ALTERNATIVE DISPUTE RESOLUTION - BBA LLB 5th Year.pptx

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1. ALTERNATIVE DISPUTE RESOLUTION COURSE CODE: LC 531 SURYA SAXENA ASSISTANT PROFESSOR (LAW) ICFAI UNIVERSITY, DEHRADUN

2. SUGGESTED READINGS 1. Murthy KSR, An Introduction to ADR Mechanism, Gogia Law Agency, Hyderabad. 2. Singh Avtar, Arbitration and Conciliation , Eastern Law Book House, Lucknow. 3. Tripathi SC, Arbitration and Conciliation including ADR . 4. Tiwari O.P., The Arbitration, and Conciliation Act, 2nd Edition, Allahabad Law Agency.

3. Unit 1: Introduction to Alternative Dispute Resolution Mechanism

4. Introduction Today’s world has become globalized and commercial with the advent of technology. People can now contact each other and settle business deals and disputes when they are sitting at the opposite ends of the world. Most people no longer have the time to go and file papers at the courts and then wait long periods for a hearing.

5. We are rapidly approaching a stage where litigation is being replaced with alternative dispute resolution (ADR), due to the inefficiencies and drawbacks of litigation. India hasn’t quite reached a stage where litigation has been completely displaced by ADR methods, but the legal system is beginning to see the benefits of ADR. 

6. What is Alternative Dispute Resolution? Alternative dispute resolution (ADR) refers to a range of dispute settlement methods that help the parties in the dispute to come to a settlement without going to court, or without litigating on the said matter. These methods usually involve a third party, who helps them in settling the disputes. In many cases, ADR methods are used alongside the litigation process as well through court authorization.

7. How did the concept of ADR arise? As stated in the  222nd Report of the Law Commission of India , the Constitution has guaranteed access to justice for all, primarily through  Article 39A , which states that everyone must have an equal opportunity of getting justice and this must not be denied to any citizen by reason of economic or another sort of disabilities.

8. The report further states that ‘access to justice for the common masses in India means access to the courts of law. But even that has been hindered, due to factors like poverty, illiteracy, ignorance, social and political backwardness, etc.  In a developing country like India, many people still live in poverty. When their rights get violated, they often do not have the money to fight long battles in Court.

9. They do not have the money to afford a lawyer. They do not know the legal system and procedures. Therefore, they often think that the court system is an inconvenience. These kinds of inefficiencies are shared reasons among many countries, which is why ADR is being explored. The courts also have too many pending cases and these cases keep going on for many years which is a tremendous burden to the courts. 

10. These reasons prompted the Indian Government to enact  Section 89 of the Code of Civil Procedure, 1908  and replace the earlier  Arbitration Act,1940  with  The Arbitration and Conciliation Act 1996 , in accordance with the mandates of the United Nations Commission on International Trade Law (UNCITRAL).

11. Merits of ADR It is less expensive. It is less time-consuming. It is free from the technicalities that are present in the court system.  The parties are free to differ in their opinion and can discuss their opinions with each other, without any fear of disclosure of this fact before the courts. 

12. There is no feeling of enmity between the parties as there is no winning and losing side. They also get their grievances redressed and their relationship remains as it was before, therefore, they can conduct future business deals with each other.

13. ADR is more suitable for multi-party disputes, as all the parties can put forward their opinions at the same place and in one go, rather than going to court again and again. Also, it provides for a wider perspective of the dispute. The parties often have the choice of the ADR method to be used. They sometimes also have the choice to select the individuals or bodies who will settle the dispute. The process is also very flexible, according to what suits the parties.

14. Demerits of ADR ADR is not helpful where a dispute is to be decided on the basis of a precedent. When there is a need for court and interim orders, ADR would not be useful. ADR is less suitable when there is a need for enforcement.

15. When there is a need for live and expert evidence and analysis in a case, then ADR would not be useful. When there is an imbalance of power, between the parties in the dispute, then ADR would not work. If the case is of a complex nature, then the adjudicating body must look into minor details and may need expert advice and suggestions. Here, ADR would probably not work.

16. Types of ADR Methods A . Arbitration: Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. It is a form of dispute resolution where one or more parties are appointed to adjudicate the dispute. They act as third parties. This third party should be neutral and this party is referred to as an ’arbitrator’ while the decision of the arbitrator, which is essentially a determination of merits in the case, is known as an ‘arbitration award’.

17. The arbitration process is informal and this process allows the dispute to be resolved amicably and efficiently as it takes less time and involves lesser costs for the parties. Therefore, parties frequently choose to arbitrate when disputes arise, especially in the business world. Big corporations would rather settle disputes quickly, rather than fighting long cases in the courts. 

18. Before the arbitration process begins, an arbitration agreement is required to be formed. This agreement lays down the terms and conditions on which the arbitration process is carried out. It is determined through this agreement how the process will be made cheaper, and more efficient and how the rules of evidence would be applied, etc. This agreement should be valid as per  The Indian Contract Act 1972  and the parties must have the capacity to contract under  Sections 11  and  12  of the same Act. Arbitral decisions are final and binding on the parties, who have a limited scope of objecting to the decisions.

