INTRODUCTION
ALTERNATIVE DISPUTE RESOLUTION (ADR)
Meaning, Definition and Nature of ADR
ADR in India
Brief History of ADR
Main Latent Characteristics of ADR
Advantages of ADR
Disadvantages of ADR
Types of ADR
1. Counseling.
2. Conciliation.
3. Arbitration.
4. Mediation.
5. Negotiation.
Need of ADR v. Limits of Litigation
Administration of Justice, Delay at different stages of trial
Restricting appeals to the Supreme Court.
Supreme Court’s Power.
Need For More ADR Centres—And Training For Lawyers.
ARBITRATION
Arbitration—Meaning of.
Scope of Arbitration Law in India.
Whether the arbitration clause is a part of contract.
Bill on the Law of Arbitration and Conciliation.
Statements of Objects and Reasons.
The provisions of 1996 Act are to be interpreted without any influence of 1940 Act.
Provisions of the new Arbitration and Conciliation Act, 1996 held to be ‘intra-vires’.
What is Arbitration?
Kinds of Arbitration
(i) Ad-hoc Arbitration.
(ii) Institutional Arbitration.
(iii) Contractual Arbitration.
(iv) Statutory Arbitration.
(v) Domestic Arbitration.
(vi) International Arbitration.
(vii) Foreign Arbitration.
Arbitration Agreement
(i) Inference of an agreement.
(ii) Essential ingredients of a valid arbitration agreement.
(iii) What amounts to arbitration agreement.
(iv) Validity of an arbitration agreement; does not depend on the number of arbitrators.
(v) Factum of a contract—Submission to Arbitrator for decision.
(vi) Difference between a reference and an arbitration agreement.
(vii) Constitution of agreement between parties—terms to be reduced to writing.
(viii) When dispute shall be referred to arbitration.
(ix) Parties should intend to settle their disputes by arbitration.
(x) Whether arbitration agreement should show bilateral rights of reference to the parties.
(xi) Under the Act oral agreement cannot be recognised.
(xii) Whether the signature of parties is necessary in arbitration agreement.
(xiii) Agreement must expressly or impliedly spell out arbitration clauses.
(xiv) Contract between employer and employee—no Arbitration agreement in the solution programme
(xv) Arbitration—In absence of agreement to that effect
(xvi) Invoking of Arbitration agreement for appointment of Arbitrator—When justified
(xvii) Rent Note—Unregistered—can’t be treated Arbitration agreement
(xviii) Application under Section 151 of C.P.C. not maintainable— for termination of mandate of the appointment of Arbitrator
(xix) Breach of work contract—entitlement for damages
(xx) ‘Government Arbitration Agreement’ must satisfy the requirement of Article 299 of the Constitution of India.
(xxi) Government Arbitration Agreement must be signed by authorised person.
(xxii) Arbitration Agreement by Partners of firm.
(xxiii) Disputes and also difference can be referred to arbitration.
(xxiv) Present or future disputes may be referred to arbitration.
(xxv) Which disputes are arbitrable.
(xxvi) Whether Arbitrator can grant specific performance.
Arbitral Award
"Arbitral award"—Form and Contents of.
Terms and Contents of Arbitral award.
(i) Arbitral award operates as res judicata.
(ii) Essentials of Arbitral Award.
(iii) Arbitral award may be final or interim.
(iv) Time limit for making the arbitral award.
(v) Arbitral award by consent.
(vi) Contents of arbitral award.
(vii) Arbitral award to be made by majority.
(viii) Arbitral award shall be final and binding on the parties.
(ix) Law of Limitation Applicable to Arbitral Award.
(x) Whether stamp duty payable on arbitral award.
(xi) Evidence admissibility of unstamped arbitral award.
(xii) Whether arbitrator can award interest.
(xiii) No Arbitral Award Payment of Pre-Award Interest.
(xiv) Arbitral Tribunal—No power to award interest Pendente lite interest.
(xv) An Interim award is a part of final award.
(xvi) An arbitral award treated as a decree of a court.
(xvii) Foreign arbitral awards.
