Q.1 What is Arbitration? State the difference between Mediation, Conciliation and Arbitration?

(15
marks)

Introduction: Arbitration, Conciliation and Mediation are the Alternative Dispute

Resolution for solving civil nature disputes. These are dispute resolution methods
to deal with disputes on a broad and global scale. Through these methods one
can resolve their disputes without access to the regular judicial system, i.e.
judicial courts. The Article 39A of the Indian Constitution clearly states that The
State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by reason of economic or other
disabilities.

So, to implement their orders, the Parliament came up with various alternative
dispute Resolution (ADR) methods such as arbitration, conciliation, mediation etc
to strengthen the judicial system of the country. Not only Constitution , CPC also
provide Section 89 Order 10 Rule 1-A to 1-C to the parties to opt for ADR
processes. In recent years, ADR has gained worldwide recognition among the
general public and also in legal world. It is a cost effective method to resolve
disputes as trial is the expensive one. ADR procedures are generally more flexible
than court procedures. ADR is provides speedier mechanism to resolve a matter
in dispute rather than the court system.

ARBITRATION AND CONCILIATION ACT, 1996

The Arbitration and Conciliation Act, 1996 is an act regulating domestic arbitration in India. This Act is of
consolidating and amending in nature and not exhaustive. It provides for domestic Arbitration and
enforcement of foreign arbitral awards. The act was amended in 2015 decided by the Government of
India whereby introducing the Arbitration & Conciliation (Amendment) Bill, 2015. The Parliament had
given its approval for the amendments taking into consideration the Law Commission’s Report and
recommendations to make Arbitration more effective and a preferred mode for settlement of
commercial disputes and making India a center for International Commercial Arbitration. This act is
much beyond the scope of the 1950 Act.

The Arbitration and Conciliation Act continues on the source of the UN Model Law to make our law
concurrence with the law embraced by the United Nations Commission on International Trade Law

Types of arbitration

There are various types of arbitration depending upon the nationality of the parties, the arbitral award
or the arbitrators involved. They are discussed as follows:

Ad Hoc Arbitration

Ad hoc arbitration is the type of arbitration where the parties mutually agree to resolve their disputes by
arbitration proceedings conducted by mutually appointed arbitrators but not by an institution. This is
one of the most common forms of arbitration in India where the parties themselves agree to and
arrange for arbitration. Here, in this method of arbitration, both the parties and the arbitrators mutually
and independently decide the procedures of arbitration, without the involvement of an arbitral
institution. Example: When the parties decide to keep the arbitration seat in India, the dispute would be
resolved as per the provisions of the Arbitration and Conciliation Act, 1996.

Institutional Arbitration

Institutional Arbitration is the form of arbitration where an institute, which has been set up for the
purpose of settling disputes by arbitration or other ADR methods, is employed to conduct arbitration.
Such institutes may be national or international in character and they usually lay down their own rules of
arbitration. But such rules cannot override the provisions of the Arbitration and Conciliation Act, 1996.
These institutes maintain a panel of arbitrators from which arbitrators are recommended to the parties.
Besides that, these institutes also offer administrative and consultancy services. So, with the proper
infrastructure and experience that these institutes bring to an arbitral proceedings, some parties really
find institutional arbitration beneficial. Some of the prominent institutes that offer institutional
arbitration are as follows:

• Chartered Institute of Arbitrators,

• The London Court of International Arbitration,
• The National Arbitration Forum USA,
• Singapore International Arbitration Centre,
• The International Court of Arbitration,
• International Arbitration and Mediation Centre, Hyderabad
• Delhi International Arbitration Centre
• Permanent Court of Arbitration

Domestic Arbitration

When the arbitration takes place in one jurisdiction and both the parties come under that jurisdiction,
then such an arbitration is called domestic arbitration. In other words, both the parties must be
nationals of the same jurisdiction as that of the seat of arbitration or in case of body corporates, they
must be incorporated under the same jurisdiction as that of the seat of arbitration. Eaxmple: when the
seat of arbitration is in India to resolve a dispute between two Indian companies, then it is a domestic
arbitration.

