ALTERNATIVE DISPUTE RESULUTION

I) What do you mean by ADR?

The term alternative dispute resolution (ADR) means any procedure, agreed to by the parties of a
dispute, in which they use the services of a neutral party to assist them in reaching agreement and
avoiding litigation. Types of ADR include arbitration, mediation, negotiated rulemaking, neutral
factfinding, and minitrials. With the exception of binding arbitration, the goal of ADR is to
provide a forum for the parties to work toward a voluntary, consensual agreement, as opposed to
having a judge or other authority decide the case.

In addition to serving as a potential means of avoiding the expense, delay, and uncertainty
associated with traditional litigation, ADR also is intended as a vehicle for improving
communication between the parties. ADR provides a forum for creative solutions to disputes that
better meet the needs of the parties.

In order to understand the process of alternative dispute resolution, it is important to understand

what happens during the various stages of formal dispute resolution.

Formal dispute resolution is the process of resolving disputes through the court system. At the
onset of a dispute, the parties involved in the matter must file a claim, or a formal request to be
heard in court. If the other party does not accept the claim or does not respond to the claim, a
party may then file a “complaint,” or a formal declaration of the dispute and what action he or
she would like the court to take.

Once a complaint is filed, the other party will have to respond in writing, pleading either “guilty”
or “not guilty” to the action. If they plead guilty, the case can be resolved. If they plead “not
guilty,” the matter will go to trial. After the trial, the judge will issue a formal decision that will
be binding on both parties. Alternative Dispute Resolution aims to avoid this lengthy process by
expediting a resolution via various means.

ii) Define Arbitration.

Arbitration is the most traditional form of private dispute resolution. Arbitration is a binding
procedure. It is often "administered" by a private organization that maintains lists of available
arbitrators and provide rules under which the arbitration will be conducted. Such organizations

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can also manage the arbitration in whole or in part. Parties often select arbitrators on the basis of
substantive expertise.

Arbitration is adjudicatory, as opposed to advisory, because of the fact that the arbitrator (usually
a retired judge or attorney) renders a decision at the end of an arbitration hearing, and that
decision is final and binding, subject only to a very limited court review. Arbitration is
sometimes referred to as "non-binding" if the parties agree to make it so, but that is really a
misnomer. Think of arbitration as a binding, adjudicatory process.

The Process: How Do Arbitrations Work?

Most arbitration is driven by a pre-dispute contract entered into by the parties, in which they
agree that if a dispute should arise, it will never get into the court system. The Federal
Arbitration Act, coupled with the state arbitration law of the place of arbitration, generally
governs the process. If the parties choose an administering authority, such as JAMS, that
authority's arbitration rules will govern the procedure that will be followed.

By agreeing to arbitration, the parties, perhaps among other things, are waiving their
fundamental, constitutional right to a trial by a jury of their peers. They can have no de novo
(second trial) after they have gone to arbitration. Unless otherwise agreed, the decision is legally
binding and non-appealable, except in extremely limited circumstances, such as in the case of
fraud or collusion on the part of the arbitrator.

In general the arbitrator is an impartial person chosen by the parties. The arbitrator reads briefs
and documentary evidence, hears testimony, examines evidence and renders an opinion on
liability and damages in the form of an "award of the arbitrator" after the hearing. Once
confirmed by a court of appropriate jurisdiction, the award can be subsequently entered as a
judgment.

Types of Arbitration
What is a High-Low Arbitration?

Also known as Bracketed Arbitration. This is an arbitration wherein the parties have agreed in
advance to the parameters within which the arbitrator may render his or her award. If the award
is lower than the pre-set "low," the defendant will pay the agreed-upon low figure; if the award is
higher than the pre-set "high," the plaintiff will accept the agreed-upon high; if the award is in
between, the parties agree to be bound by the arbitrator's figure. The high and low figures may
or may not be revealed to the arbitrator.

What is a Baseball Arbitration?

A form of binding arbitration wherein each of the parties chooses one and only one number, and
the arbitrator may select only one of the figures as the award. In a baseball arbitration, there are
only two possible outcomes

What is a Non-Binding Arbitration?

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A procedure sometimes called "non-binding arbitration" is conducted much like a (binding)
arbitration, except that when the arbitrator issues the award after the hearing, it is not binding on
the parties and they do not give up their right to a jury trial. In that case, the arbitrator's award is
merely an advisory opinion. Many cases go to settlement or (binding) arbitration after this phase,
or they can choose to go to a trial.

What is a Mandatory Arbitration?

Also known as Judicial Arbitration or Court-Ordered Arbitration. A legislatively mandated or

court administered scheme for the resolution of pending court cases (usually valued at under
$50,000), utilizing informal rules of evidence and procedure in a non-binding, advisory
arbitration process that is ordered by the court at an early stage of a lawsuit. The availability of
this process depends upon local state laws or court procedures.

iii) Define Arbitral Award.

