Harshad Dengale:

1) historical perspective of arbitration discuit settlement mechanism

Arbitration, as a method of dispute resolution, has a long and varied history that
spans across different cultures and legal systems. It has evolved from informal
community practices to a formalized mechanism recognized and regulated by law.
Here’s a comprehensive look at the historical perspective of arbitration and the
development of arbitration law:

Historical Perspective of Arbitration

Ancient Times

1. Early Societies:

- Arbitration can be traced back to early societies where community elders or

tribal leaders acted as arbitrators to resolve disputes. These informal processes
relied on the respect and authority of the arbitrator within the community.

2. Greek and Roman Era:

- In ancient Greece, arbitration was commonly used to resolve disputes between

city-states and among citizens. The Greeks believed in resolving disputes amicably
and often appointed arbitrators who were well-respected individuals.

- The Romans also utilized arbitration, with the practice being regulated under
Roman law. The "arbiter" was appointed by the disputing parties, and their
decision was binding.

Medieval Period
1. Guilds and Merchants:

- During the medieval period, arbitration was extensively used among

merchants and within guilds. Trade and commerce necessitated a quick and
effective dispute resolution mechanism, and arbitration provided that. Merchant
courts and guilds had their own arbitration systems to settle disputes.

2. English Common Law:

- In medieval England, arbitration began to gain prominence. The common law

courts started recognizing arbitration agreements, and the role of arbitrators
became more formalized. The principle that the parties could choose their
arbitrator and agree on the procedure was well established.

Modern Era

1. 17th and 18th Century:

- The formalization of arbitration in England saw significant developments with

the Arbitration Act of 1698, which provided for the enforcement of arbitration
agreements and awards by courts. This Act laid the foundation for modern
arbitration law.

- Similar developments occurred in other parts of Europe and America, where

arbitration was recognized as a means to resolve commercial disputes efficiently.

2. 19th Century:

- Arbitration continued to evolve, with various countries enacting legislation to

govern arbitration processes. In the United States, the Federal Arbitration Act of
1925 established a legal framework for arbitration, promoting its use and
providing for the enforcement of arbitration agreements and awards.

Law of Arbitration

Development of Arbitration Law

1. International Conventions:

- The 20th century saw the rise of international arbitration, facilitated by several
international conventions. The most significant of these is the New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(1958), which provides a framework for the recognition and enforcement of
international arbitration awards across member states.

- The UNCITRAL Model Law on International Commercial Arbitration (1985) is

another milestone, offering a template for countries to harmonize their
arbitration laws.

2. Arbitration Acts:

- Many countries have adopted specific arbitration acts to regulate arbitration

processes. These laws typically address the formation of arbitration agreements,
the appointment and powers of arbitrators, the conduct of arbitration
proceedings, and the enforcement of arbitral awards.

- Examples include the Arbitration Act, 1996 in the UK, which modernized and
consolidated previous arbitration legislation, and the Arbitration and Conciliation
Act, 1996 in India, which incorporates the UNCITRAL Model Law and is a
comprehensive statute governing both domestic and international arbitration.
Key Provisions in Arbitration Laws

1. Arbitration Agreement:

- Arbitration laws typically require that an arbitration agreement be in writing

and outline the scope of disputes subject to arbitration. The agreement is a
foundational element that binds the parties to resolve their disputes through
arbitration.

2. Arbitrator Appointment:

- Laws provide mechanisms for appointing arbitrators, including provisions for

situations where the parties cannot agree on an arbitrator. The qualifications and
impartiality of arbitrators are also often addressed.

3. Conduct of Proceedings:

- Arbitration laws outline the procedural rules for conducting arbitration,

ensuring fairness and equality between the parties. This includes the submission
of evidence, hearings, and interim measures.

4. Arbitral Awards:

- The issuance of arbitral awards, including the form, content, and finality of the
award, is regulated. The laws typically stipulate that awards are binding and
enforceable, with limited grounds for setting aside or challenging the award.

5. Enforcement and Recognition:

 - A critical aspect of arbitration laws is the enforcement and recognition of
arbitral awards. Domestic laws align with international conventions to ensure that
awards can be enforced across jurisdictions.

Conclusion

Arbitration has evolved from informal dispute resolution mechanisms in ancient

societies to a sophisticated and structured legal process recognized globally. The
development of arbitration laws has played a crucial role in providing a reliable
and efficient means of resolving disputes, particularly in the context of
international trade and commerce. The historical evolution of arbitration reflects
its adaptability and enduring relevance as a tool for achieving justice and
maintaining commercial harmony.

2) grounds for setting aside arbitral award

Setting aside an arbitral award in India is governed by the Arbitration and

Conciliation Act, 1996. The Act aims to provide a robust framework for arbitration
while ensuring that arbitral awards are respected and enforced. However, there
are specific grounds under which an arbitral award can be challenged and set
aside by a court. These grounds are enumerated in Section 34 of the Act. Here is
an in-depth explanation of these grounds:

Grounds for Setting Aside an Arbitral Award

1. Incapacity of a Party (Section 34(2)(a)(i)):

- If a party to the arbitration agreement was under some incapacity, the award
can be set aside. This includes situations where a party was a minor, mentally
incompetent, or otherwise legally incapable of entering into an arbitration
agreement.

2. Invalid Arbitration Agreement (Section 34(2)(a)(ii)):

- If the arbitration agreement is not valid under the law to which the parties
have subjected it, or under Indian law if no other law is specified, the award can
be challenged. This might include cases where the agreement lacks the necessary
legal formalities or has been fraudulently or coercively executed.

3. Lack of Proper Notice or Inability to Present Case (Section 34(2)(a)(iii)):

- If a party was not given proper notice of the appointment of an arbitrator or

the arbitral proceedings, or was otherwise unable to present their case, the
award can be set aside. This ensures the fundamental principle of natural justice
is upheld in arbitration.

4. Award Beyond Scope of Arbitration (Section 34(2)(a)(iv)):

- If the arbitral award deals with disputes not contemplated by or not falling
within the terms of the submission to arbitration, or contains decisions on
matters beyond the scope of the arbitration agreement, it can be challenged.
However, if the parts of the award which do fall within the scope can be
separated from those which do not, only the latter can be set aside.

