ADR – 5th Semester

LLB 5 t h SEMESTER
ALTERNATE DISPUTE RESOLUTION
S.NO ADR - IMPORTANT QUESTIONS REP

1 Define Arbitration and what are the advantages and disadvantages of Alternate Dispute Resolution System? 7
2 Explain Triadic (Third party) intervention. And what are the techniques and process for arbitration Award? 3
3 Negotiation 4
4 Define Arbitrator Write in brief the procedure followed to appoint and remove Arbitrator 5
5 Arbitral/Arbitration Agreement 3
6 Examine the form and content of an arbitral award and the grounds to set aside arbitral award (not stating the reasons is a valid ground)
5
7 What is Foreign Award and procedure for enforcement of a Foreign Award 4
8 Define Conciliation and explain the efficacy and advantages of Conciliation as an ADR 3
9 Define Family Courts and describe the functions of the Family Courts 3
10 Section 89 of the Code of Civil Procedure (its role in settlement of disputes) 6
11 Role of Lokpal and Lokayukta in administration of justice in India 5

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ANSWERS TO IMPORTANT QUESTIONS

1. Define Arbitration and what are the advantages and disadvantages of Alternate Dispute Resolution
System?
Answer: Introduction: In general terms, dispute is referred to as a disagreement or argument between the
parties. The dispute generally takes place between two parties which can be a person or a group of person
composing a single entity. Parties comprise of plaintiff and defendant. In this case, plaintiff is the person
who brings charges and files a suit and defendant is the person accused with charges. Dispute can be
resolved in both using legal jurisdiction and also compromising settlement without reaching the court.
This dispute can be between individuals and corporations and even between public officials.
Perhaps, different parties try to resolve the dispute which they considered to result with the best
outcome. Thus there is necessity of Alternative Dispute Resolution (ADR) in order to ensure justified
resolution without the involvement of legal jurisdiction and court. The aspects of ADR are perhaps
extended since there are different methods and implications of resolving disputes. The resolution of ADR
is not only for commercial conflicts but also in many cases found in the dispute resolution of public
officials.
Dispute Resolution
Dispute resolution refers to the settlement of conflicts or arguments between various parties. The conflict
is resolved by considering satisfying at least some of each side’s needs and addressing the interest.
Dispute resolution processes fall into two major types:
1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator
determines the outcome.
2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which
the parties attempt to reach agreement. These processes are not influenced by the court judgment
and settlement is rather privately decided. Thus it is in simple form called alternative dispute
resolution (ADR).

Alternative Dispute resolution (ADR)

Alternative Dispute Resolution (ADR) includes dispute resolution mechanisms and techniques that
perform as a means for disagreeing parties to attain an agreement short of lawsuit. It is basically a
substitute of formal court hearing. It is a cooperative term for the ways that parties can settle disputes,
with (or without) the help of a third party. ADR are conducts and methods of resolving conflicts outside
the judicial practice. Despite the resistance of many renowned parties and advocates, ADR has gained
prevalent reception both among the general public and legal profession. Even now in many situations,
court requires the parties to execute of some type of ADR before the permission of case trial. 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. Many
of the sovereign countries refer ADR as an extra judicial procedure (i.e. Australia). 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.
Types of ADR
Alternative Dispute Resolution is essentially categorized into 4 major types:
(a) Arbitration
(b) Negotiation
(c) Mediation
(d) Conciliation, and
ADR is also applicable alongside the existing legal system such Sharia courts within the jurisdiction of
Common Law. The types of mentioned ADR techniques differ based on the countries culture and
traditions.
1 Arbitration

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Among the all the ADR processes, arbitration is the most formal method used settle any dispute. In this
process the parties with a disagreement transfer their dispute to a third party, who will make a judgment
on their behalf. This ruling will then be legally obligatory on the parties. Arbitration ADR is strictly
followed by Arbitration Act 1996. The agreement to go to arbitration can be made by the parties at any
time. It can be written into a business contract by what is called a Scott v Avery clause or the parties may
just agree on arbitration when a dispute arises. The parties can agree the number of arbitrators who will
hear their dispute. It could be three, two or just one person. The parties will normally appoint someone
who is a professional in their particular area of business. There is also the Institute of Arbitrators who will
provide trained conciliators to parties who wish to settle a dispute
2 Negotiation
ADR process is the simplest for negotiation. According to this process two people having a dispute can
negotiate and come to a solution themselves. The benefits to the parties involved are that it is completely
private and it’s fast and cheap.
Where parties to a dispute cannot resolve it themselves they possess authority to instruct solicitors
who will negotiate on their behalf. Even when negotiation fails at these early stages of a dispute and
court proceedings start solicitors will usually continue to negotiate on their client’s behalf. This results in
many cases being settled out of court.

3 Mediation
According to this ADR a neutral person (the mediator) assists the parties to reach a compromise. The job
of the mediator is to consult with each party and see how much common ground and interest there is
between them. She/he should act as an initiator, taking offers between the parties. The mediator doesn’t
offer an opinion. Mediation is most suitable where there is some chance that the parties will co-operate.
Mediation is not legally binding on the parties.
Based on the opinion of Centre for Dispute Resolution it is found that around 80% of the disputes that
are dealt reach a settlement without the need for any court action.

4 Conciliation
Conciliation is similar to mediation where a neutral third party helps the parties to resolve their dispute;
however, the conciliator plays a more dynamic role in the process. S/he will be expected to recommend
ways in which a compromise could be reached. Conciliation is not legally binding on the parties. The
Advisory, Conciliation and Arbitration Service (ACAS) are used by many employers and Trade Unions to
settle disputes before (and sometimes during) industrial action takes place. The success rate of such ADR
process is found to be around 60% without the necessity of hearing the Employment Tribunal.

Advantages of alternative dispute resolution

ADR is beneficial for resolving any critical dispute. The result varies from situation to situation but
outcomes are more effective than of legal procedure. There are few key benefits of ADR:

(a) Cost Saving: One of the largest reasons parties choose to resolve their disputes outside of the courts is
cost. Judicial process for resolving any disputes involves court fees, documentation fees, advocate’s fees
and many other extra costs. Moreover, if there is corruption present, the cost may rise even higher. ADR
does not involve expert fees or courts costs. Alternative dispute resolution usually costs much less than
litigation, allowing smaller financial disputes a financially viable way to be settled. ADR also saves the
money of government.