19. Types of Arbitral Proceedings 1. AD-HOC Arbitration: Under ad hoc arbitration, the parties involved in the dispute determine the conduct of the arbitration proceedings themselves, without going to an arbitral institution. In case the parties are not able to settle on one arbitrator, or one of the parties is reluctant to appoint that particular arbitrator, then  Section 11  of The Arbitration and Conciliation Act 1996 will be invoked by the other party. Under Section 11 of the Act, the arbitrator for that dispute will be appointed by either the Chief Justice of the Supreme Court or his designate or the Chief Justice of the High Court or his designate.

20. If it is a domestic arbitration, then the Chief Justice of the High Court or his designate will appoint the arbitrator. If it is International C ommercial Arbitration, then the Chief Justice of India or his designate will appoint the arbitrator. In ad hoc arbitration, the fee of the arbitrator is decided mutually by the parties and the arbitrator.

21. 2. Institutional Arbitration: In this kind of arbitration, the parties decide in the agreement itself, that an arbitration institution will administer the arbitration. The Indian institutions are the International Centre for Alternative Dispute Resolution and the Indian Council of Arbitration. These institutions formulate the rules for arbitration owing to their experience in observing arbitral procedures and situations, therefore they are prepared for all possible situations that may arise in future arbitration cases. 

22. B. Mediation In mediation, a third neutral party aims to assist two or more disputants in reaching a settlement. This third party is referred to as the mediator. The mediator needs to properly communicate with both parties and use proper negotiation techniques, in order to make one party fully aware of the other party’s perspective, through empathy and dialogue. This process is controlled by the parties.

23. One of the characteristics of this type of dispute resolution is that the mediator is not allowed to give an outcome of the dispute. The solution is given mutually, and the agreements are generally non binding. Parties are in significant control of the mediation process and it is strictly confidential. The parties can even go for litigation if they are not satisfied with the mediation process. 

24. It must be observed that the main aim of the mediation process is to build relationships, and not to make a decision. It is more of an amicable resolution of differences with potential form future business between the parties.

25. C. Negotiation: A Negotiation is also a form of dispute resolution, but there is no third party to adjudicate the matter, therefore the parties work together to find a mutually acceptable solution or a compromise. The parties may choose to be represented by their attorneys during their negotiations. Negotiation is not statutorily recognized in India. There are no set rules for conducting a negotiation. 

26. Essentials of negotiation - It is a process of communication that helps to resolve conflicts. It can be entered into voluntarily and its outcome is non-binding.  The parties are benefitted here as they have control over the outcome and procedure and the process is carried out keeping their interests in mind. 

27. D. Conciliation: In conciliation, the third party, who is called the conciliator, talks to the parties involved separately so that the parties can arrive at a mutually acceptable solution through facilitating talks between the parties. Conciliation is also governed in India under The Arbitration and Conciliation Act, 1996. Under  Section 61 , conciliation is provided for disputes arising out of legal relationships, whether they are contractual or not. 

28. Difference Between Mediation and Conciliation In mediation, the mediator plays a more active role in the process by proposing compromise solutions after hearing all parties while in the case of conciliation, the conciliator has to bring the parties into such a state of mind as to facilitate the parties to come to an acceptable compromise. 

29. E. Lok Adalat: In a country like India where there are many illiterate people, the concept of Lok Adalats is a necessity. This was first introduced in 1982 in Gujarat. This concept mainly focused on reducing the burden of pending cases on the Courts and has incorporated the concept keeping in mind various factors like social justice.

30. Lok Adalats are governed under  The Legal Services Authorities Act,1987 .  Sections 19 ,  20,   21  and  22  specifically deal with Lok Adalats . They have been organised by the State Legal Aid and Advice Boards with the aid of District Legal Aid and Advice Committees. These have helped poor people to avoid the inefficiencies of litigation. The aim of The Legal Services Authorities Act was to provide access to justice for all, whether he be poor or rich. Since the poor masses of the society were not being delivered on this promise, this Act was formed.

31. This access has been further strengthened by judgements of various courts, such as the Delhi High Court, in the case of  Abul Hasan and National Legal Service Authority v. Delhi Vidyut Board & Ors . AIR 1999 Del 88 , where it gave an order for setting up permanent Lok Adalats . Further, the decision given by the Lok Adalat is binding and shall be treated akin to the order of a civil court, thereby increasing poor people’s access to justice. 

32. UNDERSTANDING DOCKET EXPLOSION The Constitution of India reflects the quest and aspiration of mankind for justice when its preamble speaks of justice in all its forms; social, economic, and political. They refrain from taking law into their own hands, as they believe that one day or the other, they would get justice from the Courts.

33. Justice Delivery System, therefore, is under an obligation to deliver prompt and inexpensive justice to its consumers, without in any manner compromising on the quality of justice or the elements of fairness, equality, and impartiality.

34. The success of the Indian judiciary on the Constitutional front is unparallel. Its contribution to enlarging and enforcing human rights is widely appreciated. Its handling of Public Interest Litigation has brought its institutions closer to the oppressed and weaker sections of society.

35. Indian Courts are held in high esteem not only by developing but by developed countries as well. There is widespread praise for the quality of the judgments delivered, and the hard-work being done by Indian Judiciary. The citizens of India can therefore legitimately feel proud of this recognition. However, there is growing criticism, sometimes from uninformed or ill-informed quarters about the inability of our Courts to effectively deal with and wipe out the huge backlog of cases.

