affix their signatures. As
per Sub-section (3) of Section 73, once the parties sign the settlement agreement is
considered final and binding on them and any individuals claiming under them.
Mysore Cements Ltd. v. Svedala Barmac Ltd.
In the case of Mysore Cements Ltd. v. Svedala Barmac Ltd. (AIR 2003 SC 3493), the court
discussed Section 73 of the Arbitration and Conciliation Act. The court made the
following observations:
Section 73(1) states that when the conciliator believes that there are elements of a
possible settlement that may be acceptable to the parties, they should formulate the
terms of the potential settlement and present them to the parties for their observations.
Upon receiving the parties’ observations, the conciliator may reformulate the settlement
terms accordingly.
However, in the present case, the court did not find any such formulation and
reformulation by the conciliator, as required under Sub-section (1). Sub-section (2) states
that if the parties reach a settlement agreement based on the possible terms of
settlement formulated, they may draft and sign a written settlement agreement.
Sub-section (3) clarifies that when the parties sign the settlement agreement, it becomes
final and binding on them and any individuals claiming under them. Furthermore,
Sub-section (4) requires the conciliator to authenticate the settlement agreement and
provide each party with a copy.
Conclusion
Conciliation is a valuable alternative dispute resolution process guided by the Arbitration
and Conciliation Act. It involves a neutral conciliator assisting parties to settle. The
process begins with a written invitation, followed by the appointment of a conciliator.
Written statements are exchanged, and the conciliator conducts proceedings based on
fairness and justice. Confidentiality is maintained throughout.
 The goal is to reach a settlement agreement, which becomes final and binding when the
parties sign. Conciliation allows parties to resolve disputes amicably, avoiding litigation
while preserving relationships. It offers a structured and flexible approach, empowering
parties to actively participate in finding mutually acceptable resolutions.

3. What is an arbirtral award and state how an arbitral award is enforced?

A. Arbitral Award
Just as litigation leads to a judgment, arbitration leads to an award a discussion of the
tribunal which disposes of substantive dispute(s) between the parties and which is
binding on them. An arbitral award is final and binding on the parties and creates legal
rights and obligations. If the arbitration has been conducted properly, the losing party
(award-debtor) may accept the tribunal decision and, if order to pay damages to the other
party (award-creditor) satisfies the award voluntarily. If, however, an award debtor
considers that the tribunal has acted improperly or made an error, there are two courses
of action which it may take.
The award-debtor may take the initiative by starting the legal proceedings before the
court with a view to obtain a court order setting aside the award. As per section 34 of
Arbitration and Conciliation, 1996, the court intervenes only if there are grounds which are
mentioned in the said section.
If, however, the award-debtor refuses to satisfy the award, the tribunal is powerless and
the only way in which the award-creditor can recover any sums awarded by the tribunal is
to invoke the coercive power of the courts- by seeking to enforce the award through legal
action.
Even where an application to set aside the arbitral award has been filed in the court under
section 34, the filing of such an application shall not by itself render the award
unenforceable, unless the court grants an order to stay of the operation of the said arbitral
award on a separate application made for that purpose. However, in case, the party has
made such application, the court may grant stay after giving reason for the same in
writing and the award will not be final and binding till the application is refused by the
court. Once the award becomes final as mentioned above, it shall be enforced as if it
were a decree of the court.
Arbitral award can be classified as-
 Domestic award
 Foreign award

Domestic Arbitral Award

The domestic awards are covered in part 1 of the arbitration and conciliation act, 1996.
The domestic award is distinguishable from international award or foreign award.
A foreign award may be regarded as a domestic award in which country it is made.
Part 1 of the act applies to such arbitration when the seat of the arbitration for the
international arbitration is India and all the domestic arbitration. In the case of a domestic
award a challenge to the award can be made under section 34 of the act where as no
“challenge” proceeding is contemplated as foreign award. There is an exception that
is, domestic award also includes international arbitration award, where one party is other
than India or any citizen, govt. or institution other than India, but award made in territory of
India.
Foreign Arbitral Award
On the other hand a foreign award is one which is made in an arbitration
and proceedings seated outside India. Normally, the term “foreign award” gains
significance only for the purpose of enforcement in a country other than its country of
origin.
Section 48 of the act is related to article V of the New York Convention. An application for
enforcement of a foreign award can be registered by a party on limited grounds stipulated
in section 48 of the Act. Thus, no ‘challenge’ proceedings to annul the award can be
brought against a foreign award in India under the Act notwithstanding the governing law
of the contract is Indian law. Foreign awards sought to be enforced in India cannot be
challenged on merits in Indian courts. In an enforcement proceeding, the court may refuse
to enforce the foreign award on satisfactory ‘proof’ of any of the grounds mentioned
in section 48(1), by the party resisting the enforcement of the award. The said section
sets out the defenses open to a party resisting enforcement of a foreign award.
Enforcement of an Arbitral Award
Section 36 covers enforcement,
Where the time for making an application of the arbitral award under section 34 has
expired, then subject to the provision of sub section(2), such award shall be enforced in
accordance with the provisions of the code of civil procedure 1908 as if were a decree of
the court.
In order to enforce the award, it is compulsory for the arbitral award to be final and valid.
When an award becomes final it prevents the winning party from filing a successful
claim. It also prevents the lost party from raising a lost case because they believe they
can secondly have a more agreeable court, convincing witnesses, or a better lawyer.
Therefore, section 35 of the Act provides that the arbitral award shall be final and binding
on parties and persons, claiming under them respectively.
The commencement of the arbitration process when the parties enter into an agreement,
and not in the manner provided under section 35 of the 1996 Act, it does not constitute an
award and does not imply that the option of award are permanent.
 The award may be challenged under section 34 of the Act otherwise it is final and
becomes a court decision under section 35 and no dispute of jurisdiction other than an
arbitration agreement may be proposed in the case.
Enforcement of domestic award
An order passed by the Arbitral Tribunal on formal arbitration in India will be regarded as
a court order and will be enforceable under the provisions of the arbitration and
conciliation act, as if it were a court order, specifying its application.
Once the arbitral award has been finalized and operational, the prize holder shall apply for
the award to the debtor before a commercial court or High Court, subject to jurisdiction. In
the interim, if possible, the arbitral award is challenged, the court has the power to provide
protection assistance and grant residency when the arbitral award is made. It is worth
noting that in terms of the Amendment Act of 2015, the party challenging the arbitral
award will have to apply for a separate application in order to claim the residency. It may
be noted that if the court finds that the award is valid, in the execution phase, there will be
no challenge to the validity of the mediation award.
Enforcement of foreign award
India has signed the Geneva Convention on the Execution of Foreign Affairs Arbitral
Awards, 1927 and the Convention on the Recognition and Strengthening of Foreign
Arbitral Awards, 1958. The arbitral award would be enforced in India, if the courts in India
receive award for mediation in the country, signed by Geneva Convention or New York
Convention, and the award is made with a place, declared as a meeting country by India.
The central government has declared the 48 countries to be just like the other countries
196 countries in the world with Mauritius being the most recent to add. Enforcement of
an external prize in India begins with file submissions a request for execution and a
two-stage process.
 First stage, a competent person would determine to comply the award to the
requirements of the act.
 Step two, to enforce that award as a decision of that court.
However, the award provider may take delays on unimportant matters objections and
requirements such as filing a certified or original copy of the award and the basic
agreement before the court.
The award must therefore meet two requirements to be named as “foreign award” .
 The first is that under Indian law, it has to deal with the difference from a legal
relationship can be considered commercial. The term “commercial relationship” has
been widely publicized translated by Indian courts.
 The second requirement is that the country in which the award was located, the
issue must be notified by the internal government to be a fit world.
Requirements for the enforcement of foreign awards
 Original copy or certified copy of award given by Arbitral tribunal.
 Original or certified copy of the agreement.
 Evidence needs to prove the existence of a foreign award.
Conditions for enforcement of domestic and foreign Arbitral Awards
The Arbitral Award may be awarded voluntarily and the party may look over to the
following reasons for challenging the award;
 Any failure of the parties to agree.
 Especially when there are foreign awards the agreement in question does not exist
according to the law of the country in which the award was made or the law that the
parties have placed under it.
 Failure of the party to request mediation to provide prior notice of an appointment
of arbitrator or arbitral tribunal.
 The award is based primarily on the delivery of the decision or the agreement
itself.
 In particular the foreign award has never been binding on the parties, either
suspended or set aside by the appropriate state authority where that award was made.
 The arbitrator is unable to resolve the underlying dispute Indian law.
 Enforcement of the award may be opposite of the Indian public policy.
Types domestic and foreign arbitral awards which are enforceable
 Awards containing prohibiting the doing of acts or injunctions ordering.
 Decisions or awards by emergency arbitral authority which grants interim
injunction.
 Declaratory awards
 Other Awards
 Money awards.
Limitation period for enforcement of Arbitral Awards
Domestic award
The Supreme Court held in
that,
An arbitral awards will be considered for enforcement purposes and the Limitation Act
1963 applies to arbitration, so the maximum period for the enforcement of such awards is
twelve years.
Foreign award
Different High Courts have different views and interpretations of limitations a time when
the team can consolidate the award.
The Bombay High Court ruled that the foreign award would be a two-step process as it is
not a private declaration and would not be binding on parties unless the appropriate court
records it as enforceable. Therefore the prescribed period may be three years, as the
application for enforcement of the foreign award will fall under the provision of
accommodation in the Program for limitation Act. After that when the appropriate court
accept the award as a decision, the estimated time will be twelve years of execution such
a proclamation.
The Madras High Court held that,
“the foreign award is already stamped as a decree and the party having a foreign award
can straight away apply for enforcement of it and in such circumstances, the party having
a foreign award has got 12 years time like that of a decree holder.”

