ADR

THE ARBITRATION ACT (X OF 1940)

INTRODUCTION

Arbitration is a form of alternative dispute resolution that resolves disputes outside the
judiciary courts. The dispute will be decided by one or more persons, which renders the
'arbitration award'.

MEANING

An independent person or body officially appointed to settle a dispute.

DUTIES OF AN ARBITRATOR

An arbitrators' role is similar to that of a Court's Judge. An arbitrator must encourage

communication in a collaborative manner and must ensure to avoid any act which might give
an impression of prejudice against either party. He must try to ensure that the parties do not
lose confidence in the process.

POWER OF COURT TO APPOINT ARBITRATOR OR UMPIRE: (section 6)

(1) In any of the following cases –

(a) where an arbitration agreement provides that the reference shall be to one or more
arbitrators to be appointed by consent of the parties, and all the parties do not, after
differences have arisen, concur in the appointment or appointments; or

(b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting,
or dies, and the arbitration agreement does not show that it was intended that the vacancy
should not be supplied, and the parties or the arbitrators, as the case may be, do not supply
the vacancy; or

(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint
him; any party may serve the other parties or the arbitrators, as the case may be, with a
written notice to concur in the appointment or appointments or in supplying the vacancy.

2) If the appointment is not made within fifteen clear days after the service of the said notice,
the Court may, on the application of the party who gave the notice and after giving the other
parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the
case may be, who shall have like power to act in the reference and to make an award as if he
or they had been appointed by consent of all parties.

POWER TO COURT TO REMOVE ARBITRATORS OR UMPIRE IN CERTAIN

CIRCUMSTANCES: (section 9)

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(1) The Court may, on the application of any party to a reference, remove an arbitrator or
umpire who fails to use all reasonable dispatch in entering on and proceeding with the
reference and making an award.

(2) The Court may remove an arbitrator or umpire who has misconducted himself or the
proceedings.

(3) Where an arbitrator or the umpire is removed under this section, he shall not be entitled to
receive any remuneration in respect of his services.

(4) For the purposes of this section the expression “proceeding with the reference” includes,
in a case where reference to the umpire becomes necessary, giving notice of that fact to the
parties and to the umpire.

POWER OF COURT WHERE ARBITRATOR IS REMOVED OR HIS AUTHORITY

REVOKED: (section 10)

(1) Where the Court removes an umpire who has not entered on the reference or one or more
arbitrators (not being all the arbitrators), the Court may, on the application of any party to the
arbitration agreement, appoint persons to fill the vacancies.

(2) Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the
Court or where the Court removes an umpire who has entered on the reference or a sole
arbitrator or all the arbitrators, the Court may, on the application of any party to the
arbitration agreement, either –(a) appoint a person to act as sole arbitrator in the place of the
person or persons displaced, or (b)order that the arbitration agreement shall cease to have
effect with respect to the difference referred.

(3) A person appointed under this section as an arbitrator or umpire shall have the like power
to act in the reference and to make an award as if he had been appointed in accordance with
the arbitration agreement.

APPLICATION TO FILE IN COURT ARBITRATION AGREEMENT (section18)

(1) Where any persons have entered into an arbitration agreement before the institution of any
suit with respect to the subject-matter of the agreement or any part of it, and where a
difference has arisen to which the agreement applies, they or any of them, instead of
proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which
the agreement relates, that the agreement be filed in Court.

(2) The application shall be in writing and shall be numbered and registered as a suit between
one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and
the remainder as defendant or defendants, if the application has been presented by all the
parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants.

(3) On such application being made, the Court shall direct notice thereof to be given to all
parties to the agreement other than the applicants, requiring them to show cause within the
time specified in the notice why the agreement should not be filed.

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(4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and
shall make an order of reference to the arbitrator appointed by the parties, whether in the
agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator
appointed by the Court.

(5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the
other provisions of this Act so far as they can be made applicable.

THE CONCILATION COURTS ORDINANCE, 1961

(XLIV OF 1961)

INTRODUCTION

Conciliation is a way to resolve a legal dispute without going to trial. A neutral third party,
often a judge, may provide suggestions and develop proposals to help you and the other party
come to an agreement.

MEANING

Conciliation is a form of dispute resolution and provides an opportunity for parties involved
in a legal dispute to reach an agreement without the uncertainty, cost and time of a court
hearing. It is the process usually adopted to try to resolve disputes in general federal law
matters in the Court.

TYPES OF CONCILIATION

The most common forms are civil conciliation and domestic conciliation, both of which are
managed under the auspice of the court system by one judge and two non-judge
"conciliators". Civil conciliation is a form of dispute resolution for small lawsuits, and
provides a simpler and cheaper alternative to litigation.

PURPOSE OF THE CONCILIATION

The purpose of conciliation is to bring the different parties together to look for ways to
resolve the dispute. Conciliation looks for common ground to help resolve the matter to the
satisfaction of both parties so that both can move beyond the dispute.