(xviii) Arbitral Award under Act, 1996 distinguished from the Arbitral Award under old Arbitration Act, 1940.
Arbitral Tribunal
(i) Abolition of the umpire system under the new Act.
(ii) Arbitrators to have requisite qualifications agreed to by the parties.
(iii) Arbitrator to rule its own jurisdiction.
(iv) Arbitral tribunal is not a court.
(v) Arbitration proceedings to proceed expeditiously.
(vi) Impartiality in arbitration proceedings must be maintained.
(vii) Establishment of statutory arbitral tribunal.
Court
Arbitral award can be challenged in the court
International Commercial Arbitration
(i) Applicability of Act, 1996 to International Commercial Arbitration.
(ii) International Commercial Arbitration, ouster of jurisdiction to be expressed.
(iii) Essentials to constitute International Commercial Arbitration.
(iv) Expression "Commercial"—Connotation of.
(v) Whether Arbitration is International.
(vi) "International Commercial Arbitration" vis-a-vis "Domestic Arbitration".
(vii) Arbitration—Foreign Award—Applicability of
Part I of the Arbitration and Conciliation Act, 1996.
Construction Of References
Receipt of written communications (S. 3).
Waiver of right to object (S. 4).
(i) Expression "Waiver"—Meaning of.
(ii) Failure to raise objection within prescribed time— Amounts to waiver of right.
(iii) Conditions necessary when a party waives his right.
(iv) Attending arbitration proceedings under protest does not amount to waiver of right.
(v) When the principle of waiver would not apply in arbitration proceedings.
(vi) Party taken benefit under award, cannot challenge the same.
Extent of judicial intervention (S. 5).
(i) Scope of Judicial Intervention in Arbitration.
(ii) Whether revisional jurisdiction of the High Court taken away.
(iii) Judicial intervention in arbitration proceedings— Extent of.
(iv) Expression "Judicial Authority"—Its meaning and scope— Whether BIFR is judicial authority.
Administrative assistance (S. 6).
Arbitration agreement (S. 7).
(i) Term "agreement"—Connotation of
(ii) Form of an arbitration agreement
(iii) What constitutes an "arbitration agreement"
(iv) Oral arbitration agreement is not recognized
(v) Genuineness of agreement—Initial burden of proving
(vi) Existence of arbitration agreement—inference of
(vii) Existence of arbitration agreement—inference as to can be drawn from letters/faxes etc.
(viii) An arbitration agreement is not necessarily to be signed by both the parties
(ix) Arbitrable Disputes
(x) Arbitration clause may subsist even on full and final settlement of the claim/bill
(xi) Arbitration clause—providing that "Any Dispute between the parties shall be referred to
arbitration"
(xii) Whether mutuality is required to constitute a valid arbitral agreement
(xiii) Arbitration agreement relating to either present or future disputes
(xiv) Arbitration clause under the Government contract
(xv) Whether the parties of a firm can enter into the arbitration agreement
(xvi) Memorandum of understanding does not constitute arbitration clause
(xvii) Arbitration agreement held to be valid, requiring two arbitrators to appoint third
arbitrator
(xviii) Agreement requires arbitrator’s appointment
(xix) In absence of arbitration agreement—No intervention by the court
(xx) The clause was not an arbitration clause
(xxi) Vagueness in arbitration clause
(xxii) Arbitration agreement of enlargement of scope of dispute
(xxiii) Judicial Authority would have jurisdiction to go into said question in certain
circumstances
(xxiv) Validity of clause of arbitration agreement—Imposing condition of depositing 10% of
amount claimed
Power to refer parties to arbitration where there is an arbitration agreement (S. 8).