International Arbitration

International arbitration is the type of arbitration where at least one of the parties at dispute is a foreign
national or in the case of a body corporate, has been incorporated in a foreign country. In other words,
at least one of the parties must be a foreign national or habitually resident in a foreign country. And in
case of a body corporate or an association or body of individuals, the core control and central
management must be operated from outside India. Also, one of the parties may be a foreign
government too. Then such an arbitration is construed as international arbitration. Section 2(1)(f) of the
Arbitration and Conciliation Act, 1996 has defined international commercial arbitration in the light of
international arbitration for commercial disputes.

Emergency Arbitration
Emergency arbitration is a form of arbitration where interim relief is given by the arbitral tribunal to a
party who wants to protect their assets and/or evidence from being otherwise lost or altered. It can be
roughly compared to the concept of interim injunctions granted by civil courts. In India, there is no
mention of the term ‘emergency arbitration’ in the Arbitration and Conciliation Act, 1996 till date, and
regarding the enforceability of the same, the picture is still unclear. But the concept of emergency
arbitration has been adopted in India by various arbitral institutions like Delhi International Arbitration
Centre, Court of Arbitration of the International Chambers of Commerce-India, International Commercial
Arbitration (ICA), Madras High Court Arbitration Centre (MHCAC), Mumbai Centre for International
Arbitration etc. within their rules.

Advantages of Arbitration Disadvantages of Arbitration

Fair process: Parties have control over No appeals: Arbitral awards are generally binding
arbitrators without appeal
Evidence Rules: Lack of strict rules for admissible
Timely procedure: Faster resolution evidence
Cost-effective: Shared costs and Lack of cross-examination: Limited examination of
quicker resolution witnesses
Private proceedings: Confidentiality
assured Lack of consistency: Varying arbitration rules globally
Final and binding: Awards are Lack of Transparency: Closed-door proceedings may lack
enforceable public accountability
Ease of proceedings: Simplified
procedural nature
Reduces burden of courts: Alleviates
court caseload

Landmark cases on arbitration

R.V. Solutions Pvt. Ltd. v. Ajay Kumar Dixit & Ors. In this case, The Delhi High Court held that a non-
signatory or third party can only be subjected to arbitration in exceptional cases without its consent. The
arbitrator is required to form a direct relationship with the signatory party of the agreement, or between
the parties in the agreement or the equality of the subject or the overall transaction.

Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd, the court states that The
High Court should stop the instrument which has not imposed stamp duty and hand it over to the
authority which will then decide to implement the payment of stamp duty and penalty (if any) at the
earliest, and preferably a period of 45 days. . Within the date on which the instrument of authority is
received. As soon as the stamp duty is paid on the instrument, either party can bring the instrument to
the notice of the High Court which will then proceed to hear and dispose of the Section 11 application
expeditiously.

Difference between Mediation, Conciliation and Arbitration.

Arbitration

Arbitration is a form of alternative dispute resolution, where disputes can be resolved outside the ambit
of a courtroom. It is a written agreement entered by the parties of a contract to resolve or refer to any
dispute that might arise or has arisen, in reference to the contract, to an impartial third party called the
arbitrator. The agreement thus entered upon is called the arbitration agreement and it must be a result
of consent between the parties. The objective of such a provision is to:

• Ensure a speedy resolution of their dispute

• Provide for an impartial arbitrator agreed upon by both the parties

Mediation

Mediation is a process where a mediator, who is an impartial third party, facilitates the parties
negotiation of a voluntary settlement. Instead of imposing a conclusion or finding a resolution for the
parties, the mediator aids them to communicate and negotiate. It is a simple and most acknowledged
form of alternative dispute resolution. Here, the negotiations and communications happen at the will of
the parties and the mediator serves only as a medium to facilitate the parties to reach an agreement.
According to American Bar Association, “Mediation is a process in which a neutral third party assists the
disputing parties in reaching a mutually acceptable resolution of their dispute.”[10]

In India, Mediation is the most acknowledged form of ADR and it was first recognized under the
Industrial Dispute Act, of 1947.[11] In support of this, the judiciary also created a “National Plan for
Mediated Settlement of Dispute” to promote mediation by organizing training programs for mediators,
creating manuals for mediators, putting up mediation centers in court complexes, and educating litigants
about mediation. The Rajya Sabha has introduced the Mediation Bill of 2021, which proposes a
consolidated plan for the purpose of mediation in India.