Both arbitration laws and commonly used arbitration rules require that an arbitral award states
the date on which it is made.[22] The exact date an arbitral award was made has legal implications
in various respects.
First, arbitration rules often prescribe that the tribunal should render its award within a certain
time limit.[23] Although time limits are generally seen as being of a purely ‘administrative’ nature
and extensions are granted for specific reasons (by the arbitration institution), the rendering of
the award outside a prescribed time limit may be used by an unsatisfied party to challenge the
award. Apart from such legal aspects in a narrow sense, calculating the amount of time taken by
the tribunal to render an award may have an effect on the financial remuneration of the
arbitrators or at least serve as a useful tool for evaluating the efficient conduct of the arbitration.
Second, the date of the award may be the starting point for calculating the time limit for a
correction or interpretation of the award. Although Section 57(4) of the UK Arbitration Act
applies this starting point to both applications by a party and the tribunal’s own initiative, other
rules count from the date of the award only if the tribunal adopts a correction on its own
initiative.[24]

Third, when a party intends to raise a legal remedy, the starting point for the calculation of the
relevant time limit is usually not the date of the award but the date of notification to that party.
This applies to applications for correction, interpretation and an additional award as well as to
setting-aside claims.
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Another important substantive requirement is indicating the place of arbitration. Although there
might be arbitrations without a place of arbitration,[25] the common perception is that either the
parties have agreed on a place prior to the dispute (in particular in the arbitration agreement) or
after the dispute has arisen. Agreement on the place of arbitration may also be reached by
reference to where the chosen arbitration rules have a default provision in the event that the
parties do not explicitly designate a place of arbitration.[26] Alternatively, if the parties cannot
agree on the place of arbitration, not even by a default mechanism, in institutional arbitration it is
either the institution (e.g., the court in proceedings under the ICC Rules pursuant to Article
18(1)) or the tribunal (e.g., under Article 22.1 of the DIS Rules[27]) that determines the seat.
Arbitration laws commonly provide for the tribunal’s competence to decide this question absent
any agreement of the parties. The place of arbitration thus determines which law is applicable to
arbitration and consequently the mandatory rules for any setting-aside claim (or other legal
remedies against the award).
Furthermore, under the concept of the NYC, a contracting state has the obligation to recognise
and enforce a foreign award; that is, an award that has been rendered or that has been made
under the laws of a country other than the jurisdiction of enforcement.[28] Therefore, indicating
the place of arbitration entails important legal implications particularly with regard to the
determination of the legal provisions for setting-aside and enforcement proceedings.
Another substantive mandatory requirement that is regularly mentioned in arbitration laws and
arbitration rules is the reasoning.[29] The reasoning is not limited to the legal reasons for the
decision on the parties’ requests, but should also include an overview of the procedure and the
tribunal’s finding of the relevant facts based on the taken evidence. In comparison to other
arbitration laws, Articles 1481 and 1482 of the French New Code of Civil Procedure indicate in
some detail the various items that should be included in an award. Arbitrators should pay
attention to whether parties are allowed to waive the reasoning[30] or whether even in the case of
an award on agreed terms, the reasoning must be included unless otherwise agreed by the parties.
Although, in general, the ‘wrong’ finding of facts or a simple ‘wrong’ application of the law
would not lead to a successful challenge of the award (be it in setting-aside or enforcement
proceedings), the lack of the entire reasoning or an insufficient reasoning might lead to the
conclusion that the proceedings were not conducted in a fair manner or that a party’s right to be
heard has been violated. Thus, based on the NYC, a flawed reasoning of the award might
constitute a ground for refusal under Article V(1)(b)[31] or the corresponding ground for setting
aside under Article 34(2)(a)(ii) of the Model Law.

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Many institutions in the arbitration community have developed helpful tools for arbitrators to
draft proper and complete awards.[32] Even though it is rarely explicitly mentioned in arbitration
laws and arbitration rules, one part of an award that is of essential relevance to the parties is the
dispositive section, in which the arbitrators phrase the actual orders regarding what a party must
do or should refrain from doing. The dispositive section is usually the most relevant part, or at
least the starting point for the enforcement court and for any measures of execution to be taken in
that country. The most common order is the order for payment of a specific amount of money.
However, questions may arise if the award orders payment in a specific currency and if and how
that currency may or should be converted if it is not the official currency in the country of
enforcement or not even recognised in that country. In recent times, an enforcement creditor
might also face – be it practical or legal – challenges if the award orders the payment or transfer
in a cryptocurrency.

Another aspect in the dispositive section is the order that the debtor should pay interest.
Particularly in countries where Islamic law is relevant, interest could be an issue, and it may be
advisable to make a distinct separation in the award so that a partial enforcement would be an
option for the enforcement creditor.