CONCILIATION COURTS, THEIR COMPOSITION, ETC: (section 5)

1) A Conciliation Court shall be body consisting of Chairman and two representatives to be

nominated, in the prescribed manner, by each of the parties to the dispute. Proviso Omitted
by the Law Reforms Ordinance, 1972 (XII of 1972) S. 2 and Schedule.

2) The Chairman of the Union Council, [or, as the case may be, the member representing the
ward, or , in the case of a ward which has more members than one, such one of them as may
be determined in the prescribed manner,]1 shall be the Chairman of the Conciliation Court,
but where he is, owing to illness or any other cause, unable to act as Chairman, or does not,
on account of any personal consideration, wish to do so, or his impartiality is challenged by

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any party to the dispute, any other person appointed in the prescribed manner not being a
person nominated by any party, shall be the Chairman of the Court.

3) If either party to the dispute consists of more than one person, the Chairman shall call upon
the persons constituting that part to nominate the two representatives on its behalf, and if they
fail so to nominate, shall authorize any one of such persons to do so, and thereupon the
person so authorized shall alone have the right to nominate such representatives.

4) Where representatives required under this section to be nominated are not nominated
within the prescribed time, then – a) if the case falls under Part I of the Schedule, the
Conciliation Court shall, without such representatives, be deemed to have been validly
constituted for the purposes of deemed to have been validly constituted for the purposes of
this Ordinance, and conciliation shall proceed accordingly; and b) if the case falls under part
Ii of the Schedule the court shall issue a certificate that conciliation has failed.

JURISDICTION OF CONCILIATION COURTS, ETC.: (section 6)

1) Subject to the provision of sub-section (2), a Conciliation Court shall be constituted and shall have
jurisdiction to try a case only when the parties to the dispute ordinarily reside within the [jurisdiction
of the same Union Council]1 in which the offence has been committed or the cause of action has
arisen.

2) [Where one of the parties to a dispute ordinarily resides, and the offence has been committed or the
cause of action has arisen, in one ward of a city, municipality or cantonment, and the other party
ordinarily resides in another ward of the same city, municipality or cantonment, then, a Conciliation
Court may be constituted in the ward in which the offence has been committed or, as the case may be,
the case of action has arisen.]

POWER OF CONCILIATION COURTS TO AWARD COMPENSATION; (section 7)

1) Save as otherwise provided in this ordinance, a conciliation Court shall have no power to pass a
sentence of imprisonment or fine, but if it holds a person guilty of an offence specified in the
schedule, it may order the accused to pay to the aggrieved person compensation the amount of which
may not exceed five hundred rupees but if the offence is one punishable under Section 428 or Section
429 of the Pakistan Penal Code (Act XLC of 1860) the amount of compensation may exceed [five
hundred]1 rupees not [one thousand]2 rupees.

2) In a case relating to a matter falling under Section B of Part I of the Schedule or under Section B
of Part Ii thereof, the Conciliation Court shall have the power to order payment of money up to the
amount specified therein in respect of such matter or delivery of property to the person entitled
thereto.

ENFORCEMENT OF DECREE: (section 9)

1)Where Conciliation Court decides to award compensation to a person or to order the

delivery of property, it shall pass a decree in such form and in such manner as may be
prescribed, and shall enter the particulars thereof in the prescribed register.

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2) If any money is paid or any property is delivered in the presence of the conciliation court
in satisfaction of the decree, it shall enter the fact of payment or delivery, as the case may be,
in the aforesaid register.

3) Where a decree relates to payment of compensation and the decretal amount is not paid
within the prescribed time, the same shall, if the Chairman of the Conciliation Court so
directs, be recovered a arrears of land revenue, and, on recovery, shall be paid to the decree
holder.

4) Where the satisfaction of a decree can be had otherwise than by payment of

compensation, the decree may be presented for execution to such civil Court as the District
Judge may, by special or general order, direct, and such Court shall thereupon proceed to
execute the decree as if it were a decree passed by itself.

5) A Conciliation Court may, if it thinks fit, direct that the amount of compensation be paid
in such installments as it may fix.

POWER OF CONCILIATION COURTS TO SUMMON WITNESSES, ETC (section

11)

A Conciliation Court may issue summons to any person to appear and give evidence, or to
produce or cause the production of any document: - a) No person who is exempt from
personal appearance in Court under sub-section (1) of Sec. 133 of the Code of Civil
Procedure, 1908 (Act V of 1908), shall be required to appear in person; b) A Conciliation
Court may refuse to summon a witness or to enforce a summons already issued against a
witness when in the opinion of the Court the attendance of the witness cannot be procured
without such delay, expense or inconvenience as in the circumstances would be
unreasonable. c) A Conciliation Court shall not require any person living beyond its
jurisdiction to give evidence or to produce or cause the production of a document unless such
sum of money is deposited for payment to him as the Court would think sufficient for
defraying his travelling and other expenses.

1) If any person to whom Conciliation Court has issued summons to appear and give
evidence or to produce or cause the production of any document before it wilfully disobeys
such summons, the Conciliation Court may take cognizance of such disobedience, and, after
giving such person an opportunity to explain, sentence him to a fine not exceeding twenty-
five rupees.

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