PROJECT ON

Alternate Dispute Resolution

Submitted By :

Name : DIPTANU CHAKRABORTY

Roll No : 145
Semester : X

Section : B

LJD Law College

Tollygunge Campus
1.What Is Alternative Dispute Resolution (ADR)?
Alternative dispute resolution (ADR) is, in an insurance sense, a number of disparate
processes used by companies to resolve claims and contractual disputes. Insured clients who
are denied a claim are offered this course of action as a form of recourse. It is employed to
avoid expensive and time-consuming litigation and arbitration.

KEY TAKEAWAYS
 Alternative dispute resolution (ADR) is, in an insurance sense, a number of disparate
processes used to resolve disputes.
 Insured clients who are denied a claim are offered this path as an alternative to
expensive and time-consuming litigation.
 Alternative dispute resolution (ADR) offers to settle disputes outside of the courtroom
with the help of an impartial third party.
 Outcomes may be non-binding and advisory in nature or enforceable without the right
to appeal.
 ADR is not advised in situations of criminal law or situations where one party has
excessive power over the other party.
How Alternative Dispute Resolution (ADR) Works
Alternative dispute resolution (ADR) is designed to settle disputes outside of the courtroom
with the help of an impartial third party. This path is generally accessible after efforts
between the client and the insurer to resolve any differences between themselves fails and
reaches an impasse.
When the disputing parties agree to try alternative dispute resolution procedures, the ADR
process starts. This understanding could be imposed by a court order, a contract clause, or
both. It could also be voluntary. The parties select the most effective ADR strategy for their
dispute, frequently with the help of legal counsel. The strategies or types are discussed in the
following section.
Preliminary negotiations to set the procedure's structure and regulations typically kick off the
next stage of the ADR process. This entails creating confidentiality agreements, describing
the timetable and expectations for the ADR process, and determining the roles and
obligations of the parties. The parties may exchange pertinent information, documents, and
evidence at this point as well.
During the final stages of the ADR process, the parties negotiate a settlement to the conflict.
If a settlement is reached through negotiation, the parties will create a settlement agreement
outlining the details of their arrangement. The parties must then work to put the provisions
into effect and carry out their respective commitments (i.e., make settlement payment should
that party be found liable).
ADR is inadvisable where one party has inherent power over the other; in this case, it may be
more difficult for each party to appropriate approach the ADR process.
Types of Alternative Dispute Resolution
Many insurance policies contain mandatory alternative dispute resolution clauses, depending
on the state. The two most common forms of alternative dispute resolution are mediation and
arbitration, though there are other types as well.
Mediation
Mediation occurs when an independent third party steps in to try and find a way for the
insured and the insurer to agree on a mutually acceptable outcome. The mediator is not called
upon to decide who is right but rather to add structure to communication between the
disputing parties, so that they can, hopefully, eventually reach a resolution between
themselves.
Arbitration
Arbitration occurs when a neutral independent party called an arbitrator listens to arguments
from both sides, collects evidence, and then decides on the outcome of the dispute, similar to
a court ruling. Arbitration can either be non-binding or binding. The latter means the decision
is final and enforceable, while the former implies that the arbitrator’s ruling is advisory and
only set in stone if both parties agree to it.
Negotiation
Negotiation occurs when there is direct contact between the parties to a dispute. In order to
arrive at a solution that is acceptable to both parties, it enables the parties to debate their
views, interests, and prospective solutions. The parties may choose to negotiate informally
amongst themselves or with the aid of lawyers or other representatives.
Collaborative Law
In a collaborative law process, the parties and their separate attorneys agree to settle their
differences without going to court by negotiating and coming up with solutions. The
emphasis is on collaboration and coming up with original solutions that satisfy the
requirements of all parties. In many ways, collaborative law may be seen as negotiation as
long as the parties seem to be in stronger correlation to how resolution is to be met.
Mini-Trial
In a mini-trial, each party's representatives present their case to an impartial third party. That
third party is usually a senior executive or an impartial advisor, and this presentation is part of
a structured negotiating process. In order to assist the parties in reaching a settlement, the
third party offers an assessment or opinion on the likely course of the case. Though this may
mirror a formal court proceeding, it is done in a much more private setting with many fewer
parties.
Arbitration is more formal than mediation and resembles a trial, albeit with greater flexibility
and the ability to act outside of federal rules.