In general, both the parties when phrasing their final requests for relief (for instance in the post-
hearing briefs) and the arbitrators when writing the award should pay particular attention to the
language of the dispositive section. In a recent decision of the Swiss Federal Court as the final
instance in enforcement proceedings, the enforcement of a cost decision against two award
debtors was denied, as it was unclear whether the debtors were jointly and severally liable

iv) What is an Arbitration Agreement? Write Provision relating to an Arbitration Agreement?

Arbitration agreements require that persons who signed them resolve any disputes by binding
arbitration, rather than in court before a judge and/or jury. What is binding arbitration? Binding
arbitration involves the submission of a dispute to a neutral party who hears the case and makes a

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 decision. Arbitration takes the place of a trial before a judge or jury. Additionally, the grounds
for appealing or setting aside the arbitration decision are very limited and many times may not be
available at all. If a person signs a contract that has a mandatory, binding arbitration agreement,
he or she gives up the right to go to court. When are consumers most likely to encounter
arbitration agreements? Arbitration agreements are frequently found in pre-printed consumer
contracts with banks, credit card companies, financial service providers and brokers, home
builders, insurance companies, communications providers, automobile and mobile home dealers,
and manufacturers of various products. The arbitration clauses in these pre-printed contract
forms are almost always mandatory, which means if the consumer signs the contract, he or she
must go to arbitration to resolve disputes, and cannot go to court. The consumer will probably
have to go to arbitration even if he or she did not read the agreement or know that the contract
contained an arbitration agreement. How much does it cost the consumer to go to arbitration?
The cost of arbitration includes filing fees and the arbitrator’s charge. Filing fees for an
arbitration may be higher than the fees to file a case in court, and can vary based on the amount
of the claim. Some arbitration providers charge a smaller filing fee for consumer cases.
Arbitrators usually charge an hourly or daily fee, and the amount of the fee may depend on the
type of issues and the experience of the arbitrator Because people in a court case are not required
to pay for the judge or jury, the requirement of paying the decision-maker applies only in
arbitration or in private judging. Arbitrators usually have the right to make the losing person pay
the costs of the arbitration, or to divide the costs.

An arbitration agreement involves several key conditions that must be met for it to be valid and
effective. These conditions ensure that the agreement serves its intended purpose and guides the
arbitration process fairly.
Presence of a Dispute
For an arbitration agreement to hold weight, a dispute between the involved parties must exist.
This is a fundamental requirement for the agreement to come into effect. If no dispute is present,
the arbitration clause cannot be used to challenge a settlement that has already been reached by
the parties.
Written Agreement

An arbitration agreement must always be documented in writing. It can take various forms to
qualify as a written agreement
 Document with Signatures: The agreement is valid when it’s a signed document by both
parties.
 Written Communications: Communications such as telex, letters or telegrams that record the
agreement for arbitration also suffice.
 Exchange of Statements: When parties exchange statements outlining their claims and defences
and one party acknowledges the existence of an arbitration agreement while the other party
doesn’t dispute it, the agreement is considered valid.
The intention of the Parties
The intention of the parties involved is a pivotal aspect of the agreement. While specific terms
like “arbitrator” or “arbitration” need not be explicitly stated, the intention of both parties to

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 abide by the terms of the arbitration agreement is crucial. The agreement’s validity is based on
the shared intention to utilise arbitration for dispute resolution.
Signatures of the Parties
The signatures of the parties play a crucial role in forming a valid arbitration agreement. There
are two scenarios:
 Mutual Signatures: The agreement can be a document signed by both parties, outlining all
terms and conditions.
 Unilateral Signature: Alternatively, one party can sign the document containing the terms and
the other party can express acceptance. In this case, the agreement becomes valid upon the
acceptance.

V) Who may refer matter to Arbitration?

Section 8 deals with the power of the judicial authority to send parties to arbitration. It states that
a judicial authority before which an action is brought in a matter that is the subject of an
arbitration agreement shall, unless it finds that prima facie, refer the parties to arbitration, if a
party to the arbitration agreement or any person who claims through or under him, so applies not
later than the date of submission his first statement on the substance of the dispute. Section 8 (2)
states that the original arbitration agreement or a properly certified duplicate of it must be
included with the application referred to in sub-section (1). The party applying for arbitration
under subsection (1) must submit the application along with a copy of the arbitration agreement
and a petition asking the court to order the other party to produce the original arbitration
agreement if either the original arbitration agreement or a certified copy thereof is not available
to the party applying for the reference to arbitration and the other party has retained the original
arbitration agreement or certified copy. Section 8 (3) provides that arbitration may be initiated or
continued, and an arbitral award may be given, notwithstanding that an application has been
made under subsection (1) and that the matter is pending before the judicial authority. If the
conditions of section 8 are satisfied, it is the court's bounden duty to refer the parties to
arbitration whenever a lawsuit is filed in a civil court and the base of that lawsuit is a contract in
which the parties had freely and voluntarily agreed to settle their dispute through arbitration.
When Section 8 of the Act is compared to Article 8 of the UNCITRAL Model Law, the position
of Section 8 of the Act becomes even more evident. According to Article 8, a court may decide
against referring parties to arbitration if it is determined that the arbitration agreement is invalid,
ineffective, or unable to be carried out. The fact that Section 8 has deviated shows how broad
and inclusive the statutory mission is. The terms "unless it deems that the agreement is null and
void, inoperative, and incapable of being performed" do not appear in section 8, which instead
refers to "judicial authority" in a broad sense. This distinction makes it quite evident that the
legislators purposefully gave judicial courts less authority over section 8 petitions in order to