36. Many countries the world over are facing the problem of delay in the dispensation of justice. It is a major problem being faced by the Indian Judicial system. `Delay' in the context of justice denotes the time consumed in the disposal of a case, in excess of the time within which a case can be reasonably expected to be decided by the Court. In an adjudicatory system, whether inquisitorial or adversarial, an expected life span of a case is an inherent part of the system.

37. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is a delay in the dispensation of justice. Scanning of the figures would show that despite efforts being made at various levels and a substantial increase in the output being given by the system, the gap between the expected and actual life span of the cases is only widening.

38. The problem is much more acute in criminal cases, as compared to civil cases. Many times such inordinate delay contributes to the acquittal of guilty persons either because the evidence is lost or because of a lapse of time, or the witnesses do not remember all the details of the witnesses do not come forward to give true evidence due to threats, inducement or sympathy. Whatever may be the reason, it is justice that becomes a casualty.

39. The inadequate judge strength is a major cause for the delay in the disposal of cases. It is not merely the raising of the strength of the judges in the subordinate courts and High Courts which is the need of the day –a greater need is of making the right appointments. An unfilled vacancy may not cause as much harm as a wrongly filled vacancy. To some extent delay in the disposal of cases is also "judge-made”. Lack of punctuality, laxity, and lack of control over the case file and the court proceedings contributes in no small measure to the delay in the disposal of cases. Unless the judges have complete control over the file, they cannot control the proceedings resulting in a loss of time.

40. The "inspection" of subordinate courts by District Judges and the High Court judges should be real and not "routine". The grant of unnecessary adjournments on the mere asking or on account of a “strike call” adds to the problem. The Bar and Bench have to resolve to remedy these ills. Immediate attention is to be given to these aspects if we wish to preserve people's faith in the Rule of Law and the effectiveness of the justice delivery system. Court must remember that no party to trial has a vested right in slow motion justice.

41. They should see to it that by slow tact justice is not made sterile. Yet another cause for delay in the disposal of cases is “procedural delays”. The Code of Civil Procedure and the Code of Criminal Procedure have been amended to cut short avoidable delays.

42. Legislative Efforts in India towards Speedy Justice The legislative sensitivity towards providing a speedy and efficacious justice in India is mainly reflected in two enactments. The first one is the Arbitration and Conciliation Act, 1996 and the second one is the incorporation of section 89 in the traditional Civil Procedure Code (CPC). The adoption of the liberalized economic policy by India in 1991 has paved way for integration of Indian economy with global economy.

43. This resulted in the enactment of the Arbitration and Conciliation Act, 1996 (new Act) by the legislature as India had to comply with well-accepted International norms. It superseded the obsolete and cumbersome Arbitration Act, 1940. One of the most commendable objects of the new Act is to minimize the role of the courts in the arbitration process. The Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required for an effective ADRM.

44. Section 89(1) of CPC deals with the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association v. U.O.I, the Supreme Court had directed the constitution of an expert committee to formulate the manner in which section 89 and other provisions introduced in CPC have to be brought into operation.

45. The Court also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Section 89 of CPC. All these efforts are aimed at securing the valuable right to speedy trial to the litigants.

46. Emerging Trends in Dispute Resolution With the maturing of the economy and our society and the speed of modernization in all spheres contractual obligations have expanded accordingly. Dispute resolution mechanisms have to evolve over time to take into account these changes. It has been a process of gradual evolution in all aspects covering the mode of dispute resolution, the laws affecting it and the nature of cases.

47. One of the strengths of democracy is that it can take a fresh look at itself in order to keep pace with changing times. The Indian legal system has always been able to adapt to the changing society. The law has changed because of globalization, development of technology and the evolving society.

48. Mode of Dispute Resolution (Institutional Structure, New forums - New tools) The traditional method of practice i.e. court proceedings has seen a gradual change. Some changes have been made even to ease the pressure on courts (backlog of cases) by the setting up of new forums (specialized courts and tribunals). Under this head, we will look at some of the changes that have taken place in the mode of dispute resolution like litigation (commercial courts act, class action), arbitration (amendments to arbitration act), and new tools like mandatory pre-suit mediation and online dispute resolution.

49. Laws affecting Dispute Resolution (Legal Framework, Lack of Regulation, and Emerging Laws) The government has been concerned with the issues of the economy and rapid development of technology including the failure of proper regulation. The government has taken steps keeping in mind the new challenges that are taking place in line with the nature of disputes. Under this head we will discuss some new changes in laws like the new economic offenders’ act, new areas of disputes under the criminal laws relating to online space (fraud), the space bill, the privacy bill, insolvency laws, social legislation like surrogacy, and issues of liability surrounding new areas of technology (drones and driverless cars) and climate change.

50. Nature of Cases (Some Pointers to Future Trends) The Supreme Court does not work in isolation. As the country has developed certain issues have been thrown up from time to time. The courts have responded to the issues each time. We will see some of the highlights of this journey and show how the court is responding to the new challenges today and some future trends that the court may be faced with as the economy develops rapidly.

51. Trend 1 We will deal with the first trend which is the mode of dispute resolution. This aspect has seen a gradual change. The traditional method of dispute resolution like litigation and alternative dispute resolution mechanism have remained the same, however the government has introduced urgent reforms in these areas to ensure speedy and new ways of resolving disputes.

52. Trend 2

53. Trend 3 The Supreme Court has evolved over time both in terms of administrative aspects and jurisprudence. On the administrative side the court is still struggling with the appointment of judges through a collegium system which is an independent process with no interference from the executive. However, the appointments through this system have recently been criticized by many because of the lack of transparency and arbitrariness in appointments.