(b) Speed: Adjudicative process for resolving conflicts are very lengthy since there are court decisions
upon which the hearing is dependent. Litigation can take over a year to resolve because of different timing
and dates involved. Matters that are being solved using the ADR method may take months or even just
weeks to be resolved. ADR can be arranged by the parties and the panelist as soon as they are able to

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meet. Compared to the court process, where waits of 2-3 years are normal, dispute resolution is as fast as
the parties want it to be.

(c) Control: The parties have control over some of the processes in ADR. Usually selecting the method of
ADR, selecting the panelist for the dispute resolution; the length of the process; and, in a mediations case,
even the outcome are controlled and maintained by the parties. In case of lawsuit process the control is
totally possessed by the court and supreme authority. Opposed to the court system, where the legal
system and the judge control every aspect, ADR is much more flexible. Furthermore, in the case of
arbitration the parties have far more flexibility in choosing the application of relevant industry standards,
domestic law, the law of a foreign country, a unique set of rules used by the arbitration service, or even
religious law, in some cases.

(d) Confidentiality: Privacy is fully securitized when it comes to Alternative Dispute Resolution. ADR is
conducted in private, therefore avoiding publicity from the media. The public are also unable to attend.
On the other hand disputes resolved in court are public and the judgments awarded are also in public.
ADR provides certain resolution processes such as, Mediation, arbitration, and mini trials that are
conducted in private maintain strict confidentiality.

(e) Experienced Neutral Panelists: The panelists are professional mediators and arbitrators with training
and expertise in dispute resolution. Disputing parties are able to select their panelist from a list of
qualified individuals who are specialized in specific aspects of environments. In the court system, binding
decisions are made by judges who may lack expertise in different practices.

(f) Cooperative Approach: All ADR services take place in a more informal, less confrontational
atmosphere. This is more conducive to maintain a positive business relationship between the two parties.
With mediation, specifically, the result is collaboration between the two parties. Therefore ADR is a
process that looks into the best interest of both parties in order to conclude a compromised mutual
decision.

(g) Flexibility: Legal and non-legal disputes can be addressed during this process proving it to be more
flexible. Some may think this is a suitable package in the sense that it takes into account fundamental
concerns of the parties and offers remedies not available when at court.

(h) Parties into Good Terms: The aim of ADR is to find a compromise solution which is satisfactory to both
parties. Court proceedings create a winner and a loser. Using ADR to settle a dispute means businesses
can remain on good terms and continue to trade with each other once their dispute is resolved.

The benefits or advantages of ADR is realized when the dispute or conflict is successfully resolved and all
the participant parties respect and value the outcomes provided by such procedure. The failure to
compromised decision pinpoints the weakness of ADR which to be adjusted for attaining fruitful outcome.

Disadvantages of Alternative dispute resolution

There are several disadvantages blocking the way of successful dispute resolution and often affecting both
parties sentiment to settle for a compromised decision. Some the disadvantages are:

(a) Unequal Bargaining Power: In certain situations one side is able to control the other. Therefore a
significant imbalance of power exists. For example, employment and divorce cases, making the courts a
better option for a weak party.

(b) Lack of Legal Proficiency– Where a dispute involves difficult legal points a mediator or arbitrator is
unlikely to have the same legal expertise and knowledge as a judge. Dispute can be of various situations

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such as, commercial conflicts, social conflicts, legal conflicts and many others which require specialized
mediator. Most of the cases the mediator does not possess a judge’s point of view.

(c) No System of Specific Model– It isn’t easy to predict the outcome of a dispute decided through ADR
as there is no system of precedent. Therefore, it is easier to obtain evidence from the other party in a
lawsuit. Lack of system results in restricted prediction of outcomes.

(d) Enforceability – Most forms of ADR are not legally binding, making any award difficult to enforce.
Legal arbitration has some kind of process for internal appeals, which enables the decision as binding and
only subject to the review of court.

(e) Required Court Action: The arbitrator’s decision can require a court action if one of the parties refuse
to accept the arbitrator’s decision. This would not only create chaos but also a mandatory review by the
court. Thus, ADR sometimes raises the question of biasness of arbitrator’s decision. Also, there is very
limited opportunity for judicial review of an arbitrator’s decision. A court might also overturn an
arbitrator’s decision if it decided issues that were not within the scope of the arbitration agreement.

(f) Might not be A Good Fit: Alternative dispute resolutions generally resolve only issues of money or
civil disputes. Alternative dispute resolution proceedings will not result in injunctive orders. They cannot
result in an order requiring one of the parties to do or cease doing a particular affirmative act.

(g) Limits Discovery Process: ADR generally proceeding without the protections offered parties in
litigation, such as those rules governed through discovery. Courts generally allow a great deal of latitude
in the discovery process, which is not active in alternative dispute resolution.

Conclusion
Essentially the advantages and disadvantages of Alternative Dispute Resolution (ADR) are important to
consider before agreeing to any sort of ADR techniques. It reduces the chances of unknowingly agreeing in
any arbitration. The perception of advantages over the cons of ADR fully depends on situation to situation
where the parties are in severe need of perusing such techniques to attain mutual interest. After satisfying
certain standards, many lease agreements and employee contracts have mandatory arbitration provisions
which will usually be enforced. ADR can be a good alternative to the courts as long as it is used in the
exact way and for the exact type of disputes. Though there are few minor deficiencies, ADR can save both
time and cost and legal fees.