(i) Expression ‘Party1 under Section 8—Meaning of
(ii) Applicability of Section 8—Obligatory for the Court to refer parties to arbitration in terms of arbitration agreement
(iii) Ouster of Civil Court jurisdiction, when justified
(iv) Nature of Section 8
(v) Expression "first statement on the substance of the dispute"—Meaning of
(vi) Beneficiary cannot be prevented from invoking Bank Guarantee
(vii) Judicial authority under obligation to refer the parties for arbitration
(viii) No appointment of an arbitrator through court
(ix) Death of named arbitrator—In such eventuality court can appoint arbitrator
(x) Question regarding winding up of the company cannot be referred to arbitration
(xi) Arbitral proceedings and legal proceedings to be continued concurrently
(xii) Non-existence of a valid arbitration agreement—High Court cannot pass a decree in terms of award
(xiii) Submission of first statement not a bar on the court referring the parties to arbitration
(xiv) Application under Section 8 without certified copy of agreement
(xv) On what grounds stay of legal proceedings may be refused
(xvi) Stay proceeding should be disposed of expeditiously
(xvii) Reference made during repeal of the Arbitration Act, 1940— Effect of
(xviii) Reference of dispute to arbitration—Difference between; section 34 of the Arbitration Act, 1940 and Section 8 of the New Act, 1996
(xix) Reference to arbitration cannot be made—Contract for supply of goods
(xx) Reference of dispute for arbitration improper
(xxi) Reference—Maintainability of application
(xxii) No provision in the Act for splitting the cause or parties
(xxiii) Suspension of supply of petroleum products to the respondent dealer—whether dispute is covered by arbitration clause
(xxiv) Arbitrable dispute—when jurisdiction of the Civil Court not ousted
(xxv) Arbitration unregistered rent note—Evidentially value of
(xxvi) Void ab initio contract/agreement—no reference of dispute to arbitration
(xxvii) Arbitration Clause—When supersession of earlier contract does not amount to change
(xxviii) International commercial arbitration—Section 8 of the Act has no application
Interim measures etc. by Court (S. 9).
(i) Interim measures by court
(ii) Proceeding under Section 9 of the Act is maintainable only between the parties to
arbitration agreement
(iii) Power of the Court to pass interim order—Principle applicable for
(iv) Granting of interim injunction order—what factors to be taken in consideration
(v) Invoking of Section 9 in matter relating to Bank Guarantee
(vi) Encashment of Bank Guarantee—When Arbitration proceedings pending
(vii) Granting of Interim Injunction/Interim measure
(viii) Interim Order may be made even before commencement of arbitration proceedings
(ix) Interim Protection order—Statutory discretion under Section 9(ii)(b) to be exercised
judicially
(x) "Interim relief'—Order passed by the Court should fall within the meaning of expression "an interim measure of protection" as distinguished from all time or permanent protection
(xi) No injunction granted—When the plaintiff has already invoked the remedy available
(xii) Hire purchase agreement—Owner was well within its right to resort to arbitration in terms of arbitration clause in agreement.
(xiii) Power to grant interim relief—Court is not bound by limits of Order 39, Rules 1 and 2 of C.P.C.
(xiv) Sale of iron ore—Totally restraining appellant is not proper
(xv) Restitution of conjugal rights—Burden on nonapplicant to show the cause for withdrawal from society of applicant
(xvi) No Specific Provision for Payment of Court-fees under the Act of 1996
(xvii) Existence of arbitration clause—photocopies of original agreements can be taken on record
(xviii) Indian Premier League—temporary injunction— termination of Media Rights by BCCI
Number of arbitrators (S. 10).
(i) Who is "arbitrator"?
(ii) Freedom to determine number of arbitrators
(iii) Court may make appointment if the parties do not concur
(iv) Agreement providing for two arbitrators
Appointment of arbitrators (S. 11).