54. The government had a few years back proposed a National Judicial Appointments Commission (NJAC) for appointment of judges through a process which was struck down by a five judges bench of the Supreme Court as being unconstitutional and impinging on the independence of the judiciary.

55. On the jurisprudence side, the court has been concerned with the issues of the economy and the failure of proper regulation and policy making. The court has recently dealt with issues of corruption that are rampant, social issues concerning women’s rights, child rights, and human rights and has also struck down laws made by parliament which are arbitrary. On the technology side the court struck down a section of the IT act that provided for arrest for posting offensive content on the internet.

56. The court has struck down legislations that are against the basic structure of the Constitution by upholding the rule of law, exercising its power to judicial review, and protecting the right of the independence of the judiciary. Though the judiciary has been at the forefront of criticism by the media and civil society it has still been active and has passed decisions and has stepped up when the executive has failed.

57. Unit 2: ADR Mechanisms in India

58. NEED FOR ALTERNATIVE DISPUTE RESOLUTION MECHANISM It is a well known fact that the present Judicial System is extremely expensive and delaying. The parties to a dispute have to wait for Justice for years. This lengthy and expensive process of litigation has reduced the faith of common people in the Judicial System being followed by the Courts. These weaknesses of Judicial System has given birth to alternative remedies for the disposition of disputes.

59. Alternative remedies provide cheap and speedy Justice and that is the reason that ADR mechanism is being preferred by the disputing parties for the resolution of their disputes.

60. ALTERNATIVE DISPUTE RESOLUTION (ADR) Arbitration was very popular and prevalent in ancient India, too and ‘Awards’ were the decisions of Panchayats, which were binding in nature. ADR refers to the methods of resolving a dispute, which are alternatives for litigation in Courts. ADR processes are decision making processes that do not involve litigation or violence.

61. In India, an alternative system is available to the disputing parties including Arbitration, Conciliation, Mediation, Negotiation etc. The approach of judges, lawyers and parties all over the world is changing in favour of adoption of ADR instead of Court litigation. Arbitral institutions provide ADR services for quicker, less costly and consensual resolution of civil disputes outside the crowded court system.

62. ADR promotes communication between the parties and enables them to solve their actual concerns behind the disputes. Many disputes like consumer complaints, family disputes, construction disputes, and business disputes can be effectively resolved through ADR. It can be used in almost every kind of dispute which can be filed in a court as a civil dispute.

63. When a civil suit is filed in a court of law, a formal process takes place, which is operated by advocates and managed by the court and the parties are then left to wait for the orders of the Court. The outcome of the case is uncertain. After the decision of the case there can be an appeal or other proceedings which may further delay the implementation of the decision of the case.

64. VARIOUS TECHNIQUES OF ADR, THEIR PROCESSES AND THEIR ADVANTAGES TO THE PEOPLE Following are the main techniques of the Alternatives Dispute Resolution (ADR) Mechanism. A. Arbitration B. Conciliation C. Mediation D. Pre-Trial Conciliation/Mediation E. Negotiation/Discussion F. Lok Adalat G. Med Arbitration H. Medola . I. Mini-Trial

65. Arbitration Where two or more persons agree that a dispute or potential dispute between them shall be decided in a legally binding way by one or more impartial persons in a judicial manner, that is, after recording evidence, the agreement is called an Arbitration Agreement. When, after a dispute has arisen, it is put before such person(s), the procedure is called as ‘Arbitration’, and the decision made is called “award”.

66. The person conducting the Arbitration proceeding is called an Arbitrator. The Arbitrator is appointed by the parties to the dispute and in case of any dispute about the appointment of the Arbitrator, the Court may be asked to appoint an Arbitrator. Where there is more than one Arbitrator the leading Arbitrator is called an Umpire, who is responsible for conducting the proceedings. The number of arbitrators can only be in odd number. The decision in such cases is decided by the majority of arbitrators.

67. Arbitration is a method whereby parties can resolve their disputes privately. In this mechanism parties can refer their case to an Arbitral Tribunal where arbitration proceedings are conducted. Arbitration is preferred over traditional litigation because Arbitration is generally less expensive than litigation.

68. It provides for faster resolution of disputes through flexible time schedules and simpler rules. A Court is burdened with a number of cases taken up for hearing every day. An arbitrator conducts only the proceedings referred to him by the parties. Arbitration offers advantages that cannot be provided by litigation in courts. In many cases, a big advantage is that the Arbitrator or Arbitral Tribunal is an expert in the field of the dispute so the proceedings can be conducted without the intervention of lawyers or any other representative in an expeditious manner.

69. Disputes in trade, rent of properties, partition of properties, partition of partnership firms and various consumer disputes can be resolved this way. The ‘Award’ of the Arbitrator is binding on the parties and may be enforced by the Courts. There is no appeal against the Award. (Challenge is allowed only on specific grounds as mentioned under S. 34 of the Act)

70. Virtually all disputes can be resolved by Arbitration unless prohibited by law. The following cases cannot be decided by arbitration:- a) Matters involving criminal questions, or questions of public laws; b) Matrimonial matters, like divorce, maintenance or custody of the child; c) Insolvency matters, like declaring a person as insolvent; d) Dissolution of an incorporated Company; and e) Disputes relating to age.