Advantages and Disadvantages of Alternative Dispute Resolution (ADR)

Pros of Alternative Dispute Resolution
Alternative dispute resolution (ADR) is billed as time- and money-saving for consumers.
Civil suits are expensive to pursue and if you can get an attorney to take your case on
a contingency basis, you'll typically give up at least a third of any money you are awarded.
Cons of Alternative Dispute Resolution
Alternative dispute resolution (ADR) doesn’t always deliver on its promise, though.
Sometimes this path can be just as expensive and stressful as the litigation journey it’s
supposed to replace, especially when a substantial and complex claim is under dispute and
there are widely differing views of how the facts are interpreted.
Mandatory arbitration is only as good as the mediator or mediators who hear the case. Many
mediators come from the insurance industry, so there may be a built-in tilt toward the
insurers' point of view. They might interpret clauses in the policy by the norms and standards
of the industry, which could be quite different from what a policyholder or typical consumer
might read into a clause in the boilerplate.
Because alternative dispute resolution (ADR) is not always straightforward, aggrieved parties
are advised to first exhaust all appeals within the insurance company or hire
a public adjuster to represent them before considering dispute resolution. Public adjusters
investigate insurance claims and then make their own assessment of the case with a report
you can then submit to your insurance company. They are paid on commission, too, meaning
you only have to pay them if your complaint is successful.
An example of ADR may be Goldman Sachs's $215 million settlement regarding a gender
bias settlement.1
Appropriate and Inappropriate Uses of ADR
Though ADR may sound favorable in many cases, there are numerous situations in which it
not advised or an appropriate litigation option. At its core, ADR can be used to settle civil law
difficulties involving your neighbors, an insurance claim, a landlord and tenant, or a
construction contract.
ADR is also frequently employed to settle problems involving child support, visitation rights,
spousal support, the division of marital property, or eldercare issues. It is also an appropriate
option when considering employment disputes. Conflicts including workplace discrimination,
pay disputes, breaches of employment contracts, or workplace grievances may be resolved
using ADR techniques like mediation or arbitration.
In other cases, ADR just doesn't make sense as an option. In general, ADR is not appropriate
for resolving criminal matters involving grave violations, such as murder, assault, or
significant fraud charges. It is also not typically acceptable in circumstances involving
domestic abuse, sexual harassment, or where one side has a lot of negotiating power over the
other.
In certain situations, ADR may not be appropriate for resolving disputes concerning topics of
public concern. For example, consider constitutional questions, environmental laws, or policy
choices requiring a more comprehensive look at society in which the general public would
benefit by the issue at hand being fully investigated. This may also include situations where
there have been violations of human rights, illegal detentions, or constitutional rights.
What Are the Most Common Forms of ADR?
When people resort to ADR methods, they typically use arbitration or mediation. In both
situations, negotiation may be an underlying factor to resolve the dispute, though the other
two methods are the inherent primary types.
When Should You Not Use ADR?
ADR should not be used in criminal cases, when there is a significant power imbalance, for
complex public policy issues, or in cases involving clear violations of legal rights.
What is the Negotiation Process in ADR?
The ADR negotiation process involves preparation, information exchange, discussion and
exploration, option generation, bargaining, and closure. Parties gather information, exchange
views, generate options, and negotiate terms to reach a mutually acceptable agreement. The
process varies based on the chosen ADR method and the involvement of a neutral third party.
What Is the Primary Criticism of ADR?
The primary criticism of ADR is situations where one party has more power than the other
which can result in an unfair negotiation process and outcome. The power imbalance can lead
to coercion, intimidation, or the disadvantaged party feeling compelled to accept unfavorable
terms. This undermines the principles of fairness, equality, and informed consent, which are
crucial for a just resolution of disputes.
The Bottom Line
ADR refers to techniques for settling disputes that are not handled through traditional
litigation. It gives parties a flexible and cooperative method to arrive at agreements that are
agreeable to both parties. Mediation, arbitration, and negotiation are the main forms of ADR,
and ADR strives to expedite resolutions, cut expenses, and encourage more agreeable
agreements. It can be used in a variety of issues, though there are many cases where it is not
necessarily appropriate.

