Welcome to the Mapping ADR Blog.
The legal profession has witnessed the uninterrupted growth of Alternative Dispute Resolution (“ADR”). Globalisation and the rise of cross-border transactions have only propelled this paradigm shift, thus giving way to a multitude of complex legal issues.
India has not remained untouched from this growing impetus. There is an increasing push from the legislature to encourage settlement of disputes through arbitration. The Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”) aimed to provide for the timely completion of arbitral proceedings by setting time periods for making the arbitral award and the disposal of cases by courts. It also sought to reduce the judicial intervention in arbitral proceedings by setting a prima facie threshold for judicial intervention under Section 8 and Section 11 of the Amendment Act, with respect to courts’ power to refer disputes to arbitration and appointment of arbitrators respectively. However, there remain uncertainties relating to the application of such amendments, which could affect preference for arbitration as a method of dispute resolution. The Supreme Court in Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. has clarified that the amended provisions apply to proceedings pending before court or new court proceedings relating to old arbitrations that took place before the commencement of the Amendment Act. However, the proposed section 87 of the Arbitration and Conciliation (Amendment) Bill, 2018 (“Amendment Bill”) may nullify the holding of the judgement as it proposes that the amended provisions will not apply to such court proceedings unless the parties otherwise agree.
There is also a drive to institutionalise the arbitration process through the introduction of the New Delhi International Arbitration Centre Bill, 2018. The Amendment Bill proposes the creation of an independent body namely the Arbitration Council of India to grade arbitral institutions and accredit arbitrators. It remains to be seen whether institutional arbitration will be embraced by the Indian population that has primarily relied on ad hoc arbitrations in the past 1.
Apart from arbitration, structural attempts are being made to formalise the idea of party based dispute resolution mechanism like mediation in accordance with the existing paradigm. There is an ongoing discussion on introduction of a separate legislation focused solely on mediation. Issues of confidentiality, third party funding and enforcement of settlement agreements continue to require a close scrutiny in the mediation framework.
ADR centers on minimal intervention from third parties. Through the likes of negotiation and mediation, it promotes dialogue between conflicting parties, allowing them to take charge of their own disputes. As a matter of practice, parties prefer to add escalation clauses to their agreements, thus retaining the option to negotiate before invoking a legal remedy. Keeping in mind the significance of negotiation as a method of dispute resolution, this blog aims to provide a forum for discussing the best practices and strategies for approaching a negotiation.
In light of this ever-expanding field, the students of Jindal Global Law School have sought to create a platform for scholars, practitioners and students to unearth and critically engage with the law and practice surrounding all forms of ADR, be it arbitration, negotiation, mediation or conciliation. This includes addressing legal discussions and highlighting the debates surrounding its practical aspects.
We want to provide a space for dialogue in a way that benefits not only the legal community but also practitioners, students and other ADR enthusiasts coming from a non-legal background. In addition to scholarly articles, we aim to increase exposure and accessibility through interviews and chats with those acclaimed in the field.
Finally, we invite our readers to submit their articles and experiences relating to law and practice of ADR. Please see the Submissions page for guidelines.