71. Conciliation ‘Conciliation’ is a process in which a third party assists the parties to resolve their dispute by agreement. The person assisting the parties is called Conciliator. The Conciliator is appointed by the consent of both parties to the dispute. A Civil Court may also refer both parties to the dispute to a Conciliator. A Conciliator may do so by expressing an opinion to the parties about the merits of the dispute to help the parties to reach a settlement.

72. Conciliation is a compromise settlement between the parties with the assistance of a Conciliator. The Conciliator does not take any decision on the dispute before him. No evidence is recorded by the Conciliator nor are any arguments heard. Both the parties may discuss their respective points of view and with the help of the Conciliator resolve their differences.

73. The proceedings before the Conciliator are confidential and do not have any bearing on the proceedings before the Court or before the Arbitrator regarding the dispute. Conciliation is a voluntary and non binding process in comparison to Arbitration and Litigation in courts. Any party may terminate the conciliation proceedings at any time without assigning any reason.

74. The other important difference is that the parties control the process and outcome of the dispute. In the case Arbitration and litigation in Courts the parties have no role in the decision of the case by the Court or in the making of the Award by the Arbitrator. The Conciliator solemnly urges the parties for an amicable reconciliation.

75. Mediation ‘Mediation’ is a process for resolving the dispute with the aid of an independent third person that assists the parties in the dispute to reach a negotiated resolution. ‘Mediation’ is the acceptable intervention into a dispute of a third party that has no authority to make a decision. The person conducting the mediation process is called a Mediator.

76. The mediation process, like the Conciliation process is voluntary and is one more alternate way of resolving a dispute. The Mediation proceedings are confidential, whether or not it results in the settlement and resolution of the dispute. A Mediator assists the parties to reach an agreement for resolving the dispute.

77. He/She does not express his/her opinion on the merits of the dispute. On the other hand a Conciliator may express an opinion about the merits of the dispute to the parties. In both processes, a third party is appointed to assist the parties to reach a settlement of their dispute.

78. His/her function is only to try to break any deadlock and encourage the parties to reach an amicable settlement. A Mediator does not determine a dispute between parties.

79. Pre-Trial Mediation ‘Pre – Trial Mediation’ process is a provision which has been introduced in Section 89 of The Code of Civil Procedure 1908 by virtue of Amendment Act 2002. It was introduced for pre-trial alternatives for settling the disputes. Pretrial mediation is a settlement of disputes by efforts of the Courts before initiation of proceedings before it.

80. The Code of Civil Procedure 1908 is an enactment that governs the procedure to be adopted in hearing and disposing of civil suits. Section 89 of The Code of Civil Procedure 1908 takes a special role, especially in matters related to family members as its main objective is to resolve the family dispute without getting into the bitterness of litigation.

81. Negotiation Negotiation’ is another form of ADR for resolving disputes. The parties agree upon a course of action and bargain for advantage. Sometimes they try to adopt a creative option that serves their mutual interests. And because of its mutual advantages, people negotiate in almost all walks of life from home to the Courtroom

82. It is the most common form of resolving a dispute and this process solves most disputes if negotiation fails, it is necessary to seek the assistance of a neutral third party to reach a solution. Negotiation bargaining is a process in which both parties cooperate and seek a solution that is beneficial to both sides. If and when negotiation succeeds, the parties sign a settlement agreement incorporating the terms and conditions of the agreement.

83. Our legal procedures also provide for settling criminal cases. However, the Court allows for settlement in criminal cases which are mostly trivial in nature. These cases are governed under section 320 of the Code of Criminal Procedure, 1973 and the cases settled under this provision are termed as compounded. The code specifies a category of cases which can be compounded.

84. Code of Criminal Procedure, 1973 governs the procedure to be adopted in criminal cases. Yet another provision available is Plea Bargaining under section 265 A of the Code of Criminal Procedure, 1973. Under this provision if the accused is willing to plead guilty for the offense alleged, and expresses his/her willingness to compromise the case with the victim then he/she can be allowed to do the same but only with the consent of the Court. All these provisions have been provided for to ease the workload of the Courts and speedy disposal of cases.

85. Lok Adalats Lok Adalat’ is yet another form of ADR created as per the requirements of people in particular areas. Camps of Lok Adalat were initially started at Gujarat in 1982 and now they have been extended to all over India. The main purpose of establishment of Lok Adalats is to diminish the heavy burden of pendency of cases in the Courts which were of petty nature.

86. The seekers of justice are in millions and it is becoming rather a heavy burden on the courts to dispose off such matters keeping in view the ever increasing litigation. Lok Adalats are organized with financial assistance from the Government and monitored by the Judiciary. Lok Adalats have set conciliation process in motion in India. Lok Adalats have assumed statutory recognition under the Legal Services Authority Act, 1987.

87. The Section 19 of Legal Services Authorities provides for organization of Lok Adalats . Furthermore, it has the jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute. Every award of the Lok Adalat shall be deemed to be a decree of a civil court, or as the case may be, an order of any other civil court.

88. Where a compromise is or settlement is arrived at, by Lok Adalat, the court fee paid in such cases shall be refunded. Similar is the condition in cases settled in the mediation cell referred through courts. Lok Adalats is the most popular of Alternative Dispute Resolution (ADR) Technique. Lok Adalats are providing less expensive and speedy Justice. Lok Adalats have assumed statutory recognition under the Legal Services Authority Act, 1987.

