Disputes – Page 2

September 20, 2020
By BIMACC
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A-Z of ADR: Kompetenz-Kompetenz Principle

The principle of kompetenz-kompetenz denotes the ability of arbitral tribunals to decide on their own jurisdiction to proceed with a case. Essentially, this means the tribunal decides whether it can hear a case or not, without the intervention of a court. This principle is important in arbitration law as it affects the functioning of tribunals, and how long a case can take before the tribunal is able to decide on the matter. Recognising this principle by law gives the advantage of […]

September 19, 2020
By BIMACC
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A-Z of ADR: Litigation as a Last Resort

ADR stands for Alternative Dispute Resolution and includes dispute resolution procedures like Mediation, Conciliation, Arbitration, etc. It includes processes and techniques where the parties at dispute come together and reach a settlement that is a win-win situation for the parties. This method of dispute resolution is not new but has been followed for a very long time. In the past few decades, companies have adopted ADR methods in consumer and commercial disputes. Before proceeding as to why ADR is better than Litigation and why Litigation should be considered as a last resort, let us […]

September 18, 2020
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A-Z of ADR: Mediation – Understanding Mediation

Mediation is an alternative dispute resolution (ADR) method which involves a neutral and independent third party facilitating negotiation between disputing parties in order to find a mutually beneficial solution. It is significantly different from adversarial processes of dispute resolution and instead focuses on being non-coercive and consensual. The disputing parties themselves are actively involved in the process to the maximum extent and work together, with the mediator’s assistance to […]

September 17, 2020
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A-Z of ADR: New York Convention

The New York Convention or the Convention on the Recognition and Enforcement of Arbitral Awards (1958) was signed and subsequently ratified by India on June 10, 1958, and July 13, 1960, respectively. Despite being one of the earliest parties to the Convention, the country has held the perception of being a ‘non-amicable’ arbitration jurisdiction for several decades. This is primarily owing to […]

September 16, 2020
By BIMACC
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A-Z of ADR: Opening Statement – Breaking the Ice – A Mediator’s Opening Statement

Mediation is the process where two disputing parties approach a neutral third party to facilitate their discussion and in doing so, resolve the conflict. This nuanced process aims to resolve the conflict efficiently and without having to resort to litigation. Therefore the modalities and the conduct of the process significantly differ from the usual courtroom setting that the parties might be used to […]

September 15, 2020
By BIMACC
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A-Z of ADR: Pre-Institutional Mediation

Pre-Institutional Mediation, also known as Pre-Trial Mediation, is an alternate dispute resolution (ADR) process where the parties in a feud try to settle the issues through negotiations and discussions in the presence of a mediator, before going to trial. In India, parliament has made pre-institution mediation a mandatory process, by introducing an amendment to the Commercial Courts, Commercial Division and Commercial Division of High Courts Act of 2015 […]

September 14, 2020
By BIMACC
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A-Z of ADR: Qualification Requirements of Mediators, Arbitrators, and Conciliators

When dispute resolution professionals are appointed, they are expected to resolve the dispute neutrally and impartially, conforming to all the procedures irrespective of the dispute resolution mechanism. The involvement of the dispute resolution professional may vary heavily in different dispute resolution mechanisms. An arbitrator is […]

September 13, 2020
By BIMACC
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A-Z of ADR: Refusal to Participate

Alternate Dispute Resolution (ADR) denotes a wide range of dispute resolution processes that act as a means for the disagreeing parties to reach an agreement short of litigation. ADR can be further classified into various types, two of which are Mediation and Arbitration. The procedure followed in both arbitration and mediation is quite different. To understand the consequences when a party refuses to participate […]

September 12, 2020
By BIMACC
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A-Z of ADR: Settlement Agreements

A settlement is a form of an agreement which is reached at between two feuding parties during the process of mediation or conciliation. These agreements once signed by both the parties are binding. Usually, the parties make an attempt to arrive at a settlement through these processes as it saves court fees and other costs and time required for litigation. Neither party has […]

September 11, 2020
By BIMACC
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A-Z of ADR: Third-Party Funding in Arbitration

With arbitration being increasingly preferred to resolve commercial disputes, third-party funding [‘TPF’] has become a widely debated concept as a possible remedy for the excessive costs attached to the arbitral process. The costs in an arbitral process generally include fees of the arbitrators, expert fees, fees of the counsel, institutional fees, security costs, and other legal costs. However, unlike litigation […]