INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
• conciliation; • mediation;
Furthermore, Section 12A of the CCA makes it mandatory 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 of India has clarified that commercial 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 con- ducted under the following institutions, among others: • the Delhi International Arbitration Centre (DIAC) – New Delhi; • the Mumbai Centre for International Arbitra- tion; • the Hyderabad Arbitration Centre; • the Nani Palkhivala Arbitration Centre, Chen - nai; and • the Indian Council of Arbitration – New Delhi. These institutions are well organised and offer an advantage in terms of having their own rules that provide certainty on procedural issues, the expeditious appointment of arbitrators, a chal- lenge to the appointment of arbitrators, the join- der of parties, interim relief through the emer- gency 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 provi- sions of the Arbitration Act, which provides for domestic, foreign and international commercial
• judicial settlement; and • Lok Adalat settlement.
Arbitration and conciliation require the consent of the parties since the decision therein is bind- ing and enforceable. However, parties can be referred to mediation, judicial settlement and Lok Adalat settlement 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 procedure. The endeavour has been to promote arbitration as a transpar- ent, fair and just alternative to court adjudication. The Mediation Act, 2023 came into force on 15 September 2023, in order to: • promote and facilitate mediation, especially institutional 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 par- ties to arbitration and/or appoint an arbitrator if there is an arbitration clause.
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