International Arbitration

September 27, 2020
By BIMACC
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A-Z of ADR: Decision Making in ADR

All ADR processes are geared towards the goal of dispute resolution, conflict management, and amicable settlement. Decision-making plays an important role in the achievement of these goals, and ADR mechanisms vary greatly in their placement and formality of decision-making power. Differences can most prominently be observed along lines of party involvement and autonomy. Arbitration is more of an adversarial and adjudicatory process than both conciliation and mediation. Further, statutory grounding and the availability of […]

September 26, 2020
By BIMACC
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A-Z of ADR: Enforcement

Securing an arbitration award is one thing and actually getting it enforced is another thing. Enforcing an award is especially complicated when the opposite party hasn’t even taken part in the arbitral proceedings. The procedure of enforcing an award is governed by the Arbitration and Conciliation Act, 1996 as well as the Civil Procedure Code, 1908. For India-seated awards (awards governed by Indian Law), i.e. “domestic awards”, Part I of the Act will be applicable. For awards governed by foreign law, i.e. “foreign awards”, Part II of the Act will be applicable. To ensure that your award is successfully enforced, you should make sure […]

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
By BIMACC
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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 […]