89. Med Arbitration Another Alternative Dispute Resolution Technique is Med Arbitration. When a dispute is not resolved by ‘Conciliation’, then a third person is authorized by the parties to the dispute for resolving the dispute and the decision of the third person is binding on both the parties. Med Arbitration is a method which is not governed by Arbitration Act and there is no formality. The dispute is referred in an unofficial way and the decision of the authorized third person is binding.

90. Mediation-Arbitration is a mode of dispute resolution in which mediation and arbitration are combined and is thus also known as ‘med-arb’ method of alternative conflict settlement. It is a two-stage dispute resolution method in which the dispute is initially tried through mediation, and if mediation fails, the matter is then referred to arbitration. When the mediation fails, the mediator is automatically converted into an arbitrator and initiates the arbitration proceedings.

91. On the one hand, where the mediation proceedings are not binding upon the parties unless they both agree to it, the arbitration proceedings are binding upon the parties and cannot be discarded at the instance of one party if they had consented to it in the past.

92. It is a unique mode of dispute resolution as it allows the parties to refer to two ADR methods. Mediation allows the parties to present their case and understand the opposite party’s statements. Once mediation is concluded, there is no need to start arbitration afresh but convert the mediation into arbitration.

93. This saves time and expense for parties and also the adjudicator is already familiar with the issues of the case and can speedily dispose of the matter by making an award.

94. Medola ‘ Medola ’ is another technique of Alternative Dispute (ADR) Mechanism. When it becomes impossible for the parties to reach an agreement, the third party (either the mediator or arbitrator) uses this method in which the person negotiating replaces the arbitrator and acts without bias.

95. Such a person tries to reach at medium way during discussion and attempts for the ‘Agreement’ of the disputing parties over it. This is binding on the disputing parties. To put it simply, MEDOLA is – A procedure in which if the parties fail to reach an agreement through mediation, a neutral person, who may be the original mediator or an arbitrator, will select between the final negotiated offers of parties such selection being binding on the parties.

96. Mini Trial ‘Mini–Trial’ is also an important alternative dispute resolution (ADR) technique. This is different from an official trial of a suit. The disputing parties elect an independent person known as an ‘advisor’. Parties then present their contention before him/her, lay their arguments, and produce evidence in their favour . The elected independent person after hearing both the parties, produces a ‘Conclusion’.

97. The disputing parties believe that such a person is impartial, honest, and independent and he/she gives his/her opinion after hearing both the parties, both the disputing parties, therefore, agree on that ‘Conclusion’.

98. UNIT – 3 INTERNATIONAL COMMERCIAL ARBITRATION

99. Introduction An increase in international trade and investment is accompanied by growth in cross-border commercial disputes. International arbitration has emerged as the preferred option for efficiently resolving such cross-border commercial disputes and preserving business relationships. With open-ended economic policies acting as a catalyst, there has been an influx of foreign investments and an increase in cross-border transactions involving Indian parties.

100. Consequently, international commercial disputes involving Indian parties are also steadily rising. This has drawn the tremendous focus of the international community on India’s international arbitration regime.

101. The Indian legislature and the executive have also taken measures to bolster the ‘ease of doing business in India’ and to clearly reflect a pro-arbitration policy. The Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendment Act”) came into effect from October 23, 2015. The 2015 Amendment Act was well received and significantly improved the efficiency of arbitration in India.

102. Subsequently, a High-Level Committee to review the Institutionalizing of Arbitration Mechanism in India was set up under the chairmanship of retired Justice B.N. Srikrishna (“Committee”). After considering the Committee’s recommendations (“Committee Report”), the Arbitration and Conciliation (Amendment) Act, 2019 was enacted on August 9, 2019 (“2019 Amendment Act”).

103. On August 30, 2019, the Central Government notified Sections 1, 4–9, 11–13, and 15 of the 2019 Amendment Act. The 2019 Amendment Act was passed with a view to making India a hub of institutional arbitration for both domestic and international arbitrations. The ever-evolving arbitration regime in India witnessed its latest amendments in the year 2020. On November 4, 2020, the Arbitration and Conciliation (Amendment) Ordinance, 2020 (“2020 Ordinance”) was promulgated to further amend the Arbitration and Conciliation Act, 1996 (“Act”). Subsequently, the 2020 ordinance took shape as the Arbitration and Conciliation (Amendment) Act, 2021 (“2021 Amendment Act”).

104. Definitions: ‘Court’ and ‘International Commercial Arbitration’ Section 2(1)(e): ‘Court’ 2. Definitions.—(1) In this Part, unless the context otherwise requires, - (e) “Court” means: ( i ) in the case of arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in the exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

105. (ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;

106. After the amendment brought about by the 2015 Act, the definition of the term ‘Court’ as enshrined u/s 2(1)( e) is clearly bifurcated into two parts both of which define the term ‘court’ respectively in cases where there is a domestic arbitration and where there is international commercial arbitration. Sub-clause ( i ) of Section 2(1)(e) stipulates that in cases where there is a domestic arbitration, ‘Court’ shall be construed to mean the Principal Civil Court of Original jurisdiction including in specific cases the High Court in the exercise of its original civil jurisdiction.