2. Explain Triadic (Third party) intervention. And what are the techniques and process for arbitration
Award?
Answer: What is Third-Party Intervention?
Third-Party Intervention is an involvement of person/team into on-going conflict of two parties like
management and union to resolve conflict. Generally, third party interventions help parties analyse
consequence of their action and manages/ resolve conflict in mutually beneficial way. There are various
levels of third party interventions mandated by laws in employer and labour relations in collective
bargaining framework.
The terms "third party" and "intermediary" are both used to refer to a person or team of people who
become involved in a conflict to help the disputing parties manage or resolve it. Third parties might act as
consultants, helping one side or both sides analyze the conflict and plan an effective response.
Alternatively, they might act as facilitators, arranging meetings, setting agendas, and guiding productive
discussions. Facilitators will also usually record what was said, and may write up a short report
summarizing the discussions and any agreements that were reached.
A more active and powerful third party role is that of mediator. Mediators not only facilitate
discussions, but they usually impose a structure and process on the discussions that is designed to move

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the parties toward mutual understanding and win-win agreements. While many different styles of
mediation are common, most mediators have the conflicting parties sit down together to explain to each
other their views about the nature of the problem and how they think it might best be solved. The
mediator often tries to get the disputants to focus on underlying interests (the things they really need or
want) more than their initial opening positions (what they initially say they need or want). By clarifying
the divergent views and reasons for those views, mediators can usually get the parties to develop a
common understanding of the situation, which often yields a solution which satisfies the interests of all
parties. While some mediators take a stronger role in option identification and selection than others,
mediators do not have the power to impose a solution. At most, they can suggest a solution, which the
disputants may or may not accept.
The most powerful third party role is that of an arbitrator. An arbitrator listens to presentations made
by both sides, examines written materials and other evidence relating to a case, and then makes a
determination of who is right and who is wrong, or how a conflict should be settled. Usually, the
arbitrator’s decision is binding and cannot be appealed. Thus, the arbitrator is the most powerful type of
intermediary. Arbitration works well when the parties simply want a settlement, and do not worry about
losing control of the process or the outcome. For parties that want to maintain control, however, the
other forms of intervention (mediation or facilitation) are often preferred.
Arbitration:
The act, 1996 is a long step leap in the direction of an alternative dispute resolution system. Arbitration
and conciliation act was passed by the government of India in the year of 1996 as a measure of fulfilling
the obligation under the international treaties and convention in conformity with the Model law
UNCITRAL.

Previous legislation on arbitration is incomplete in nature, a conference presided by the Prime Minister of
India, P.V. Narasimha Rao, he consider International modern like the UNCITRAL law on commercial
International arbitration and he discuss about Arbitration in India, in the year of 1993. As the result of this
conference, and the drawback present in the previous legislation, to make the people satisfy the
arbitration and conciliation act 1996 was enacted by the parliament. It corporates the rules and regulation
from the UNCITRAL.

Steps involved in arbitration proceedings:

1. Arbitration clause: the clause which state that the parties will adopt arbitration method to resolve the
dispute.
2. Arbitration notice: in case of dispute between the parties arise, the party will send a notice to the
defaulting party for initiating the procedure of arbitration known as arbitration notice.
3. Appointment of Arbitrator: party appoint arbitrator as they think fit to resolve the dispute.
4. Statement of claim: after the arbitrator have been appointed as statement of claim is drafted by both
the parties. Statement of claim between the parties and the compensation claimed by the aggrieved
party. Sometime, the other party can find a counter claim as a reply to the statement of claim.
5. Hearing of parties: An arbitral tribunal will hear both the parties.
6. Arbitral award: The decision given by the arbitral tribunal is referred as 'arbitral award' and it is binding
on both the parties.
7. Execution of award: Once, the arbitral award has been passed, it has to be executed.

3. Negotiation.
Answer: What is Negotiation?
Negotiation is a method by which people settle differences. It is a process by which compromise or
agreement is reached while avoiding argument and dispute.

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In any disagreement, individuals understandably aim to achieve the best possible outcome for their
position (or perhaps an organisation they represent). However, the principles of fairness, seeking mutual
benefit and maintaining a relationship are the keys to a successful outcome.

Specific forms of negotiation are used in many situations: international affairs, the legal system,
government, industrial disputes or domestic relationships as examples. However, general negotiation
skills can be learned and applied in a wide range of activities. Negotiation skills can be of great benefit in
resolving any differences that arise between you and others.
Stages of Negotiation
In order to achieve a desirable outcome, it may be useful to follow a structured approach to negotiation.
For example, in a work situation a meeting may need to be arranged in which all parties involved can
come together.
The process of negotiation includes the following stages:
1. Preparation
2. Discussion
3. Clarification of goals
4. Negotiate towards a Win-Win outcome
5. Agreement
6. Implementation of a course of action
1. Preparation
Before any negotiation takes place, a decision needs to be taken as to when and where a meeting will take
place to discuss the problem and who will attend. Setting a limited time-scale can also be helpful to
prevent the disagreement continuing.
This stage involves ensuring all the pertinent facts of the situation are known in order to clarify your
own position. In the work example above, this would include knowing the ‘rules’ of your organisation, to
whom help is given, when help is not felt appropriate and the grounds for such refusals. Your
organisation may well have policies to which you can refer in preparation for the negotiation.
Undertaking preparation before discussing the disagreement will help to avoid further conflict and
unnecessarily wasting time during the meeting.
2. Discussion
During this stage, individuals or members of each side put forward the case as they see it, i.e. their
understanding of the situation. Key skills during this stage include questioning, listening and clarifying.
Sometimes it is helpful to take notes during the discussion stage to record all points put forward in case
there is need for further clarification. It is extremely important to listen, as when disagreement takes
place it is easy to make the mistake of saying too much and listening too little. Each side should have an
equal opportunity to present their case.
3. Clarifying Goals
From the discussion, the goals, interests and viewpoints of both sides of the disagreement need to be
clarified.
It is helpful to list these factors in order of priority. Through this clarification it is often possible to
identify or establish some common ground. Clarification is an essential part of the negotiation process,
without it misunderstandings are likely to occur which may cause problems and barriers to reaching a
beneficial outcome.
4. Negotiate Towards a Win-Win Outcome
This stage focuses on what is termed a 'win-win' outcome where both sides feel they have gained
something positive through the process of negotiation and both sides feel their point of view has been
taken into consideration.
A win-win outcome is usually the best result. Although this may not always be possible, through
negotiation, it should be the ultimate goal.