Conciliation

Conciliation is similar to arbitration; however, it is less formal and procedural in nature. It is a process in
which the conciliator, a neutral third party, helps the parties negotiate a peaceful settlement. The
conciliator may make recommendations or suggest solutions, but they are not able to resolve disputes.
According to the UNCITRAL Model on International Commercial Conciliation (2002), “conciliation” means
a process, whether referred to by the expression conciliation, mediation, or an expression of similar
import, whereby parties request a third person or persons (“the conciliator”) to assist them in their
attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or
other legal relationship. The conciliator does not have the authority to impose upon the parties a
solution to the dispute.”[16] In India, the laws concerning conciliation are governed by the Arbitration
and Conciliation Act, of 1996.

Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd.

In this case, the Supreme Court of India held that once parties have reached a settlement through
conciliation, they cannot withdraw from it unilaterally or challenge its validity in a court of law.

Perry Kansagra v. Smriti Madan Kansagra

The court stated that the principle of confidentiality founded the process of mediation[13]. In
comparison to traditional adjudicative procedures, mediation occupies a fundamentally different
position. The goal of mediation was to settle a problem amicably rather than in an adversarial manner, as
opposed to an adversarial stance in adjudicatory processes.

• Criteria • Arbitration • Mediation • Conciliation

Court-like procedure, Independent third party Expert resolves disputes,
Meaning third party decision assisting parties convincing parties to agree
Formal, court
Procedure proceedings Informal Informal
Third Party Arbitrator Mediator Conciliator
Number of Third
Party One or more arbitrators One mediator One or more conciliators
Nature of Award Binding upon parties Non-binding Non-binding
Control over Depends on evidence and Outcome depends on
Outcome arbitrator's decision Outcome depends on parties parties
Mediator facilitates
communication, obtains
Arbitrator disposes with information, and develops Conciliator actively
Decision approval of parties alternatives evaluates and intervenes
Governed by Arbitration Governed by the
and Conciliation Act, Governed by the Civil Arbitration and
Regulation 1996 Procedure Code, 1908 Conciliation Act, 1996
Depends on trust, advised to
Confidentiality Determined by law sign Confidentiality Clause Determined by law
More active role in
Nature of Third evaluation and Impartial and objective to the More active role in
Party intervention parties' dispute evaluation and intervention
Enforceability of Decision is binding like a Conciliator has no right to
Decision court decision No right to enforce decisions enforce decisions
Formal process with Informal process involving Informal process with
Nature of Process court-like procedures discussion discussions
Prior Agreement Prior agreement is No need for prior
Requirement required No need for prior agreement agreement
Available for existing and Available for existing Available for existing
Availability future disputes disputes only disputes only
Mediation may not always Conciliation does not
Arbitral award is final ensure a mutually agreed always ensure a mutually
Outcome and binding result agreed result

Conclusion

The procedures and techniques discussed above are the most commonly used methods of ADR.
However, there are countless various ADR methods, many of which modify or combine the above
methods. With each type of ADR, the objective is to resolve the dispute by method of round table
discussion . ADR is the most effective process which lessens the burden of courts. ADR promotes
harmonious relationship among parties. The settlement of disputes through ADRs is so effective and
globally accepted that courts have recognized some of them like mediation more often. This avoids
procedure of litigation and the award for fair and impartial settlement of doubtful issues of an individual
on legal and ethical basis which is based upon ground reality.

This is what distinguishes ADR methods from general litigation. There can be only one winning party
after a court trial, while all parties can be treated as winner after conciliation, mediation or negotiation,
as there is no conflict between them and they go through the settlement procedure.

Q.2 Explain the use of Computer and Internet in professional legal work (10 marks)

Introduction:

Introduction

For Centuries law was read from books, and the legal professionals needed how to master these books.
In the past several decades, however, legal research has joined the information revolution. Legal
professionals have use to begun computers, computer network and CD-ROM to assist in the legal
research process. Computer Assisted Legal Research (CALR) or Computer Organized Legal Research
(COLR) or Social Networking Sites provide new ways to legal professionals to find law.

Robert Bigelow, an American Scholar observes, “The computers capture the imagination of many
researchers. It offers an opportunity to store vast quantities of comparatively small space, the ability to
search this data very rapidly and make selections there from and the ability to manipulate or ‘massage’
the data to produce a resulting a for at particularly useful to individual researcher.” 1 One of the
advantages frequently touted for computerized legal research is the possibility of placing into computer’s
storage area or memory banks the full text of whatever document is somebody to be retrieved.