4. Explain the composition and jurisdiction of an arbitral tribunal ?

 In international commercial arbitration the arbitral tribunal plays a very important

and a decisive role in the adjudication of the dispute. A commercial dispute can go
to arbitration on the basis of an arbitration agreement between the disputing
parties to submit the dispute to resolution by arbitration, where an arbitrator or a
tribunal of arbitrators is appointed and has been given the legal authority to act by
the parties.
 The composition of the arbitral tribunal or the appointing of the sole arbitrator is a
characteristic and crucial issue in arbitration. The composition of the arbitral
tribunal will have a huge effect on the resolution of the dispute.
 Not only this, but the composition of the tribunal will have some important legal
consequences related to the starting date for the arbitration and can have
repercussions if a party applies to have the award set aside or enforced later on.
 Chapter 3 of the Arbitration And Conciliation Act deals with the composition of the
arbitral tribunal. Section 10 of the act deals with the concept of the number of the
Arbitrators. It state the party are free to choose the number of arbitrators as they
may deem fit the only deciding factor been that the number must be a even
number In case where Sub Section 1 of the Act is not followed then in those cases
the three will be a sole arbitrator.
 Section 11 of the Act talks about with respect to the nationality of the arbitrator the
person may be of any nationality or may as the party may decide the same. The
process of appointing a arbitrator may be the decided by the parties according to
Sub- Section 6.
 In Sub Section 3 of Section 11 states the circumstances where the parties fail to
choose a arbitrator under Sub Section 3 the automatic appointment of three
arbitrator would be done and those three be selecting a fourth presiding arbitrator.
 Section 12 of the Act talks about the grounds of challenging the arbitrators. There
lie two basis grounds on which a arbitrator can be challenged. The first remains
the doubts of been impartial or the independence of the arbitrator. If the parties or
party feels that the arbitrator is impartial or has connection to one of the parties
then the challenge can be raised. On the other side if the there is a incapacity on
 the grounds of his Qualification then on that ground too disqualification process
can be initiated. It is also the duty of the party to fully disclose any contact with the
arbitrator if any which will prejudice the hearing at any moment.
 Section of 13 of the Act states about the challenge procedure and the
proceedings. Sufficient time is been provided to the arbitrator to prove the fact
that he is innocent. If successful the Arbitrator may be removed from the panel
and also new arbitrator may be appointed. If not successful the arbitrator will be
continuing to be in the panel. The appointment of a new or the appointment of the
substitute arbitrator is mentioned in Section 17. In case where the arbitrator fails
to perform his duty, he may be terminated from his position.in other circumstances
the parties my ask the court to pass a interlocutory order against him.
 Section 14 of the Act deals with the situation of failure or the impossibility to act
by a arbitrator and the duty of the arbitrator terminates in a de jure or de facto
unable to perform his function or in another case he has withdrawn from his office
or the parties have together agreed to the terminate of his mandate.
 Section 15 of the Act deals with the termination and substitution of the arbitrators.
Two conditions are put forward where he has withdrawn from office for any reason
and or by the pursuant to agreement of the parties. Where the mandate of an
arbitrator terminates, a substitute arbitrator shall be appointed according to the
rules that were applicable to the appointment of the arbitrator being replaced. In
case where an arbitrator is replaced under sub-section (2), any hearings previously
held may be repeated at the discretion of the arbitral tribunal.
 In the [1] it was held that Section 10 of the said
provision or award can be set aside by the court. The arbitral award can be
challenged on the grounds with regard to the composition of the arbitral tribunal.
 In the .[2] It was
decided that Section 16 provides with the power to the rule on its own jurisdiction
and decide the same. It also was decided that “under Section 16 is not confined
to the width of its jurisdiction but goes also to the root of its jurisdiction”
 Therefore Section 10 can be interpreted in the lights of Section 11. Section 10
remains more clear than section 11 in a sense that section 10 provides the number
of arbitrators. On the other hand, Section 11 provides only the appointment in
cases where there is one arbitrator or three arbitrators. The SC has held that the
agreement does not becomes void just because of the fact that the parties have
decided for appointment of two arbitrators.
 Further in the case as views of Lohia the interest
of India as it was termed is a component of public policy the same was decided in
the landmark case of .[3]
  It is a highly debatable point at to the choice of choosing a even number of
arbitrator. The landmark case of the Lohia is as per the prevailing legal system
correct and up to the mark with regard to the parties been allowing to choose even
number of arbitrators under section 10 of the said act. It is also true that the case
is much more stable and provides for a developed jurisprudence as compared to
all over the world. Also, as a matter of fact the case does not have a major impact
on the entire selection process since majority of the arbitral tribunal have a sole
arbitrator or three arbitrators.

Factors Affecting the Composition of Arbitral Tribunals

While the Arbitration and Conciliation Act, 1996 sets the legal framework for the
composition of arbitral tribunals, the actual constitution depends on a variety of
factors, such as the type of arbitration (domestic vs. international), the complexity
of the dispute, and the preferences of the parties involved. Let's look at the key
elements that influence the composition of the tribunal:

1. Nature of the Dispute

The nature of the dispute will influence the complexity level and arbitrator number
requirements. The nature of high-value commercial conflicts and construction
work often demands a panel of three members because it ensures appropriate
expertise across legal, technical, and financial domains. Simple contractual
disagreements normally function best with a single arbiter as their resolution
method.

2. Agreement Between Parties

Parties that undertake arbitration possess the authority to define the tribunal
makeup and can select arbitrators suited to resolve issues related to the dispute.
The selection process for arbitrators exists, along with details regarding the
number of tribunal members in contractual arbitration clauses.
3. Institutional vs. Ad-Hoc Arbitration

The selection of arbitrators in institutional arbitration occurs under institutional

rules of organizations, including ICC and LCIA, in which such institutions play a
major role. The parties enjoy more flexibility in selecting arbitrators and deciding
tribunal structure during ad-hoc arbitration.

4. International Arbitration

The arbitrator distribution in international arbitration features members with

different legal frameworks and practices within other nations. The presence of
diverse arbitrators brings both confirmation of expert authority and balanced
interpretations toward each case. International trade law experts and specialists
who handle investment disputes can serve as arbitrators when parties choose
them for arbitration.

Procedure for challenging an Arbitrator: Section 13(1) of the Act provides liberty to the
parties to agree on a procedure for  challenging an arbitrator. Section 13(2) - If there is
no agreement on the point or the parties have failed to  agree, then the procedure to be
followed is that the party wishing to present the challenge shall, within 15 days after
becoming aware of the constitution of the arbitral tribunal or after becoming aware that
circumstances exist that give rise to justifiable doubts as to his independence or
impartiality or he does not possess the qualifications agreed to by the parties, send a
written statement of the reasons for the challenge to the arbitral tribunal. Section 13(3) -
The arbitral tribunal is required to decide on the challenge, if the arbitrator  does not
withdraw from his office or the other party does not agree to the challenge. It is so
because the Arbitration agreement like any other contract can be revoked only with the
consent of both the parties. Failing such revocation, the arbitrator gets an irrevocable
authority to proceed with the matter even if one of the parties refuses to submit to
arbitration. Section 13(4) - In case of failure of challenge, the arbitral tribunal shall
continue the  arbitral proceedings and make an arbitral award. Section 13(5) - Where
such an award is made, the party challenging the arbitrator may  make an application for
setting aside such an award in accordance with Section 34 of the Act. Section 13(6) - If
the award is set aside on such an application, the Court may decide as to  whether the
arbitrator who is challenged is entitled to any fees. The appropriate court for the purpose
of exercising this power is the court in whose  jurisdiction the contract was executed or
the work was performed. 8 An application for termination would lie before the Principal
Civil Court of Original  Jurisdiction and not before the Supreme Court, even if the
arbitrator was appointed under Section 11.
TERMINATION OF MANDATE OF ARBITRATOR Section 14(1) of the Act provides that the
mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator,
if- He becomes de jure or de facto unable to perform his functions or for other reasons
fails to  act without undue delay; and In this case only, the parties may apply to the court
for terminating the mandate. Not on the remaining grounds. He withdraws from his office
or the parties agree to the termination of his mandate. Section 15 provides additional
circumstances under which the mandate of an arbitrator shall terminate. These include-
Where the arbitrator withdraws from office for any reason; or  By or pursuant to
agreement of the parties. It is further provided that where the mandate of an arbitrator
terminates, a substitute arbitrator shall be appointed. The same rules shall be followed in
appointing a substitute arbitrator which was applicable to the appointment of the
arbitrator being replaced. Where an arbitrator is replaced, any hearing previously held may
be repeated at the discretion of the arbitral tribunal, unless otherwise agreed by the
parties. However, it is provided that an order or ruling of the arbitral tribunal made prior to
the replacement of an arbitrator shall not be invalid solely because there has been a
change in the composition of the arbitral tribunal, unless otherwise agreed by the parties.
SUMMARY OF CHALLENGING&TERMINATION OF ARBITRATORS
[(Section (12 to 15)] An arbitrator can be removed only in the following circumstances: 9
A challenge is made on the ground that there are justifiable doubts as to his
independence  or impartiality or If he does not possess the qualification agreed by the
parties (Section 13 of the Act). In both these cases a challenge must be made to the
arbitral tribunal. If the challenge is successful, the mandate of arbitrator would be
terminated. If the challenge is not successful, the arbitral tribunal must continue with the
arbitral proceedings and render its award, which can then be challenged. The other
provision for removing an arbitrator is if he becomes de jure or de facto unable  to
perform his functions or fails to act without undue delay. In these circumstances, a party
can apply to the court to decide on the termination of the mandate (Section 14). The
arbitrator also stands removed if he withdraws from office. Where can the mandate be
challenged? The appropriate court for challenging mandate of arbitrator is the court in
whose jurisdiction the contract was executed or work was performed. Sec 2(e) defines
court which is referred to u/s 14. JURISDICTION OF ARBITRAL TRIBUNAL
The Act provides that the arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement. The
arbitration agreement shall be deemed to be independent of the contract containing the
arbitration clause, and invalidity of the contract shall not render the arbitration agreement
void. Hence, the arbitrators shall have jurisdiction even if the contract in which the
arbitration agreement is contained is vitiated by fraud and/or any other legal infirmity.
Further, any objection as to jurisdiction of the arbitrators should be raised by as party at
the first instance, i.e., either prior to or along with the filing of the statement of defence. If
the plea of jurisdiction is rejected, the arbitrators can proceed with the arbitration and
make the arbitral award. Any party aggrieved by such an award may apply for having it set
aside under Section 10 34 of the Act. Hence, the scheme is that, in the first instance, the
objections are to be taken up by the arbitral tribunal and in the event of an adverse order;
it is open to the aggrieved party to challenge the award. Thus, Section 16 empowers
Arbitral Tribunal to decide - 1. The question as to its jurisdiction 2. The objection as to
existence or validity of arbitration agreement For this purpose an arbitration clause in a
contract shall be treated as an arbitration agreement independent of the contract. If the
AT holds the contract null and void it will not result in the automatic invalidity of
arbitration clause. The objection must be filed before or along with the statement of
claim. The question of jurisdiction has to be treated as a preliminary issue. The objection
can be regarding the fact that the AT has no jurisdiction at all or that it is entertaining
some matter beyond its jurisdiction. REMEDIES - 1. When an award has been made after
the rejection of the objections, the aggrieved party may make an application under
Section 34 to set aside the award on the ground that objection was wrongly challenged.
2. The decision of the Arbitral Tribunal on its jurisdiction is not an award. It is an order
which may culminate in closure of the proceedings and in that event an appeal lies u/s
37. If it does not terminate the proceedings, the order can be challenged when award
itself is challenged.