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facilitate the arbitration procedure and prevent needless judicial interference. Despite the fact
that the situation is so obvious, this clause has often been interpreted differently by our courts,
which has caused a lot of confusion. When the requirements of section 8 are met, regardless of
the current situation, courts have taken the literal interpretation approach and have interpreted the
clause as it is intended to be, referring the dispute to arbitration. However, there have been cases
where the courts have completely disregarded legitimate precedents, interpreted a part hazily,
refused a reference, and otherwise deviated from the legitimate line of precedents. Furthermore,
the deviation is not the only issue; in one case, the SC actually went so far as to establish a few
exceptions to the rule, which is entirely incorrect in my opinion. In the event that there had been
a need for such exclusions, the legislature would have added them to the act itself. CASE LAW
Swiss Timing Ltd v. Commonwealth Games 2010 Organising Committee Facts No judicial body
shall intervene in topics covered by part 1 of the act, regardless of what is stated in any other law
now in effect; the only exception to this rule is where the said interference is provided for in part
1 of the act. It follows that the ability of courts to interfere has been severely limited, save for
instances when it is specifically stated in the legislation. The arbitration provision in the
Agreement was subsequently used by the petitioner. When the Respondent refused to name an
arbitrator, the Petitioner applied to the Supreme Court of India for the arbitration to be appointed
on behalf of the Respondent and the presiding arbitrator under Sections 11(4) and 11(6) of the
Arbitration and Conciliation Act, 1996 (the "Act"). The Respondent contested the petition,
among other things, on the grounds that the Agreement was void ab initio due to claims of fraud
made against officials of the Petitioner, and as a result, the arbitration agreement between the
parties did not stand and was vitiated. The Respondent further argued that a case involving
allegations of fraud, corruption, and serious malpractice could only be resolved by a court
through the furtherance of detailed evidence; as a result, such a dispute could not be decided by
arbitration, and as a result, the Court should dismiss the petition without appointing an arbitrator.
The Respondent based this argument heavily on the Supreme Court's ruling in N. Radhakrishnan
v. Maestro Engineers. Judgement: The Respondent's objections were overruled by the court, and
an arbitrator was chosen. The Court held that, regardless of claims of fraud, the arbitral tribunal
could decide on all such allegations, including whether there was fraud, corruption, or any other
act that rendered the contract defective or voidable. In this regard, the court acknowledged the
concept of competence-competence entrenched in Section 16 of the Act, namely, that an arbitral
tribunal is competent to rule on its own jurisdiction, including judging on any challenge with
regard to existence or legality of the arbitration agreement. Furthermore, an arbitration clause
that is a component of a contract is an agreement apart from the other terms of the contract; as a
result, even if the contract were found to be void, that would not automatically mean that the
arbitration clause was also void. On this basis, the Court also stated that, in its opinion, the
decision in N. Radhakrishnan was per incuriam, as it had not taken into account two prior
decisions of the Supreme Court, namely, Hindustan Petroleum Corporation v. Pinkcity Midway
Petroleums3 and P. Anand Gajapathi Raju v. P.V.G. Raju4, in which the Supreme Court
acknowledged the competence of the arbitral tribunal to rule on its own jurisdiction as well as the
independence and ongoing existence. The Court also referred to the requirements of Section 5 of
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the Act, which restricts court interven Ation, and acknowledged that the court's function was to
"assist the arbitration process." According to the Court's ruling, all disputes, including the
question of whether the primary contract was void or voidable, might be addressed to arbitration
if Sections 5 and 16 were interpreted together. Otherwise, using the bogey of the underlying
contract being void would be a useful tool at the disposal of the unscrupulous parties to avoid
arbitration. CONCLUSION In my opinion, this impasse regarding whether or not to submit a
dispute for arbitration under Section 8 of the Act should be resolved, and the courts should
promote arbitration by submitting the case for arbitration when all of Section 8's requirements
have been met rather than stopping the arbitration process altogether for no apparent reason or
based on arbitrary grounds such as accepting arguments regarding the arbitrability of the
dispute .

vi) Write a note on number of Arbitrators.