2.What is an Arbitration Agreement ?What are the ingredients of

Arbitration Agreement?
Definition of Arbitration Agreement
As per Section 7 of The Arbitration and Conciliation Act, 1996, an “arbitration agreement”
means a promise by parties to settle any disputes between them about a specific legal
relationship using arbitration. This applies whether the disputes are mentioned in a contract or
not. This type of agreement is also called a submission agreement.
An arbitration agreement is a legal contract made by two or more parties. It states that if any
disagreements or conflicts arise between them, they will use arbitration to solve the issues
instead of going to court. This is an agreement where all parties decide to present their
disagreements to an arbitrator or an arbitration panel. These arbiters will make a final and
binding decision based on the facts and arguments from both sides.
Usually, an arbitration agreement explains the terms for taking disputes to arbitration. It
might cover things like the types of disputes that can be addressed, the rules for the
arbitration process, how the arbitrator(s) will be chosen, where the arbitration will happen
and any other important things the parties agree on.
Essentials of an Arbitration Agreement
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 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.
Attributes of Arbitration Agreement
In the notable legal case of K.K. Modi v. K.N. Modi and Ors. (1998) 3 SCC 573, the Hon’ble
Supreme Court highlighted several crucial attributes that must be present in an arbitration
agreement:
 Binding Decision: The agreement should explicitly state that the tribunal’s decision
will be legally binding on both parties involved.
  Jurisdictional Consent: Both parties must mutually agree on the tribunal’s jurisdiction
to arbitrate the matters concerning their rights. This consent can either arise from a
consensual decision or from a court order directing that the proceedings proceed
through arbitration.
 Fair and Impartial Determination: The tribunal holds the responsibility to impartially
determine the rights of the parties, ensuring a fair judgment.
 Legally Enforceable: The agreement’s terms, which outline the parties’ commitment
to arbitration, must adhere to the legal framework and be enforceable by law.
 Timely Formulation: The agreement should specify that any decisions rendered by the
tribunal on the dispute must be formulated prior to the commencement of the
arbitration process.
Constituents of Arbitration Agreement
While not deemed essential, certain essential elements can be included in an arbitration
agreement based on the parties’ preferences. These elements provide further clarity and
structure to the arbitration process. Here are some common optional components:
Seat of Arbitration
The “seat” refers to the location where the arbitration proceedings are based. Specifying the
seat is particularly crucial in international commercial arbitration. It determines the
procedural laws governing the arbitration. Notably, the seat need not coincide with the
hearing location; it’s where the arbitration process is administered.
Procedure for Appointing Arbitrators
The procedure for selecting arbitrators follows guidelines outlined in the Arbitration Act.
Generally, any qualified person, regardless of nationality, can be appointed as an arbitrator
unless the parties agree otherwise. Parties can also mutually decide on the arbitrator’s
appointment.
Language
Language plays a vital role in an agreement. The chosen language should be understood by
all parties involved to prevent misinterpretations. Clarity is essential to ensure both parties
comprehend each clause. Opting for a mutually understood language can reduce translation
costs.
Number and Qualifications of Arbitrators
The Arbitration Act permits parties to determine the number of arbitrators. However, an odd
number is required to prevent deadlock. This allows decisions to be reached even in the
presence of disagreements among arbitrators.
Type of Arbitration
Parties can select between institutional arbitration, which follows established arbitration
institution rules and ad hoc arbitration, which is designed specifically for the dispute at hand.