5. Improper Composition or Procedure (Section 34(2)(a)(v)):

- If the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, or failing such agreement, was not
in accordance with the Act, the award can be set aside. This includes instances
where the agreed procedural rules were not followed.

6. Award in Conflict with Public Policy (Section 34(2)(b)(ii)):

- An arbitral award can be set aside if it is in conflict with the public policy of
India. The term "public policy" has been interpreted by Indian courts to include:
 - Fraud or Corruption: If the award was induced or affected by fraud or
corruption.

- Fundamental Policy of Indian Law: If the award contravenes the fundamental

policy of Indian law, such as disregarding judicial precedents.

- Basic Notions of Justice or Morality: If the award is so unfair or unreasonable

that it shocks the conscience of the court.

- Patent Illegality: If there is an apparent illegality on the face of the award

(applicable to domestic awards only).

7. Non-Arbitrable Subject Matter (Section 34(2)(b)(i)):

- If the subject matter of the dispute is not capable of settlement by arbitration

under the laws of India, the award can be challenged. Certain disputes, such as
criminal matters, matrimonial disputes, and insolvency matters, are generally
considered non-arbitrable.

8. Breach of Confidentiality or Conditions (Section 34(2A)):

- In case of additional grounds under specific arbitration agreements or

institutional rules, any breach of confidentiality or failure to meet specific
conditions laid down by such rules can be a basis for setting aside the award.

Additional Considerations

- Time Limit:

- An application for setting aside an arbitral award must be made within three
months from the date on which the party making the application had received the
arbitral award.

This period can be extended by an additional 30 days if the court is satisfied that
there was sufficient cause for the delay.
- Interim Measures:

- The court can grant interim measures while considering an application for
setting aside the award. This includes staying the enforcement of the award until
the application is decided.

Judicial Interpretation

Indian courts have been cautious in interfering with arbitral awards to maintain
the sanctity of the arbitration process. They typically avoid re-evaluating the
merits of the case and focus strictly on procedural and jurisdictional issues.

Conclusion

The grounds for setting aside an arbitral award under the Arbitration and
Conciliation Act, 1996, are designed to ensure fairness and compliance with
fundamental principles of justice while minimizing judicial intervention in the
arbitral process. The Act strikes a balance between respecting the finality of
arbitral awards and providing recourse against awards that violate essential legal
standards or procedural fairness.

3) Explain mechanism of lok Adalat and effective model for solving dispute in India

Lok Adalat, or People's Court, is an alternative dispute resolution mechanism in

India that is part of the statutory framework provided by the Legal Services
Authorities Act, 1987 (not 1981). This mechanism aims to provide accessible,
affordable, and expeditious justice to all, especially to those who cannot afford
the high costs of litigation. Here is an in-depth look at the mechanism of Lok
Adalat and how it serves as an effective model for solving disputes in India:
Legal Services Authorities Act, 1987

The Legal Services Authorities Act, 1987, provides the framework for the
establishment and functioning of Lok Adalats in India. It was enacted to provide
free legal services to the weaker sections of the society and to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.

Mechanism of Lok Adalat

Establishment

- National Legal Services Authority (NALSA): At the national level, NALSA is the
apex body for implementing and monitoring legal aid programs and services,
including Lok Adalats.

- State Legal Services Authorities (SLSAs): At the state level, SLSAs are responsible
for organizing Lok Adalats within their respective states.

- District Legal Services Authorities (DLSAs): At the district level, DLSAs handle the
organization of Lok Adalats and other legal aid activities.

Types of Lok Adalats

1. Permanent Lok Adalats:

- Established for the settlement of disputes concerning public utility services

such as transport, postal services, etc. They can adjudicate disputes if no
settlement is reached.

2. National Lok Adalats:

- Held at regular intervals across the country to address a large number of cases
on a single day. They handle a wide range of cases including matrimonial disputes,
land disputes, labor disputes, and more.
3. Mobile Lok Adalats:

- These are organized to reach remote and rural areas to settle disputes on the
spot.

Procedure

- Voluntary Participation: Participation in Lok Adalat is voluntary for both parties.

Cases can be referred to Lok Adalat by the courts or can be initiated directly by
the parties involved.

- No Court Fees: No court fees are charged for cases taken up by Lok Adalats. If a
case is already filed in a regular court and referred to Lok Adalat, the fee paid is
refunded.

- Flexible Procedures: Lok Adalats are not bound by the strict procedural laws and
rules of evidence. This flexibility helps in faster resolution of disputes.

- Settlement: The primary objective of Lok Adalats is to arrive at a compromise or

settlement agreeable to both parties. If the parties reach a settlement, an award
is passed by the Lok Adalat.

- Binding and Final: The award passed by Lok Adalat is final and binding on all
parties. It has the same legal status as a decree of a civil court and is not
appealable in any court.

Role of Judges and Advocates

- Panel Composition: Lok Adalats are presided over by a judicial officer, often
assisted by advocates, social workers, and other professionals. The panel
facilitates dialogue and negotiation between the parties.

- Advisory Role: The members of the Lok Adalat panel play an advisory role,
helping the parties understand the merits and demerits of their cases and guiding
them towards a mutually acceptable settlement.
Effectiveness of Lok Adalats

Speedy Justice

- Time Efficiency: Lok Adalats resolve disputes quickly compared to the traditional
court system. Cases that might take years in regular courts can be settled in a
single day in Lok Adalat.

- Reduction of Backlog: By resolving cases through Lok Adalats, the burden on

regular courts is significantly reduced, helping in the faster disposal of pending
cases.

Cost-Effective

- No Court Fees: The absence of court fees makes Lok Adalats an affordable
option for dispute resolution.

- Reduced Litigation Costs: As the proceedings are informal and expeditious, the
costs associated with prolonged litigation, including attorney fees and other
expenses, are minimized.

Accessibility

- Inclusive Approach: Lok Adalats make justice accessible to marginalized and

economically weaker sections of society who might otherwise be unable to afford
legal services.

- Geographical Reach: Mobile Lok Adalats extend the reach of legal services to
remote and rural areas, ensuring that even those living in distant locations have
access to justice.
Social Harmony

- Amicable Settlements: By focusing on compromise and mutual agreement, Lok

Adalats help maintain social harmony and preserve relationships, which is
particularly important in disputes involving family or community members.