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Suggestions of alternative strategies and compromises need to be considered at this point.

Compromises are often positive alternatives which can often achieve greater benefit for all concerned
compared to holding to the original positions.
5. Agreement
Agreement can be achieved once understanding of both sides’ viewpoints and interests have been
considered.
It is essential to for everybody involved to keep an open mind in order to achieve an acceptable
solution. Any agreement needs to be made perfectly clear so that both sides know what has been
decided.
6. Implementing a Course of Action
From the agreement, a course of action has to be implemented to carry through the decision.

4. Define Arbitrator Write in brief the procedure followed to appoint and remove Arbitrator.
Answer: Who is “Arbitrator”?
The present Arbitration and Conciliation Act, 1996 does not define the word “Arbitrator”. However, in
the common parlance the word “Arbitrator” means person/persons to whom a particular matter or issue
in dispute is referred with the view to settle on the basis of submission made by the referred with the
view to settle on the basis of submission made by the conflicting parties.
According to Russell, the term “Arbitrator” is defined as follows:-
“An arbitrator is neither more nor less than a private judge of a private court (called an arbitral
tribunal) who gives a private judgment (called an award). He is a judge in that a dispute is submitted to
him, he is not a mere investigator but a person before whom material is placed by the parties, being either
or both of evidence and submissions, he gives a decision in accordance with his duty to hold the scales
fairly between the disputant’s in accordance with some recognised system of law and the rules of natural
justice. He is private insofar as:-
1. He is chosen and paid by the disputant’s,
2. He does not sit in public,
3. He acts in accordance with privately chosen procedure so far as that is not the requirement to
public policy.
4. So far as the law allows he is set up to the exclusion of the State Courts,
5. His authority and powers are only whatsoever he is given by the disputant’s agreement,
6. The effectiveness of his powers derives wholly from the private law of contract and accordingly
the nature and exercise of these powers must not be contrary to the proper law of the contract or
the public policy, bearing in mind that the paramount public policy is that freedom of contract is
not likely to be interfered with”.
In other words “Arbitrator” is a disinterested person to whom dispute/difference is referred to by the
conflicting parties.
Appointment of arbitrators
Parties normally mention in their arbitration clause whether disputes will be adjudicated by a sole
arbitrator or by a panel consisting of an odd number of arbitrators. The default provision is for a sole
arbitrator. If the parties fail to agree on the appointment of arbitrators, they have the option under
section 11 of the Arbitration Act to have the arbitrator(s) appointed by the court.
The Arbitration and Conciliation (Amendment) Act, 2015 grants the liberty to the parties to appoint an
arbitrator mutually.
The Act provides that the parties are free to determine the number of arbitrators, provided that such
number shall not be an even number. However, if the parties fail to do so, the arbitral tribunal shall
consist of a sole arbitrator.
The procedure in relation to appointment of arbitrator(s) is provided under Section 11 of the Act. A
person of any nationality may be an arbitrator, unless otherwise agreed by the parties. The aforesaid
section also deals with the contingency wherein the parties fail to appoint an arbitrator mutually. In such
a situation, the appointment shall be made, upon request of a party, by the Supreme Court or any person

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or institution designated by such Court, in the case of an International Commercial arbitration or by High
Court or any person or institution designated by such Court, in case of a domestic arbitration.
Before the appointment of arbitrator is made, the concerned Court or the person or institution
designated by such Court is required to seek a disclosure in writing from the prospective arbitrator in
terms of Section 12(1) of the Act and also give due regard to any qualifications required for the arbitrator
by the agreement of the parties and the contents of the disclosure and other considerations as are likely
to secure the appointment of an independent and impartial arbitrator.
It may be noted that under Section 12(1) of the Act, an obligation has been cast upon the prospective
arbitrator to make an express disclosure on (a) circumstances which are likely to give rise to justifiable
doubts regarding his independence or impartiality; or (b) grounds which may affect his ability to complete
the arbitration within 12 (twelve) months.
The Act provides that in an International Commercial Arbitration, an arbitrator of a nationality other
than the nationalities of the parties may be appointed where the parties belong to different nationalities.
Removal of arbitrators
Parties can challenge the appointment of an arbitrator under sections 12 and 13 of the Arbitration Act,
if a justifiable doubt arises as to the arbitrator's independence or impartiality or the arbitrator(s) does not
possess the necessary qualification as agreed by the parties. Certain categories of Arbitrators have been
made ineligible under the amended provisions of the Arbitration Act. In addition, an arbitrator can be
removed under section 14 if the:
 Arbitrator(s) is unable to perform his functions or for other reasons.
 Arbitrator fails to act without undue delay.
 Arbitrator withdraws from his office.
 Parties agree to terminate the arbitrator's mandate.
 Further, Section 14 of the Act provides that the mandate of an arbitrator shall terminate and he
shall be substituted by another arbitrator, if-
 He becomes de jure or de facto unable to perform his functions or for other reasons fails
to act without undue delay; and
 He withdraws from his office or the parties agree to the termination of his mandate.
 Section 15 provides additional circumstances under which the mandate of an arbitrator shall
terminate. These include-
 Where the arbitrator withdraws from office for any reason; or
 By or pursuant to agreement of the parties.
 If an arbitrator becomes legally or practically unable to perform his function or withdraws from his
office, the court can be approached to decide on the termination of the mandate of the arbitrator
and appointment of another arbitrator (unless otherwise agreed by the parties). However, the
arbitrator's impartiality and independence must be raised in the first instance before the
arbitrators. If the arbitrators do not accept the submission, this can be a ground for challenging
the award. However, the court can also remove arbitrators if they are found to be ineligible.

5. Arbitration Agreement.
Answer: Arbitration Agreement Explained
Section 7 of the Arbitration and Conciliation Act of 1996 defines arbitration agreement as an agreement by
the parties to refer to arbitration all or some disputes which have arisen or will arise on a future date
between them with reference to a defined legal relationship, whether contractual or not. A doctor’s
relationship with his patient or a lawyer’s with his client are both examples of relations that are legal but
not necessarily contractual.
An Arbitration agreement is made by any two parties entering into a contract by which any disputes
arising between them with regard to the contract agreement is to be resolved, without going to the Courts
and with the help of an Arbitrator. The agreement should mention who should select the arbitrator;
regarding what kind of dispute the Arbitrator should give decision, the place of arbitration, etc.