5. What is mediation? State how it is conducted and explain the role of a mediator?

Mediation: Definition, Process, and the Role of a Mediator

1. Introduction

In today’ s increasingly litigious and conflict-prone society, alternative dispute resolution

(ADR) methods have become vital in managing disputes efficiently, cost-effectively, and
amicably. One of the most prevalent forms of ADR is mediation. It provides parties with
the opportunity to resolve their disputes voluntarily with the assistance of a neutral third
party, known as the mediator. Unlike litigation, which can be adversarial and lengthy,
mediation emphasizes cooperation, communication, and creative problem-solving. This
paper explores what mediation is, how it is conducted, and the critical role of a mediator
in the process.
2. What is Mediation?

Mediation is a voluntary, confidential, and structured process in which a neutral third

party, the mediator, assists disputing parties in reaching a mutually acceptable
agreement. It is a non-binding process, meaning that the mediator does not impose a
decision on the parties. Instead, the control remains entirely in the hands of the parties
involved. Mediation is often preferred over litigation and arbitration due to its informal
nature, flexibility, and potential to preserve relationships.

Mediation can be used in a wide array of disputes, including but not limited to:

 Family disputes (divorce, custody, inheritance)

 Workplace conflicts
 Business and commercial disputes
 Community and neighborhood issues
 Civil disputes and personal injury cases

The core philosophy behind mediation is that individuals are better positioned to resolve
their own conflicts with the help of a facilitator who ensures balanced communication
and understanding.

3. Objectives and Principles of Mediation

The primary objectives of mediation include:

 Facilitating communication between parties

 Clarifying misunderstandings and issues
 Encouraging creative solutions that satisfy the interests of all parties
 Promoting voluntary, informed decision-making
 Avoiding the time and expense of court proceedings

Mediation is governed by several fundamental principles:

 Voluntariness: Parties participate freely and can withdraw at any point.

 Confidentiality: Information disclosed during mediation is not admissible in court
unless agreed upon.
 Neutrality: The mediator must remain impartial and without bias.
  Self-determination: The parties make the final decisions, not the mediator.
 Informed consent: Parties must understand the process and implications of their
decisions.

4. How is Mediation Conducted?

While mediation processes can vary depending on the jurisdiction, nature of the dispute,
and organizational practices, a typical mediation involves several standard phases:

1. Pre-Mediation Preparation

Before the mediation session begins, the mediator may:

 Contact each party to explain the process

 Gather preliminary information about the dispute
 Set expectations and confirm that all parties are willing to participate
 Ensure that any necessary documents are shared

2. Opening Session

The mediator begins by:

 Introducing themselves and outlining their role

 Explaining the rules of mediation and reaffirming confidentiality
 Describing the goals and structure of the session

Each party is then given the opportunity to present their perspective uninterrupted, which
allows all sides to feel heard and understood.

3. Issue Identification and Exploration

The mediator identifies key issues based on the parties' opening statements. This phase
may include:

 Clarifying points of confusion

 Asking open-ended questions
 Exploring interests behind stated positions

4. Negotiation and Option Generation

The mediator facilitates a discussion focused on:

 Common interests
 Potential solutions
 Evaluating pros and cons of each option

This phase may involve joint discussions or private meetings (known as ) where
the mediator meets with each party individually to explore options candidly.

5. Agreement and Closure

If a resolution is reached, the mediator:

 Helps draft a written agreement

 Ensures all terms are clear and acceptable to both parties
 Reviews the agreement to confirm mutual understanding

If an agreement is not reached, the mediator may suggest other options such as
arbitration, litigation, or continued negotiation.

5. The Role of a Mediator

The mediator is the cornerstone of the mediation process. Their role is multifaceted and
demands a unique blend of skills, ethics, and strategies.

1. Neutral Facilitator

The mediator remains impartial and does not take sides. Their role is to manage the
process, not to determine the outcome. They must ensure that both parties have equal
opportunity to present their views and participate fully in the negotiation.

2. Communication Bridge

Mediators help improve communication between the parties. They reframe emotional or
hostile language, clarify statements, and reduce misunderstandings. By creating a
respectful dialogue environment, mediators help parties move from confrontation to
cooperation.

3. Conflict Analyst
Effective mediators are adept at identifying the underlying causes of conflict— not just
the surface-level issues. They help parties uncover hidden interests and motivations,
which can lead to more sustainable solutions.

4. Problem-Solver and Option Developer

Mediators assist in brainstorming creative solutions that go beyond win-lose scenarios.

They help generate and assess options that align with the interests of both parties.

5. Ethical Guardian

Mediators must uphold high ethical standards, including confidentiality, neutrality, and
informed consent. They should be alert to any power imbalances or coercive behaviors
and take steps to ensure that both parties are participating voluntarily and fully
understand the terms of any agreement.

6. Advantages of Mediation

There are numerous benefits associated with mediation, which make it a preferred
method of dispute resolution:

 Cost-Effective: Mediation is typically far less expensive than litigation.

 Time-Saving: Disputes can often be resolved in a single session or over a few
days.
 Flexible and Informal: The process can be tailored to suit the needs of the parties.
 Confidential: Unlike court cases, mediation sessions are private, and outcomes are
not part of the public record.
 Relationship Preservation: Mediation fosters cooperation, which can help
maintain or even strengthen relationships, particularly important in family and
workplace disputes.
 High Compliance Rate: Agreements reached voluntarily are more likely to be
upheld by the parties.

7. Challenges and Limitations of Mediation

Despite its advantages, mediation is not suitable for every dispute. Some challenges
include:
  Power Imbalances: In cases of significant power asymmetry (e.g., domestic
violence), one party may dominate the process.
 No Guaranteed Outcome: Since it is a voluntary process, parties may fail to reach
agreement.
 Non-Binding Nature: Unless formalized in a contract, mediation outcomes are not
enforceable by law.
 Unsuitable for Criminal Cases: While some restorative justice programs use
mediation principles, most criminal cases are beyond the scope of traditional
mediation.

8. Conclusion

Mediation is a powerful and flexible method for resolving disputes in a manner that
respects the autonomy and dignity of all parties involved. It shifts the focus from blame
and punishment to understanding and collaboration. By facilitating constructive dialogue
and helping parties identify shared interests, mediators play a pivotal role in resolving
conflicts that might otherwise escalate into costly legal battles.

As societies continue to evolve, the importance of mediation is likely to grow, particularly

in fields like international relations, organizational behavior, and family law. With the right
training, ethical standards, and commitment to impartiality, mediators can help transform
conflict into an opportunity for growth, healing, and mutual respect.

6. Explain how an arbitrator is appointed?

A..

Appointment of an Arbitrator: A Detailed Explanation

1. Introduction

Alternative Dispute Resolution (ADR) mechanisms have gained significant importance in

recent years due to their efficiency, confidentiality, and flexibility compared to traditional
litigation. Among these mechanisms, arbitration stands out as a widely used and legally
recognized process for resolving disputes, especially in commercial and international
contexts. Arbitration involves the resolution of a dispute by one or more neutral third
parties, known as arbitrators, whose decision— called an award— is legally binding on the
parties.