Unless otherwise provided, in an UNCITRAL Arbitration administered by ICSID the tasks

assigned to the “appointing authority” are performed by the Secretary-General of ICSID and are
covered by the annual fee paid by the parties. As a result, the provisions regarding the tasks of
the “designating authority” have no application. The following paragraphs have been drafted
assuming that the Secretary-General of ICSID is the appointing authority. As further explained
below, the specific procedures are slightly different depending on whether the 1976 Rules or the
2010 and 2013 Rules apply.

Party Agreement

As a first step in the appointment process, the parties should refer to the contract, treaty or law
that is the basis for the parties’ agreement to refer the dispute to arbitration. The parties are
generally free to adopt any workable method of appointment that suits their needs, including
provisions on time limits and special procedures. The parties do not have to appoint arbitrators
from the ICSID Panel of Arbitrators.

The most common agreements for three-member Tribunals are:

 Each party appoints one co-arbitrator, and the parties attempt to agree on a third
arbitrator, as the President of the Tribunal. If the parties fail to agree, the Secretary-
General of ICSID appoints the President.
 Each party appoints one co-arbitrator, and the co-arbitrators attempt to agree on the third
arbitrator, as the President of the Tribunal. If the co-arbitrators fail to agree, the
Secretary-General of ICSID appoints the President.

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As part of their agreement on the method for constituting the Tribunal, the parties may agree to
adopt a list procedure concerning proposed candidates. List procedures can be used for a sole
arbitrator, the President of the Tribunal, or all members of the Tribunal. Commonly used list
procedures include:

 The parties exchange a list of candidates; each party informs the other party of the
candidate(s) whom it accepts or rejects.

 The parties request that ICSID provide them with a list of candidates. Each party can
strike a certain number of candidates and rank the remaining candidates. The candidate
with the best ranking is appointed.

ICSID supports parties’ efforts to agree on the method of appointment and will follow the agreed
method and facilitate the process to the fullest extent possible.

Default Mechanism under the 2013 UNCITRAL Arbitration Rules

If no agreement on the number of arbitrators and the method of their appointment is reached,
either party may request the application of the default solutions under the applicable UNCITRAL
Arbitration Rules. The following paragraphs are based on Articles 7 through 9 of the 2013
UNCITRAL Arbitration Rules.

i. Number of arbitrators (Article 7)

If more than 30 days have elapsed since the respondent received the notice of arbitration without
the parties having agreed on the number of arbitrators, the Tribunal will be made up of three
arbitrators.

However, if a party proposes that a sole arbitrator be appointed and the other party fails to
respond to this proposal within 30 days of receipt of the notice of arbitration, the Secretary-
General of ICSID may, at the request of either party, appoint a sole arbitrator, provided that
neither party has yet appointed an arbitrator pursuant to Articles 9 or 10. In doing so, the
Secretary-General will generally follow the list-procedure set out in Article 8(2) of the 2013
UNCITRAL Arbitration Rules.

Vii) How Can the arbitral Proceedings be terminated?

A significant yet relatively little discussed aspect of Indian arbitration law is the termination of
arbitration proceedings under section 32 of the Arbitration and Conciliation Act 1996 (the
Arbitration Act), which is based on article 32 of the United Nations Commission on International

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Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985 (the Model
Law). Once arbitral proceedings are terminated, the arbitral tribunal loses its jurisdiction and its
mandate is deemed to have expired,[1] and it is only under exceptional circumstances that the
tribunal may be reconstituted.[2]
The primary consequence of the arbitration tribunal losing its jurisdiction is that the authority of
the arbitral tribunal over the parties comes to an end. Thus, the arbitral tribunal may not revisit or
re-examine the merits or substantive claims of the parties, subject to section 33 and section 34(4)
of the Arbitration Act.[3] Any subsequent order or award passed by the arbitral tribunal would
therefore not be enforceable by law.
The issue of the termination of arbitral proceedings is important for the parties and requires
careful consideration by arbitral tribunals as an order passed by the arbitral tribunal terminating
the arbitration proceedings under section 32 of the Arbitration Act cannot be subsequently
recalled or withdrawn by the arbitral tribunal due to the tribunal losing its jurisdiction. [4]
The general rule (as set forth in section 32(1) of the Arbitration Act) is that arbitration
proceedings are automatically terminated once the arbitral tribunal makes the final award, which
decides the merits of the claims or counterclaims presented by the parties. The award
contemplated under this provision is the final award, which disposes of all issues submitted to
the arbitral tribunal by the parties’ agreement.
In this context, interim or partial awards, which do not decide the final remaining or outstanding
claims of the parties, would not trigger the termination of arbitration proceedings under section
32(1) of the Arbitration Act.[5] The termination would only be triggered by a final award,
pursuant to which there are no pending issues for consideration of the arbitral tribunal.
Arbitration proceedings terminate as of the date on which the signed final award is provided to
the parties.[6]
Section 32(1) of the Arbitration Act recognises that arbitration proceedings may also be
terminated by an order of the arbitral tribunal under section 32(2) of the Arbitration Act as
follows:
The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where -