(i) Legislative intention
(ii) Phrase "failing any agreement"—What it contemplates
(iii) Pre-requisites for appointment of Arbitrator
(iv) Appointment of an arbitrator by an ex-officio designated official
(v) Arbitrator to be independent and impartial person
(vi) Proceedings for appointment of arbitrator under Section 11 has a very narrow scope
(vii) No assumption as to failure to arbitrate properly
(viii) International commercial arbitration—appointment of arbitrator
(ix) Appointment of arbitrator qua International Commercial Agreement
(x) International Commercial arbitration agreement— Arbitration clause alleged to have
been obtained by fraud—Arbitrator cannot be appointed
(xi) International commercial arbitration—Nationality of arbitrator
(xii) Foreign award—when application under Section 11(6) of the Act, 1996—Not maintainable
(xiii) Appointment of sole arbitrator—When it can be made
(xiv) Sole arbitrator—Appointment of—When justified
(xv) Qualification of Arbitrator—When not prescribe in the contract/agreement
(xvi) Termination of mandate of Arbitrator/Arbitral tribunal—When not taking up Arbitration proceedings
(xvii) Appointment of sole arbitrator—In absence of companies by-laws
(xviii) Word "May" in Section 11(9) is taken as "shall"
(xix) Order passed under Section 11(6) is administrative remedy
(xx) Order passed under Section 11(6) cannot be challenged under Article 136 of the
Constitution
(xxi) Right to make appointment of arbitrator is not forfeited— When, Appointment has not
been made within 30 days of denial
(xxii) Objection as to nationality of arbitrator
(xxiii) Government contracts—Appointment of an arbitrator by a ‘Designated person’
(xxiv) Appointment of arbitrator—Order of the Chief Justice or his designate under Section 11 is a Judicial order?
(xxv) Arbitration Clause—Appointment of Arbitrator by Chief Justice—When can be challenged
(xxvi) Precondition for exercise of power—Appointment of arbitrator
(xxvii) Appointment of arbitrator, when the procedure is not provided by agreement between
parties
(xxviii) Order made by judge designated by the Chief Justice for appointment of arbitrator—
Whether writ petition is maintainable against
(xxix) Apprehension regarding bias in Government arbitration
(xxx) Selection of an arbitrator—He must show the highest faith
(xxxi) Appointment of Arbitrator—cannot be made in violation of arbitration clause of contract
(xxxii) Substitution of Arbitrator—Application for, when not maintainable
(xxxiii) Appointment of Arbitrator—Application by L.R. of the deceased partner
(xxxiv) Appointment of Arbitrator—When the Chief Justice cannot be approached
straightway
(xxxv) Appointment of Arbitrator within 30 days of demand
(xxxvi) Failure of authorities to appoint arbitrator within reasonable time—"Mandamus" can
be issued
(xxxvii) Acceptance and receipt of final bill without protest— Applicant is prohibited from
raising any dispute with reference
(xxxviii) Arbitration agreement is a matter of contract
(xxxix) Parties free to adopt procedure appointment of arbitrator
(xl) Preliminary objection—Whether dispute is arbitrable or not?
(xli) Appointment of arbitrator by court—Preliminary issues may be decided by Chief
Justice or his designate
(xlii) Arbitrator can be appointed by the General Manager, Railway
(xliii) International commercial arbitration—Chief Justice of India alone empowered to
appoint arbitrator
(xliv) Company incorporated in India, would always be controlled in India
(xlv) Appointment of arbitrator—Only power of Civil Court is to refer parties to
arbitration
(xlvi) Waiver of right of appointment of arbitrator
(xlvii) Jurisdiction for appointment of arbitrator by Court— When cannot be exercised
(xlviii) Removal of arbitrator appointed by the High Court— When can be
(xlix) Appointment of arbitrator—when named in arbitration agreement—whether can be
challenged
(l) Absence of arbitration agreement—Arbitrator can’t be appointed.
(li) Electricity Act, 2003 will prevail over Section 11 of the Act, 1996—Disputes
between licensees and generating companies
(lii) Presiding Arbitrator/Third Arbitrator by Court—When can be
(liii) Maintainability of application under Section 11(6)— When ICC Rules already
invoked
(liv) Extension of time for making payment—High Court cann’t considered
Grounds for challenge (S. 12).
(i) Duty to disclose is cast on the prospective arbitrator
(ii) The word "only" in Section 12(3)—Significance of
(iii) Expression "refusal" to act as arbitrator—Meaning of .
(iv) Power of the court regarding appointment if authorised person fails to appoint
(v) Appointed arbitrator must possess qualifications agreed to by the parties
(vi) When the composition or the procedure of Arbitral Tribunal is challengeable
Challenge procedure (S. 13).
Failure or impossibility to act (S. 14).