- Reduced Hostility: The conciliatory approach reduces hostility and fosters a

more cooperative environment for dispute resolution.

Challenges and Improvements

Despite their effectiveness, Lok Adalats face certain challenges:

- Awareness: There is a need to increase awareness about Lok Adalats among the
general public to ensure more people take advantage of this mechanism.

- Training and Resources: Adequate training for panel members and sufficient
resources are required to ensure the smooth functioning of Lok Adalats.

- Quality of Settlements: Ensuring the quality and fairness of settlements is crucial.

There should be safeguards to prevent any coercion or undue influence on the
parties.

Conclusion

Lok Adalats, under the framework of the Legal Services Authorities Act, 1987,
provide an effective, efficient, and accessible model for dispute resolution in
India. By offering a cost-effective, speedy, and amicable way to settle disputes,
Lok Adalats help reduce the burden on traditional courts and promote social
harmony. Strengthening this mechanism through increased awareness, better
training, and resource allocation can further enhance its effectiveness and reach.
4) Various form of ADR
Alternative Dispute Resolution (ADR) encompasses various methods of resolving
disputes outside traditional judicial proceedings. ADR methods are often faster,
less formal, and more cost-effective than litigation, making them popular for
resolving a wide range of disputes. Here’s a detailed discussion of the various
forms of ADR:

1. Arbitration

Definition:

- Arbitration involves the resolution of disputes by one or more arbitrators who

render a binding decision, known as an arbitral award.

Procedure:

- Parties agree to submit their dispute to arbitration, either through a pre-dispute

arbitration clause or a post-dispute arbitration agreement.

- Arbitrators are selected by the parties or appointed by an institution.

- Hearings are conducted where parties present evidence and arguments.

- The arbitrator(s) render a binding decision which can be enforced in courts.

Advantages:
- Confidentiality

- Expertise of arbitrators in specific fields

- Faster resolution compared to court litigation

- Limited grounds for appeal, ensuring finality

Examples:

- Commercial disputes

- Construction disputes

- International trade disputes

2. Mediation

Definition:

- Mediation is a voluntary process where a neutral third party, the mediator,

facilitates communication and negotiation between disputing parties to help
them reach a mutually acceptable agreement.

Procedure:

- Both parties agree to engage in mediation.

- The mediator conducts joint and separate sessions to understand the issues and
interests.

- The mediator helps parties explore potential solutions.

- If an agreement is reached, it is documented and can be made binding.

Advantages:

- Preserves relationships

- Parties retain control over the outcome

- Confidential process

- Flexible and informal

Examples:

- Family disputes (e.g., divorce, child custody)

- Workplace conflicts

- Community disputes

3. Conciliation

Definition:

- Similar to mediation, but the conciliator may take a more active role in
proposing solutions and providing opinions on the merits of the case.

Procedure:

- Parties agree to conciliation.

- The conciliator engages in discussions with the parties, jointly and separately.

- The conciliator may suggest possible solutions and encourage settlement.

- An agreement reached through conciliation can be formalized and made
binding.

Advantages:

- Active role of the conciliator can help in complex disputes

- Confidential and flexible process

- Can preserve relationships

Examples:

- Consumer disputes

- Employment disputes

- Commercial disputes

4. Negotiation

Definition:

- A direct discussion between parties to resolve their dispute without the

involvement of third parties.

Procedure:

- Parties engage in dialogue to understand each other’s positions and interests.

- They explore options and negotiate terms.

- If an agreement is reached, it can be formalized in a contract.

Advantages:

- Full control by the parties

- Informal and flexible

- Cost-effective

Examples:

- Business contract disputes

- Settlement of debts

- Personal disputes

5. Lok Adalat

Definition:

- A system of alternative dispute resolution developed in India, where disputes

are settled by a panel of judges, lawyers, and social workers through conciliation
and compromise.

Procedure:

- Cases can be referred to Lok Adalat by courts or directly by parties.

- The panel facilitates dialogue and compromise between the parties.

- If a settlement is reached, it is binding and has the same effect as a court decree.
Advantages:

- Speedy and cost-effective

- Accessible to marginalized communities

- Reduces burden on traditional courts

Examples:

- Family disputes

- Motor accident claims

- Land disputes

Conclusion

Alternative Dispute Resolution methods provide various avenues for parties to

resolve their disputes outside traditional court proceedings. Each method has its
unique features, advantages, and suitable applications. ADR promotes faster,
cost-effective, and amicable resolution of disputes, reducing the burden on the
judiciary and fostering a culture of consensual problem-solving. By understanding
and effectively utilizing these ADR mechanisms, parties can achieve more
satisfactory and sustainable outcomes in their disputes.

5) What is mediation benefit of mediation and role of mediator

What is Mediation?
Mediation is an alternative dispute resolution (ADR) process in which a neutral
third party, the mediator, facilitates communication and negotiation between
disputing parties to help them reach a mutually acceptable agreement. Unlike
judges or arbitrators, mediators do not impose a decision but assist the parties in
exploring solutions that meet their needs and interests.

Benefits of Mediation

1. Confidentiality:

- Mediation sessions are private and confidential. This encourages open

communication and allows parties to discuss issues freely without fear of public
disclosure or use of the information in future litigation.

2. Control over Outcome:

- The parties retain control over the resolution of their dispute. They are not
bound by a third-party decision but reach a mutually agreed-upon solution.

3. Cost-Effective:

- Mediation is generally less expensive than litigation. The process is quicker,

reducing legal fees and other associated costs.

4. Time-Saving:

- Mediation can be scheduled promptly, and disputes are often resolved in a

matter of hours or days, unlike court cases that can drag on for months or years.
5. Preserves Relationships:

- The collaborative nature of mediation helps preserve personal and business

relationships by promoting understanding and cooperation.

6. Flexibility:

- Mediation is a flexible process. The procedures can be tailored to fit the needs
of the parties, and the solutions can be creative and customized, unlike rigid court
judgments.

7. Stress Reduction:

- The informal and cooperative atmosphere of mediation reduces the stress and
adversarial nature associated with court proceedings.

