ALTERNATIVE DISPUTE RESOLUTION DISPUTES IN INDIA – A QUCIK REMEDY: S. NITHYANANDAN

ALTERNATIVE DISPUTE RESOLUTION DISPUTES IN INDIA – A QUCIK REMEDY

Author: S. Nithyanandan [1]

ISSN: 2582-3655

Abstract

India is a country with high in litigation issues in the current scenario in India having more than 3 crore cases till now. India is having high litigation due to multiple factors like lack of awareness of the public about court proceedings, filing adjournments due to emergency, advocates shortage in lower courts, long hearing days. In the case of Nibhaya case (Delhi), the accused were in prison till for 8 long years and this had also touched finality and 4 were hanged due to their offense of Rape with assault. But on the other hand, we have the ADR which includes Arbitration, Mediation, Mini – Trials, Lok Adalats, Conciliation, Negotiation and Modern we have online or E – Arbitration through use of Technology and Internet. Countries like Singapore, Hong Kong, America and other countries around the globe are successful in resolving disputes through the ADR mechanisms is a concern. India is seeing a drastic increase in the ADR practice due to volume of commercial cases and entrepreneurs now have forwarded to ADR technique in all contracts by way of signing all contracts to ADR clause having their name of parties, business, the money involved, arbitrators and all done in a formal way. ADR is seeing a rise in resoling practices in Arbitration to a good level having Institutional Arbitration in India.

INTRODUCTION

ADR – Alternative Dispute Resolution is a boon in India having high complex litigation cases pending before the Hon’ble Supreme Court, High Court of various state, Multiple District and Lower Courts in India. [2]

ParticularsCivilCriminalTotal
0 to 1 Years3033898(33.63%)7176232(31.08%)10210130(31.8%)
1 to 3 Years2668645(29.58%)6690075(28.98%)9358720(29.15%)
3 to 5 Years1401618(15.54%)3450964(14.95%)4852582(15.11%)
5 to 10 Years1302329(14.44%)3617327(15.67%)4919656(15.32%)
10 to 20 Years476701(5.28%)1799464(7.79%)2276165(7.09%)
20 to 30 Years104158(1.28%)305428(1.28%)409586(1.28%)
Above 30 Years33698(0.37%)47722(0.21%)81420(0.25%)
Total90210472308721232108259

India should come forward for the ADR techniques in resolving it because the Lok Adalats is very good in resolving disputes through amicable settlement in practice and there is also a possibility of negotiation that can take place there. The Model law from UNCITRAL Model guidelines is boon for the Arbitration practices. International Arbitration in the other hand is quite good in resolving disputes through Institution Arbitration like SIAC – Singapore International Arbitration Centre, HKIAC – Hong Kong International Arbitration Centre, ICADR – The International Centre for Alternative Dispute Resolution, LCIA – London Court of InternationalArbitration.

Latest Laws in formation of ADR

The laws like land laws, criminal laws were highly practiced since from the formation of Kings Rule, thereafter British framed Ruled especially on basic criminal and civil law for their own benefits, thereafter Independence India gave importance to Constitution, Civil Laws, Criminal, Commercial Matters high in practice. But delay in court proceedings held to huge problems in the commercial world. But in 1940 the Arbitration Conciliation Act and on 1961on Recognition and Enforcement of Foreign Awards was introduced but this was not doing well in India. Thereafter Law Commission of India in the 176th[3]report gave importance to the Arbitration Conciliation Act, 1996 which was implemented based on the model law agreement of the UNCITRAL model. In 1987 Legal Service Authorities Act, 1987 gave importance to Lok Adalat, Arbitration Conciliation Act, 2015, Mediation Act, 2017 and Amended Arbitration Conciliation Act, 2019.

Advantage of ADR

  • Time ADR is less time consuming and it is of short period of time when compared to court and its litigation process. Easy way of approach methods like forming tribunal, hearing and final judgment of case.
  • Experts In ADR Experts can help to become an Arbitrator this helps in resoling technical issues like cyber crime, land issues, factories issues experts.
  • Cost Usually litigation is highly complex and highly paid to the professionals but in the ADR people usually fixed in nature and is can save money as well. It is free from technicalities of courts, here informal ways are applied in resolving dispute.
  • Speedy Disposal In ADR parties can get speedy disposal of cases usually it is dissolved within 6 to 1 year but the litigation goes for years to years 1, 3, 5 or above. 
  • Opinion / Advisory In ADR practice parties have opinion to give their suggestion and have advise to the clients as well by the arbitrator. It is easy to approach the arbitrator and can get advise, opinion. [4]

ADR –

  • Arbitration– In Arbitration is equal to court procedure but the difference is the speedy and flexible way of resolving disputes. Here the Arbitrator plays a Judge here the disputes are settled through the single arbitrator or a 3 member panel arbitrator in the maximum case.[5]

Institutional Arbitration: In the Institutional Arbitration usually laws, procedures, all policies are fixed by the Institution and they should obey the laws of the Institution Eg. Mumbai International Arbitration Centre, Delhi International Arbitration Centre, Council for National and International  Commercial Arbitration.

 Ad Hoc Arbitration: In the Ad Hoc Arbitration the parties are free to decide their laws, procedure, selecting of the arbitrator and many more it is flexible for the Ad Hoc Institution Arbitration.

