...ALTERNATIVE DISPUTE RESOLUTION IN INDIA In a rapidly developing society human needs are bound to multiply resulting into conflict of interests. People become more conscious about their individual rights and litigation becomes an inevitable part of their life due to rising incidence of disputes among them. The problem is further compounded when there is lack of discipline in the litigation process an judicial mechanism finds it difficult to cope up with the enormous caseload. Particularly, in a modern technologically and economically well advanced society, litigation is a primary means of resolving disputes. When it fails to meet the need of the people there is oblivious need to search for new alternative methods of dispute resolution. It is in this context that the alternative modes of dispute resolution have gained primacy in the present millennium. Justice delivery institutions in most of the developing countries in the world are currently confronted with serious crises, mainly on account of delay in the resolution of the disputes particularly the delay in disposal of the commercial and other civil matters. We must admit that this situation has eroded public trust and public confidence in the justice delivery institutions. It obstructs economic growth, development and social justice to the citizens in a country. The crises therefore, call for an urgent solution. The cause for such backlog of cases is institutional and the delay in disposal of the cases, is due...
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...found an alternative to Adversarial litigation in the form of ADR Mechanism. New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution of disputes takes place usually in private and is more viable, economic, and efficient. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation Need of ADR in India: The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief...
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...Mediation Conciliation Arbitration Negotiation: this is the first way of ADR and the parties involved (which is usually two or more) attempt to come to an agreement or try to compromise before using any other methods of ADR. This can be done with or without a solicitor however the decision made is not legally binding. Negotiation is private as only the parties involved are there when the negotiation takes place, it is also cheap as there is no cost unless a solicitor is involved. Mediation: there are always three or more parties involved in mediation and one of the parties is the mediator. The mediator doesn’t have an active role in resolving the dispute but acts a facilitator so the parties find a way to solve their issues themselves, even if the issue is resolved the decision made isn’t legally binding. Conciliation: unlike mediation where the mediator doesn’t have an active role, in conciliation the conciliator does. The conciliator suggests ideas that would solve the dispute between the parties however the decision that may be reached is not legally binding. Rather than the parties going to court conciliation is offered to them as an alternative, this is usually done in the workplace. Arbitration: out of all methods of ADR arbitration is the only one where the arbitrator has the authority to make the decision legally binding as the decision is governed by the ‘Arbitration Act 1996’. As arbitration is voluntary both sides must agree to arbitration. They also...
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...Arbitration For a dispute to be resolved through arbitration it is necessary that the two parties had agreed and had a clause on arbitration as the dispute resolution procedure at the time of getting in to the contract. Disputes arising from the contract will be referred to the arbitrators. It is a dispute resolution process where the opposing parties select or appoint an individual called an Arbitrator or a panel of arbitrators. Usually one arbitrator is appointed from each party and the two arbitrators appointed will select the third arbitrator to act as the chairman of the panel. Upon appointment, the Arbitrators will arrange the process to hear and consider the evidence, review arguments and afterwards will publish an award in which the items of dispute are decided. Legislation governing arbitration in Sri Lanka is the Arbitration act of 1995. Main highlights of this act include Safeguarding party autonomy with regard to arbitration procedure, eliminate interference of courts, possibility to exclude appeals to supreme court, provision for enforcement of foreign arbitration award. Advantages of arbitration includes less cost compared to litigation, non disclosure of company information as it is privately held and flexibility. But the companies are bound to accept the decision of the arbitrator and it will create a win lose situation. Arbitration is today most commonly used for the resolution of commercial disputes. It is also widely used in international commercial transactions...
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...Introduction: Gandhi ji said: "I had learnt the true practice of law. I had learnt to find out the better side of human nature, and to enter men's hearts. I realized that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt unto me that the large part of my time, during the twenty years of my practice as a lawyer, was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly not my soul." Conflict is a fact of life. It is not good or bad. However, what is important is how we manage or handle it. Negotiation techniques are often central to resolving conflict and as a basic technique these have been around for many thousands of years. Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails. Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System. It is an alternative to litigation. It was being thought of in view of the fact that the Courts are over burdened with cases. The said system emanates from dissatisfaction of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a sense of alienation from the whole legal system- thus, the need for Alternative Dispute Resolution. With the spread of ADR programs in the developed...