1. the claimant withdraws his claim, unless the respondent objects to the order and the
arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement
of the dispute,
2. the parties agree on the termination of the proceedings, or
3. the arbitral tribunal finds that the continuation of the proceedings has for any other reason
become unnecessary or impossible.
While clauses (a) and (b) above are rather uncontroversial,[7] clause (c) is often at the centre of
several contentious applications seeking the termination of arbitration proceedings on various
grounds. The wording of the provision itself provides limited guidance with respect to the trigger
for termination.
In this context, this article examines the scope of section 32(2)(c) of the Arbitration Act, as well
as the nature of orders passed pursuant to applications made under the provision, to throw light

11
on the meaning of the term ‘unnecessary or impossible’. These terms must be strictly construed
to apply only in exceptional circumstances (ie, where the proceedings have either become
infructuous, or there is a legal or material barrier to the continuation of the proceedings). Finally,
this article discusses the recourse available to parties against an order passed under section 32(2)
(c) of the Arbitration Act in light of a recent pronouncement of the Delhi High Court in the
much-publicised dispute between Amazon and Future Group.
Scope of section 32(2)(c)
The underlying objective of section 32(2)(c) of the Arbitration Act appears to be to provide a
residuary provision to encompass situations that could not have been foreseen during the drafting
of the Act. Inspired by the Model Law, the legislature in India has also advisedly left it to the
tribunal’s discretion to determine when the continuation of the proceedings has become
unnecessary or impossible.[8]
A plain reading of section 32(2) indicates arbitration proceedings terminating by the passing of a
final award is an exception to the general rule. Under Indian law, an exception clause must be
strictly interpreted and the party seeking to invoke the exception must establish that it falls
within the scope of the exception.[9] Thus, section 32(2)(c), being an exception clause, ought to
be interpreted strictly and applied in exceptional cases.
It is also evident from section 32(2)(c) that arbitration proceedings may only be terminated under
this provision in cases where ‘for any other reason’ the arbitration proceedings become
unnecessary or impossible. This necessarily implies that such reasons would only be those that
do not fall under the circumstances provided under section 32(2), clauses (a) and (b), or in other
provisions of the Arbitration Act pursuant to which arbitration proceedings stand terminated,
such as in proceedings under sections 16 (‘Competence of arbitral tribunal to rule on its
jurisdiction’), 25 (‘Default of a party’) or 30 (‘Settlement’).
In SREI Infrastructure Finance Limited v Tuff Drilling Private Limited, the Supreme Court drew
a distinction between termination of arbitration proceedings contemplated under sections 25 and
32(2)(c) of the Arbitration Act.[10] In this regard, the Supreme Court opined:

Viii) When a Written Communication is deemed to have under the Act ?

The Petitioner, a company incorporated under the Companies Act, 1956, has filed the present
petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Arbitration Act'),
praying to appoint any person, as present Court may deem fit and proper in the facts and
circumstances of the present case, as a Sole Arbitrator, to enter upon reference in order to
adjudicate all disputes that have arisen between the Petitioner and the Respondents.

It is clear from the express language of Section 3 of the Arbitration Act that, any written
communication is deemed to have been received if it is delivered to the addressee personally or
at his place of business, habitual residence address or mailing address. However, if none of the
said places is found after making a reasonable inquiry, written communication is deemed to have
been received, if it is sent to the addressee's last known place of business, habitual residence or

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mailing address by a registered letter or by any means, which provide a record of an attempt to
deliver.

In the present case, it is established that an attempt to deliver the notice dated 24th September,
2018 was made at the Petitioner's address. This was the address at which the notices were
required to be served in terms of the Contract. The postal receipts also establish that, the notice
was dispatched at the registered office of the Respondent and the tracking report indicates that,
the concerned postal department had issued it for delivery. Thus, it must be accepted that an
attempt to deliver, was made.

Even if it is accepted that, the notice was not received by the Petitioner at its registered office, it
is established that an attempt to deliver was made at the address on which the notices were
agreed to be delivered by the parties, in terms of the Contract. The contention that, the present
petition is not maintainable for want of notice under Section 21 of the Arbitration Act cannot be
accepted.

Thus, present Court is not required to enter into any adjudicatory exercise to decide whether the
disputes are barred by limitation. However, in cases where it is, ex-facie apparent and is
established that, the disputes are either not arbitrable or barred by limitation, present Court would
not appoint an arbitrator as that would be an exercise in futility.

The Petitioner had contended that, there were extensive communications between the parties in
respect of the payments due and outstanding. The Petitioner has also shared an email dated 8th
March, 2016 whereby the Respondent had stated that it had full intention of paying the dues to
the petitioner but had requested certain details to ascertain the same. The Respondent had further
explained that, the Respondent was unable to pay the amount due to the Petitioner, in one trench
and 'in one go' due to its financial condition. Present Court is unable to accept that the
Petitioner's claims are ex-facie barred by limitation and, the present petition is liable to be
rejected.

