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Assignment of Ibdrm On Conciliation

The document discusses international commercial conciliation as an alternative dispute resolution method, defining it as a process where a neutral third party helps disputing parties privately negotiate a mutually agreeable settlement. It outlines the advantages of conciliation over litigation and arbitration, as well as the need for conciliation due to inadequacies and disparities in domestic laws between countries. The structure and key provisions of the UNCITRAL Model Law on International Commercial Conciliation are also summarized.

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153 views5 pages

Assignment of Ibdrm On Conciliation

The document discusses international commercial conciliation as an alternative dispute resolution method, defining it as a process where a neutral third party helps disputing parties privately negotiate a mutually agreeable settlement. It outlines the advantages of conciliation over litigation and arbitration, as well as the need for conciliation due to inadequacies and disparities in domestic laws between countries. The structure and key provisions of the UNCITRAL Model Law on International Commercial Conciliation are also summarized.

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deepti tiwari
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ASSIGNMENT OF IBDRM

ON TOPIC: INTERNATIONAL
COMMERCIAL
CONCILIATION

SUBMITTED TO SUBMITTED BY
Mr. Jai hooda Shivani
ICFAI LAW SCHOOL BBA LLB(B)
17FLICDDN01103
INTRODUCTION
International Alternative dispute resolution (ADR), or external dispute resolution (EDR),
typically denotes a wide range of dispute resolution processes and techniques that act as a
means for disagreeing parties to come to an agreement short of litigation: a collective term
for the ways that parties can settle disputes, with the help of a third party. However, ADR is
also increasingly being adopted as a tool to help settle disputes alongside the court system
itself. It include these methods and they are different from each other.
INTERNATIONAL COMMERCIAL CONCILIATION
Definition of Conciliation
The term conciliation is not defined in the Act. Simply stating conciliation, however, is a
method of discreet, mutual, and private dispute resolution in which a neutral party helps the
parties achieve agreed settlement. This approach offers the disputing parties an ability to
discuss solutions that are supported by an impartial third party in order to evaluate
exhaustively whether a resolution is feasible. Like arbitration, the Act covers both domestic
and international disputes in the context of conciliation. International conciliation is confined
only to disputes of “commercial” nature. As per the Act, the definition of international
commercial conciliation is exactly similar to that of international commercial arbitration.2
Accordingly, the Act defines international commercial conciliation as conciliation
proceedings relating to a dispute between two or more parties where at least one of them is a
foreign party.3 The foreign party may be (1) an individual who is foreign national, (2) a
company incorporated outside India, or (3) the government of a foreign country.

Advantages of conciliation
 It is more flexible, inexpensive and informal.
 Parties are directly engaged in negotiating a settlement.
 Conciliation increases the parties 'confidence that their good commercial arrangement
will continue  their friendly relations through and during the proceedings. The
explanation is that the parties are in a conciliatory atmosphere, free from the
competitive climate of a trial or an arbitral tribunal where there are exhaustive claims
and a mutually satisfactory resolution is reached in a happy and relaxed atmosphere.
Thus, the end result of a conciliation proceeding is that both parties are relatively
pleased with the final outcome.
 In our view, the chances of an appeal after the conclusion of conciliation proceedings
are considerably lower as a mutual settlement is arrived at between the parties.
However, there is no judicial precedent establishing this.

Need of conciliation
 Inadequacy in domestic law

There were many disparities were revealed in a global surveys of national laws on arbitration
in individual provisions and solutions but also in terms of development and refinement. Some
laws were outdated and some may be fragmentary in that they do not address all relevant
issues. Even most of those laws which appear to be up-to-date and comprehensive were
drafted with domestic arbitration primarily, if not exclusively, in mind. While this approach is
understandable in view of the fact that even today the bulk of cases governed by a general
arbitration law would be of a purely domestic nature, the unfortunate consequence is that
traditional local concepts are imposed on international cases and the needs of modern practice
are often not met.

 Disparity between national laws

Uncertainty about the local law with the inherent risk of frustration may adversely affect not
only the functioning of the arbitrary process but already the selection of the place of
arbitration. A party may well for those reasons hesitate or refuse to agree to a place which
otherwise, for practical reasons, would be appropriate in the case at hand. The choice of
places of arbitration would thus be widened and the smooth functioning of the arbitrary
proceedings would be enhanced if States were to adopt the Model Law which is easily
recognizable, meets the specific needs of international commercial arbitration and provides
an international standard with solutions acceptable to parties from different States and legal
systems.

Structure of Model Law


The model law contains definitions, procedures and guidelines on related issues based upon
the importance of party control over process and outcome. The scope of model law and
definitions of conciliation in general terms and its international applications in specific terms
are in Article 1. These are the types of provisions that would generally be found legislation to
determine the range of matters the Model law was intended to cover. Guidance on
interpretation of model law contained in Article 2. All the provisions of Model Law except
article 2 and paragraph 3 of article 6 may be varied by party agreement are expressly
provided by Article 3. Procedural aspects of conciliation are covered by Article 4-11. These
provisions have particular application to circumstances where the parties have not adopted
rules governing a conciliation; thus they are designed to be in nature of default provisions.
While Structuring the Model Law, the commission was focusing on avoiding situations
where information from conciliation spills over into arbitrary or court proceedings.
Provisions were laid down in such a manner to assist the parties in dispute that may have
defined dispute resolution in their agreements, in this context acting as a supplement to their
agreement. The remaining provisions of the Model Law (Article 12-14) address post-
conciliation issues to avoid uncertainty resulting from an absence of statutory provisions
governing those issues.

Conclusion
The implementation of conciliation as an interesting alternative way of settling conflicts in
the Act is certainly a significant step in motivating parties to opt for it.
Considering the time and resources needed to resolve litigation before a court or an arbitrator
in world, conciliation would serve as the best means of settling disputes, particularly the case
those of a commercial nature.
BIBLIOGRAPHY

https://www.uncitral.org/pdf/english/texts/arbitration/ml-conc/03-
90953_Ebook.pdf

https://www.dispute-resolution-hamburg.com/conciliation/what-is-
conciliation/

psalegal.com/wp-content/uploads/2017/01/DisputeResolutionBulletin-
IssueVII08092010070309PM.pdf

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