A crucial step in the arbitration process is the appointment of the arbitrator(s). The
method of appointing an arbitrator is vital because the integrity, expertise, and neutrality
of the arbitrator can significantly influence the fairness and outcome of the arbitration.
This paper discusses in detail how arbitrators are appointed, the legal frameworks
governing their appointment, and the roles various parties and institutions play in the
process.

2. Who Can Be an Arbitrator?

Before delving into the appointment process, it is essential to understand who is qualified
to serve as an arbitrator. Generally, an arbitrator should possess the following
characteristics:

 Impartiality and Independence: They must not have any personal interest or bias
toward any party involved in the dispute.
 Relevant Expertise: Especially in technical or commercial disputes, arbitrators are
often selected for their knowledge in specific industries or legal areas.
 Legal and Ethical Integrity: Although legal qualification is not always mandatory,
familiarity with legal principles is beneficial.
 Availability: Arbitrators must be able to dedicate sufficient time to conduct
proceedings without unnecessary delays.

In international arbitrations, language skills and cross-cultural understanding may also be

crucial factors.

3. Legal Framework for Appointment

The process of appointing an arbitrator is usually governed by:

 The arbitration agreement between the parties,

 National arbitration laws (e.g., the Arbitration and Conciliation Act, 1996 in India),
 Institutional rules (e.g., rules of the ICC, LCIA, SIAC),
 International treaties such as the UNCITRAL Model Law.
Arbitration Agreement

This is the primary document that outlines how the arbitrator(s) should be appointed. The
agreement may specify:

 The number of arbitrators (usually one or three),

 The method of appointment,
 The qualifications required of the arbitrators,
 Whether the arbitration will be institutional or ad hoc.

If the agreement is silent or ambiguous, the default rules of the applicable arbitration law
or institutional rules come into play.

4. Methods of Appointing Arbitrators

A. Party Agreement

In many cases, the arbitration clause in a contract specifies how the arbitrator(s) will be
chosen. Common methods include:

 Mutual Agreement: The parties jointly agree on one arbitrator. If they cannot agree
within a stipulated time, the court or a designated authority may step in.

 Each Party Appoints One Arbitrator: Then, the two appointed arbitrators mutually
select the third arbitrator, who usually acts as the presiding or chair arbitrator.
 Failure to Agree: If the two arbitrators cannot agree on the third arbitrator within a
set period, a court or arbitral institution will appoint the third.

This structure balances party autonomy with procedural fairness.

B. Institutional Appointment

When arbitration is conducted under the rules of a recognized institution, the institution
plays a role in appointing arbitrators if:
  The parties fail to appoint within the given timeframe,
 The arbitration agreement defers the appointment to the institution,
 The parties request institutional intervention.

Major institutions with their own rules for appointment include:

 International Chamber of Commerce (ICC)

 London Court of International Arbitration (LCIA)
 Singapore International Arbitration Centre (SIAC)
 American Arbitration Association (AAA)

These institutions maintain lists or panels of approved arbitrators and follow detailed
procedures for appointment.

C. Court Appointment

If the parties cannot agree and no institutional rules apply (especially in ad hoc
arbitrations), parties can approach a court or a designated authority for the appointment.
For example:

 In India, under Section 11 of the Arbitration and Conciliation Act, 1996, the Chief
Justice or their designate appoints the arbitrator.
 Under the UNCITRAL Model Law, the court has similar authority if appointment
procedures fail.

The court ensures that the appointed arbitrator is impartial, independent, and qualified.

5. Factors Considered During Appointment

Whether arbitrators are appointed by parties, institutions, or courts, several factors are
typically considered:

1. Independence and Impartiality

Arbitrators must disclose any interest, prior relationship, or conflict of interest that may
affect their impartiality. If bias is suspected, parties may challenge the appointment.

2. Expertise and Experience

Parties often seek arbitrators with experience in the relevant field of dispute— be it
construction, finance, international trade, etc.

3. Nationality

In international arbitrations, arbitrators are usually of a different nationality than the

parties to avoid perceived bias.

4. Availability and Diligence

Arbitrators must be able to devote adequate time and avoid unnecessary delays.

5. Language Skills

For international arbitrations, proficiency in the language of arbitration is essential.

6. Challenges in Appointment

Despite structured processes, appointing an arbitrator can present several challenges:

1. Party Deadlock

Often, parties cannot agree on a sole arbitrator or fail to nominate one in a timely manner.
This causes delays and may require court or institutional intervention.

2. Delay Tactics

A party may intentionally delay the appointment process to frustrate proceedings.

Institutional rules usually include mechanisms to address such tactics.

3. Disputes Over Qualifications

Parties may contest whether an arbitrator meets the required qualifications under the
arbitration agreement.

4. Challenges to Impartiality

Once appointed, arbitrators may face challenges if a party alleges bias or conflict of
interest. Rules like the IBA Guidelines on Conflicts of Interest are often referred to in such
cases.
7. Replacement and Substitution

In cases where:

 An arbitrator withdraws voluntarily,

 Is removed for incapacity or bias,
 Dies during proceedings,

a replacement must be appointed. The procedure for substitution usually mirrors the
original appointment process. If a replacement occurs after significant progress has been
made, the tribunal may decide whether to rehear evidence already presented.

8. Role of Arbitral Institutions

When managing appointments, institutions typically:

 Verify qualifications and availability,

 Ensure diversity and neutrality,
 Resolve disputes about qualifications or conflicts of interest,
 Maintain transparency in the appointment process.

Many institutions also have emergency arbitrator provisions to handle urgent matters
before the full tribunal is constituted.

9. Conclusion

The appointment of an arbitrator is a foundational step in the arbitration process, shaping

its credibility, efficiency, and fairness. Whether by mutual agreement, institutional
procedure, or court intervention, the process is designed to ensure that the arbitrator is
neutral, qualified, and capable of rendering a just decision. With the increasing use of
arbitration in resolving both domestic and international disputes, the need for transparent
and robust appointment mechanisms has never been greater.
7. What is lok adalat? State the historical development of lok adalat in India? Explain the
powers and functions of a lok adalat?

A. Here is a comprehensive, long-form answer— approximately six pages in standard

academic formatting (12-point font, double-spaced)— on the History and Development of
Lok Adalat in India.

History and Development of Lok Adalat in India

1. Introduction

India’ s legal system, inherited from the colonial era, is often criticized for its procedural
complexity, delays, and inaccessibility, particularly for marginalized communities. To
bridge this gap and ensure justice for all, various Alternative Dispute Resolution (ADR)
mechanisms have been introduced. Among them, Lok Adalat, meaning “People’ s
Court,” has emerged as one of the most significant and people-centric forums. Rooted in
the traditional Indian ethos of community-based conflict resolution, Lok Adalats have
evolved into a powerful legal institution with constitutional and statutory recognition.

This paper explores the historical background, evolution, and institutional development
of Lok Adalats in India.

2. Ancient and Traditional Roots

The concept of Lok Adalat is not new to India. The practice of resolving disputes through
community elders and panchayats dates back to ancient times. This indigenous system
of justice played a crucial role in maintaining harmony and order in rural societies.

A. Ancient India

 Dispute resolution in ancient India was often conducted through sabhas,

panchayats, kulas, and shrenis— groups or assemblies comprising respected
elders.
 Justice was rendered based on customary laws, local traditions, and community
consensus.
 The objective was not to punish, but to reconcile and restore social balance.
B. Medieval and Pre-Colonial Period

 During the Mughal period and early kingdoms, local courts and panchayats
continued to resolve minor disputes informally.
 These systems remained largely decentralized and were accessible to the
common people.

C. Colonial Impact

 The British colonial administration introduced a formal, centralized, and

adversarial legal system based on common law principles.
 While modern courts were established, they often alienated the rural population
due to complex procedures, high costs, and delays.
 This led to a decline in indigenous dispute resolution mechanisms.

3. Revival Post-Independence

After India’ s independence in 1947, the need to revive community-based justice

systems was recognized as part of the broader effort to democratize the justice delivery
mechanism.

A. Constitutional Mandate

The idea of providing access to justice is enshrined in the Indian Constitution:

 Article 39A: Directs the State to ensure that the legal system promotes justice on
the basis of equal opportunity and provides free legal aid.
 This article laid the foundation for the Legal Services Authorities Act, 1987, which
institutionalized the concept of Lok Adalat.

4. Emergence of Lok Adalat as a Legal Institution

A. Early Experiments in the 1980s

 The first organized Lok Adalat was held in Gujarat in 1982. The initiative quickly
gained popularity for its ability to settle cases amicably and swiftly.
  Following Gujarat’ s success, other states like Andhra Pradesh, Maharashtra, and
Rajasthan began holding similar forums.
 These early Lok Adalats were non-statutory, voluntary, and community-driven.

B. Judicial Encouragement

 The Supreme Court of India and various High Courts began encouraging Lok
Adalats as a way to reduce court backlogs.
 Judges, legal aid authorities, and bar associations participated actively in
organizing Lok Adalats.

5. Legal Services Authorities Act, 1987

The Legal Services Authorities Act, 1987, marked a turning point in the institutional
development of Lok Adalats. Enacted in response to Article 39A, the Act provides the
statutory framework for the functioning of Lok Adalats in India.

