• Arbitration

    Kartikey Singh on Arbitrability of Consumer Disputes in India

    Reading Time: 5 minutes The issue of Arbitrability of consumer disputes has been debated since the genesis of the Consumer Protection Act, 1986. This debate becomes even more crucial when we see it in the backdrop of India representing itself as a “pro- arbitration” state. The recent case of Emmar MGF [i] has put an end to this debate as it has impliedly ruled out consumer disputes from the ambit of arbitration proceedings under the Arbitration and Conciliation Act, 1996. Before we come to the analysis of the Supreme Court’s latest ruling, it would be pertinent to observe the judicial precedents in this respect to get a holistic view of the issue…

  • Mediation

    Alice Sharma on Domestic Violence, To Mediate or Not to Mediate

    Reading Time: 5 minutes Domestic violence sadly, is rampant and common in Indian families. Section 3 of Protection of Women from Domestic Violence Act, 2005 defines Domestic violence in a comprehensive manner, comprising of physical, mental, verbal, emotional, sexual and economic abuse, harassment for dowry, and acts of threatening to abuse the victim or any other person related to her.[1]To put it into perspective a massive 31 per cent of married women have been subjected to physical, sexual, or emotional violence by their spouses. According to the National Family Health Survey (NHFS-4) report released by the Union health ministry, 27% women have experienced physical violence.[2]As the statistics point out, in the patriarchal…

  • Mediation

    Mohit Mokal on Pre-Litigation Mediation Model in India

    Reading Time: 12 minutes Introduction Mediation can be most simply defined as party oriented negotiation, facilitated by a neutral third party, helping reach a workable solution that is mutually acceptable. Mediation has existed in India since before its colonial times centuries ago through the Panchayat system but was overshadowed by Common Law during the British rule. However, it is now getting some traction owing to the overburdened and almost paralyzed Indian judicial system with over 33 million cases in backlog as of July 2018. The number of cases that have been pending in the courts for more than 30 years exceeds more than 38,000 in the High Court of Allahabad…

  • Mediation

    Mohit Mokal on Mediator Ethics in India

    Reading Time: 12 minutes Introduction  In India, in the absence of legislation presents an opportunity to consider and address thoroughly the regulation of the Mediation profession in India. The Advocates Act[1]regulates the profession of lawyers in India, however even that needs some amendments as recommended in the Law Commission report 266[2]and 184[3]which yet have to be implemented. The Arbitration and Conciliation Act[4]governs conduct of Arbitrators and the how to Arbitrate procedures. Part 3 of the Act, governs rules regarding Conciliation, which is read simultaneously with Mediation. However even Conciliation is regarded as a highly evaluative process where the Conciliator helps parties settle based on some legal principles by analyzing the…

  • Mediation

    Mohit Mokal on Introduction to Mediation

    Reading Time: 4 minutes Two ancient cases recently got some public attention due to the media. Dating back to 1914 and 1952 are still at the initial stages and are far from attaining any finality. Both the instances are civil cases relating to separate property disputes which have surpassed generations of original plaintiffs and defendants. It has taken a heavy toll on the parties not just of the piling legal costs and expenses but also their physical and mental health. The 1914 case was regarding 9 Acres of land originally owned by Azhar Khan. Which the court divided in a maintenance claim; the wife was entitled to 25% while the…

  • Arbitration

    Rajvansh Singh on discussion of Supreme Court on the validity of “Pre-Deposit clause”

    Reading Time: 4 minutes Introduction Speedy and effective settlements of dispute are the two most important attributes for the smooth flow of trade. Unfortunately, the Indian Judiciary is infamous for speedy settlement of disputes. Recently, arbitration has emerged as an efficient alternative to the public justice delivery system.   Pre-deposit clause implies that if a party to the agreement intends to bring a claim before the arbitrator, it must first deposit security of a determinable sum, usually a percentage of the claimed amount. The underlying object behind these clauses is to prevent frivolous and extravagant claims being brought by the parties, in the hope of “trying their luck” with the…

  • Mediation

    Shauree Gaikwad on Implications of Section 12A of the Commercial Courts (Amendment) Act, 2018

    Reading Time: 6 minutes Mediation has been recognized as an alternative form of dispute settlement by Section 89 (1) (d) of the Civil Procedure Code, 1908[1]. Recently, mediation has been gaining statutory recognition by the amendment made to The Commercial Courts Act, 2015 and also with it being introduced in the Insolvency and Bankruptcy Code, 2016 and The Companies Act, 2013. Mediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947. Later on, the Alternative Dispute Resolution and Mediation Rules, 2003[2]provided for mandatory mediation. But when it came to commercial cases, it still didn’t shape up to be a popular form…

  • Mediation

    Kamakshi Puri on Mediation in Family Law Disputes in India

    Reading Time: 6 minutes This piece aims to act as a primer on court-referred mediation in family disputes by Family Courts in India. It will try and answer a range of questions starting from the power of a Family Court to refer cases to mediation and laws governing said reference, whether this power of reference in the hands of the judge is discretionarily or mandatory and whether any agreement/ decision out of the mediation process would be binding on the parties. This process will likely uncover issues with the mediation process in India. Family disputes in this context would include matrimonial, child custody and spousal or children maintenance disputes but…

  • Mediation

    Parina Muchhala on Mediation of Consumer Disputes in India: An Aid to the Indian Legal System

    Reading Time: 4 minutes Introduction The Consumer Protection Bill, 2018, was recently passed in the Indian Lok Sabha. Interestingly, Section 37 of the Bill gives District Commissions the power to refer suitable consumer disputes to mediation. This emulates the belief of the Law Commission of India in its 129thReport, and that of the Supreme Court in Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.,that mediation can lead to settlement of claims for aggrieved consumers. A closer examination of the bill further reveals its intention to institutionalise the mediation framework across the country.[1]It remains to be seen, however, while the bill still remains pending before…

  • Arbitration

    Rajvansh Singh on Hardy Exploration: A Missed Opportunity

    Reading Time: 4 minutes Every International Commercial Arbitration involves interplay of multiple laws. This is because of the concept of ‘severability of an arbitration agreement’, which means an arbitration clause is taken to be autonomous and to be separable from other clauses in the agreement.Thus, a contract involves two sets of laws- one dealing with the main contract i.e. governing law and another deals with arbitration, which is further sub divided i.e. procedural and substantive. The proper law of the contract i.e. the law that governs the main contract (“Governing law”). The curial law i.e. the law that governs procedural aspect of arbitration (“Procedural law”). The proper law of the…