The document discusses the concept of alternative dispute resolution (ADR) and how it evolved in India. ADR offers resolution of disputes through negotiation, mediation, arbitration, and other non-judicial means. In India, ADR has existed for centuries through village councils and panchayats. Over time, with British influence and international conventions, arbitration and mediation were gradually recognized in Indian law. The Arbitration and Conciliation Act of 1996 provides the current legal framework for ADR in India and was influenced by the UNCITRAL model. ADR is needed in India to help address the huge backlog of court cases and provide faster, more cost-effective dispute resolution alternatives to litigation.
The document discusses the concept of alternative dispute resolution (ADR) and how it evolved in India. ADR offers resolution of disputes through negotiation, mediation, arbitration, and other non-judicial means. In India, ADR has existed for centuries through village councils and panchayats. Over time, with British influence and international conventions, arbitration and mediation were gradually recognized in Indian law. The Arbitration and Conciliation Act of 1996 provides the current legal framework for ADR in India and was influenced by the UNCITRAL model. ADR is needed in India to help address the huge backlog of court cases and provide faster, more cost-effective dispute resolution alternatives to litigation.
The document discusses the concept of alternative dispute resolution (ADR) and how it evolved in India. ADR offers resolution of disputes through negotiation, mediation, arbitration, and other non-judicial means. In India, ADR has existed for centuries through village councils and panchayats. Over time, with British influence and international conventions, arbitration and mediation were gradually recognized in Indian law. The Arbitration and Conciliation Act of 1996 provides the current legal framework for ADR in India and was influenced by the UNCITRAL model. ADR is needed in India to help address the huge backlog of court cases and provide faster, more cost-effective dispute resolution alternatives to litigation.
The document discusses the concept of alternative dispute resolution (ADR) and how it evolved in India. ADR offers resolution of disputes through negotiation, mediation, arbitration, and other non-judicial means. In India, ADR has existed for centuries through village councils and panchayats. Over time, with British influence and international conventions, arbitration and mediation were gradually recognized in Indian law. The Arbitration and Conciliation Act of 1996 provides the current legal framework for ADR in India and was influenced by the UNCITRAL model. ADR is needed in India to help address the huge backlog of court cases and provide faster, more cost-effective dispute resolution alternatives to litigation.
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Q. Discuss the concept of ADR. How this concept evolved in India.
Explain
Ans. Alternative Dispute Resolution:The process by which disputes between the parties are settled or brought to an amicable result without the intervention of Judicial Institution and without any trail is known as Alternative Dispute Resolution (ADR).
ADR offers to resolve all type of matters including civil, commercial, industrial and family etc., where people are not being able to start any type of negotiation and reach the settlement. Generally, ADR uses neutral third party who helps the parties to communicate, discuss the differences and resolve the dispute. It is a method which enables individuals and group to maintain co-operation, social order and provides opportunity to reduce hostility.
ADR is an alternative to litigation; and, involves mediation, arbitration, conciliation, negotiation,
settlement by judiciary and any other process of resolving dispute which does not involve court; and is governed by certain rules. The result (or settlement) of the proceedings shall be enforceable in law. With the passage of time, ADR is becoming a popular method of resolving disputes between the parties, particularly, in commercial disputes. These methods allow the parties to make choices with regard to law or rules which will be applicable to these proceedings. All the methods in most of the proceedings use a third party as an adjudicator or mediator (as per the method chosen by the parties) chosen by the parties with their consent. This provides satisfaction to the parties with regards to the process and adjudicator because these processes make people feel empowered and in control of the proceedings. After all, people desire certainty the most in life. The Evolution and Development of ADR in India
Dispute resolution outside court is not new. Village level institutions played the leading role, where disputes were resolved by elders, comprising council of village (popularly called panchayats) informal way of mediation. ADR is not a new experience for the people of this country also. It has been prevalent in India since time immemorial. Legal history indicates that down the ages man has been experimenting with procedure for making it easy, cheap and convenient to obtain justice. Village level institution where disputes are resolved by elders, comprising council of village (popularly called panchayats). The system was that of monarchy in Ancient India. In earlier times, disputes were peacefully decided by intervention of kulas, srenis, parishads before the king came to adjudicate. Gramin head of Grama. Visyapati political head of many villages. Puga or a board of person who belonged to different sects and tribe but lived in same locality. Panchayats were different systems of arbitration. Subordinate to the regular courts of law. Mitakshara, it can say that Kula court consisted of a group of relations near or distant. It is important to note that in ancient India when dispute arises in family it was settled by elders. If they failed to bring about any compromise the sreni or the guild courts used to intervene. Disputes between several guilds were settled by means of arbitration. Though arbitration prevailed in India, in the form of panchayats (which have been now given recognition in the Constitution of India)[1] before the Britishers came in and established their authority. In 1923, the League of Nations gathered and agreed to the Geneva Convention. The Geneva Convention also contained clauses for arbitration. [2] The first arbitration dedicated provision in the Civil Procedure Code, 1908 which had Section 89 providing for arbitration but the same was repealed by Section 49 and Schedule III to the Arbitration Act, 1940. [3] Prior to enactment of the Arbitration Act, 1940, the Britishers enacted Arbitration (Protocol and Convention) Act, 1937 wherein the Preamble of the Act stated that India was signatory as a State to the Protocol on arbitration as established by League of Nations. [4] The League of Nations intended to bring the world closer through trade which made it realise the importance of arbitration. As a result, the Protocol on Arbitration Clauses, 1923 came into existence. There were several lacunae in the Protocol, hence, a need for amendment was felt. The League of Nations came up with another Convention for Enforcement of Foreign Arbitral Awards which was lacking in the 1923 Convention.[5] This Convention of 1927 is also known as the Geneva Convention of 1927. This Convention formed the basis for other enactment i.e. the Arbitration (Protocol and Convention) Act, 1937. Section 3 of the Arbitration (Protocol and Convention) Act, 1937 refers to the existence of the Arbitration Act, 1899.[6] The Arbitration Act, 1940 came into picture repealing all the previous laws governing arbitration. The Arbitration (Protocol and Convention), 1937 failed to achieve its objective. Then after several years of work, in 1958, the world came up with a convention i.e the New York Convention, which is still running its course till date. Then, the Arbitration Act, 1940 was repealed and replaced by the Arbitration Act, 1960. The New York Convention inspired another legislation in the Foreign Awards (Recognition and Enforcement) Act, 1961 which was lacking in the Arbitration Act, 1960.
In 1981, in Guru Nanak Foundation v. Rattan Singh[7], Desai, J. observed with regards to the 1961 Act that the arbitration system has become ineffective. The point was that even in cases if the arbitrator passed an arbitral award, the parties used the provisions of the Act to challenge the award. This observation presented the 1961 Act as an additional layer which party may choose or not, prior to the litigation process. The lacunae in the provisions of the 1961 Act, made it redundant and people ended up approaching the courts for litigation. Arbitration as a process was meant to be cost effective and time efficient, but the 1961 Act failed miserably to achieve this objective. This Act would be further repealed and replaced by the Arbitration and Conciliation Act, 1996. In 1985, United Nations Commission on International Trade Law (UNCITRAL) presented a comprehensive model for arbitration. The present Arbitration and Conciliation Act, 1996 is based on that UNCITRAL model. The Arbitration and Conciliation Act, 1996 has been subjected to two more amendments in 2015 and 2019.
Need of ADR in India:
The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India. It said: "The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial".
In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on [1]the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation.
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