INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
ment without their consent, since a settlement arrived at through these processes has to be placed before the court for recording and disposal. ADR is viewed as an efficient and necessary process for effecting speedy and effective relief to litigants, while also reducing the pendency of cases in courts. In fact, courts have explicitly held that arbitration should not be treated as an inferior adjudication pro- cedure. The endeavour has been to promote arbitra- tion as a transparent, fair and just alternative to court adjudication. The Mediation Act, 2023 came into force on 15 Sep- tember 2023, in order to: • promote and facilitate mediation, especially insti- tutional mediation, for the resolution of disputes, commercial or otherwise; • enforce mediated settlement agreements; • provide for a body for the registration of mediators; • encourage community mediation; and • make online mediation an acceptable and cost- effective process. 12.2 ADR Within the Legal System Under Indian law, courts are obliged to refer parties to arbitration and/or appoint an arbitrator if there is an arbitration clause. Furthermore, Section 12A of the CCA makes it man- datory for the disputing parties to attempt mediation before initiating a suit. While parties may be granted an exemption from pre-suit mediation in cases of urgency, the Supreme Court has clarified that com- mercial courts are required to inquire into whether a party is attempting to circumvent pre-institution mediation. 12.3 ADR Institutions In India, institutional arbitration can be conducted under the following institutions, among others: • the Delhi International Arbitration Centre (DIAC) – New Delhi; • the Mumbai Centre for International Arbitration; • the International Arbitration and Mediation Centre – Hyderabad; and
• the Nani Palkhivala Arbitration Centre, Chennai. These institutions are well organised and offer an advantage in terms of having their own rules that pro- vide certainty on procedural issues, the expeditious appointment of arbitrators, a challenge to the appoint- ment of arbitrators, the joinder of parties, interim relief through the emergency arbitration process (if provided for in the rules), administrative support, and greater clarity and certainty on arbitrators’ fees.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
Arbitrations in India are governed by the provisions of the Arbitration Act, which provides for domestic, foreign and international commercial arbitrations. It regulates the conduct of arbitrators and the recogni- tion and enforcement of domestic and foreign awards. The Arbitration Act is based on the UNCITRAL Model Law and the Arbitration (Protocol & Convention) Act, 1937 (the Geneva Convention). Part I of the Arbitra- tion Act deals with domestic arbitrations, and Part II provides guidelines for the enforcement of foreign awards. Certain other statutes also provide for the resolution of disputes by arbitration – eg, the Micro, Small & Medium Enterprises Development Act, 2006 and the Electricity Act, 2003. In case of conflict between the provisions of the statute concerned and the Arbitra- tion Act, the provisions of the statute concerned will prevail, being a special act. 13.2 Subject Matters Not Referred to Arbitration Generally, disputes of a civil and commercial nature are arbitrable. The following types of disputes are not arbitrable, and thus cannot be referred to arbitration: • disputes pertaining to actions in rem (eg, insolven- cy or intracompany disputes, matters pertaining to probate, testamentary, consumer disputes); • disputes affecting third-party rights (eg, disputes pertaining to intellectual property rights);
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