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The parties need to sign the Arbitration Agreement and the decision shall be binding on the parties. If
you are a party to any contract and if you wish to resolve any disputes with the help of an Arbitrator,
without going to court, then you should make this agreement.
Arbitration agreement is like a contingent contract, meaning thereby that these agreements come into
being or become enforceable contingent to the happening of a dispute between the parties. It is only
enforceable in case there arises a dispute between the parties.

Essentials of Arbitration Agreement

The existence of a dispute is an essential condition for arbitration. Where parties have effectively settled
their disputes, they cannot refute the settlement and invoke an arbitration clause.

 Written Agreement
An arbitration agreement must be in writing. As per Section 7 (4) of the Act, arbitration agreement is
considered to be in writing, if it is contained in:
1. document signed by the parties;
2. An exchange of letters, telex, telegrams or other means of telecommunication which provide a
record of the agreement; or
3. An exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not defined by another.

 Intention
Intention of the parties is of prime importance. No form has been prescribed for an arbitration agreement
and nowhere has it been mentioned that terms like arbitration, arbitrator are essential prerequisites in an
arbitration agreement. According to a leading case law in this subject, the intention of the parties to refer
their dispute to arbitration should be clearly discernible from the arbitration agreement.

 Signature
An arbitration agreement needs to be signed by the parties. The agreement may be in the form of a signed
document by both the parties containing all the terms or it may also be a signed document by one party
which contains the terms and an acceptance signed by the other party. It will suffice if one party puts his
signature in the written submission and the other party accepts it.

Attributes of an Arbitration Agreement

The Hon’ble Supreme Court in a judgment in a landmark case held that the following attributes must be
present in an arbitration agreement:

1. The arbitration agreement must contemplate that the decision of the tribunal will be binding on
the parties to the agreement.
2. That the jurisdiction of the tribunal to decide the rights of the parties must derive from their
consent, or from an order of the Court or from a statute, the terms of which make it clear that the
process is to be arbitration.
3. The agreement must contemplate that substantive rights of the parties will be determined by the
arbitration tribunal.
4. That the tribunal will determine the rights of the parties in an impartial and judicial manner with
the tribunal being fair and equal to both sides.
5. The agreement of the parties to refer their disputes to the decision of the tribunal must be
intended to be enforceable in law.
6. The agreement must contemplate that the tribunal will make a decision upon a dispute which is
already formulated at the time when a reference is made to the tribunal.

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6. Examine the form and content of an arbitral award and the grounds to set aside arbitral award (not
stating the reasons is a valid ground)
Answer:
Form and Contents of Arbitral Award as per Section 31 of the Arbitration Act, 1940:
1. An arbitral award shall be made in writing and shall be signed by the members of the arbitral
tribunal.
2. For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the
signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as
the reason for any omitted signature is stated.
3. The arbitral award shall state the reasons upon which it is based, unless –
A. the parties have agreed that no reasons are to be given, or
B. the award is an arbitral award on agreed terms under section 30.
4. The arbitral award shall state its date and the place of arbitration as determined in accordance
with section 20 and the award shall be deemed to have been made at that place.
5. After the arbitral award is made, a signed copy shall be delivered to each party.
6. The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral
award on any matter with respect to which it may make a final arbitral award.
7. (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the
payment of money, the arbitral tribunal may include in the sum for which the award is made
interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole
or any part of the period between the date on which the cause of action arose and the date on
which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry
interest at the rate of eighteen per centum per annum from the date of the award to the date of
payment.
8. Unless otherwise agreed by the parties, -
A. the costs of an arbitration shall be fixed by the arbitral tribunal;
B. the arbitral tribunal shall specify -
(i) the party entitled to costs,
(ii) the party who shall pay the costs,
(iii) the amount of costs or method of determining that amount, and
(iv) the manner in which the costs shall be paid.

Grounds or Provisions allied to setting aside of Arbitration Awards

According to Sec. 34 of the Arbitration and Conciliation Act 1996 deals with the setting aside of the arbitral
award. In order to set aside an arbitral award, individual needs to file an application in the court. Such an
application by the party may be acknowledged or discarded by the court. This provision of challenging is
diverse than the procedure of appeal. When the arbitral tribunal gives an award, it is diverse from the
judgment which a court usually gives. The court in general accepts an application of challenge only if it
comes under ambit of Sec. 34 only.

The following grounds are:

 Incapacity of a party.
 Unlawful agreement.
 No notice to the other party.
 Subject matter extent to the scope of the arbitration agreement.
 Formation of Tribunal not as per the agreement.
 Subject matter not under the arbitration law.
 Award in conflict with the public policy of India.

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Prior to filing an application in the court to set aside the award, the party filing the application has to hand
over a notice of such filing to the opposite party.
1. Incapacity of the parties
In case any of the parties is of unsound mind or is minor, then such persons are not bound to act in
harmony with any agreement or contract. Therefore, the agreement itself becomes null and void and
passing any award in such case can be set aside by the court.
2. Unlawful agreement
If the contract is unlawful, then the arbitration agreement will also be held to be invalid. All the essential
elements of a contract have to accomplish in order for it to become enforceable.
3. No notice to the other party
A prior notice must be sent to the other party regarding the commencement of the proceedings or of
invocation of the arbitral clause of the agreement.
4. Subject matter extent to the scope of Arbitration Agreement
While formulating an agreement, the parties describe as to what all can be enclosed in the subject matter
and what are the disputes that are enclosed under the arbitration agreement. Consequently, only those
subject matters can be referred to an arbitral tribunal to resolve the dispute, not any other. If the tribunal
acts ultra vires to the agreement, the party affected may file an application in the court and challenge such
award.
5. Formation of the Tribunal not as per the Agreement
In case the Arbitrator is not appointed as per the agreed terms of the agreement or by the parties which
has not been followed or any other bureaucratic aspect that was decided earlier in the agreement by the
parties has not been followed all the way through, then such affected party may challenge the award in
the court to set aside the award.
6. Subject matter not under the ambit of Arbitration law
There are certain types of matters that are not arbitral in nature like criminal, insolvency or any other
public matters. These matters have been unambiguously barred under the purview of arbitration.
7. Award in conflict with the Public Policy of India
This ground has additional three more explanations, which was added in the 2015 amendment.