We find computers on the desks of the lawyers now-a-days. The influence of computers on law has
already effected significant changes and there is likelihood of many more changes with the increasing
sophistication of equipment and technique. Now the advocates are familiar with the jargon of computers
such as ‘input’, ‘point-out’ , ‘processing’, ‘programming’, ‘storage’, ‘retrieval’, ‘software’, ‘browse’,
‘search’, ‘engines’, ‘databases’ etc. Computers are almost playing the part of libraries.2 Certain practical
advantages are that computers can assist practitioners by saving time and cost in interviews with clients,
besides storage of information. With the introduction of ‘windows’ the use of computer became easier
and within short time and with less strain one can acquire the knowledge of computers. The researchers
can get information through websites and he can get the national and international statues, agreements,
details of case laws relating to a particular issue with the use of dot (.) com online stores through
different websites. Computer, at present, takes a place of calculator in the hands of learners. With the
help of the printer, the researcher can get the printed copy of the documents needed no time. Now-a-
days use of computer is a must to any legal practitioner. The web universe, with thousands of sites that
get added every day, is expanding rapidly. When we look for sites that contain the required information,
we usually access a search engine and invoke a search process; the search engine scans its database,
collects all the appropriate links that match our query, cooks a web page with this search result and
pushes it to over browser.

“One of the major methods through which a search engine expands its database is by grabbing the link
information using automatic programs called Crawlers/Spiders. These programs move continuously from
one site to other and fetch information and pushes them into engine’s database. This, technique works
fine as long as the scanned site has a well laid-out site structure with static web pages. The software
does not finish its job by just downloading the links, it analyses the links, removes irrelevant links, then
download the pages and stores it in your hard disk. The service also provides the facility to save the
search results in your computer so that you can retrieve it later. Lexibox, an excellent search tool,
developed by Bright Planet, can be effectively used to meet the challenges posed by invisible web
phenomenon, which is not visible to the search engines.” And soon after introducing LEXIS by Head Data
Central, Inc. in 1973, West Publishing Company developed a comparable system called WESTLAW in
1975.

Both LEXIS and WESTLAW have included many types of legal documents in their databases:

(i) Primary Sources: cases, statutes, regulations, and other administrative materials.

(ii) Secondary Sources: law reviews, ALR annotations, and loose-leaf services.

(iii) Other legal resources: newspapers, patent and trademark information, medical information,

magazines, and financial information.

A researcher should always remember that a computer can only search for data that has been put into
memory and authority cannot be searched on either WESTLAW or LEXIS.

USE OF SEARCH ENGINES IN COMPUTERS TO GET LEGAL INFORMATION

SEARCH ENGINE-If one wants to get relevant information on any subject matter, he can switch on his
computer and open the internet browser to get that information through a search engine. A search
engine is an internet site which stores the information about all the branches of knowledge and after
receiving the search request, compares it to the search engine is a service providing website organized
and indexed information provided by different web publishers. There are number of search engines such
as Excite, Infoseck, Yahoo, Metacrawler, Netfind, Google .com etc.

USING THE INTERNET EXPLORER FOR THE SEARCH OF LEGAL INFORMATION

The Internet is providing new research opportunities for legal research. Because the Internet is a
worldwide network of computers, a researcher is not constrained by a limited database like LEXIS and
WESTLAW. Instead, the researcher can search around the Internet, can connect with computers at other
places or the Internet user can send a communication through E-mail to any person. He can locate any
information relating to law on the internet. Reference questions can be posed to law libraries around the
world or the user can connect directly into a computer card catalog. The Internet is used for a wide
variety of functions. Legal professionals use the Internet primarily to send e-mail, to participate in
bulletin board discussions, to retrieve files and to log-in remote locations.
Use of Social Networking Sites

Social networking is not only great way to connect personally but also professionally. Some popular sites
are Facebook, Twitter, Orkut , LinkedIn etc. There are over 1 billion people on social networking sites and
Facebook with 55% share is the market leader.

E-Mail

The most popular use of the Internet is to send e-mail. E-mail is simply an electronic mail sent almost

instantaneously from one user to another.

