Arbitration

The main forms of Alternate Dispute Resolution recognized in India are Arbitration, LokAdalats and Conciliation/Mediation.

As far as process of arbitration in India is concerned, there are two types- institutional and ad-hoc. Some of the institutes conducting institutional arbitration are as follows:

a. Indian Council of Arbitration;

b. Delhi International Arbitration Centre;

c. Mumbai Centre for International Arbitration

d. London Court of International Arbitration

e. FICCI

f.Singapore International Court of Arbitration

Other form of dispute resolution prevalent in India is LokAdalat. LokAdalat is an informal court convened to dispose of the matters through amicable settlement.

The third widely practiced dispute resolution process is the Mediation/Conciliation. In mediation, either of the parties can mutually appoint a mediator or the court can refer the parties to mediation. One such centre conducting mediation proceedings is run by Delhi High Court by the name of “Samadhan”.

After the amendment of the Arbitration and Conciliation Act 1996 in 2015, the Saikrishna Committee Report recommended further amendments on the back of the 2015 amendments.

Consequently, the Arbitration and Conciliation (Amendment) Act 2019 has been passed. One of the outstanding feature of Arbitration and Conciliation (Amendment) Act, 2019 is the establishment of an independent body namely the Arbitration Council of India.

In addition to Arbitration, the Supreme Court, in the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd,(2010) 8 SCC 24 observed that that all cases relating to trade, commerce, contracts, consumer disputes and even tortious liability could normally be mediated. Following the same, the 2018 amendment to the Commercial Courts Act 2015 (Section 12A), made it mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 (the PIMS Rules) have been framed by the government.

Thereafter in the matter of MR Krishna Murthi v. New India Assurance Co. Ltd., [2019 SCC OnLine SC 315] the Supreme Court, asked the government to consider the feasibility of enacting an Indian Mediation Act to take care of various aspects of mediation in general.

In India, disputes are resolved by litigation where Courts adjudicate upon issues from the very inception of the disputes. The Supreme Court is the Apex Court and the Highest Judicial body in the country. The High Courts in their respective States act as the highest adjudicatory institutes at the State level, followed by District Courts at lower levels. Modes of Alternate Dispute Resolution, with minimal Court intervention, recognized by law, include Arbitration, Mediation, Conciliation and Judicial Settlement by LokAdalats.

It becomes pertinent to mention that steadily and uniformly, the Judiciary and the Legislature have been pressing for recognition of ADR as the choice of mode of dispute resolution between parties and all concerned parties are working towards building an amiable and conducive environment towards all modes of ADR.

As regards arbitration, a party can invoke jurisdiction of a court for an interim remedy u/s 9 of the Arbitration and Conciliation Act 1996. Section 9 prescribes that a party to an arbitration agreement can invoke jurisdiction of a court prior to an arbitration proceeding and can seek an interim relief mentioned thereunder. However, it is also stipulated that a party cannot enjoy the interim relief for an infinite period and the arbitration in such a case should be invoked within 3 months from the date of order granting any interim relief. As regards the matter when there is no arbitration agreement and the dispute is to be adjudicated by a civil court, for availing any interim remedy, a party has to first file a plaint/petition before the court and only thereafter the interim relief which is deemed appropriate by the court is granted. Order 39 of Code of Civil Procedure, 1908 envisages granting of interim injunction in such cases.

It is pertinent to take note that, under order 39 itself, the court has the power to grant ex parte ad-interim relief to the plaintiff/petitioner in such proceedings.