Present Court is of the view that, the contention advanced on behalf of the Respondent that the
claims made by the Petitioner are barred by limitation, is a contentious one and does not fall
within the standards of examination under Section 11 of the Arbitration Act. Accordingly,
present Court appoints Arbitrator to adjudicate the disputes between the parties falling within the
scope of the Arbitration Clause. Petition allowed.

IX) Write a note on Meditation and Lok Adalat .

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Mediation is a structured voluntary confidential negotiation process with identifiable

stages where a neutral third party uses specialized communication and negotiation

techniques to assist parties in resolving their dispute. In the process, the underlying

interests of the parties may be explored. Both traditional and non-traditional terms of

agreement may be reached. Mediation focuses on the factual background of a dispute, the

parties’ current circumstances, and future opportunities for working out a practical

solution to a dispute.

Lok Adalat is a public evaluation process presided over by a judge or panel of neutrals

who propose a monetary settlement after briefly hearing the factual background and

claims involved in a dispute. Negotiation, in the form of offers and counter-offers, may

take place on a limited basis during the Lok Adalat process, after which the Lok Adalat

judge proposes a specific settlement.

Mediation is a negotiation process in which the parties, with the assistance of a mediator,

attempt to reach a solution to their dispute through a series of offers and counter-offers.

The parties retain control over the outcome of the process (i.e., whether to settle and the

terms of settlement). The mediator facilitates communication between the parties and

helps them generate possible solutions to a dispute. Mediation is characterized by

extensive negotiations between the parties, attention to the specific facts of a dispute and

interests of the parties, and focus on both traditional and non-traditional terms of

agreement.

Lok Adalat is essentially an evaluation process in which a panel of neutral lawyers,

judges, and prominent citizens proposes a settlement after hearing the facts and claims

involved a dispute. Limited negotiations may take place during Lok Adalat. There is

rarely any direct communication between the parties or any extensive give and take

regarding their settlement offers.

2. Forum [where it takes place].

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Mediation takes place in a private conference room. It is private in the sense that the

public is not invited. Only the parties, their advocates or other representatives, or other

people accompanying them are present.

Lok Adalat usually takes place on court or agency premises when numerous cases

referred to Lok Adalat are submitted to Lok Adalat panelists (often referred to as

“judges”). Often more than 25 cases are placed before each panel. Lok Adalat

proceedings are held in public, in the presence of all persons assembled to attempt to

settle their cases.

3. Temporal focus.

Mediation considers the factual background (past), the immediate circumstances of the

parties (present) and their future needs/interests (future).

Lok Adalat is primarily focused on the past, with attention given to assigning fault based

upon the prior conduct and actions of the parties.

[2]
4. Focus on liability or problem-solving.

Mediation considers the rights, liabilities, and obligations of the parties based upon their

past conduct, as well as the interests of the parties and opportunities to work out a

mutually agreeable solution to a dispute.

Lok Adalat is concerned primarily with assigning fault/assessing liability as a foundation

for determining monetary damages.

5. Collaborative or adversarial.

Dispute resolution processes may be characterized as collaborative, adversarial, or a

combination of the two. Different processes feature varying degrees of collaboration or

adversarial elements.

Mediation is a essentially a collaborative negotiation process. However, it retains an

adversarial element in that the parties often are making competing claims based upon

diverse information. Often, legal issues, claims, and defenses are a part of the mediation

process. Mediation often goes beyond the traditional legal framework to examine and
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explore the personal and business interests of the parties as well as non-traditional

options for agreement.

Lok Adalat is adversarial inasmuch as the primary focus is on right/wrong and

compensation, although there is a secondary element of collaboration that is involved in

the limited negotiations that take place. Due to the time constraints of Lok Adalat and the

judge’s role as an authority figure, there can be, at times, an element of coercion or

perceived pressure to settle.

6. Party-centered or neutral-centered process.

Mediation is a party-centered process, where the focus is on establishing communication

between the parties, fostering a mutual understanding of the facts, issues, and law, and

generating ideas for agreement. The primary focus is on the needs and interests of the

parties.

Lok Adalat is a neutral-centered process, where the primary focus is on presenting the

factual/legal background of a dispute to the Lok Adalat judge and satisfying the legal

requirements for compensation. Communications are directed to the Lok Adalat judge,

with very limited, if any, direct communication between parties.

7. Morphology [structure] of the process.

Mediation features introductory comments by the mediator, a detailed exchange of

information in a joint session, a series of separate and private meetings with the parties

(referred to as caucuses) and an agreement stage.

In Lok Adalat, it is customary practice for the Lok Adalat judges/panelists to talk with all

advocates present (as well as advocates/parties involved in other cases) in a large room,

to help persuade the parties to settle their case. The presentation of information to the

Lok Adalat judge is brief. The exploration of possible settlement terms, likewise, is

limited. The panelists often propose settlement terms. If panelists talk with any party

privately, it is generally only once, due to time constraints.