107. On the hand sub-clause (ii) stipulates that where there is International Commercial Arbitration the appropriate ‘court’ shall be the High Court irrespective of such High Court possessing original jurisdiction over civil matters. The direct implication of such an amendment is that in all such disputes arising after 23rd October 2015 taking shape of an international commercial arbitration none of the parties would have to approach the district courts first. The High Courts having requisite territorial jurisdiction to hear civil matters will be directly accessible for all such parties under such disputes.

108. Such an amendment to the definition of the term ‘court’ has been welcomed and much appreciated by the international stakeholders as it not only ensures that parties to such international commercial arbitrations can present their disputes in front of judges having a sound commercial understanding of disputes which transcend the national boundaries but also provides them with access to a forum with vast powers which guarantees delivery of justice based on the complete application of mind and sound principles.

109. Section 2(1)(f): ‘International Commercial Arbitration – Whenever there is a dispute that arises out of a legal relationship that is commercial in nature, it is termed as ‘international commercial arbitration’ in terms of the definition of the same u/s 2(1)(f) of the 2015 Act. The other essentials stipulated by Section 2(1)(f) is that such a dispute must be between parties where at least one of them is a resident/national/body corporate residing or incorporated in a foreign nation; association or body of individuals having central control and management in a country outside India.

110. It has to be kept in mind that while construing the meaning of the term ‘commercial’ the same has to be given the widest meaning possible considering the multifarious operations that are integral to the contemporary practices in the sphere of International Trade. (R.M. Investments & Trading Co. Pvt. Ltd. v. Boeing Co., AIR 1994 SC 1136.)

111. Upon careful perusal of Section 2(1)(f) of the 2015 Act, it can be observed that the words “a company or” have been deleted from sub clause (iii) thereby restricting the effective applicability of the provision to only those parties which comprise of an association or body of individuals having central control and management in a country outside India.

112. This amendment has been a conscious effort made by the legislature to clarify that the sole test to determine the applicability of this section is to consider the place of incorporation of such a company. If the place of incorporation is in India then there arises no need to further go into the facts of the location of such a company’s central control and management.

113. The amendment not only brings more clarity to the prevailing law but also bolsters the stand taken by the Supreme Court in TDM Infrastructure . The amendment also strengthens the stand of the legislature that strives to prevent any kind of multiplicity of litigation and any attempted measures amounting to forum-shopping.

114. UNCITRAL Model Law on International Commercial Arbitration CHAPTER I. GENERAL PROVISIONS Article 1. Scope of application (1) This Law applies to international commercial arbitration, subject to any agreement in force between this State and any other State or States. ( 2) The provisions of this Law, except articles 8, 9, 17H, 17I, 17J, 35, and 36, apply only if the place of arbitration is in the territory of this State.

115. (3) An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: ( i )the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

116. (4) For the purposes of paragraph (3) of this article: (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; (b) if a party does not have a place of business, reference is to be made to his habitual residence.

117. Article 2. Definitions and rules of interpretation For the purposes of this Law: (a) “arbitration” means any arbitration whether or not administered by a permanent arbitral institution; (b) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators; (c) “court” means a body or organ of the judicial system of a State;

118. (d) where a provision of this Law, except article 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination; (e) where a provision of this Law refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement;

119. Article 3. Receipt of written communications (1) Unless otherwise agreed by the parties: (a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence, or mailing address; if none of these can be found after making a reasonable inquiry, written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; (b) the communication is deemed to have been received on the day it is so delivered.

120. (2) The provisions of this article do not apply to communications in court proceedings.

121. Article 4. Waiver of right to object A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.

122. Article 5. Extent of court intervention In matters governed by this Law, no court shall intervene except where so provided in this Law.

123. CHAPTER II - ARBITRATION AGREEMENT Article 7. Definition and form of the arbitration agreement (As adopted by the Commission at its thirty-ninth session, in 2006) (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

124. (2) The arbitration agreement shall be in writing. (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.

125. (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

126. Article 8. Arbitration agreement and substantive claim before court (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

127. (2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

128. Article 9. Arbitration agreement and interim measures by court It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure

129. CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL Article 10. Number of arbitrators (1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators shall be three.

130. Article 11. Appointment of arbitrators (1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.

131. (3) Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6; (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.

132. (4) Where under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under such procedure, or (b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or (c) a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the court or other authority specified in article 6 to take the necessary measure unless the agreement on the appointment procedure provides other means for securing the appointment.

133. (5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.

134. Article 12. Grounds for challenge (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.

135. (2) An arbitrator may be challenged only if circumstances exist that give rise to justifi able doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

136. Article 13. Challenge procedure (1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article. (2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge

137. (3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision to reject the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

138. Article 14. Failure or impossibility to act (1) If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his offi ce or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court or other authority specifi ed in article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal.

139. (2) If, under this article or article 13(2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12(2).

140. Article 15. Appointment of a substitute arbitrator Where the mandate of an arbitrator terminates under article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

141. CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL Article 16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

142. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defense. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

143. (3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

144. CHAPTER IV A. INTERIM MEASURES AND PRELIMINARY ORDERS (As adopted by the Commission at its thirty-ninth session, in 2006) Section 1. Interim measures Article 17. Power of arbitral tribunal to order interim measures (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.

145. (2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied, or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.

146. Article 17 A. Conditions for granting interim measures (1) The party requesting an interim measure under articles 17(2)(a), (b), and (c) shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.

147. (2) With regard to a request for an interim measure under article 17(2)(d), the requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent the arbitral tribunal considers appropriate.