(i) Phrases and terms contained in Section 14(1)— Connotations of
(ii) Expressions "unable to perform his function"— Meaning of
(iii) When an arbitrator becomes incapable of acting ‘de facto’
(iv) Vacancy created on account of retirement or withdrawal by arbitrator can be filled
Termination of mandate and substitution of arbitrator (S. 15).
(i) Termination of mandate of arbitrator
(ii) Substitution of arbitrator
(iii) Substitution of Arbitrator—‘No—denovo’ proceedings always require
(iv) Insolvency notice cannot be issued on basis of an arbitration
(v) Dilatory tactics adopted by Arbitral Tribunal—Court is empowered to ignore the terms
of the Contract/ Agreement
(vi) Statutory interpretation must be purposive
Competence of arbitral tribunal to rule on its jurisdiction (S. 16).
(i) Scope of Section 16
(ii) When objections to jurisdiction have to be raised
(iii) Constitution of arbitral tribunal—When can be challenged
(iv) Want of jurisdiction—When such plea can be raised
(v) Question of Jurisdiction—Arbitral Tribunal has Power to rule on its own jurisdiction
(vi) Harmonising effect should be given to arbitration clause in main agreements
(vii) Section 16 does not take away jurisdiction of the Chief Justice to decide the question
of existence of arbitration agreement
(viii) Execution of the Interior Agreement is "connected" with the execution of main
agreement
(ix) Setting aside of arbitral award
(x) Remittance of arbitral award by the civil judge
(xi) Enforceability of arbitration agreement to be determined by the Arbitral Tribunal
(xii) Reference—It is for the arbitrator to decide whether he would proceed with
(xiii) Arbitrability of disputes—Power of arbitrator to decide
(xiv) Termination contract—shall not entail "ipso jure" the invalidity of "arbitration clause"
(xv) International Arbitration Applicability of Arbitration Law
(xvi) Separability of Arbitration Clause from main Contract/ Agreement Interim Measures Ordered by Arbitral Tribunal (S. 17). Scope of Section 17
Equal treatment of parties (S. 18).
(i)Expression "equal treatment of parties"—Connotation of
(ii) Arbitrators to render equal opportunity to the parties
(iii) A party should not be examined in absence of another
(iv) Section 18 reflects principles which are well established by Constitutional Law
(v) Arbitral award must be based on evidence.
Determination of rules of procedure (S. 19).
Place of arbitration (S. 20).
Venue of arbitration
Commencement of arbitral proceedings (S. 21).
(i) Making a claim does not by itself commence the arbitration proceedings
(ii) Applicability of the new Act, 1996 or the old Act, 1940
(iii) Arbitral proceeding commenced before enforcement the Act, 1996
(iv) A party can seek Interim Relief from the court even before commencement of
arbitral proceedings
(v) ‘Partly’ reference of disputes—Not permissible
(vi) Reference can be unilateral
(vii) Granting of Interim relief—Commencement of arbitral proceedings is independent.
(viii) Commencement of Arbitral Proceedings—applicability of the Limitation Act, 1963—for filing counter claim Language (S. 22).
Recovery of depth—Notice issued by Lok Adalat not illegal
Statements of claim and defence (S. 23).
(i) It is imperative to state all material facts
(ii) Statement of claim must contain full particulars
(iii) Scope of pleadings
(iv) Where amendment sought, drastic in nature, cannot be allowed
(v) Ordinarily, amendment/supplement is allowed in the arbitration proceedings
(vi) Expression "claim"—Construction of
Hearings and written proceedings (S. 24).
(i)Admissibility of the statement of the witnesses without administering oath
(ii) Both parties have full and equal access to written proceedings
Default of a party (S. 25).
(i) Words "sufficient cause"—Deserve liberal interpretation
(ii) When the ‘ex-parte’ award is liable to be set aside
(iii) When arbitral tribunal "may" continue the proceedings
(iv) Power of Arbitral Tribunal—Termination of proceeding
(v) No civil suit is maintainable against the order passed under Section 25(a)
Expert appointed by arbitral tribunal (S. 26).