Role of the Mediator

1. Facilitator:

- The mediator facilitates communication between the parties. They ensure that
each party has an opportunity to speak and be heard, promoting a constructive
dialogue.

2. Neutral Party:

- The mediator remains neutral and impartial. They do not take sides or impose
their views but help the parties to understand each other’s perspectives and
explore potential solutions.
3. Managing the Process:

- The mediator manages the mediation process, establishing ground rules,

setting the agenda, and ensuring that the discussions stay focused and
productive.

4. Building Trust:

- By maintaining neutrality and confidentiality, the mediator builds trust with

and between the parties, which is crucial for open communication and successful
resolution.

5. Assisting in Identifying Issues:

- The mediator helps the parties identify the underlying issues and interests
behind their positions. This helps in finding more effective and acceptable
solutions.

6. Encouraging Creative Solutions:

- The mediator encourages the parties to think creatively and explore various
options for resolution. They guide the parties towards solutions that satisfy their
underlying interests and needs.

7. Reality Testing:

- The mediator assists the parties in evaluating the feasibility and practicality of
their proposed solutions. This includes considering the potential consequences
and the likelihood of the agreement being implemented.
8. Documentation:

- If the parties reach an agreement, the mediator helps in drafting the

settlement agreement. This ensures that the terms are clearly articulated and
agreed upon by both parties.

Skills and Qualities of a Good Mediator

1. Impartiality:

- A good mediator must be neutral and unbiased, treating all parties fairly and
equally.

2. Active Listening:

- The ability to listen actively and understand the parties' concerns and
perspectives is crucial.

3. Communication Skills:

- Effective verbal and non-verbal communication skills help in facilitating

discussions and clarifying misunderstandings.

4. Problem-Solving Skills:

- A mediator must be adept at identifying issues, generating options, and

helping parties evaluate and choose solutions.
5. Patience and Perseverance:

- Mediation can be a challenging process, requiring patience and persistence to

help parties work through their differences.

6. Emotional Intelligence:

- The mediator should be able to manage emotions, both their own and those of
the parties, to maintain a constructive environment.

Conclusion

Mediation is a valuable tool for resolving disputes efficiently and amicably. The
role of the mediator is central to the process, as they facilitate communication,
promote understanding, and assist in the negotiation of a mutually acceptable
agreement. The benefits of mediation, including confidentiality, cost-
effectiveness, and the preservation of relationships, make it an attractive
alternative to traditional litigation. By providing a flexible and controlled
environment, mediation helps parties achieve sustainable and satisfactory
resolutions to their disputes

6) Explain foreign award and Geneva award in detail

Foreign Award

A foreign award refers to an arbitral award made outside the jurisdiction where
recognition and enforcement are sought. These awards arise from international
arbitration proceedings and are governed by treaties and conventions to ensure
they are recognized and enforced across different jurisdictions.

Recognition and Enforcement of Foreign Awards

The recognition and enforcement of foreign arbitral awards are primarily

governed by the following:

1. New York Convention (1958):

- Also known as the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, it is the most significant international treaty concerning the
enforcement of foreign arbitral awards.

- As of now, over 160 countries are signatories to the New York Convention.

- The Convention mandates that arbitral awards made in one member state are
recognized and enforced in other member states, subject to limited grounds for
refusal.

2. Arbitration and Conciliation Act, 1996 (India):

- In India, the recognition and enforcement of foreign awards are governed by

Part II of the Arbitration and Conciliation Act, 1996.

- Section 44 defines a foreign award under the New York Convention.

 - Sections 46 to 49 deal with the enforcement process, specifying the conditions
under which enforcement can be refused, such as incapacity of parties, invalid
arbitration agreement, lack of proper notice, the award dealing with matters
beyond the scope of arbitration, and issues of public policy.

Geneva Convention Award

The Geneva Convention Award refers to arbitral awards made under the Geneva
Protocol on Arbitration Clauses (1923) and the Geneva Convention on the
Execution of Foreign Arbitral Awards (1927). These instruments were the
precursors to the New York Convention and laid the groundwork for the
international enforcement of arbitral awards.

Geneva Protocol (1923)

- Established the principle that arbitration agreements and clauses should be

respected by the contracting states.

- It provided a basic framework for the arbitration process and the recognition of
arbitration agreements.

Geneva Convention (1927)

- Extended the principles of the Geneva Protocol by addressing the enforcement

of foreign arbitral awards.
- Provided that awards made in one contracting state would be recognized and
enforced in other contracting states.

- It required that the award be final in the country where it was made and that it
not be contrary to the public policy or the principles of the law of the country
where enforcement was sought.

Limitations and Replacement

- The Geneva Convention and Protocol had several limitations, such as requiring
double exequatur (i.e., requiring confirmation of the award in the country of
origin before it could be enforced abroad).

- These limitations led to the adoption of the New York Convention in 1958, which
simplified and strengthened the framework for the recognition and enforcement
of foreign arbitral awards, replacing the Geneva instruments.

Key Differences between New York Convention and Geneva Convention

1. Scope of Application:

- The New York Convention has a broader scope, covering a larger number of
countries compared to the Geneva Convention.

- The New York Convention applies to both arbitration agreements and awards,
while the Geneva Convention primarily focused on awards.

2. Procedure for Enforcement:

- The New York Convention simplifies the enforcement process by eliminating

the requirement of double exequatur, making it more efficient.
 - The Geneva Convention required an additional step of confirmation in the
country of origin, which often resulted in delays.

3. Grounds for Refusal:

- The grounds for refusal of enforcement under the New York Convention are
more specific and limited, promoting greater uniformity and predictability.

- The Geneva Convention had broader and more discretionary grounds for
refusal, leading to inconsistent enforcement practices.

Conclusion

Foreign awards and Geneva Convention awards play a critical role in the
landscape of international arbitration. The New York Convention has largely
superseded the Geneva Convention, providing a more effective and widely
accepted framework for the recognition and enforcement of foreign arbitral
awards. This has significantly enhanced the reliability and attractiveness of
international arbitration as a method for resolving cross-border commercial
disputes.