 Award through deception or dishonesty.

 In contravention to fundamental policy of India.
 In disagreement with ethics or integrity.

7. What is Foreign Award and procedure for enforcement of a Foreign Award?

Answer:
Arbitration is understood as a method of alternate dispute resolution across the world and recognized
as the most effective method of solving commercial disputes, especially those of an international
dimension. Arbitration in India is governed in accordance with the Arbitration and Conciliation Act, 1996
(hereinafter referred to as 'the Act'). Part II of the Act deals with the foreign awards and applies to the
parties, member to the New York Convention. The enforceability of a foreign award in the countries
where the parties to an arbitration agreement do not have any presence has been in discussions and are a
subject matter of multiple interpretations. Section 44 of the Act defines "foreign award" as an arbitral
award on differences between persons arising out of legal relationships, whether contractual or not,
considered as commercial under the law in force in India. The Section further provides that the above
mentioned provisions should be in pursuance of an agreement in writing for arbitration to which the
Convention set forth in the First Schedule applies, and in one of such territories as the Central
Government, being satisfied that reciprocal provisions have been made may, by notification in the Official
Gazette, declare to be territories to which the said Convention applies.
Enforcement of Foreign Awards in India

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Under the Arbitration and Conciliation (Amendment) Act, 2015. There are two avenues available for the
enforcement of foreign awards in India, viz., the New York Convention and the Geneva Convention, as the
case may be.
A. Enforcement under the New York Convention
Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign awards
passed under the New York Convention.
The New York Convention defines "foreign award" as an arbitral award on differences between persons
arising out of legal relationships, whether contractual or not, considered as commercial under the law in
force in India, made on or after the 11th day of October, 1960-
A. In pursuance of an agreement in writing for arbitration to which the Convention set forth in the
First Schedule applies, and
B. In one of such territories as the Central Government, being satisfied that reciprocal provisions
have been made may, by notification in the Official Gazette, declare to be territories to which the
said Convention applies.
From the abovementioned conditions, it is clear that there are two pre-requisites for enforcement of
foreign awards under the New York Convention. These are:
A. The country must be a signatory to the New York Convention.
B. The award shall be made in the territory of another contracting state which is a reciprocating territory
and notified as such by the Central Government.
Section 47 provides that the party applying for the enforcement of a foreign award shall, at the time of the
application, produce before the court (a) original award or a duly authenticated copy thereof; (b) original
arbitration agreement or a duly certified copy thereof; and (c) any evidence required to establish that the
award is a foreign award. As per the new Act, the application for enforcement of a foreign award will now
only lie to High Court.
Once an application for enforcement of a foreign award is made, the other party has the opportunity to
file an objection against enforcement on the grounds recognized under Section 48 of the Act. These
grounds include:
A. the parties to the agreement referred to in section 44 were, under the law applicable to them,
under some incapacity, or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the country where the award was
made; or
B. the party against whom the award is invoked was not given proper notice of the appointment of
the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
C. the award deals with a difference not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope of the submission
to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, that part of the award which contains decisions on matters
submitted to arbitration may be enforced; or
D. the composition of the arbitral authority or the arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
E. the award has not yet become binding on the parties, or has been set aside or suspended by a
competent authority of the country in which, or under the law of which, that award was made.
F. the subject-matter of the difference is not capable of settlement by arbitration under the law of
India; or
G. the enforcement of the award would be contrary to the public policy of India.
The Amendment Act has restricted the ambit of violation of public policy for international commercial
arbitration to only include those awards that are: (i) affected by fraud or corruption, (ii) in contravention
with the fundamental policy of Indian law, or (iii) conflict with the notions of morality or justice.
It is further provided that if an application for the setting aside or suspension of the award has been
made to a competent authority, the Court may, if it considers it proper, adjourn the decision on the

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enforcement of the award and may also, on the application of the party claiming enforcement of the
award, order the other party to give suitable security.
Section 49 provides that where the Court is satisfied that the foreign award is enforceable under this
Chapter, the award shall be deemed to be a decree of that Court.

B. Enforcement under the Geneva Convention

Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains provisions relating to
foreign awards passed under the Geneva Convention.
As per the Geneva Convention, "foreign award" means an arbitral award on differences relating to
matters considered as commercial under the law in force in India made after the
28th day of July, 1924,-
a. in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule
applies, and
b. between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central
Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official
Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is
subject to the jurisdiction of some other of the Powers aforesaid, and
c. in one of such territories as the Central Government, being satisfied that reciprocal provisions have
been made, by like notification, declare to be territories to which the said Convention applies, and for the
purposes of this Chapter, an award shall not be deemed to be final if any
d. proceedings for the purpose of contesting the validity of the award are pending in any country in which
it was made.
Section 56 provides that the party applying for the enforcement of a foreign award shall, at the time of the
application, produce before the court (a) original award or a duly authenticated copy thereof; (b) evidence
proving that the award has become final and (c) evidence to prove that the award has been made in
pursuance of a submission to arbitration which is valid under the law applicable thereto and that the
award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted
in the manner agreed upon by the parties and in conformity with the law governing the arbitration
procedure. As per the new Act, the application for enforcement of a foreign award will now only lie to
High Court.