8. Control over the process.

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In mediation, the mediator controls the process by facilitating communication between

the parties, managing the interaction between parties, directing the flow of

communications, helping the parties set an agenda, and helping the parties develop

options for agreement.

In Lok Adalat, the Lok Adalat judges/panelists determine how the process will be

handled, which party will speak and when. The process generally invites limited give and

take by advocates representing the parties.

9. Selection of a neutral.

In mediation, generally the parties decide who will serve as the mediator.

In Lok Adalat, the parties do not have a role in deciding who the panelists will be. The

parties must submit their case to the panelists assigned as Lok Adalat judges. They do not

have the freedom to select panelists of their own choice.

10. Time spent in the process.

In mediation, parties are afforded reasonable time to negotiate the agreement. This may

involve a number of hours or, when necessary, days. Mediation may take place over a

course of time to accommodate the parties and the complexities of a dispute.

X) Write a note on Conciliation .

What is Conciliation?
Conciliation is a voluntary process in which a professional facilitator assists employers and
employees to resolve disputes when their own unassisted efforts have not succeeded. The process
can be described as a facilitated search for agreement between disputing parties.

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How does it work?
The Workplace Relations Commission assigns a conciliator, known as an Industrial Relations
Officer (IRO), who acts as an independent, impartial chairperson in discussions and negotiations
teams. The task of the IRO is to assist the parties in their efforts to reach a mutually acceptable
settlement to their dispute.

Who can use the service?

The service is available to all employees and employers except those specifically excluded by
law. However, even in these cases the service may be made available on an ad hoc basis where
all parties request assistance and where such facilitation can be accommodated.

What types of dispute can be referred to conciliation?

Typical examples of the types of issue dealt with in the conciliation process include claims for
improvements in pay or conditions of employment, disciplinary cases, grading issues, disputes
arising from proposed changes to the way work is done, company restructuring etc.

What happens in conciliation?

Conciliation involves a series of meetings that usually take place on the same day, categorised as
a conciliation conference. The process starts with the IRO chairing a joint meeting of the parties,
i.e. the employee(s) and the employer and/or their representatives. This is an interactive process
involving two or more parties contending for different outcomes but seeking agreement by
sharing information and adjusting their views/positions while, as far as possible, preserving their
interests.

The joint meeting enables the IRO to hear the views of each party to the dispute and to clarify
any issues of historical fact relating to the issue in dispute. The IRO usually then meets
separately with each party. The separate meeting with each party enables the IRO to explore the
possibility for agreement on proposals to resolve the issue in dispute.

The IRO treats as confidential all information received during the course of conciliation. S/he
will not divulge this information to any other party unless expressly permitted to do so.

The conciliation process is informal and non-legalistic in its practice. The parties are free to
represent themselves or be represented by trade unions or by employer organisations. The
Workplace Relations Commission does not believe that the nature of the process requires legal
representation of any party at conciliation meetings.

Who is the Conciliator?

The conciliator - Industrial Relations Officer (IRO) - is an officer of the Workplace Relations
Commission. All IROs come from an independent public service background. They are trained
and experienced experts in mediation and conciliation techniques.

Who controls the conciliation process?

The employer and employee representatives retain control of the issues in dispute during the
conciliation process. The Workplace Relations Commission never imposes an outcome on them.

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Settlement of a dispute is an outcome that the parties themselves voluntarily decide. Likewise,
where the parties do not resolve their dispute at conciliation, that is also their decision.

How do I begin a conciliation process?

The process of conciliation begins when one or all disputing parties writes to the Workplace
Relations Commission requesting assistance in resolving their industrial relations dispute. The
Commission responds positively to such requests and contacts all parties in order to confirm that
they wish to attend at conciliation. Arrangements for conciliation meetings are finalised only
when all parties confirm their willingness to participate in the process.

Participation is entirely voluntary.

What information should I give to the WRC when requesting conciliation?

You help the WRC to speedily process your request when you include the following information
in your application for assistance:

 Name of employer, the employer's address, phone and fax numbers

 Name of the employer's representative (if any), the representative's address, phone and
fax numbers
 Name of the trade union(s) involved (if any), the name of the official(s) involved, phone
and fax numbers
 Names of other union(s) or parties involved (if any), phone and fax numbers
 The number and category of employees involved
 The nature of the issue(s) in dispute
 Name and signature of the person requesting conciliation and date of request

How do I prepare for conciliation?

Before attending a conference it is vital that each participant has a full understanding, as set out
above, of the concept of conciliation and the procedure which is normally followed during the
conference.

It should at all times be borne in mind that ownership of the dispute lies with the parties
themselves and indeed settlement of a dispute is an outcome that the parties themselves
voluntarily decide. It is therefore important that full preparation has taken place prior to the
conciliation conference. To assist, consideration should be given to the following points:

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