The term
'ADR', is technically an abbreviation for
'alternative dispute resolution'
Alternate
Dispute Resolution or "ADR", means
the wide variety of methods by which conflicts
and disputes between the parties to the
disputes are resolved through mediation
and negotiation and conciliation.
The need
for ADR was felt due to pendency of the
cases before the judiciary system of the
Country. It is in this context that a Resolution
was adopted by the Chief Ministers and the
Chief Justices of States in a conference
held in New Delhi on 4th December 1993 under
the chairmanship of the the Prime Minister
and presided over by the Chief Justice of
India.
The concept
of ADR is not new to India. In the earlier
times the parties used to settle the disputes
through the panchayats. In 1899 the Indian
Arbitration Act was passed which was repealed
by the The Arbitration Act, 1940 and ultimately
by The Arbitration and Conciliation Act,
1996.
The Code
of Civil Procedure (Amendment) Act,1999
inserted a new Section 89 in the Code of
Civil Procedure, 1908 providing for the
settlement of disputes outside the Court
through
- Arbitration
- Conciliation
- Settlement through Lok
Adalat
- Mediation
In India
the Alternate Dispute Resolution is covered
under The Arbitration and Conciliation Act,1996,
which provides that If parties to the agreement
choose the arbitration as a mode of settlement
of disputes, then the reference of the disputes
to the civil court is barred. The Act removes
judicial interference during the pendency
of the arbitration and award can be challenged
only if it is in conflict with public policy
of India.
Alternate
Dispute Resolution Methods:
The following
are the most commonly used alternate dispute
resolution mechanisms:
- Mediation
- Arbitration
- Mini- Trial
- Conciliation
- Ombudsman Strategy
International
Arbitration
Under UNICITRAL
Model Law International Arbitration can
be resorted to following commercial transactions:-
any trade transaction for the supply or
exchange of goods or services, distribution
agreement, commercial representation or
agency, factoring, leasing, construction
of works, consulting, engineering, licensing,
investment, financing, banking, insurance,
exploitation agreement or concession, joint
venture and other forms of industrial or
business co-operation, carriage of goods
or passengers by air, sea, rail or road
An arbitration
is international when
-
the
parties to an arbitration agreement
have, at the time of the conclusion
of that agreement, their places of business
in different States; or
-
one
of the following places is situated
outside the State in which the parties
have their places of business:
- the place of arbitration
if determined in, or pursuant to,
the arbitration agreement;
- any place where
a substantial part of the obligations
of the commercial relationship is
to be performed or the place with
which the subject-matter of the dispute
is most closely connected; or
-
the
parties have expressly agreed that the
subject-matter of the arbitration agreement
relates to more than one country.
There are
several international/ national arbitral
authorities the services of which can be
availed like:
- The Chartered Institute
of Arbitrators (U.K.)
- The American Arbitration
Association (USA)
- The International Court
of Arbitration
- London Court of International
Arbitration
- International Center
for Settlement of Investment Disputes
Applicability
of Arbitration and Conciliation Act to International
Commercial Arbitration:
If the
arbitration is held in India, the provisions
of Part-1 of the Arbitration and Conciliation
Act, 1996 compulsorily apply and the parties
to the dispute are free to the extent permitted
by the derogable provisions of Part-1. If
the Arbitration is held outside India the
provisions of Part-1 will unless the parties
by agreement express or implied , exclude
all or any provisions.
The act
also applies to International Commercial
arbitration which takes place non conventional
country i.e. a country which is not a signatory
to either the New York convention or the
Geneva convention. |