8. Define Conciliation and explain the efficacy and advantages of Conciliation as an ADR.
Answer: What is Conciliation?

Conciliation is an option out-of-court dispute resolution instrument. Like mediation, conciliation is a

deliberate, adaptable, confidential, and intrigue based procedure. The parties seek to arrive at an
amicable dispute settlement with the help of the conciliator, who acts as an unbiased 3rd party.
The fundamental distinction between conciliation and mediation procedures is that, eventually during
the conciliation, the conciliator will be asked by the parties to give them a non-binding settlement
proposal. A mediator, on the other hand, will as a rule and as an issue of standard, refrain from making
such a proposition.
Conciliation is a wilful proceeding, where the parties involved are allowed to agree and endeavour to
resolve their dispute by conciliation. The procedure is flexible, permitting parties to define the time,
structure and substance of the conciliation procedures. These proceedings are once in a while public. They
are interest based, as the conciliator will while proposing a settlement, not just consider the parties' legal
positions, yet in addition their; commercial, financial and/or personal interests.
Like in mediation procedures, the ultimate decision to agree on the settlement remains with the
parties.
The job of conciliators is like that of mediator except that the conciliator may also:
 Have expert information and give you some legal information.

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 Recommend or offer you and other members expert guidance on the potential options for sorting
out the matter of dispute.
 Effectively encourage you and other participants to agree on a settlement.

The conciliator will not:

 Favours one side or make decisions.
 Mention to you what choice to make, in spite of the fact that they may make recommendations.
 Conclude who is correct or wrong.
 Provide Counselling
Conciliation is normally held face to face and in person, with the goal that you can converse with one
another straightforwardly. However, you may also have separate meetings sessions with the conciliator.
Sometimes the conciliator can act as a 'messenger' by talking with you and other members independently
and communicating ideas or proposition between you. It is also conceivable to hold conciliation meetings
sessions by phone in certain conditions.
Once the conciliator has made their suggestions and recommendations, it is dependent upon the
parties to agree upon any proposal. The proposals or opinions of a conciliator cannot be forcefully
imposed. If a settlement is accomplished, it must be set out in writing in order so as to be legally binding
and authoritative.
Conciliation is probably suitable if you:
 want to agree on some specialized and legal issues.
 Need help and assistance with the process.
 Want to settle on an agreement with other members and participants involved.
 Need guidance on the facts in your case.
Conciliation may likewise be appropriate and suitable if you have attempted mediation and still can't
reach to an agreement with other participants.

Advantages of Conciliation
There are a number of advantages to the conciliation process. These include:

 The presence of an experienced neutral (also an attorney) who will actively suggest possible
solutions to the problems at hand and evaluate the risks and costs associated with continuing the
dispute.
 The ability to select the conciliator, allowing parties to choose their conciliator based on such
criteria as expertise, availability, and knowledge of the subject area.
 Time and cost-efficiency due to the flexible nature of proceedings.
 Total confidentiality agreed upon by both parties as well as the conciliator, which means both
parties can be assured of discretion no matter what the outcome of the process.

9. Define Family Courts and describe the functions of the Family Courts.
Answer:
The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the
building pressure from various institutions lobbying for the welfare of women all over the country, the Act
was expected to facilitate satisfactory resolution of disputes concerning the family through a forum
expected to work expeditiously in a just manner and with an approach ensuring maximum welfare of
society and dignity of women. Prevalence of gender biased laws and oppressive social practices over
centuries have denied justice and basic human rights to Indian women. The need to establish the Family
Courts was first emphasized by the late Smt. Durgabai Deshmukh. After a tour of China in 1953, where she
had occasion to study the working of family courts, Smt. Deshmukh discussed the subject with certain
Judges and legal experts and then made a proposal to set up Family Courts in India to Prime Minister Pt.
Jawaharlal Nehru.
What is Family Court?

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Family courts are designed to deal with disputes arising in family matters such as divorce or child custody.
One of the main goals of family court is to settle legal problems that can occur in families. Each state
varies in how the family court operates. Therefore, it is best to look up your local family court in the area
to learn more about how it functions.

What Types of Claims are processed in Family Court?

Each court will vary depending on the state it represents. Most family courts will handle these types of
claims:
 Marriages and Civil Unions: eligibility to marry differs in each state. To be a legally valid marriage
in the state an application for a marriage license must be completed and officiated through a civil
or religious ceremony. Same-sex marriage is legalized through federal law, so the process for
same-sex marriage is identical to heterosexual marriage.
 Divorce/ Dissolution of Marriage: involves the court ruling on the case for couples that cannot
come to terms to end their marriage. This is different from dissolution of marriage because the
couple can make a decision about their end of marriage without the court’s intervention.
 Issues regarding custody, division of property and financiances are often decided during
these proceedings. Keep in mind this can be a long and lengthy process which could end in
several months or even years.
 Child Custody/Visitation: handled in two ways one refers to “legal custody” and the other refers to
“physical custody”. Legal custody is the power or authority to make important decisions affecting
the child such as healthcare, schooling, or religious training.
 Physical custody is the amount of time spent with the child by each parent. Most judges
rule on custody issues based on the “best interests of the child” including various other
factors that differ by each state.
 Child Support: determined by two factors: physical custody and the parent’s income. If one parent
has the sole physical custody, then child support is set as a percentage of a noncustodial parent’s
income.
 Both parents are required to disclose financial statements in order for the judge to make
appropriate calculations about the monthly child support. Typically, most states require
child support till the child turns 18.
 There are several variations among states in calculating child support. Most states use the
income shares model, which bases the calculation on the parent’s total income. For
example, the custodial parent is about 44.4% and the noncustodial parent is 55.6%.
 Spousal Support/Alimony: is the financial obligation owed to one spouse owes to the other after
marriage. Alimony is only a viable option for couples who are legally married in the state. Alimony
can either be paid in one lump sum or on a temporary or permanent basis. However, alimony is
not automatic and several factors are considered like the duration of marriage, ability to pay, and
conduct of the parities. For example, the longer the marriage the more likely there will be some
form of alimony.
 In awarding the financial assistance, courts tend to examine several factors that include
the duration of the marriage, the spouse’s earning capacity, their contribution to the
household or career, and the physical health of the spouse for receiving spousal support.
 For Putative spouses, a court may recognize property, maintenance and support rights to
serve the interests of justice in those circumstances.
 Adoption: there are three types of adoptions to consider:
 Public Agency Adoption which is generally filed by the local department of social services
in the state once the parental rights have been terminated.
 Private Agency Adoption which is organized by a private agency who determines the
children those are available for adoption and seek out families that are interested in
adopting the child.

