Alternative Dispute Resolution In India- Understanding Basics

Arbitration in India is an age old concept, originating in ancient India and is still practiced as a a grass root system called Panchayat(s). It is still prevalent today in villages where the seniors of the village or community act as mediators and resolve disputes of villagers and/ or community. Therefore, it cannot be said that Arbitration as a concept or Alternate Dispute Resolution is a foreign import on the Indian legal system

Arbitration is a part of Alternative Dispute Resolution or ADR with other popular ADR processes like Conciliation and Mediation. Alternative Dispute Resolution in India is governed by the Indian Arbitration and Conciliation Act 1996. The said Act of 1996 as applicable in India today was created on the lines of the Model Law of the UNCITAL (United Nations Commission on International Trade Law). The popularity of choosing arbitration over mediation and/ or conciliation has created the term Arbitration Dispute Resolution. Infact, this has been the preferred way of Alternative Dispute Resolution of Attorneys, Mediation Experts, Mediators and Arbitration Associations.

Alternative Dispute Resolution as such was incorporated in laws of India as way back in 1840. Over a period of time, processes, procedures and powers pertaining to Alternative Dispute Resolution and the right of parties to the same were incorporated in The Civil Procedure Code, Indian Contract Act, Specific Relief Act and by further incorporation of Indian Arbitration Act 1899, subsequently repealed by the Indian Arbitration Act of 1940 and then finally by the Arbitration and Concilliation Act, 1996 which came in force with effect from 25th January 1996.

The Act of 1996, seeks to consolidate and amend the laws pertaining to arbitration as were in force pre 25 January 1996 and seeks to fortify the domestic and international commercial arbitration including enforcement of the foreign arbitration awards on the lines of Model Law on International and Commercial Arbitration adopted by UN commission on International Trade Law, 1985

The basic problem with alternative dispute resolution and it's practical implementation is the pre-appointment of in house arbitrators in a standalone format by the parties especially companies, corporate houses as well as government and government corporations. Another problem with process of alternate dispute resolution is when the party to the agreement in power may force the other party or parties to sign an arbitration agreement or arbitration clause created to cause pecuniary or territorial discomfort to ensure a quicker or unfair settlement. This becomes a pressurising drill on the individual parties, contractors and companies and in many cases, lawyers and attorneys who are left with no choice but to agree to the one sided and predrawn arbitration which usually has been created to their pecuniary or territorial disadvantage.

This misuse of the process of alternate dispute resolution is even prevalent in international commercial arbitration where the arbitration agreement or the arbitration clause may stipulate sole and mixed arbitral commissions. These depends primarily on whether the disputes are to be referred to a single arbitrator or the parties may appoint an arbitrator each with an umpire presiding over the commission.

The umpire who is appointed in cases of mixed arbitration, may be appointed in terms of the agreement, the arbitration clause, the Arbitration and Conciliation Act, 1996, Rules of Arbitration as laid down, rules of Arbitration of the Institution, arbitration association rules, the arbitration is being referred to or by mutual agreement of the parties to the agreement in case of dispute or seek help of the Courts in this respect.

It is unfortunate that most litigants and parties do not opt for institutional arbitration which has time and again proven its mettle in providing fast, economical and completely impartial process of alternate dispute resolution within the ambit of strongly laid down process and guidelines. The conclusion is obvious. If arbitration is to survive, the Courts and Covenanting Advocates must insist on institutional arbitration to safeguard this wonderful concept of dispute resolution lest it gets hijacked by expensive arbitrators and fraudulent companies.

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