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Judiciary Role in Promoting Alternative Dispute Resolution
Judiciary Role in Promoting Alternative Dispute Resolution
The initial step within the advent of ADR mechanisms in India was way back in 1940 when the law passed the first Arbitration Act however because of its inadequacy and loopholes, it absolutely was never absolutely enforced. a few years later in 1996, The Arbitration and Conciliation Act[1] was passed that had its basis on the UNCITRAL model[2], Section 30(3) of which inspires arbitrators, with the agreement of the parties, to use mediation, conciliation, or different procedures at any time throughout the arbitration proceedings to encourage settlement. The Legal Services Authorities Act, 1987[3] created the institution of the Lok Adalat System for settlement of disputes cheaply. Further, Section eighty-nine of the Civil Procedure Code, 1908which has its basis on the recommendations created by the Law Commission of India and Malimath Committee[4] created it obligatory for the Court to refer the dispute when problems are framed for settlement with the concurrence of the parties by any ADR mechanism.
The judiciary has played an important role in promoting and creating India as an arbitration-friendly state, and time is not far when India can cause a significant challenge in hosting arbitrations qua foreign jurisdictions. The Supreme Court of India and numerous High Courts have adopted a hands-off approach to disputes resolved by suggests that of arbitration when such choices are challenged by a party. The courts in India have systematically adopted an arbitration-friendly approach in the recent past. There are several instances when the courts have upheld the arbitration agreements even after they have suffered from some minor errors, thereby respecting the parties' option to settle disputes. The Supreme Court whereas taking a pro-arbitration approach has upheld an arbitration agreement despite the error it suffered and ended that since the intention of the parties to negotiate was clear, the Court will create the arbitration agreement viable notwithstanding it's some errors in it
Even though the courts have tried to get rid of hurdles throughout and after the arbitration process by usually refraining from interfering with the selections of the mediation tribunals or passing different arbitration-friendly judgments, however, this by itself might not be adequate to attract overseas entities to elect arbitration method in India. The same could go a long means in providing the required comfort to parties. In addition to that, the arbitration process shall no longer be allowed to be unnecessarily prolonged in India. Suggested steps:
- Efforts ought to be created to move from ad-hoc arbitration to institutionalized arbitration.
- Since the govt is that the biggest litigator, necessary directives is also issued to all or any ministries, bodies and public sector undertakings etc. to just accept and abide by the arbitration award, aside from cogent reasons to be signed off by an official, not below the rank of Joint Secretary.
- Heavy prices ought to be obligatory by courts on frivolous petitions filed to challenge mediation awards.
- Arbitrators ought to be appointed relying upon the character of the disputes.
- The number of judges and courts dealing solely with arbitration cases ought to be inflated in each jurisdiction.
[1] https://legislative.gov.in/sites/default/files/A1996-26.pdf
[2] https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration
[3] http://cgslsa.gov.in/Acts/act.pdf
[4] https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf
(This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, or Religion, Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre Foundation shall not be responsible for any errors caused due to human error or otherwise.)
- The initial step within the advent of ADR mechanisms in India was way back in 1940 when the law passed the first Arbitration Act
- The judiciary has played an important role in promoting and creating India as an arbitration-friendly state
- The courts in India have systematically adopted an arbitration-friendly approach in the recent past