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Independent Adoption which is usually filed by a stepparent or a co-parent who want to

adopt their partner’s child.
o Natural parents, if found, can object to the adoption and courts will perform
investigations to determine the “best interests of the child” for the adoption.
 Name Changes: most petitions require a notice of publication and if the petitioner is a minor there
are additional requirements for consent. Thereafter, the court will schedule a hearing for the
name change and ask questions to confirm the process.

10. Section 89 of the Code of Civil Procedure (its role in settlement of disputes).
Answer:
The Code of Civil Procedure (Amendment) Act, 1999 inserted Section 89 providing for settlement of
disputes outside the Court and additionally inserted Rules 1 A, 1 B, 1 C to Rule 1 of Order X to the Code.
Section 89 confers the jurisdiction on the court to refer a dispute to an ADR method, whereas Rules 1 A to
1 C of Order X lay down the way in which the jurisdiction is to be exercised by the court. The court
explains the alternatives concerning ADR method to the parties, permits them to take a method by
consensus, and if there's no consensus, proceeds to choose the method.

Dispute settlement outside the Court (Section 89)

Section 89 of the Code of Civil Procedure, 1908 provides for the settlement of disputes outside the Court
and makes a provision that once it seems to the court that there exist components of a settlement which
can be acceptable to the parties, the court shall formulate the terms of settlement and provide them to
the parties for observations and when receiving the observations of the parties, the court could develop
the terms of a doable settlement and refer for—

(a) Arbitration;
(b) Conciliation;
(c) Judicial settlement together with settlement through Lok Adalat; or
(d) Mediation

Further, Section 89 provides that when a dispute is referred for arbitration or conciliation, the
provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the purview of the provisions of Arbitration and
Conciliation Act, 1996. In case of Lok Adalat, the provisions of sub-section (I) of Section 20 of the Legal
Services Authorities Act, 1987 shall apply.
In regard to the above provisions, a compulsory duty has been assigned to the civil courts to endeavour
for settlement of disputes through an ADR procedure.
The objective of Section 89 is to confirm that the court makes an endeavour to facilitate out-of-court
settlements through ADR processes before the trial commences.
Thus, Alternative Dispute Resolution (ADR) which at one time was thought of as a voluntary act on the
part of the parties has currently obtained statutory recognition with the enactment of Arbitration and
Conciliation Act, 1996, Legal Services Authorities Act, 1987, and also the incorporation of ADR mechanisms
envisaged in Section 89 and Order X Rules 1 A, 1 B and 1 C within the Code of Civil Procedure, 1908 is an
extra radical step taken by law-makers for promoting ADR in India. Thus, the Indian law-makers have
currently created adequate provisions in law to facilitate introduction of ADR mechanisms in India.
There is flexibility within the use of ADR procedures. The flexibility is available within the procedure
and also within the process to get to a decision .The solutions may be problem-specific. The rigidity of
precedent as utilized in adversarial technique of dispute-resolution would not interfere in the way of
finding solutions to the disputes with creative means.
Thus, the growth of ADR strategies can give access to several litigants. It’ll facilitate in reducing the
excess work load that's placed on the judiciary. Once the cases unfinished before the judiciary become

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manageable, the courts would be able to improve the standard of their decisions. This would have a great
impact in improving not only the access to justice but even the standard of justice.

11. Role of Lokpal and Lokayukta in administration of justice in India.

Answer: Lokpal and Lokayukta -An Indian Ombudsman
The Lokpal in India is synonymous with the concept of Ombudsman prevailing in other countries such as
Sweden, Finland, Denmark, etc. The concept of Ombudsman initially originated in Sweden in the year
1809 and now adapted in many other nations in the world. It played a significant role in curbing
maladministration and corruption. Ombudsman is a government official who investigates the consumer’s
complaints relating to the administration and judicial function. Thus, it helps to protect the rights and
interest of the people and checks on abuse of power and over the exercise of jurisdiction of the superior

Lokpal and Lokayukta Act

Lokpal and Lokayukta Act is an anti-corruption body of the parliament which renders the establishment of
Lokpal to inquire and investigate all the matters relating to corruption against the public officials. It is an
autonomous and independent institution called Lokpal in the center and Lokayukta at the state level. The
two separate Acts are curbing the corruption of public officials. The first Lokpal Chairman of India is Pinaki
Chandra Ghose who is the former judge of the Supreme Court.

Features of the Lokpal and Lokayukta Act, 2013

Lokayukta: According to this Act, every state has to set up Lokayukta within 365 days. The states have the
authority to decide the nature and scope of the Lokayukta Act. The old bill said that it will be set up in the
states where consent for the application is given and also in the old Lokayukta bill the Central Government
had the authority to appoint Lokayukta for the state but the new draft gives authority to the state.

Constitution of Lokpal
The Lokpal will comprise of a chairperson and a maximum of eight members out of which fifty percent
should be judicial members and fifty percent of the total member should be SC, ST, OBC or minorities.

Prosecution
In the Lokpal Act, 2013 the Lokpal may approve the concerned investigating agency to initiate prosecution
in special courts even before deciding to file the charge sheet.

Central Bureau of Investigation

The Central Bureau of Investigation also plays a vital role in the prosecution, which provides independence
to CBI to investigate the matter. As per the recommendation of the Central Vigilance Commission, a
director for prosecution is appointed.

Hearing
Before a decision is rendered by Lokpal, the public servant has a right of hearing.

Investigation
The process of investigation and inquiry should be completed within six months. This involves speedy
disposal of cases as the time limit to investigate is mentioned to be six months. Only after the process of
Hearing, the investigation can commence.

Aim and Functions of the Act

The Lokpal and Lokayukta Act which is an anti-corruption Legislation includes the scope of all public
servants, including cabinet ministers, chief minister, members of the parliament, and employees of central
organizations. The Lokpal Act also gives its approval to investigate to probe the wrongdoing of the Prime

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Minister. Fastening the investigation of the public officials indulged in corruption and prosecution is the
main purpose of the Act, except matters specifying to foreign affairs, atomic energy, security, and space.

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