7) Power function of ombudsman

An ombudsman is an independent, impartial official appointed to investigate and

address complaints from the public against maladministration, particularly by
government bodies and public institutions. The role of the ombudsman is to
ensure accountability, transparency, and fairness in public administration. Here is
a detailed look at the structure, powers, and functions of an ombudsman:

Structure of the Ombudsman

1. Appointment:

- Ombudsmen are typically appointed by the legislature, head of state, or

government, ensuring their independence from the executive branch.

- The appointment process often involves legislative approval to maintain non-

partisanship and credibility.

2. Tenure:

- The term of office for an ombudsman varies by jurisdiction but is often fixed
(e.g., five to seven years) and may include provisions for reappointment.

- Ombudsmen usually have security of tenure to ensure they can operate

independently without fear of removal for political reasons.

3. Support Staff and Offices:

- Ombudsmen are supported by a team of deputies, investigators, legal advisors,

and administrative staff.

- They operate through a central office and may have regional offices to
enhance accessibility for the public.

Powers of the Ombudsman

1. Investigative Powers:

- The ombudsman has the authority to investigate complaints of

maladministration or misconduct in public administration.

- They can initiate investigations based on complaints received or on their own

initiative (suo motu).

2. Access to Information:

- Ombudsmen have the power to access documents, records, and other

information held by government bodies relevant to their investigations.

- They can summon public officials and require them to provide evidence or
testimony.

3. Advisory Powers:

- While ombudsmen cannot enforce their recommendations, they can make

non-binding recommendations to the authorities on how to rectify issues or
improve administrative practices.

- They can advise the government on matters of policy and legislation to

enhance administrative fairness and transparency.

4. Reporting Powers:

- Ombudsmen are empowered to report their findings to the legislature or the

public.

- They publish annual reports detailing their activities, findings, and

recommendations.
Functions of the Ombudsman

1. Handling Complaints:

- The primary function of an ombudsman is to receive and investigate

complaints from individuals or groups regarding unfair treatment,
maladministration, or abuse of power by public authorities.

- Complaints can relate to a wide range of issues, including bureaucratic delays,

denial of services, unfair decision-making, and misconduct by public officials.

2. Investigations:

- The ombudsman conducts thorough investigations into complaints, gathering

evidence, interviewing witnesses, and reviewing relevant documents.

- They strive to determine the facts, identify instances of maladministration, and

assess whether the complainant has been treated unfairly.

3. Mediation and Resolution:

- The ombudsman seeks to resolve complaints through mediation, negotiation,

and conciliation between the complainant and the public authority.

- They aim to achieve fair settlements that address the grievances of the
complainant and improve administrative practices.

4. Making Recommendations:
 - Upon concluding an investigation, the ombudsman makes recommendations
to the public authority involved. These recommendations may include actions to
rectify the specific complaint, policy changes, and procedural improvements.

- While recommendations are not legally binding, they carry significant moral
and political weight.

5. Advocacy and Education:

- The ombudsman plays a role in promoting good governance, transparency,

and accountability through public education and awareness campaigns.

- They advocate for the rights of individuals and the need for ethical and fair
administration.

6. Monitoring and Follow-Up:

- The ombudsman monitors the implementation of their recommendations and

follows up with public authorities to ensure compliance.

- They may publish follow-up reports highlighting the actions taken by

authorities in response to their recommendations.

7. Policy and Legislative Input:

- The ombudsman advises the government and legislature on policy and

legislative matters related to public administration and governance.

- They provide input on draft laws and regulations to ensure they promote
fairness, transparency, and accountability.

Examples of Ombudsman Institutions

1. Parliamentary Ombudsman (Sweden):

- One of the oldest and most well-known ombudsman institutions, established

in 1809.

- The Swedish Parliamentary Ombudsman is appointed by the Riksdag

(parliament) and investigates complaints against public authorities.

2. Public Protector (South Africa):

- Established under the South African Constitution, the Public Protector

investigates and addresses complaints against government agencies and officials.

- The Public Protector has played a significant role in addressing corruption and
promoting good governance.

3. Lokpal (India):

- Established by the Lokpal and Lokayuktas Act, 2013, the Lokpal is an anti-
corruption ombudsman institution.

- The Lokpal investigates corruption allegations against public officials, including

the Prime Minister, ministers, and members of parliament.

Conclusion

The ombudsman is a vital institution in promoting good governance,

accountability, and transparency in public administration. By providing an
accessible, impartial, and effective mechanism for addressing complaints of
maladministration, the ombudsman helps protect individuals' rights, enhance
public trust in government, and improve the overall quality of public services. The
powers and functions of the ombudsman, including investigation, mediation, and
recommendation, enable them to address grievances, advocate for systemic
changes, and contribute to a fair and just administrative system.

8) Define the arbitration agreement and its content explain

procedure for appointment of arbitrator and his power and
respon responsibilities under arbitration and conciliation act

Arbitration Agreement

Definition:

An arbitration agreement is a written agreement by the parties to submit to

arbitration all or certain disputes which have arisen or which may arise between
them concerning a defined legal relationship, whether contractual or not. It is
governed by Section 7 of the Arbitration and Conciliation Act, 1996.
Content:

An arbitration agreement typically includes the following elements:

1. Clause of Intent:

- A clear statement that the parties agree to resolve their disputes through
arbitration.

2. Scope of Disputes:

- The types of disputes covered by the arbitration agreement (e.g., commercial,

contractual).

3. Number of Arbitrators:

- Specification of whether the arbitration will be conducted by a sole arbitrator

or a panel of arbitrators.

4. Appointment Procedure:

- The method for appointing arbitrators, including any designated appointing

authority.

5. Arbitration Rules:

- The procedural rules that will govern the arbitration (e.g., institutional rules
like those of the ICC or UNCITRAL rules).
6. Seat of Arbitration:

- The location (jurisdiction) where the arbitration will take place.

7. Language:

- The language in which the arbitration proceedings will be conducted.

8. Governing Law:

- The substantive law that will govern the arbitration agreement and the
underlying contract.

9. Confidentiality Clause:

- Provisions regarding the confidentiality of the arbitration proceedings.

Procedure for Appointment of Arbitrator

Under the Arbitration and Conciliation Act, 1996, the procedure for the
appointment of arbitrators is outlined in Sections 10 to 15.

