Arbitration – Page 2

September 25, 2020
By BIMACC
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A-Z of ADR: Flexibility

The modern process of dispute resolution, Alternative Dispute Resolution (ADR) tries to move beyond the standard model of civil court adjudication. ADR is essentially a method which is used to resolve the disputes without litigation, outside the courtroom. ADR involves procedures like Arbitration, Conciliation, Mediation, etc. The parties which resolve the dispute through ADR are more satisfied with the outcome, mainly due to their direct participation to determine the various terms of the settlement. The major advantages of ADR are that it is cost […]

September 24, 2020
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A-Z of ADR: Governing Law

Arbitration, as a private means of dispute settlement, is not tethered to territorial jurisdictions. As a result, the freedom to select the forum for adjudication extends to the freedom to select the legal framework for the same. In other words, parties essentially select not just a judge, but also the law they are judged under. Importantly, this legal framework is not monolithic in nature and comprises of […]

September 23, 2020
By BIMACC
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A-Z of ADR: Harmonisation of the Judicial Process and ADR

Mechanisms of Alternative Dispute Resolution have gained a lot of importance recently. The advantages of ADR are numerous. One of the most significant advantages of ADR is that it allows the parties to reach a settlement that meets both their interests.

This article explores the incorporation of the ADR mechanism in the working of the judiciary. It analyses Section 89 of the Civil Procedure Code. It then takes a look at how ADR has been incorporated into various other legislations. Finally, the article explores […]

September 22, 2020
By BIMACC
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A-Z of ADR: Independence and Impartiality of Arbitrators

Party autonomy in choosing the procedure for dispute resolution is one of the foundational pillars of Alternate Dispute Resolution (ADR). This autonomy includes the power to appoint the arbitrators who will help both the parties resolve their disputes. While any number of arbitrators can be appointed, parties generally agree to appoint one or three arbitrators (the number of arbitrators should be an odd number, to ensure that there is no tie in the final award). Since the entire weight of a proceeding is on the person/persons who are acting in the role of a judge, it is said that an arbitration is only as good as the arbitrators. The choice of composition of the arbitral tribunal is vital and is […]

September 21, 2020
By BIMACC
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A-Z of ADR: Jurisdiction

Jurisdiction in arbitration can be classified under two heads, the arbitrability of the dispute i.e. whether it is a matter suitable to be referred to arbitration and the jurisdiction of the arbitral tribunal […]

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 17, 2020
By BIMACC
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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 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 […]