Key Provisions:

 Section 19: Authorizes Legal Services Authorities to organize Lok Adalats.

 Section 20: Allows reference of pending cases or pre-litigation matters to Lok
Adalat.
 Section 21: States that an award made by a Lok Adalat is deemed to be a decree
of a civil court, final and binding on all parties.
 Section 22B: Provides for Permanent Lok Adalats to deal with public utility
services like transport, postal, and electricity services.

This Act transformed Lok Adalats from voluntary initiatives into formal judicial
institutions under the control of National Legal Services Authority (NALSA) and State
Legal Services Authorities (SLSAs).

6. Institutional Development of Lok Adalat

A. National Legal Services Authority (NALSA)

 Established in 1995, NALSA is the apex body overseeing the organization of Lok
Adalats across India.
  It coordinates with State Legal Services Authorities to organize National Lok
Adalats, Mega Lok Adalats, and Thematic Lok Adalats.

B. State and District Legal Services Authorities

 Every state has its own State Legal Services Authority, and every district has a
District Legal Services Authority responsible for organizing Lok Adalats at local
levels.

C. Permanent Lok Adalats

 Introduced through a 2002 amendment to the Legal Services Authorities Act.

 These are permanent bodies for resolving disputes related to public utility
services.
 They have quasi-judicial powers to decide disputes on merits if conciliation fails.

D. Mobile Lok Adalats

 Designed to bring justice to remote and inaccessible areas, these are traveling
courts that hold sessions in villages and small towns.

7. Milestones in the Development of Lok Adalat

A. 2005: Introduction of National Lok Adalat

 National Lok Adalats began to be held across the country on a single day for mass
disposal of specific categories of cases such as traffic violations, bank recovery
cases, and matrimonial disputes.

B. 2013 Onwards: Thematic Lok Adalats

 Specific Lok Adalats are organized for issues like electricity bill disputes,
MGNREGA grievances, labor issues, etc., enhancing outreach and relevance.

C. 2020-21: E-Lok Adalats during COVID-19

 In response to the COVID-19 pandemic, many states started E-Lok Adalats using
video conferencing and digital platforms.
  These ensured the continuity of dispute resolution and showcased the adaptability
of the system.

8. Achievements of Lok Adalat

A. Mass Disposal of Cases

 Lakhs of cases, including civil, criminal compoundable, and pre-litigation matters,

have been successfully settled through Lok Adalats.

B. Time and Cost Efficiency

 The process is quick, informal, and free of cost for the litigants.
 Court fees are refunded if a case is settled in Lok Adalat.

C. People-Centric Justice

 Lok Adalats make justice more inclusive and accessible, particularly for
economically weaker sections.

D. Strengthening Social Harmony

 Disputes are resolved through compromise and consensus, fostering community

relationships.

9. Challenges and Limitations

Despite its success, the Lok Adalat system faces certain limitations:

 Dependency on Mutual Consent: If either party refuses to compromise, the case

cannot be resolved.
 Limited Jurisdiction: Serious criminal cases and non-compoundable offenses are
excluded.
 Enforcement Mechanism: Although awards are binding, enforcement still requires
follow-up.
 Awareness and Reach: In remote areas, people may lack awareness about their
rights and Lok Adalat benefits.
Lok Adalat: Meaning, Powers, and Functions

2. What is Lok Adalat?

Definition

Lok Adalat is a statutory forum established for the amicable settlement of disputes
through compromise and conciliation. It is not a court in the traditional sense but an
alternative forum where parties agree to settle their disputes without resorting to a
full-fledged trial.

The institution of Lok Adalats is governed by the Legal Services Authorities Act, 1987,
which empowers Legal Services Authorities at various levels (National, State, District, and
Taluk) to organize Lok Adalats for resolving disputes.

Legal Status

 Lok Adalats are statutory bodies with the status of a civil court for the limited
purpose of conducting settlements.
 They are quasi-judicial in nature and derive their legitimacy from both statute and
constitutional directive principles.
 Their awards (settlement agreements) are final and binding on the parties and
enforceable as a decree of a civil court.

3. Objectives of Lok Adalat

The core objectives of Lok Adalats are:

 To reduce the burden of litigation on courts

 To provide access to justice at the grassroots level
 To offer a speedy and cost-effective method of resolving disputes
 To promote amicable settlements and preserve relationships
 To empower the economically and socially weaker sections by providing legal aid
and resolution mechanisms
4. Types of Lok Adalats

Under the Legal Services Authorities Act, 1987, several types of Lok Adalats are
organized:

1. Permanent Lok Adalats (PLA)

 Constituted for public utility services like transport, postal services, and
telecommunication under Section 22B of the Act.
 Can settle disputes even if the parties do not agree, provided there is an
opportunity for conciliation.
 Can decide the matter on merits if no settlement is reached.

2. National Lok Adalat

 Organized across India on a single day to dispose of a large number of cases.

 Focused on particular categories like cheque bounce cases, motor accident
claims, or matrimonial disputes.

3. State, District, and Taluk Level Lok Adalats

 Conducted at regular intervals under the supervision of State Legal Services

Authorities (SLSAs) and District Legal Services Authorities (DLSAs).

4. Mobile Lok Adalats

 Travel to remote and rural areas to provide justice at the doorstep of people,
especially where access to courts is limited.

5. Jurisdiction and Cases Handled

Matters Admissible in Lok Adalat

Lok Adalats can take up the following types of cases:

 Civil cases, including matrimonial and family disputes

 Land acquisition and property disputes
 Bank recovery cases
  Motor accident claims
 Labour disputes
 Electricity and water bill disputes (non-criminal)
 Compoundable criminal cases (under Section 320 of the Criminal Procedure Code)

Conditions for Admissibility

 Both parties must consent to a settlement.

 Cases must be either pending in a court of law or at a pre-litigation stage.

Matters Not Admissible

 Non-compoundable criminal offences such as murder, rape, and dacoity

 Serious criminal cases where settlement is not legally permissible

6. Powers of Lok Adalat

Lok Adalats are vested with specific powers to facilitate the amicable resolution of
disputes:

1. Civil Court Powers

 Lok Adalats have the same powers as a civil court under the Code of Civil
Procedure (CPC).
 They can summon and examine witnesses, compel the production of documents,
and enforce attendance.

2. Finality and Binding Nature

 An award passed by a Lok Adalat is deemed to be a decree of a civil court and is

final and binding on all parties.
 No appeal lies against such an award. However, if a party is dissatisfied, they can
initiate fresh litigation in appropriate cases.

3. Dispute Resolution Without Court Fees

 No court fees are payable once a case is referred to a Lok Adalat.

 If court fees have already been paid, it is refunded upon settlement.
4. Powers of Conciliation

 Lok Adalats primarily use persuasion, negotiation, and conciliation techniques to

arrive at a settlement.

5. Power to Decide Merits (Only for Permanent Lok Adalat)

 If conciliation fails in public utility service disputes, Permanent Lok Adalats can
adjudicate the matter and pass a binding decision.

7. Functions of Lok Adalat

Lok Adalats perform a range of important functions to fulfill their objectives:

1. Promoting Compromise

 The primary function is to facilitate compromise between parties in a friendly and

cooperative manner.

2. Speedy Justice Delivery

 By avoiding the complex legal procedures of regular courts, Lok Adalats resolve
disputes in a single day or over a few sessions.

3. Reducing Judicial Backlog

 By resolving cases outside the regular court system, Lok Adalats unburden the
judiciary significantly.

4. Legal Awareness and Empowerment

 Lok Adalats help promote legal literacy and make citizens aware of their rights
and remedies.

5. Accessible and Affordable Justice

 Particularly beneficial for the economically weaker sections, Lok Adalats remove
financial and procedural barriers to justice.

6. Strengthening Community Harmony

  Since Lok Adalats encourage compromise and avoid adversarial proceedings, they
help maintain social and communal harmony.

8. Advantages of Lok Adalat

 Cost-effective: No legal fees or minimal costs involved.

 Speedy disposal: Cases are resolved quickly, sometimes in a single sitting.
 Simple and informal: No strict procedural or evidentiary rules.
 Binding and enforceable: The decision has the same legal status as a civil court
decree.
 Voluntary participation: Encourages cooperative dispute resolution.
 Restores relationships: Helps in amicable resolution, especially in family and
community disputes.

9. Limitations of Lok Adalat

While Lok Adalats offer many advantages, they are not without limitations:

 Only compoundable cases: Serious criminal offences are excluded.

 Requires mutual consent: If either party refuses to compromise, the case cannot
proceed.
 Limited powers: Lok Adalats cannot enforce decisions beyond what is agreed
upon.
 No appeal: Although awards are final, dissatisfied parties must seek fresh
litigation rather than an appeal.

10. Conclusion

Lok Adalats are a significant innovation in the Indian legal system, combining traditional
dispute resolution with modern legal principles. They provide a grassroots solution to the
problems of delay and inaccessibility in the formal justice system. By focusing on
conciliation, mutual respect, and community-oriented justice, Lok Adalats represent the
spirit of participatory democracy and justice for all.
The powers and functions of Lok Adalats have helped bridge the gap between the
judiciary and the common citizen, especially for those who lack the resources or
awareness to approach formal courts. As India continues to reform its judicial system,
strengthening and expanding the reach of Lok Adalats will remain essential to ensure
inclusive, fair, and timely justice for all sections of society.