(i) Opinions of expert—How far relevant
(ii) An expert can be testified as a witness
(iii) Arbitral tribunal can seek assistance of legal expert
Court’s assistance in taking evidence (S. 27).
(i) Non-consideration of material evidence—Award would be rendered invalid
(ii) Refusal to issue summons to the witness—Award liable to be set aside
Rules applicable to substance of dispute (S. 28).
(i) Freedom to choose national laws of different States
(ii) International Commercial transaction should have "Foreign Jurisdiction clause"
(iii) Where the choice of applicability of law is not specified—
Decision making by panel of arbitrators (S. 29).
(i) Substantial miscarriage of justice in decision making
(ii) All arbitrators required to give their united consideration
(iii) Question of procedure may be decided by the presiding arbitrator
(iv) Different arbitral awards by the two arbitrators— Appointment of umpire justified
Time Limit for Arbitral Award (S.29A)
Scope of Section 29A
Fast Track Procedure (S. 29B)
Scope of Section 29B
Settlement (S. 30).
(i) Consent award is an arbitral award
(ii) Where during arbitral proceedings settlement reached—Effect of
(iii) An arbitral award on agreed terms will be final
(iv) In the interest of justice family dispute under arbitration may be interfered
(v) Arbitrator by revising wage has not misconducted himself
Form and contents of arbitral award (S. 31).
(i) An award shall be made in writing and signed by members of tribunal
(ii) Arbitral award should state the reasons upon which it is based
(iii) Wherein it is not mandatory to give reasons for the arbitral award
(iv) Arbitrator’s jurisdiction to award interest
(v) Interest—When it may be award
(vi) Arbitrator has jurisdiction to award interest for pre-reference period
(vii) The arbitrator’s jurisdiction to award "pendente lite" interest
(viii) Whether compound interest is permissible through arbitral award
(ix) Reduction of statutory rate of 18% by Court—When warranted
(x) When the award becomes complete and final
(xi) What amounts to ‘interim award’
(xii) Arbitration costs—At the discretion of the tribunal
(xiii) Non-speaking award is invalid
(xiv) Division Bench to give decision on all the grounds
(xv) Unstamped and unregistered arbitration award—Not admissible as an evidence
Regime for Costs (S. 31A)
Scope of Section 31A
Termination of proceedings (S. 32).
(i) Implication of Section 32
(ii) Dissenting arbitrator cannot be allowed to sign, after the award is filed in the court
(iii) Doctrine of res-judicata—Applicability of
Correction and interpretation of award; additional award (S. 33).
(i) Arbitral award should be construed liberally
(ii) Words in accord with the intention
(iii) Arbitral award can be modified
(iv) Review on merits—an arbitrator has no power
Application for setting aside arbitral award (S. 34).
(i) Scope of Section 34
(ii) Enforceability of Arbitral award—When can be
(iii) International Arbitration—When Indian Act, 1996 would not be applicable
(iv) Arbitral Award—Scope of Judicial Review
(v) Section 14 of the Limitation Act, 1963—When not applicable
(vi) Arbitral Award—Setting Aside of—When not against the Public Policy
(vii) Unregistered tenancy agreement—Arbitration Act not applicable
(viii) Arbitrator is a final Judge in question of fact
Finality of arbitral awards (S. 35).
(i) Rights and liabilities of the parties to be determined only on basis of award
(ii) Award is capable of being executed in its own
(iii) When award is compulsorily registrable
(iv) Final arbitral award can be questioned only on ground of lack of jurisdiction
Enforcement (S. 36).
(i) Enforcement of award
(ii) Enforcement of arbitral award—When entire arbitral award not becoming final
(iii) Arbitral award—Whether requires registration
(iv) Enforcement of arbitral award—Cross decrees— Applicability of Order 21, Rules 18,
19 of the Civil Procedure Code, 1908
Appealable orders (S. 37).
(i) Scope of Section 37
CONCILIATION
Meaning and Definition of Conciliation Conciliation is not mediation.
Conciliation is not arbitration.
Conciliation is conciliatory.
Statutory Conciliation : Indian Position.