1. Number of Arbitrators (Section 10):

- Parties are free to agree on the number of arbitrators. If there is no

agreement, the default number is a sole arbitrator.
2. Appointment Procedure (Section 11):

- Parties are free to agree on a procedure for appointing the arbitrator(s).

- If parties fail to agree on the procedure, or if one party fails to act as required
under the agreed procedure, the other party may request the Supreme Court or
the High Court (or any person or institution designated by such court) to appoint
the arbitrator(s).

3. Arbitrator's Disclosure (Section 12):

- Before accepting the appointment, the arbitrator must disclose any

circumstances likely to give rise to justifiable doubts as to their impartiality or
independence.

- This obligation continues throughout the arbitration proceedings.

4. Challenge Procedure (Section 13):

- A party may challenge an arbitrator if there are justifiable doubts about their
impartiality or independence, or if they do not possess the qualifications agreed
upon by the parties.

- The challenge procedure involves notifying the arbitrator and the other party,
and the decision is initially made by the arbitral tribunal.

5. Termination of Mandate (Section 14 & 15):

- The mandate of an arbitrator terminates if they become unable to perform

their functions or if they withdraw or the parties agree on the termination.

- A substitute arbitrator is appointed according to the rules applicable to the

appointment of the original arbitrator.
Powers and Responsibilities of the Arbitrator

1. Conduct of Proceedings (Section 19):

- The arbitrator has the power to conduct the arbitration proceedings in a

manner they consider appropriate, provided that the parties are treated equally
and given a fair opportunity to present their case.

2. Interim Measures (Section 17):

- The arbitrator can grant interim measures of protection as deemed necessary,

including orders for the preservation of assets, evidence, or the status quo.

3. Jurisdiction (Section 16):

- The arbitrator has the power to rule on their own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement.

4. Evidence (Section 18 & 19):

- The arbitrator determines the admissibility, relevance, materiality, and weight

of any evidence presented.

5. Making the Award (Section 28):

- The arbitrator must make the award in accordance with the substantive law
applicable to the dispute. They should decide ex aequo et bono or as amiable
compositeur only if the parties have expressly authorized them to do so.
6. Reasoned Award (Section 31):

- The award must be in writing and signed by the arbitrator(s). It must state the
reasons upon which it is based unless the parties have agreed otherwise or it is an
award on agreed terms.

7. Settlement (Section 30):

- The arbitrator can use mediation and other settlement procedures during the
arbitration proceedings with the consent of the parties.

- If the parties settle the dispute, the arbitrator can terminate the proceedings
and, if requested by the parties, record the settlement in the form of an arbitral
award on agreed terms.

8. Final and Binding (Section 35 & 36):

- The arbitral award is final and binding on the parties. It can be enforced as if it
were a decree of the court, subject to specific grounds for setting aside the award
(Section 34).

Conclusion

An arbitration agreement sets the foundation for resolving disputes outside

traditional court litigation. It includes essential elements such as the scope of
disputes, the number of arbitrators, and procedural rules. The Arbitration and
Conciliation Act, 1996 provides a comprehensive framework for appointing
arbitrators and delineates their powers and responsibilities. Arbitrators are
entrusted with conducting fair and impartial proceedings, ruling on interim
measures and jurisdiction, managing evidence, making reasoned awards, and
facilitating settlements, ensuring an efficient and effective resolution of disputes.

9) Define the term conciliation explain the role of conciliator and procedure for
reaching amicable settlement under arbitration and concilation act

Definition of Conciliation

Conciliation is an alternative dispute resolution (ADR) process where an impartial

third party, the conciliator, assists the disputing parties in reaching an amicable
settlement. Unlike arbitration, the conciliator does not have the authority to
impose a decision but helps facilitate negotiations and find mutually acceptable
solutions. The process is voluntary and confidential.

Role of the Conciliator

The conciliator plays a crucial role in guiding the parties towards a settlement.
Their responsibilities include:

1. Facilitator:

- The conciliator facilitates communication between the parties, ensuring that

each party has the opportunity to present their views and concerns.
 - They help clarify misunderstandings and provide a platform for open dialogue.

2. Neutral Party:

- The conciliator remains neutral and impartial throughout the process.

- They do not take sides or have any interest in the outcome, maintaining an
unbiased stance.

3. Advisor:

- The conciliator may provide suggestions and options for settlement but does
not impose solutions.

- They help parties explore potential outcomes and consider the pros and cons
of different options.

4. Mediator:

- The conciliator assists in identifying common ground and areas of agreement

between the parties.

- They work to bridge gaps in understanding and find mutually acceptable

solutions.

5. Drafting Agreements:

- Once the parties reach an agreement, the conciliator may assist in drafting the
settlement agreement.

- They ensure that the terms of the settlement are clear and comprehensive,
addressing all relevant issues.
Procedure for Reaching Amicable Settlement under the Arbitration and
Conciliation Act, 1996

The conciliation process under the Arbitration and Conciliation Act, 1996, is
outlined in Part III (Sections 61 to 81). The procedure involves the following steps:

1. Initiation of Conciliation (Section 62):

- Conciliation proceedings commence when one party invites the other to

conciliate and the other party accepts the invitation.

- If the invitation is not accepted within 30 days (or within the specified period),
the invitation is deemed to be rejected.

2. Appointment of Conciliators (Section 64):

- The parties may agree on a sole conciliator or a panel of conciliators.

- If the parties do not agree on the appointment, each party appoints one
conciliator, and the two appointed conciliators appoint a third conciliator who
acts as the presiding conciliator.

3. Submission of Statements (Section 65):

- The conciliator requests each party to submit a written statement describing

the general nature of the dispute and the points at issue.

- Parties may also be asked to submit further written statements and documents
to clarify their positions.

4. Conciliator’s Role (Section 67):

 - The conciliator assists the parties in an independent and impartial manner to
reach an amicable settlement.

- They may meet with the parties jointly or separately to understand their
positions and interests.

- The conciliator may make proposals for settlement at any stage of the
proceedings.

5. Communication Between Parties (Section 68):

- The conciliator ensures that all relevant information is communicated between

the parties.

- They facilitate direct communication and negotiation between the parties to

resolve the dispute.

6. Confidentiality (Section 75):

- The conciliation proceedings and all related information are confidential.