International Arbitration : International Arbitration is gradually increased due to FII – Foreign Institution Investment, Cross Border Trade Agreements, Multi-Lateral Trade Agreements the International Arbitration practice are highly developed especially in India and many developed countries like Singapore, Malaysia, Hong Kong, London, America, Brazil.

  • Mediation – In Mediation a netural third party is there and he is called as a Mediator. He is person who tries to mediate between the parties and tries to resolve the disputes. Mediator play a crucial role in controlling the conflict issues among the parties. Usually in mediation family disputes, labour issues, conflict resolution are the practice done by the mediator. Mediator usually work on community, legal, diplomatic, workplace of labour unions.
  • Negotiation – In negotiation the issues of bargaining is the essential primary skill. Negotiation take place in business, non profit firms, government, institutions. The negotiator play a key role in cost controller in any businesses.
  • Conciliation– Conciliation is similarly to the Arbitration but it is also flexible when compared to Arbitration in practice. Conciliator tries to engage or update the information well.
  • Summary Trial – A summary Trial means determination of a case which is capable of being tried and disposed of at once and intended for matters which are contentious and complicated and do not merit a lengthy inquiry and fact finding.
  • Lok Adalath – After formation of National Legal Aid Service it was effective way of resolving disputes of petty cases, high cases on cheque bounce, motor vehicle claims, insurance claims and usually the cases are result only on monetary transaction. Government on framing LSAI – Legal Services Authority of India helping poor through Pro-bona Basis to the needy legal service channelized in district, state levels are concern.
  • Online Resolution – It is the modern day practice taking place in the world of ADR like Arbitration, Mediation, Conciliation and its importance is parties are free from geographical boundaries where parties of different nations can sit and chat easily in the virtual data base by use of technology. Cases can be transferred and prior proper mail, telephonic conversations helps online dispute resolution to a successful in nature.
  • In case of Emergency arbitration and uncertain problem occurred Arbitration it is flexible where we can have Emergency Arbitrator and fix with in our duration of time.

Why ADR is essential in India?

  • The reason is speed, cost, flexibility, court intervention,  time-bound, flaws in laws, legal hurdles and many more. According to 89 of C.P.C describes about the settlement of disputes outside the court – a) arbitration b) conciliation c) Judicial settlement through lok adalat d) mediation.
  • Awareness should be increased by the court / judiciary about the arbitration practices in the country because many people are unaware of it and knowledge of arbitration is to the minimal level when compared developed nations on the world.
  • Acceptance or training should be given to the Counsel of Arbitration and Arbitrator how to practice the law of arbitration in india. Because they highly follow the court procedure but the real scenario of arbitration practice is as simple when compared to litigation in practice.
  • Arbitration Centers, Mediation Centre, Lok Adalat Centers, Conciliation centers should be increase and Government should come forward to give acceleration / Certification on it.
  • Strengthening of Arbitration Institutions, Mediation Institutions and Dispute Resolution Institutional Centers because they lack in facilities only limited members are practiced on it. Fund through proper channel may sound good in enhancing technology like online resolution center of their own institutions.
  • International Accreditation helps in acceptance of various foreign arbitration institutions to India. Especially the London Arbitration Centre we had in delhi but not now, Singapore Arbitration Centre we have in Mumbai.
  • MOU – Formation of Making of Memorandum of Understanding through International Arbitration Centre can help india country in global space and secondary we can earn foreign exchanges, cultural exchanges and business exchanges as well.
  • Time of Judiciary is saved when resolving disputes through ADR resolution.

Conclusion

India needs the ADR Technique as essential in future days where countries of developed nations are strong into the court practice and procedures and they are unique and speedy. But the scenario of India is too different is a concern. We need approximately 1218 days as per the Nitiayog Report in India. The easy way to control the litigations are ADR in full swing can help to reduce these problems in coming days cases likes petty property disputes, cheque bounces, matrimonial disputes, working labourer issues, banking cases on loan issues, insurance cases, small claims taxes, mortgage, etc are the cases which can be directed handled through ADR channels. ADR especially in Arbitration, Mediation countries like Brazil, Australia, China, America, Russia, Switzerland, London, China, Hong Kong, Singapore, Malaysia, and certain developed Arab Countries and Africa are now into the ADR practices which they were successful when compared to India. They are operating in through their Arbitration Councils where in India we are now only forming these Arbitration and Mediation Council of India. The ICC – International Chamber of Commerce, ICISD – International Centre for InvestmentSettlement Disputes, WIPO – World Intellectual Property Rights especially on Intellectual Property disputes highly rely on their guidelines and principles but in India we are limited and certain institutional arbitration centers are following and the following of some are Ad Hoc based Institution is a concern.

India should think on it because it creates a huge hurdles when compared to other nations due to high population and complex socio legal issues are concern.


[1] Pursuing LLM in Chettinad Law School, Kelambakkam.

[2] Data Taken National Judicial Data Grid on Statistics https://njdg.ecourts.gov.in/njdgnew/index.phpLast updated on 10th April, 2020 8.45PM.

[3] Law Commission of India, Report on the Working of the Arbtiration and Conciliation Act, 1996

[4]https://www.drishtiias.com/to-the-points/Paper2/alternative-dispute-resolution-adr-mechanisms-paper-2 Last visted on 10th April 2020, 9:10 PM

[5]https://www.lawctopus.com/academike/arbitration-adr-in-india/visted on 10th April 2020, 9:20 PM

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