Conciliation Machinery under Industrial Disputes Act, 1947
1. Conciliation officer.
2. Board of Conciliation.
General prohibition of strikes and lock-outs.
Role of Conciliation Officers.
Problems in Conciliation proceedings.
Suggestions : For empowerment of conciliation process.
Representation of parties to dispute.
Conciliation and Family Courts Act, 1984.
‘Camera proceedings’ contemplated.
Counsellors’ to be appointed.
Conciliation and Hindu Matrimonial Laws.
Conciliation : Arbitration and Conciliation Act, 1996.
Consultations Process : Under Act, 1996.
Number of Conciliator.
Why sole Conciliator?
Appointment of Conciliators.
Parties to Approach with request.
Appointment of Conciliators—No time limit for.
Submission of Statements to Conciliators.
Conciliator Not bound by Certain enactments.
Role of Conciliator Under the Act, 1996.
Communication between conciliator and Parties.
Disclosure of Information.
Cooperation of parties with Conciliator.
Suggestions by parties for settlement of dispute.
Settlement Agreement.
Settlement between the parties is binding having status of arbitral award.
When, Settlement agreement acquires status of Arbitral award.
Status and Effect of Settlement Agreement.
Principle of Confidentiality to be followed
Termination of Conciliation Proceedings.
Ways to Terminate the Conciliation Proceedings
No time limit prescribed-Why?
Resort to Arbitral or Judicial Proceedings.
Costs Fixation in respect of Conciliation Proceedings.
Meaning of Costs.
Costs to be Borne by the parties.
Deposits—as an advance.
Role of Conciliator in Other Proceedings.
Admissibility of evidence in other proceedings.
Difference between Conciliation and Arbitration.
Conclusion.
MEDIATION
Meaning and Definition of Mediation
Procedure of Mediation Appointment of Mediator.
Qualifications of Person to be a Mediator.
Preference as to suitability.
Mediator to Disclose Certain Facts.
Mediation is a Form of ADR.
According to Folberg and Taylor.
Mediator’s Liability
1. Contractual Liability.
2. Tortuous Liability.
3. Liability for breach of fiduciary relationship.
Why Mediate?
Mediation—Why Needed?
Critical Features of Mediation.
What ethics to be followed by a Mediator.
What are the Disadvantages of Mediation?
Procedure of Mediation.
Mediator—Not bound by the Evidence Act, 1872 or the Code of Civil Procedure, 1908
Role of Mediator.
Parties Alone Responsible for taking Decision.
Representative of Parties.
Parties to act in Good faith.
Confidentiality, Disclosure and Inadmissibility of Information.
Privacy.
Immunity.
Mediation under Section 89 of the Code of Civil Procedure, 1908
NEGOTIATION
Meaning and Definition of Negotiation
Essential Ingredients.
Steps for "Negotiation".
Perspective taking for integrative negotiation
Types of negotiators
Negotiation : Role of Lawyers.
Pillars of Negotiation.
Factors, Influence Negotiation.
Negotiation and Motive
Negotiation : Bilateral Mode of Decision Making.
Negotiation is not a Compromise.
Negotiation : Amounts to Exchange of Informations.
Negotiators Skills.
Negotiation : Means Series of Concessions.
Communication and Skill to be used by a Negotiator.
Dialogue—An important component of Negotiation.
Styles of Negotiation.
Approaches to Negotiation
1. Competitor.
2. Compromiser.
3. Collaborator.
4. Accommodator.
5. Avoidance.
Negotiation : Under Code of Civil Procedure, 1908
Negotiation : Family Courts Act, 1984
Negotiation power—What it?
Qualities of negotiation power.
Obstructions to Negotiation.
Psychology and Negotiation.
Negotiation has two Roles.
Negotiation is Non-binding Communication—"Shimla Agreement" and "Lahore Declaration".
Negotiation and Exchange of Mixed Motive.
Five Rules of Negotiation.
NEGOTIATION AND STATUTES
1. The Hindu Marriage Act, 1955 and The Special Marriage Act, 1954.
2. Code of Civil Procedure, 1908.
Assistant of Welfare Expert.