- No party can use information disclosed during the conciliation in any

subsequent arbitration or judicial proceedings unless agreed otherwise.

7. Settlement Agreement (Section 73):

- If the parties reach an agreement, they sign a written settlement agreement.

- The conciliator may assist in drafting the settlement agreement to ensure

clarity and comprehensiveness.

- The settlement agreement is binding and enforceable as if it were an arbitral

award.
8. Termination of Proceedings (Section 76):

- Conciliation proceedings terminate when a settlement agreement is signed, or

when the conciliator determines that further efforts are unlikely to result in a
settlement.

- The proceedings also terminate if one party withdraws from the conciliation
process by giving written notice to the other party and the conciliator.

Benefits of Conciliation

- Voluntary and Flexible: Parties have control over the process and can tailor it to
their needs.

- Confidential: Ensures privacy and encourages open dialogue without the risk of
public disclosure.

- Non-Binding Recommendations: Encourages creative solutions without imposing

decisions.

- Preserves Relationships: Promotes amicable resolution, helping maintain or

improve relationships.

- Cost-Effective and Time-Saving: Generally quicker and less expensive than

litigation or arbitration.

Conclusion

Conciliation under the Arbitration and Conciliation Act, 1996, provides an

effective mechanism for resolving disputes amicably. The conciliator plays a key
role in facilitating communication, understanding positions, and helping parties
explore mutually acceptable solutions. The structured yet flexible procedure
ensures that the process remains voluntary, confidential, and focused on
achieving a binding settlement agreement that addresses the interests of all
parties involved.

10) Discuss arbitration theories of arbitration and types

Theories of Arbitration

Several theories explain the nature and principles underlying arbitration. These
theories provide a framework for understanding how arbitration functions as an
alternative dispute resolution mechanism. The primary theories of arbitration are:

1. Contractual Theory:

- This theory posits that arbitration is fundamentally a matter of contract

between the parties. The arbitration agreement reflects the parties' consent to
resolve their disputes outside the courts.

- Under this theory, the power of the arbitrator derives from the mutual
agreement of the parties.

- Key features include autonomy of the parties, freedom to choose arbitrators,

and the ability to define procedural rules.

2. Jurisdictional Theory:

- This theory emphasizes that arbitration is an exercise of judicial power

conferred by the state. It views arbitrators as quasi-judicial authorities who derive
their power from state legislation and international conventions.
 - Under this view, the state plays a crucial role in supporting and enforcing
arbitral awards, ensuring that arbitration operates within the legal framework.

- Key features include the enforceability of arbitral awards through national

courts and the alignment of arbitration procedures with public policy and legal
standards.

3. Hybrid Theory:

- This theory combines elements of both the contractual and jurisdictional

theories, recognizing that arbitration is both a contractual arrangement and an
exercise of judicial authority.

- It acknowledges the autonomy of the parties while emphasizing the role of the
state in providing a legal framework for arbitration and enforcing awards.

- Key features include a balance between party autonomy and state

intervention, with state courts acting as support mechanisms for arbitration.

4. Autonomous Theory:

- This theory asserts that arbitration is a self-contained and self-regulating

system independent of national legal systems. It views arbitration as a
transnational process governed by its own rules and principles.

- The theory emphasizes the international nature of arbitration, particularly in

commercial disputes, and the role of international arbitration institutions.

- Key features include the use of international arbitration rules, the appointment
of arbitrators from different legal backgrounds, and the recognition and
enforcement of awards across borders.
Types of Arbitration

Arbitration can be classified into various types based on different criteria such as
the nature of the dispute, the scope of arbitration, the process, and the
institutional framework. Here are the main types of arbitration:

1. Commercial Arbitration:

- Involves disputes arising from commercial transactions, including contracts,

sales, services, and international trade.

- Commonly used in business-to-business (B2B) disputes.

2. Domestic Arbitration:

- Involves disputes within a single jurisdiction, governed by the domestic

arbitration laws of that country.

- Typically involves local businesses and individuals.

3. International Arbitration:

- Involves parties from different countries and disputes that cross international
borders.

- Governed by international arbitration rules and conventions, such as the

UNCITRAL Model Law and the New York Convention.

4. Institutional Arbitration:
 - Administered by established arbitration institutions such as the International
Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA),
and the American Arbitration Association (AAA).

- Follows the rules and procedures of the administering institution.

5. Ad-Hoc Arbitration:

- Conducted independently without the involvement of an arbitration

institution.

- Parties agree on the arbitration rules and procedures, often using the
UNCITRAL Arbitration Rules as a guideline.

6. Investment Arbitration:

- Involves disputes between investors and states, typically arising from

investment treaties such as Bilateral Investment Treaties (BITs) and multilateral
agreements like the Energy Charter Treaty.

- Administered by institutions such as the International Centre for Settlement of

Investment Disputes (ICSID).

7. Labor Arbitration:

- Involves disputes between employers and employees or labor unions.

- Commonly used for resolving collective bargaining disputes and grievances.

8. Construction Arbitration:
 - Involves disputes arising from construction contracts, including issues related
to project delays, cost overruns, and contractual obligations.

- Often used in large-scale infrastructure and construction projects.

9. Sports Arbitration:

- Involves disputes in the sports industry, including issues related to doping,

contract disputes, and disciplinary actions.

- Administered by specialized bodies such as the Court of Arbitration for Sport

(CAS).

10. Consumer Arbitration:

- Involves disputes between consumers and businesses, often related to

consumer protection issues and contractual disputes.

- Increasingly used for resolving disputes in sectors such as

telecommunications, finance, and retail.

Conclusion

Arbitration theories provide different perspectives on the nature and principles of

arbitration, balancing the roles of party autonomy and state intervention.
Understanding these theories helps in appreciating the diverse mechanisms and
frameworks that govern arbitration. The various types of arbitration cater to
specific needs and contexts, offering flexible and efficient means of resolving a
wide range of disputes, from commercial and investment disputes to labor and
consumer issues. This diversity underscores the versatility and adaptability of
arbitration as a dispute resolution mechanism.
Discuss independent and impartiality of consciliator and procedure techniques of
conciliator

Certainly! In the context of mediation and conciliation, the independence and

impartiality of the conciliator are crucial for ensuring fair and effective resolution
of disputes. Here's a breakdown:

Independence of the Conciliator:

1. Neutral Position: A conciliator must be perceived as unbiased and neutral by all

parties involved in the dispute. This neutrality helps build trust and encourages
parties to openly discuss their issues.