148. Section 2. Preliminary orders Article 17 B. Applications for preliminary orders and conditions for granting preliminary order (1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested. (2) The arbitral tribunal may grant a preliminary order provided it considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the measure. (3) The conditions defined under article 17A apply to any preliminary order, provided that the harm to be assessed under article 17A(1)(a), is the harm likely to result from the order being granted or not.

149. Article 17 C. The specific regime for preliminary orders (1) Immediately after the arbitral tribunal has made a determination in respect of an application for a preliminary order, the arbitral tribunal shall give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto.

150. (2) At the same time, the arbitral tribunal shall give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time. (3) The arbitral tribunal shall decide promptly on any objection to the preliminary order. (4) A preliminary order shall expire after twenty days from the date on which it was issued by the arbitral tribunal. However, the arbitral tribunal may issue an interim measure adopting or modifying the preliminary order, after the party against whom the preliminary order is directed has been given notice and an opportunity to present its case.

151. (5) A preliminary order shall be binding on the parties but shall not be subject to enforcement by a court. Such a preliminary order does not constitute an award.

152. Section 3. Provisions applicable to interim measures and preliminary orders Article 17 D. Modification, suspension, termination The arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.

153. Article 17 E. Provision of security (1) The arbitral tribunal may require the party to request an interim measure to provide appropriate security in connection with the measure. (2) The arbitral tribunal shall require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.

154. Article 17 F. Disclosure (1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted. (2) The party applying for a preliminary order shall disclose to the arbitral tribunal all circumstances that are likely to be relevant to the arbitral tribunal’s determination whether to grant or maintain the order, and such obligation shall continue until the party against whom the order has been requested has had an opportunity to present its case. Thereafter, paragraph (1) of this article shall apply.

155. Article 17 G. Costs and damages The party requesting an interim measure or applying for a preliminary order shall be liable for any costs and damages caused by the measure or the order to any party if the arbitral tribunal later determines that, in the circumstances, the measure or the order should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.

156. Section 4. Recognition and enforcement of interim measures Article 17 H. Recognition and enforcement (1) An interim measure issued by an arbitral tribunal shall be recognized as binding and unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of article 17 I. (2) The party who is seeking or has obtained recognition or enforcement of an interim measure shall promptly inform the court of any termination, suspension, or modification of that interim measure.

157. (3) The court of the State where recognition or enforcement is sought may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

158. Article 17 I. Grounds for refusing recognition or enforcement (1) Recognition or enforcement of an interim measure may be refused only: (a) At the request of the party against whom it is invoked if the court is satisfied that: ( i ) Such refusal is warranted on the grounds set forth in article 36(1)(a)( i ), (ii), (iii) or (iv); or (ii) The arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or

159. (iii) The interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law of which that interim measure was granted; or (b) If the court finds that: The interim measure is incompatible with the powers conferred upon the court unless the court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance; or (ii) Any of the grounds set forth in article 36(1)(b)( i ) or (ii), apply to the recognition and enforcement of the interim measure.

160. Section 5. Court-ordered interim measures Article 17 J. Court-ordered interim measures A court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of this State, as it has in relation to proceedings in courts. The court shall exercise such power in accordance with its own procedures in consideration of the specific features of international arbitration.

161. CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS Article 18. Equal treatment of parties The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case. Article 19. Determination of rules of procedure (1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality, and weight of any evidence.

162. Article 20. Place of arbitration (1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts, or the parties, or for inspection of goods, other property or documents.

163. Article 21. Commencement of arbitral proceedings Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

164. Article 22. Language (1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing, and any award, decision, or other communication by the arbitral tribunal. (2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

165. Article 23. Statements of claim and defence (1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. (2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.

166. Article 24. Hearings and written proceedings (1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party. (2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.

167. (3) All statements, documents, or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

168. Article 25. Default of a party Unless otherwise agreed by the parties, if without showing sufficient cause, (a) the claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings; (b) the respondent fails to communicate his statement of defense in accordance with article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations; (c) If any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.

169. Article 26. Expert appointed by the arbitral tribunal (1) Unless otherwise agreed by the parties, the arbitral tribunal (a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; (b) may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

170. (2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

171. Article 27. Court assistance in taking evidence The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

172. CHAPTER VI. MAKING OF AWARD AND TERMINATION OF PROCEEDINGS Article 28. Rules applicable to the substance of the dispute (1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its confl ict of laws rules.

173. (2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. (3) The arbitral tribunal shall decide ex aequo et Bono or as amiable compositeur only if the parties have expressly authorized it to do so. (4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

174. Article 29. Decision-making by a panel of arbitrators In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.

175. Article 30. Settlement (1) If during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. (2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.

176. Article 31. Form and contents of award (1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated. (2) The award shall state the reasons upon which it is based unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.

177. Article 32. Termination of proceedings (1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article. (2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when: (a) The claimant withdraws his claim unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; (b) the parties agree on the termination of the proceedings; (c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

178. (3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34(4).

179. Article 33. Correction and interpretation of award; additional award (1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties: a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature; if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specifi c point or part of the award.

180. If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award. (2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own initiative within thirty days of the date of the award.

181. (3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days. (4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award under paragraph (1) or (3) of this article. (5) The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.

182. (3) The award shall state its date and the place of arbitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place. (4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this article shall be delivered to each party