BULLETIN BOARDS

A bulletin board is so named because it is a computer message center. Information posted on an

electronic bulletin board will be distributed to a large group of people. Most on-line services offer some
form of the bulletin board as part of the service on the Internet, use-net is the way that information is
disseminated through the bulletin board format.

RETRIEVING FILES

From a research standpoint, one of the most significant resources on the Internet is ‘File Transfer

Protocol’(FTP).FTP is a method that allows you to access and download files from other Internet
Computers. In other words, you can transfer information from a FTP site on to your personal computer.
FTP also allows you to search the directories of a remote computer for information.

REMOTE LOG-IN

Remote log-in or telnet, allows you to tap into a remote computer to gain access to that computer’s
publicly available files as though you were directly connected to that computer. This tool is useful for
perusing a card catalog at a remote library or a database at remote location.

RESEARCHING ON THE INTERNET

Legal professional are increasingly relying upon the Internet for locating and downloading legal
information. The Internet provides a link to many repositories of information. A search scholar who
wants to know about the Acts, case laws both national and international can enter the Internet Explorer
to get information.

Advantages of Computer Organised or Assisted Legal Research (COLR/CALR)

• Cost Efficiency: COLR allows researchers to be charged only for the specific information needed,
potentially saving money compared to purchasing printed sources. It eliminates the need for
physical sources and saves shelf space.
• Currency and Accessibility: Information in COLR is more current, doesn't deteriorate physically,
and can be accessed from various locations. Researchers can benefit from up-to-date
information readily available without being tied to a specific place.
 • Computer Word Search: The ability to perform computer word searches is a significant
advantage. This feature is particularly useful for quickly finding uniquely identifiable information
that may be challenging to locate through traditional research methods.
• Efficient Document Retrieval: Computers enable researchers to search millions of pages for
specific words or phrases, providing a unique way to retrieve documents. After a search, relevant
document citations or full texts can be displayed on the screen.
• Quick Information Updates: Computers facilitate quick updates on changes in the law, helping
researchers determine whether a case has been overruled or if a statute has been amended.
• Elimination of Bibliographic Cards: COLR eliminates the need for preparing bibliographic cards.
Once entries are stored in the computer's memory, they remain accessible for a year, allowing
easy modifications without rewriting.

Disadvantages of COLR

• Limitation in Descriptive Terms: COLR can be less effective when researching information
described in common terms that involve sophisticated analysis.
• Literal Nature of Word Searches: Computer word searches in COLR are extremely literal. If a
researcher is looking for a particular word spelled in a specific way and it has been misspelled,
the system may not return the relevant case.
• Ambiguity in Synopses: Synopsis areas present challenges, particularly in cases of ambiguity. If a
researcher is searching for a specific word and it has been excluded or misspelled, the system
may not provide accurate results.
• Programming Variations: Different COLR systems may have variations in their programming,
leading to differences in the words included or excluded. Operations may not be identical,
requiring the researcher to adapt to different system functionalities.
• High Expenditure: Researchers using COLR systems, such as LEXIS or WESTLAW, may incur heavy
expenditures. Typical searches can cost over $200 per hour, making it financially burdensome for
the average researcher.
• Lack of Historical Materials: COLR systems generally do not contain historical materials, limiting
their effectiveness in determining historical context.

CONCLUSION

The next generation is the generation of the computer. No serious lawyer, law teacher and legal
researcher in India can do work without the computers in the next decade. If not highly technical, atleast
the working knowledge of computers is must for every person connected with the legal profession in
whatsoever manner. As indicated above, some of the law publishers are not offering information/data
concerning the decided case law on the computer floppies like the western countries. Most law libraries
in India are also likely to become fully computerized in future. Therefore, the earlier the lawyers, law
teachers and legal researchers are exposed to use of computer technology, the better it is. With time the
number of laws in a country increases and so do the complexities of the law. The use of computers shall
also help facilitate the exchange of information amongst the different law faculties. But if we use
advanced technology transformation and innovative strategies carefully in the practice of law, it will help
to bring a social and economic change in the country. There are possible and probable misuse of
computers. No doubt, Computer versatility is a great boom, there are also easy victims to manipulations
of criminal with technical expertise.10 Expert on white collar crimes aver that the chances of a computer
crime being detected is one in ten thousand. However, they can be prevented with minor care and
caution. Thus, there is urgent need for computerized and scientific legal outputs from the legal
profession as a whole.