3. Family Courts Act, 1984.
4. The Legal Services Authorities Act 1987.
5. Arbitration and Conciliation Act, 1996.
CHAPTER 5
COUNSELLING
Meaning and Definition .of Counselling
Counselling Avoids Litigation
Interview : Knowing the Problem
Transmission Amounts to Communication.
Communication Rules—7 C’s of Communication
Communication : Sharing of Opinions
Stages of Communication.
Non Verbal Communication—Involves Physical Environment and Body Language.
Modes Regarding Interview of Client.
Counsellor to Know Capacity of the Client.
Opening Words of the Interview,
Role of Counsellor.
Preparation for Interview.
Client’s Expectation.
Process of Advising.
How to Handle—Difficult Clients.
Techniques for Questioning.
Question to be Asked During Listening.
Counsellor must Express Empathy.
Techniques for Listening.
Obstructions/Hurdles in Counselling
CHAPTER 6
COLLECTIVE BARGAINING
What is "Collective Bargaining"?
Background of Concept "Collective Bargaining".
Economic Theory; Models of Collective Bargaining.
U.S.A.—The National Labour Relations Act, 1935.
Union Security Clause.
Conflict Resolution
What is "Conflict"?
A Brief Background of Conflict Resolution.
Contents of Conflict Resolution.
Accommodation.
Avoidance.
Collaboration.
Compromise.
Competition.
CHAPTER 7
MISCELLANEOUS
Mini-Trial
Advantages of Mini Trial.
Popularity of Mini Trial-Reasons for.
Mini Trial Involves the Top/Senior Management.
Commencement of Mini Trials.
The Process
Neutral Chair Presides-Mini Trial Process.
Mini-Trial Procedures
Administrative Fees.
Mini-Trial.—A private, voluntary and informal type of Alternative Dispute
Resolution.
Fast Track Arbitration
Sole Arbitrator-Whether Necessary?
Commencement of Fast Track Arbitration.
Time limit Essential for Fast Track Arbitration.
Procedural Tools for a "Fast Track Arbitration".
Procedure for Fast Track Arbitration-Parties to Make an Agreement.
Practical Tips and Procedural Tools-for "Fast Track Arbitration.
Fast Track Arbitration—Why Necessary?
Factors to be Considered-Before Fast Track Arbitration.
Special Characteristics of the Fast Track Arbitration.
Scope of the Fast Track Arbitration.
Fast Track Arbitration and Model Law.
CHAPTER 8
LEADING CASES ON ADR
1. Haresh Dayaram Thakuar v. State of Maharashtra & others
2. T.P. George v. State of Kerala & another
3. M/s Forest Day Lawson Ltd. v. Jindal Exports Ltd.
4. Bombay Gas Co. Ltd. v. Parmeshwari Mittal & others.
5. M/s ITI Ltd., Allahabad v. District Judge, Allahabad & others
6. M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd.
7. The Superintending Engineer (Highways and Rural Works), Chennai & another v. D.G.
Deivasigamami & another
8. Kulbir Singh Rattan Singh v. New Delhi Municipal Council & other
9. K. C. Sharma v. D.P.A.
10. Union of India v. Ramesh Lalwani
11. National Insurance Co. v. Amal Kanti Das
12. Narayan Prasad Lohia v. Nikunj Kumar Lohia & others
12. Kisen Rao & another v. Bidan District Legal Services Authority & others
13. M/s Centro Trade Minerals and Metals Inc. v. Hindus Cooper Ltd.
14. Punjab National Bank v. Laxmi Chand Rai & others
15. San. Pushpa Suresh Bhutada & another v. Subhash Banshilal Maheshwari & others
16. Grid Corporation of Orissa Ltd. v. Indian Charge Chrome Ltd.
17. Bhatia International v. Bulk Trading S.A. & another
18. K.K. Modi v. K. N. Modi & Others
19. A. Ahmad Pasha & another v. C. Gulnez Jabeen
Appendices
I. Consultation Paper on ADR and Mediation Rules
II. The Arbitration and Conciliation (Amendment) Act, 2015
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