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...Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia[1]) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[2] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.[3] Please read: a personal appeal from Wikipedia founder Jimmy Wales Read now Alternative dispute resolution From Wikipedia, the free...
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...voluntary arbitration role. It also has a constitutional power about taking decisions between trade unions and employers or the management. The Industrial court is also known as the labour court. According to the Industrial Court Act in Mauritius the Industrial court is established by section 3 of the Industrial Court Act. The Industrial Court is composed of two Magistrates who are appointed by the Judicial and Legal Service Commission. The industrial law has some other powers that is any worker facing any difficulties at work can apply to the magistrate...
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...Therefore, the introduction of section 891 and Rules 1A, 1B and 1C in Order 10, which provides for settlement of disputes through ADR mechanism, in the CPC2. Section 89- Is it the best answer? A simple reading of the section suggests that the Court is not bound to decide each case itself, but can refer the dispute to Arbitration, Conciliation, Mediation, Lok Adalats or Judicial settlement mechanism, the failure of which would revert the case back to the Court for normal adjudication proceedings. This could reduce the burden of the Court. But there have been several doubts, even cases challenging the validity and the completeness of S.89, saying that it does not provide much operational value in real time. 1 Civil Procedure Code, Section 89: Settlement of disputes outside the court. - (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for - (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) where a dispute has been...
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...INDIAN BARE ACTS THE ARBITRATION AND CONCILIATION ACT, 1996 No.26 of 1996 [16th August, 1996] An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. WHEREAS the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985: AND WHEREAS the General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice; AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980; AND WHEREAS the General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation; AND WHEREAS the said Model Law and Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations; AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid...
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...Section 3 of the UGC Act 1956, by notification No.F.9-12/2001 – U.3 of the Government of India) (Accredited by NAAC with ‘A’ Grade) ------------------------------------------------- Study of arbitration, dispute resolution and mitigation practices in Indian Infrastructure Sector MBA – Infrastructure Management Batch 2013-15 Semester III Thesis Guide: Dr. Ajit Patwardhan Prepared by: Name | Roll No. | Jasjeet Singh Gill | 2013D02 | Subhashini N. | 2013D17 | Acknowledgement We consider it our privilege to express a few words of gratitude and respect to all those who contributed and wished for the successful completion of our project. We express our deep felt gratitude to Prof. (Dr.) Pratima Sheorey - Director, SCMHRD and college management for providing us with all facilities for making this endeavour possible. We acknowledge with a deep sense of gratitude, the constant help and guidance provided by our thesis guide and faculty Prof. (Dr.) Ajit Patwardhan at all stages of our project work. He has been an eternal source of inspiration and knowledge, without him, this thesis, was impossible. We would like to express our thanks in no less measure to Prof. Vasundhara Sen for her constant help. Our sincere thanks to our friends and all the people who directly or indirectly helped us, without which completing the course of this study would have been difficult. Certificate This is to certify that the project entitled “Study of arbitration, dispute resolution...
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...The 5 most important Sections of Taft–Hartley Act The Labor-Management Relation Act, also called the Taft–Hartley Act, as an amendment to the National Labor Relations Act (NLRA) was created in 1947, with the purpose of solving labor disputes during collective bargaining or conflicts between employees and employers that would seriously damage the U.S industrial development. Totally, there are 5 titles and 29 sections in this law. In my opinion, the 5 most important sections of this law are Sec.1, Sec 201, Sec.203, Sec.301, and Sec.303. And the following reasons explain why I think these five sections are the most important comparing to other sections. * Section 1 described the short title of Labor Management Relation Act and declared the policy of this law. The policy is that industrial strife which interferes with the normal flow and the full production of commerce must be avoided and minimized by both sides’ recognition of one another’s legitimates rights in their labor relations with each other. Further, the overall purpose of this law was also stated in this section: “to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other , to protect the rights of individual employees in their relations with labor organization, to define and proscribe practices on the...