2. No Stake in the Outcome: An independent conciliator should not have any

personal or financial interest in the outcome of the dispute. This ensures their
decisions and recommendations are solely based on the merits of the case.

3. Freedom from External Influence: The conciliator should be free from external
pressures or influences that could affect their ability to act impartially. This
includes conflicts of interest or relationships that could compromise their
neutrality.

Impartiality of the Conciliator:

1. Fair Treatment: Impartiality requires the conciliator to treat all parties equally
and with fairness throughout the process.
2. Objective Assessment: The conciliator should objectively evaluate the
arguments and evidence presented by both parties, without favoring one side
over the other.

3. Disclosure of Potential Conflicts: If there are any circumstances that might

affect their impartiality, such as prior relationships with the parties involved, the
conciliator should disclose these to all parties upfront.

Procedure Techniques of the Conciliator:

1. Initial Meeting: The conciliator typically starts by meeting with each party
separately to understand their perspectives and concerns confidentially.

2. Joint Sessions: Facilitates joint meetings where both parties can discuss the
issues in the presence of the conciliator. This promotes direct communication and
helps in exploring possible solutions.

3. Problem Identification: Helps parties identify the underlying issues causing the
conflict and encourages them to focus on their interests rather than their
positions.

4. Brainstorming Solutions: Guides parties through a process of generating

options for resolving the dispute, encouraging creativity and cooperation.
5. Agreement Writing: If a resolution is reached, the conciliator assists in drafting
a formal agreement that outlines the terms and conditions agreed upon by both
parties.

Overall, the effectiveness of conciliation depends significantly on the conciliator's

ability to maintain independence, uphold impartiality, and skillfully manage the
procedural techniques to facilitate constructive dialogue and resolution.

,11) What is arbitration tribunal and its jurisdiction

An arbitration tribunal refers to the panel of arbitrators appointed to resolve

disputes through arbitration. Here's a breakdown of its key aspects:

Composition of Arbitration Tribunal:

1. Number of Arbitrators: The number of arbitrators typically ranges from one to

three, depending on the agreement of the parties or the arbitration rules chosen.

2. Appointment: Arbitrators are chosen based on their expertise and neutrality.

Often, each party selects one arbitrator, and those arbitrators then select a third
(if three arbitrators are involved), or a single arbitrator is chosen by mutual
agreement of the parties.

3. Qualifications: Arbitrators are usually experts in the subject matter of the

dispute, ensuring they can understand the technicalities and complexities
involved.
Jurisdiction of an Arbitration Tribunal:

1. Contractual Basis: The authority (jurisdiction) of the arbitration tribunal is

derived from the agreement between the parties. This agreement is typically
found in a clause within a contract or in a separate arbitration agreement.

2. Scope of Authority: The tribunal's jurisdiction covers matters explicitly agreed

upon by the parties in the arbitration agreement. This includes determining
procedural matters, gathering evidence, and ultimately making a binding decision
(an arbitral award) on the dispute.

3. Limits to Jurisdiction: The tribunal's jurisdiction is limited to matters agreed

upon by the parties. For example, certain issues such as criminal matters or
certain types of family law disputes may be excluded from arbitration depending
on local laws.

4. Challenges to Jurisdiction: Parties can challenge the jurisdiction of the tribunal

under certain circumstances, such as if the dispute falls outside the scope of the
arbitration agreement or if the tribunal exceeds its authority.

Role and Function:

The arbitration tribunal functions similarly to a court but operates outside the
traditional court system. Its role includes:

- Hearing Evidence: Conducting hearings where evidence and arguments from

both parties are presented.
- Decision Making: Rendering a final and binding decision (arbitral award) based
on the evidence and arguments presented.

- Enforcing Awards: Ensuring that the arbitral award is enforced according to the
applicable laws and international conventions.

In essence, an arbitration tribunal provides a private and alternative forum for

resolving disputes outside of traditional court litigation, offering flexibility,
confidentiality, and the expertise of specialized arbitrators chosen by the parties
themselves or designated arbitration institutions.

13) Arbitrator and appointment of arbitrator

Certainly! Here's a note on arbitrators and the appointment process:

Arbitrator:
An arbitrator is an independent and impartial individual selected by parties to
resolve disputes through arbitration. Key aspects of an arbitrator include:

1. Qualifications: Arbitrators are typically experts in the subject matter of the

dispute, ensuring they can understand and adjudicate on technical or specialized
issues effectively.

2. Impartiality and Independence: Arbitrators must maintain neutrality

throughout the arbitration process, free from any bias or conflict of interest that
could influence their decisions.

3. Role: Their role is akin to that of a judge in traditional litigation, responsible for
hearing arguments, evaluating evidence, and ultimately issuing a binding decision
(arbitral award) that resolves the dispute.

4. Authority: Their authority stems from the arbitration agreement signed by the
parties or as designated by arbitration rules, outlining their powers and
responsibilities.

### Appointment of Arbitrator:

The appointment process of an arbitrator typically follows these steps:

1. Agreement or Selection: Parties agree on the number of arbitrators (often one
or three) and may specify criteria for selection, such as expertise in a particular
field.

2. Selection Criteria: Criteria for selecting arbitrators may include qualifications,

experience, language proficiency, and familiarity with applicable laws.

3. Appointment Method: Arbitrators may be appointed through direct nomination

by each party, selection from a pre-established list of arbitrators, or appointment
by a designated arbitration institution.

4. Challenges and Confirmation: Parties may challenge the appointment of an

arbitrator if there are concerns about impartiality or independence. Some
arbitration rules or laws provide mechanisms for confirming the appointment of
arbitrators.

5. Decision Making: Once appointed, arbitrators conduct proceedings, facilitate

negotiations, and ultimately issue an arbitral award based on the evidence
presented and the law applicable to the dispute.

Overall, the appointment of arbitrators is a critical step in the arbitration process,

ensuring that the individuals chosen possess the necessary qualifications and
independence to fairly adjudicate disputes outside of traditional court systems.