8. Explain the significance of legal aid service authority act 1987?

Significance of the Legal Services Authorities Act, 1987

1. Introduction

Access to justice is a cornerstone of any democratic society. The framers of the Indian
Constitution recognized the importance of justice not merely as a legal ideal but as a
socio-economic right of the people. However, the real challenge lies in ensuring access to
justice for the poor, marginalized, and disadvantaged sections of society. Legal
processes in India have traditionally been long-drawn, expensive, and often inaccessible
to those without financial or educational resources. In response to this challenge, the
Legal Services Authorities Act, 1987 was enacted to provide free legal aid and establish
mechanisms like Lok Adalats and legal services authorities to facilitate easy and
equitable access to justice.

This legislation is not just a procedural reform; it is a social justice initiative aimed at
fulfilling the constitutional mandate under Article 39A, which directs the State to ensure
that justice is not denied to any citizen because of economic or other disabilities. This
paper provides an in-depth examination of the significance of the Legal Services
Authorities Act, 1987, in reshaping the justice delivery system in India.

2. Constitutional and Legal Foundation

A. Article 39A of the Constitution

Article 39A, added by the 42nd Amendment Act, 1976, is the foundation of the Act. It
mandates:

 Promotion of justice on the basis of equal opportunity

 Provision of free legal aid by the State to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities
This constitutional directive is not just aspirational; it has been concretized through the
Legal Services Authorities Act, 1987.

B. Role of Judiciary

The Indian judiciary has also played an important role in promoting legal aid. In several
landmark judgments, such as:

 Hussainara Khatoon v. State of Bihar (1979): The Supreme Court held that the
right to free legal aid is part of the fundamental right to life and liberty under Article
21.
 Khatri v. State of Bihar (1981): Reaffirmed that free legal aid must be provided at
all stages of the legal process.

These rulings compelled the government to take concrete legislative action, resulting in
the Legal Services Authorities Act.

3. Objectives of the Act

The primary objectives of the Legal Services Authorities Act, 1987 are:

 To provide free and competent legal services to weaker sections of society.

 To ensure that no citizen is denied access to justice due to financial or other
disabilities.
 To promote equal opportunity before the law.
 To establish legal services authorities at various levels of governance (national,
state, district, and taluka).
 To organize Lok Adalats for amicable settlement of disputes.
 To spread legal awareness and education, especially among underprivileged
communities.

4. Structure and Framework of the Act

The Legal Services Authorities Act establishes a comprehensive framework of legal

service institutions across different levels:

A. National Legal Services Authority (NALSA)

  Apex body established under Section 3 of the Act.
 Responsible for formulating policies, frameworks, and guidelines for legal aid and
Lok Adalats throughout India.
 Headed by the Chief Justice of India or a sitting/retired judge nominated by him.

B. State Legal Services Authorities (SLSA)

 Set up under Section 6 in each state.

 Headed by the Chief Justice of the High Court or a judge nominated by him.
 Implements the policies of NALSA and organizes Lok Adalats and legal aid camps
at the state level.

C. District and Taluk Legal Services Authorities

 Operate at the district and taluka (sub-district) levels.

 Make legal services accessible at the grassroots.
 Organize mobile Lok Adalats, legal literacy camps, and provide assistance in civil
and criminal matters.

D. High Court and Supreme Court Legal Services Committees

 Established under Sections 8A and 3A, these committees provide free legal aid for
cases in the High Courts and Supreme Court respectively.

5. Key Provisions and Their Significance

A. Free Legal Aid (Section 12)

The Act specifies who is entitled to free legal aid, including:

 Women and children

 Members of Scheduled Castes and Scheduled Tribes
 Victims of human trafficking
 Industrial workmen
 Persons with disabilities
 Victims of disasters or violence
 Persons in custody
Significance: This provision ensures that marginalized communities are not denied
justice due to lack of resources.

B. Lok Adalats (Section 19– 22)

 Lok Adalats are forums for amicable settlement of disputes through conciliation.
 Their awards are binding, final, and enforceable as a decree of a civil court.
 No appeal is permitted against the award.

Significance: This has helped in reducing the burden on regular courts, speeding up
justice delivery, and restoring community harmony.

C. Permanent Lok Adalats (Section 22B)

 Deal specifically with public utility services such as transport, postal services, and
electricity.
 Have the power to adjudicate if no settlement is reached.

Significance: This extends the scope of legal redress in sectors that directly affect
citizens’ daily lives.

D. Legal Literacy and Awareness (Section 4(c))

 The Act mandates awareness programs, including legal literacy camps, street
plays, and school programs.

Significance: Legal empowerment is a prerequisite for justice. Awareness helps people

assert their rights and seek remedies effectively.

6. Achievements and Impact

A. Empowering the Marginalized

 Millions of people have received legal advice, representation, and support under
the Act.
 Women, tribal populations, and the poor now have institutional support for their
legal issues.

B. Massive Disposal of Cases

  Lok Adalats have helped settle millions of cases, significantly reducing case
backlogs.
 Example: National Lok Adalats held across India dispose of thousands of cases in
a single day.

C. Promoting Access and Inclusion

 The use of mobile vans, paralegal volunteers, and e-Lok Adalats has helped reach
remote and underserved areas.

D. Digital and Technological Integration

 Post-2020, many states have adopted e-Lok Adalats, online registration, and video
conferencing for legal aid services.

7. Challenges and Limitations

Despite its success, the Legal Services Authorities Act faces several practical challenges:

A. Awareness Deficit

 Many eligible citizens, especially in rural and tribal areas, are unaware of their
rights and the services available.

B. Resource Constraints

 Lack of adequate funding, infrastructure, and trained personnel in some regions

limits effectiveness.

C. Quality of Legal Aid

 The quality of legal assistance provided is often questioned, with complaints about
inexperienced lawyers or lack of proper representation.

D. Underutilization

 Many states and districts have low utilization rates, either due to poor
implementation or lack of coordination among agencies.
8. Conclusion

The Legal Services Authorities Act, 1987, is a landmark piece of legislation that reflects
India's commitment to social justice, equality, and inclusion. It provides a legal and
institutional framework for realizing the constitutional vision of justice for all, particularly
the economically and socially disadvantaged. By promoting free legal aid, establishing
Lok Adalats, and spreading legal literacy, the Act plays a vital role in making justice more
accessible, equitable, and efficient.

As India’ s legal landscape continues to evolve, strengthening this framework— through

increased funding, public awareness, and technological integration— will be crucial. The
Act is not just about legal services; it is about empowering citizens, democratizing
justice, and building a fairer society.

Short Answers

1. New York Convention

The New York Convention and Its Role in Alternative Dispute Resolution (ADR)

Introduction

Alternative Dispute Resolution (ADR) encompasses mechanisms used to resolve disputes

outside the traditional court system, including arbitration, mediation, and negotiation.
Among these, international arbitration has emerged as a key tool for resolving
cross-border commercial disputes. The New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (1958) plays a central role in ensuring the
effectiveness of arbitration by providing a standardized legal framework for the
recognition and enforcement of arbitral awards across borders. Signed in New York under
the auspices of the United Nations, the Convention has become a cornerstone of
international commercial arbitration and global trade.

Historical Background and Objectives

The New York Convention was adopted on June 10, 1958, and entered into force on June
7, 1959. It was designed to overcome the limitations of the Geneva Protocol (1923) and
the Geneva Convention (1927), which had proven to be insufficiently effective in ensuring
enforcement of arbitral awards.

The primary objectives of the New York Convention are:

1. To promote the enforcement of foreign arbitral awards by national courts.

2. To limit the grounds on which such enforcement may be refused.
3. To ensure that arbitration agreements are respected by courts in contracting
states.

The Convention provides a reliable mechanism for cross-border enforcement, thus

offering predictability and stability, which are crucial for businesses operating in the
global marketplace.

Key Provisions of the New York Convention

The New York Convention has been ratified by over 170 countries, making it one of the
most successful international treaties in the area of commercial law. The key provisions
include:

Article I – Scope of Application

This article establishes the Convention's applicability to:

 The recognition and enforcement of arbitral awards made in a country other than
the one where enforcement is sought.
 Arbitral awards that are not considered “domestic” in the state where
recognition is requested.

Contracting states may make two reservations:

 Reciprocity Reservation: The Convention will apply only to awards made in other
contracting states.
 Commercial Reservation: The Convention will apply only to disputes considered
commercial under national law.

Article II – Arbitration Agreements

Courts of contracting states are required to recognize written arbitration agreements.
When a party brings an action in a matter subject to such an agreement, the court must
refer the parties to arbitration unless the agreement is null and void, inoperative, or
incapable of being performed.

Article III – Recognition and Enforcement of Awards

Each contracting state shall recognize foreign arbitral awards as binding and enforce
them in accordance with their procedural rules.

Article V – Grounds for Refusal of Enforcement

The Convention strictly limits the grounds on which enforcement of an arbitral award may
be refused. These include:

 Invalidity of the arbitration agreement.

 Lack of proper notice or inability to present one’ s case.
 Matters beyond the scope of the arbitration.
 Improper composition of the arbitral tribunal.
 Award not yet binding or set aside by a competent authority.
 Public policy concerns in the enforcing country.

These grounds aim to balance respect for national sovereignty with the need for finality
and uniformity in international arbitration.

Importance in the Context of ADR

The New York Convention is foundational to international arbitration, the most widely
used ADR mechanism in cross-border commercial disputes. Here’ s why it matters:

1. Enforceability

Without the Convention, international arbitration would lack teeth. Arbitral awards would
be enforceable only in the country where they were issued, making them impractical in
many cross-border cases. The Convention ensures that awards can be enforced in any of
the contracting states with minimal procedural hurdles.