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...Table of Contents Resolution of Industrial Conflict/Conciliation and Arbitration ............................................... 2 Introduction ................................................................................................................................. 2 The nature of conciliation and arbitration and mediation ........................................................... 2 The grievance machinery ............................................................................................................ 4 The Labour Relations Code & The Industrial Disputes Tribunal (IDT) ..................................... 5 Litigation ..................................................................................................................................... 6 Module 8 ........................................................................................................................................ 8 Industrial Relations and the Future ............................................................................................ 8 Globalization - competition and industrial relations ................................................................... 8 The 21st century and trade unions............................................................................................... 8 Pay and working conditions ........................................................................................................ 9 Time flexibility.................................
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...forms of ADR techniques as stated in a publication entitled Dispute Resolution Guidance[2], these include, Mediation, Conciliation, Neutral Evaluation, Expert determination, Adjudication and Arbitration. Mediation engages the services of a mediator to help the parties reach an acceptable agreement. The agreement is initially non-binding however if settlement is reached it can become a legally binding contract. Conciliation is similar to mediation; however the conciliator can recommend a solution. This term is gradually falling into disuse and is regarded as a form of mediation. Neutral Evaluation is where a third party gives a confidential opinion based on the facts provided by either parties, on the possible outcome of a trial, this opinion can then be used as the basis for settlement or further negotiation. Expert determination is a process by which an independent expert is allowed to investigate the dispute and deliver binding decisions. “Adjudication is when an expert is instructed to rule on a technical issue – primarily used in construction disputes as set out in the Housing Grants, Construction and Regeneration Act 1996 where awards are binding on the parties at least on an interim basis – i.e. until a further process is invoked.” [3] Arbitration is a binding process governed by statute, namely the Arbitration Act 1996. The appointed arbitrator acts as both Judge...
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...SETTLEMENT OF OIL AND GAS DISPUTES: DOMESTIC AND INTERNATIONAL PERSPECTIVES PAPER DELIVERED BY: OLABISI O. SOYEBO, SAN, MCIArb. AT THE MINISTRY OF JUSTICE MAITAMA, ABUJA 29th NOVEMEBER, 2011. SETTLEMENT OF OIL AND GAS DISPUTES: DOMESTIC AND INTERNATIONAL PERSPECTIVES BEING A PAPER DELIVERED BY OLABISI O. SOYEBO. SAN. MCIArb., AT THE MINISTRY OF JUSTICE MAITAMA ABUJA ON 29TH NOVEMEBER, 2011. INTRODUCTION Oil and gas are considered among the world's most important resources and the oil and gas industry plays a critical role in driving the global economy. They are used for numerous products, in addition to serving as the world's primary fuel source. The processes and systems involved in producing and distributing oil and gas are highly complex, capital-intensive and require state-of-the-art technology. Though efforts are being made to develop alternative sources of energy the world over, Oil and Gas will no doubt remain the largest fuel in the international energy market for some time and demand for the resources will continually create transactions and the attendant disputes. We all know that big business means big problems! The focus of this paper is to highlight the types of disputes which arise in the Oil and Gas industry, the type of Dispute Settlement/Resolution mechanisms available for resolving such disputes, issues of jurisdiction vis a vis private international law, consideration of the enabling instruments and laws and a practice guide to...
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...sustainable climate of industrial peace and harmony that helps maintain the City State‟s global competitiveness. This analysis of Singapore‟s success story is part of a comparative study of national systems of tripartism and social dialogue, intended to cull good practices that may be adapted and adopted in other countries of the region. iii iv Contents Foreword iii 1. Singapore’s Labour Force, Labour Institutions and Key Labour Laws Singapore’s labour force and employment in brief Trade union membership Labour institutions Ministry of Manpower Industrial Arbitration Court Trade unions Singapore National Employers Federation Key labour laws and collective bargaining The Employment Act The Industrial Relations Act The Trade Unions Act The Trade Disputes Act The collective bargaining process (enterprise level) Disputes settlement through conciliation and arbitration 1 1 2 2 3 4 4 5 5 5 7 8 8 10 11 2. Tripartite Social Dialogue Bodies 13 3. Tripartism and Social Dialogue National Wages Council Central Provident Fund Tripartism: success stories Employment of older workers Productivity movement Workers’ training Industrial peace and harmony with social justice Other tripartite outcomes The Singapore Tripartism Forum 15 15 17 19 19 19 20 20 24 24 4. Future Trends, Prospects and Challenges 26 Tables Table 1: Employment structure, by industry (as of March 2007)...
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