2. Neutrality
Parties from different countries often prefer arbitration because it allows disputes to be
resolved in a neutral venue, free from the influence of either party’ s national courts. The
New York Convention reinforces this neutrality by requiring courts to respect arbitration
agreements and enforce foreign awards.

3. Efficiency and Predictability

Arbitration is typically faster and more confidential than litigation. The New York
Convention adds predictability to the process by providing a unified enforcement regime.
Businesses can confidently enter into cross-border transactions, knowing that an arbitral
award will likely be enforced internationally.

4. Limitation on Court Interference

By limiting the grounds on which enforcement can be denied, the Convention discourages
national courts from interfering with arbitration proceedings or awards, thus preserving
the autonomy of the arbitration process.

Challenges and Criticisms

Despite its success, the New York Convention is not without challenges:

Varying National Interpretations

Although the Convention sets out a uniform framework, the interpretation of its provisions
can vary significantly across jurisdictions. For example, the term "public policy" is
interpreted more narrowly in some jurisdictions than others, leading to inconsistent
enforcement outcomes.

Non-Enforcement in Practice

In some countries, judicial corruption, inefficiency, or lack of familiarity with international

arbitration can still hinder the enforcement of awards.

Lack of Explicit Regulation for Interim Measures

The Convention does not address interim measures of protection (e.g., asset freezes),
which are often needed to preserve the status quo during arbitration. This has led to gaps
in enforcement between jurisdictions.
Recent Developments and the Way Forward

To address some of the gaps in the New York Convention, other instruments and
developments have emerged:

 The UNCITRAL Model Law on International Commercial Arbitration (1985, revised

2006) helps harmonize arbitration procedures.
 The Singapore Convention on Mediation (2019) aims to provide a similar
enforcement mechanism for international mediated settlements.
 National courts have increasingly adopted a pro-arbitration stance, and
international institutions like the ICC, LCIA, and SIAC continue to expand.

2. Online dispute resolution

Online Dispute Resolution (ODR)

Introduction

In an increasingly digital world, conflicts and disputes that arise through online
transactions or interactions require efficient and effective resolution mechanisms. Online
Dispute Resolution (ODR) is a modern approach to resolving disputes outside traditional
courtrooms using technology, especially the internet. Rooted in the principles of
Alternative Dispute Resolution (ADR), such as arbitration, mediation, and negotiation, ODR
leverages digital tools to offer swift, cost-effective, and accessible justice.

Definition and Evolution of ODR

Online Dispute Resolution (ODR) refers to the use of information and communication
technologies (ICT) for resolving disputes between parties. It can handle a variety of
conflict types— commercial, consumer, family, employment, and cross-border— without
the need for face-to-face interactions.

The roots of ODR date back to the mid-1990s, paralleling the growth of e-commerce. As
online transactions increased, so did disputes. Traditional legal systems were often
ill-equipped to handle these efficiently, especially across borders. Thus, platforms like
eBay and PayPal began using ODR systems, resolving millions of disputes annually
through automated or semi-automated processes.
Types of ODR Methods

ODR can take several forms, often mirroring traditional ADR but adapted for the digital
environment:

1. Online Negotiation: A process where parties communicate directly via email,

messaging systems, or specialized platforms to resolve their dispute. This may be
automated or assisted by software.
2. Online Mediation: Involves a neutral third party (mediator) who facilitates
communication between disputing parties through video conferencing, chat, or
other digital tools. The mediator helps parties reach a voluntary agreement.
3. Online Arbitration: A more formal process where a neutral arbitrator reviews
evidence and arguments submitted online and makes a binding decision. It
mimics court procedures but in a digital format.
4. Hybrid Systems: Many ODR platforms combine elements of negotiation,
mediation, and arbitration. For example, a dispute may start with negotiation,
escalate to mediation if unresolved, and end in arbitration.

Benefits of Online Dispute Resolution

1. Accessibility: ODR platforms allow users to access justice anytime and from
anywhere, removing geographic and physical barriers, especially helpful in rural or
underserved areas.
2. Cost-Effectiveness: Traditional legal proceedings are often costly due to legal
fees, travel, and administrative expenses. ODR typically reduces these significantly,
making dispute resolution affordable.
3. Time Efficiency: ODR processes are usually quicker. Automated or
semi-automated systems resolve minor disputes in days rather than weeks or
months.
4. Flexibility and Convenience: Parties can participate at their convenience, often
outside traditional business hours. Asynchronous communication (e.g., email)
adds further flexibility.
5. Privacy and Confidentiality: ODR ensures that disputes are handled in a private
setting, with better control over sensitive information than public court
proceedings.
 6. Scalability: ODR systems can handle a large volume of cases simultaneously,
making them ideal for companies and organizations dealing with high dispute
traffic.

Challenges and Limitations of ODR

Despite its advantages, ODR also faces several challenges:

1. Lack of Awareness and Trust: Many individuals and small businesses are unaware
of ODR options or skeptical about their fairness and enforceability.
2. Digital Divide: Not everyone has access to reliable internet or is digitally literate.
This can exclude certain populations, raising concerns about equitable access to
justice.
3. Legal and Regulatory Uncertainty: Enforcement of online decisions, especially
across borders, is often unclear. ODR lacks standardized global rules, which may
hinder its effectiveness.
4. Impersonal Nature: The absence of face-to-face interaction may hinder the
emotional or psychological resolution of disputes. In sensitive cases (e.g., family
law), this can be a significant drawback.
5. Data Security and Privacy Concerns: As disputes involve confidential information,
ensuring data protection and privacy on ODR platforms is critical. Cybersecurity
breaches can undermine trust.
6. Lack of Human Oversight in Automated Systems: Some ODR systems rely heavily
on algorithms, which can lead to biased or unfair outcomes without human
intervention.

ODR in Practice: Global Examples

Several jurisdictions and organizations around the world have adopted ODR:

 European Union: The EU has an ODR platform that facilitates resolution between
consumers and traders in cross-border online purchases. It is free, multilingual,
and linked to national ADR bodies.
 India: India has begun integrating ODR into its legal framework, especially for
consumer disputes, fintech conflicts, and family matters. The NITI Aayog has
promoted private ODR platforms like SAMA and CADRE.
  United States: Private platforms such as Modria, FairClaims, and Matterhorn
provide ODR services in areas like small claims, traffic violations, and
landlord-tenant disputes.
 China: China's judicial system includes online courts and virtual hearings, with
integrated ODR mechanisms. The Hangzhou Internet Court, for example, handles
cases entirely online, from filing to judgment.

Conclusion

Online Dispute Resolution represents a transformative shift in the way societies handle
conflicts in the digital age. It offers a practical alternative to traditional courts, particularly
for low-value, high-volume disputes. While it is not without limitations— particularly
around inclusivity, trust, and legal enforcement— its advantages in terms of efficiency,
cost, and accessibility are undeniable. For ODR to reach its full potential, legal
frameworks must adapt, public awareness must grow, and technological infrastructure
must be strengthened. As technology continues to evolve, ODR will likely become a
central pillar of modern justice systems around the world.

3. Principle of good office

Principle of Good Office

The principle of "Good Office" refers to the practice of maintaining an environment of

fairness, respect, and integrity in professional or work settings. It often involves
individuals or organizations acting in a way that promotes positive relationships,
productive communication, and ethical behaviorin the workplace. This principle is
commonly emphasized in the context of business ethics, human resources, and even
diplomacy. Good office practices not only benefit the workplace environment but also
contribute to the well-being of employees, enhance collaboration, and support the overall
goals of the organization. Below is a detailed exploration of the principle of good office in
various contexts.

1. Key Aspects of Good Office Practice

One of the primary aspects of good office practice is ensuring that all individuals are
treated fairly and equitably. This includes providing equal opportunities for career
advancement, addressing workplace conflicts impartially, and promoting diversity and
inclusion. A workplace where fairness prevails is one where employees feel respected
and valued, leading to increased morale and productivity.

This principle can be translated into practical measures such as fair hiring practices,
transparent decision-making processes, and the avoidance of favoritism. When leaders
and managers make decisions based on objective criteria, it fosters a culture of trust and
loyalty among the employees.

Good office practice also involves acknowledging and respecting the differences
between individuals. In a diverse work environment, employees come from various
backgrounds, cultures, and experiences, which can be a source of strength if managed
well. Respecting these differences means understanding and appreciating different
perspectives, fostering open communication, and accommodating the needs of
individuals.

This might include practices such as providing a platform for employees to express their
thoughts freely, supporting work-life balance, and creating policies that protect the rights
of all workers.

Communication is central to the principle of good office. For a workplace to function

smoothly, clear and effective communication is essential. This includes both formal
communication (e.g., emails, meetings, reports) and informal communication (e.g., casual
conversations, feedback, mentoring).

Good office practice encourages open lines of communication where employees feel
comfortable expressing ideas, raising concerns, and asking for feedback. This openness
leads to a more collaborative work environment, where everyone is well-informed and
engaged.

Ethics play a crucial role in good office practices. Employees and managers are expected
to act with integrity, honesty, and accountability in all business dealings. Ethical behavior
includes being truthful, maintaining confidentiality, avoiding conflicts of interest, and
adhering to company policies and legal standards.

By creating an ethical workplace, organizations can build a reputation for reliability and
trustworthiness. Employees are also more likely to feel secure in their roles and be
motivated to perform their best work when they know that their efforts are recognized and
valued in an environment based on strong ethical foundations.

2. Application of Good Office Practices in Various Organizational Settings

Good office practices are especially important for human resource management and
leadership roles. HR professionals and managers are responsible for shaping the culture
and environment of the office. They are often the ones to establish codes of conduct,
mediate conflicts, and ensure that workplace rules are followed. By applying the
principles of fairness, respect, and clear communication, they can build a work
environment that encourages employee satisfaction and high performance.

For example, when leaders communicate expectations clearly, it helps employees

understand what is required of them, which in turn reduces confusion and promotes
accountability. Additionally, leaders who practice empathy and make efforts to support
their team's development help to cultivate a sense of loyalty and engagement.

In any workplace, disagreements and conflicts are inevitable. However, good office
practice provides strategies for resolving such conflicts constructively. This includes
active listening, mediation, and the willingness to compromise. By focusing on the issue
rather than personal attacks, parties involved can work towards a mutually beneficial
resolution.

The principle of good office encourages creating a culture where conflicts are seen as
opportunities for improvement and growth rather than as obstacles. Conflict resolution is
often facilitated by HR personnel or managers who are trained to handle sensitive
situations in a balanced and professional manner.
Good office practices are not limited to personal interactions but extend to the physical
and organizational environment. The physical workspace should be safe, comfortable,
and conducive to productivity. Organizations should consider factors like ergonomics,
lighting, and noise levels to enhance employee well-being.

Furthermore, organizational structures should be designed in a way that encourages

collaboration and reduces barriers to communication. Teamwork can be fostered by
organizing regular meetings, encouraging cross-departmental collaboration, and
implementing technology that facilitates seamless communication.

Part of good office practice is the ongoing professional development of employees. This
includes providing training, mentorship, and opportunities for growth. Encouraging
employees to develop their skills and expand their knowledge not only benefits the
individual but also contributes to the overall success of the organization.

A culture that promotes continuous learning can help employees stay motivated and
engaged in their work, as they see opportunities for advancement and personal growth. It
can also lead to innovation and improvement within the organization, as employees apply
new knowledge and skills to their work.

3. Benefits of Good Office Practices

When employees feel respected, valued, and treated fairly, their job satisfaction
increases. This can lead to higher retention rates, as employees are more likely to stay
with an organization that promotes a positive work culture. Additionally, when employees
feel that their voices are heard and their contributions are recognized, they are more likely
to be engaged and motivated.

A workplace that adheres to the principle of good office fosters an environment where
employees can focus on their work without being bogged down by stress or interpersonal
conflicts. Effective communication and mutual respect lead to better collaboration,
streamlined processes, and fewer misunderstandings, all of which contribute to improved
productivity.
Companies known for their good office practices tend to have a better reputation in the
industry. Organizations that prioritize fairness, respect, and ethical behavior attract top
talent and develop positive relationships with clients, customers, and stakeholders. This
reputation can lead to greater business opportunities and long-term success.

Conclusion

The principle of good office is essential for creating a positive and productive work
environment. By focusing on fairness, respect, communication, and ethics, organizations
can foster a culture that benefits both employees and the company as a whole.
Implementing these principles leads to increased job satisfaction, better conflict
resolution, improved teamwork, and greater overall productivity. Furthermore, it helps
businesses build a reputation as ethical and trustworthy, contributing to long-term
success. Organizations that prioritize good office practices will likely experience
improved employee morale and a competitive advantage in the market.

4. Powers and function of NALSA and SLSA.

Powers and Functions of NALSA and SLSA

Introduction

The National Legal Services Authority (NALSA) and the State Legal Services Authorities
(SLSA) are significant components in India’ s legal framework designed to ensure
access to justice for the marginalized sections of society. These bodies were established
to promote legal awareness, provide legal aid, and foster the development of a legal
system that is inclusive and just for all, particularly those unable to afford the cost of legal
services.

While NALSA functions at the national level, the State Legal Services Authorities (SLSAs)
operate at the state level, working in collaboration with NALSA to implement legal aid and
awareness programs at the grassroots level. Both NALSA and SLSA have specific powers
and functions, which contribute to the larger goal of enhancing the accessibility and
effectiveness of the justice system for everyone in India.

National Legal Services Authority (NALSA)

NALSA was constituted under the Legal Services Authorities Act, 1987. It is primarily
responsible for formulating policies and providing guidelines for the operation of the legal
services system in India. The Chief Justice of India serves as the patron-in-chief of
NALSA, and the Chairman is a sitting judge of the Supreme Court of India. The body is
composed of various members who assist in implementing its functions across the
country.

The powers of NALSA are derived from the Legal Services Authorities Act, 1987. NALSA
has the authority to:

 Formulate Schemes and Guidelines: NALSA is empowered to develop and

establish national schemes for the provision of legal aid and for the improvement
of legal awareness and services. This includes setting guidelines for the provision
of free legal services to the eligible persons.
 Coordination and Supervision: NALSA plays a significant role in coordinating and
supervising the activities of the SLSAs and other legal services institutions across
the country. It ensures uniformity in the implementation of the legal aid system
while addressing specific local needs.
 Create and Organize Legal Aid Programs: It organizes and funds various legal aid
programs and initiatives, such as legal literacy camps, workshops, and educational
programs to raise awareness about legal rights and access to justice.
 Promote Alternative Dispute Resolution (ADR): NALSA promotes ADR
mechanisms like Lok Adalats (people's courts) and mediation as a means to
resolve disputes efficiently, often outside the formal court system.
 Aid the Judiciary: It assists the judiciary in ensuring that justice is provided
efficiently and equally. It helps the judiciary to focus on the quality of justice
delivered, as it reduces the burden of cases on courts through mediation and Lok
Adalats.
 Legal Aid for Vulnerable Groups: NALSA specifically focuses on providing legal
aid to marginalized and disadvantaged communities such as women, children,
scheduled castes and tribes, victims of human trafficking, and the
differently-abled.

NALSA has several key functions that contribute to ensuring equal access to justice:
  Provision of Legal Aid: NALSA ensures that legal aid is provided to individuals
who are economically disadvantaged and unable to afford the services of a lawyer.
This includes free representation in court, drafting of documents, and legal
counseling.
 Public Legal Education and Awareness: NALSA promotes legal awareness
campaigns to educate the public, especially the underprivileged, about their legal
rights and the processes involved in accessing justice. This is done through
publications, media, seminars, and workshops.
 Support to the Disadvantaged: NALSA plays a crucial role in supporting
disadvantaged groups through tailored legal aid services. It also ensures that legal
barriers to accessing justice are removed for these groups.
 Funding Legal Services: It allocates funds to legal services institutions to ensure
the smooth running of legal aid activities across India.
 Strengthening Legal Infrastructure: NALSA works on the development of a robust
legal aid system by strengthening legal infrastructure, including the appointment
of legal aid advocates, creation of legal aid clinics, and providing necessary tools
and training for legal professionals.

State Legal Services Authorities (SLSA)

SLSAs are set up by NALSA under the provisions of the Legal Services Authorities Act,
1987, to operate at the state level. Each state has its own SLSA, which works in close
coordination with NALSA to execute legal services and awareness programs. The Chief
Justice of the High Court of the respective state serves as the patron-in-chief, and the
Chairman of SLSA is a sitting judge of the High Court.

 Local Implementation of Legal Aid Programs: SLSAs have the power to implement
the national guidelines and schemes provided by NALSA at the state level. They
adapt these programs to fit the local context and ensure that they are effectively
rolled out.
 Supervision of District Legal Services Authorities (DLSAs): SLSAs supervise the
functioning of District Legal Services Authorities (DLSAs) within their respective
states, ensuring that legal aid reaches the grassroots level.
  Mobilizing Resources and Funding: SLSAs are responsible for allocating funds to
district authorities for the smooth functioning of legal aid programs. They manage
the financial resources allocated by NALSA and other agencies.
 Conducting Lok Adalats: SLSAs organize and conduct Lok Adalats, aimed at
resolving disputes through an amicable settlement rather than formal litigation.
These help reduce the burden on courts and offer a low-cost, efficient means of
dispute resolution.

 Legal Aid and Assistance: Like NALSA, SLSAs provide free legal services to
eligible individuals, such as representing them in court, offering legal advice, and
helping with documentation.
 Legal Awareness Programs: SLSAs run legal awareness campaigns at the state
level. They aim to educate the public, particularly in rural and backward areas,
about their legal rights and the judicial process.
 Assistance to Vulnerable Groups: SLSAs take special care to offer legal
assistance to vulnerable groups like women, children, and those from
economically backward backgrounds. They help in ensuring that these groups
have equal access to legal resources and representation.
 Promotion of ADR: SLSAs promote the use of Lok Adalats and other ADR
mechanisms to ensure quicker and cheaper resolution of disputes. They also
encourage mediation and conciliation to settle matters outside the formal courts.

Conclusion

NALSA and the SLSAs play complementary roles in ensuring that justice is accessible to
all, regardless of economic status. NALSA, with its national reach and policy-making
authority, provides the strategic direction and resources for the legal aid movement, while
the SLSAs ensure that these programs are implemented effectively at the state and
district levels. Together, they work to remove barriers to justice, provide legal aid to the
disadvantaged, and foster a legal culture of equality and inclusiveness in India’ s judicial
system. Through these efforts, NALSA and SLSAs help realize the constitutional promise
of justice for all.