Institutional arbitration involves adhering to established arbitration institution rules, while ad
hoc arbitration involves arranging an arbitrator privately.
Governing Law
Specifying the substantive law governing the agreement is crucial. Failing to do so can lead
to complications in future disputes. Clearly mentioning the governing law ensures a solid
legal foundation for resolving disagreements.
Important Provisions on Essentials of Arbitration Agreement
An arbitration agreement contains crucial provisions that guide the arbitration process. These
provisions play a significant role in ensuring a fair and effective resolution of disputes. Here
are the important provisions outlined:
Written Agreement
An arbitration agreement must be documented in writing, as emphasised by Section 7(4) of
the Act. This can be in the form of a written document or any form of communication,
including telegrams or telex, as long as there’s a record of the communication.
Appointment of Arbitrators
Section 11 grants parties the freedom to select arbitrators. If parties can’t agree on an
arbitrator, the Chief Justice of the High Court (for domestic arbitration) or the Chief Justice
of the Supreme Court (for International Commercial Arbitration) can be approached for
appointment.
Interim Relief
Sections 9 and 17 of the Act address interim relief orders related to arbitration. Section 9
permits relief petitions if there’s prima facie evidence of an arbitration agreement. Parties can
approach the Court before or after arbitration proceedings start, but before award
enforcement (as per Section 36). Section 17 empowers the tribunal to grant interim measures
upon party request.
Finality of Arbitration Award
Section 34 establishes the finality of an arbitrator’s award, which is binding on the
contracting parties. Once a court decree is granted, it becomes enforceable under Section 34.
Appeal
Section 37 provides avenues for appeal if parties are dissatisfied with arbitrator decisions.
Appeals can be made against orders under Section 9 (granting/refusing interim measures),
setting aside or refusing to set aside an award and decisions on pleas referred to in Section 16.
However, no appeal is permitted against arbitrator appointments under Section 11.
Conclusion
The essentials of arbitration agreement include a genuine dispute, a written agreement,
parties’ intent to arbitrate and their signatures. These essential conditions of an arbitration
agreement help to define its validity.
Understanding the essential elements and optional provisions of an arbitration agreement is
pivotal for creating effective and enforceable contracts that promote fair and efficient dispute
resolution between parties
3.Write a note on number of Arbitration ?Who may refer matters to
Arbitration?
Introduction
We often hear a plethora of complaints by the petitioners or plaintiffs in a particular case. The
legal fees charged are usually exorbitantly high, the dispute gets resolved after a number of
hearings or even it is a usual complaint that the appropriate remedy is not provided through
the verdict. But with the advent of alternative dispute resolution, we can observe a significant
decrease in such complaints. Arbitration especially is seen as a recent trend in resolving the
disputes relating to commercial contracts”
An increase in foreign trade has resulted in a subsequent increase in cross-border disputes
giving rise to a need for an effective form of dispute resolution. Arbitration has emerged as a
way to preserve the relationships between two companies and resolve a dispute amicably.
The Supreme Court in the case of Amazon v. Future Retail Limited, (2021) drew attention to
the parties opting for arbitration to resolve the dispute. But what is arbitration? Is it more
time-efficient and cost-saving as compared to the traditional courts? How is arbitration
beneficial to parties? What are the different types of arbitration prevalent and what is their
significance? What matters can be referred for arbitration or not? All such questions will be
answered in the course of this article.

Historical background of arbitration

A number of authors have argued that the first arbitrator, King Solomon, used a procedure
similar to the modern-day procedure while resolving a dispute that emerged when two
women protested that they were the mother of a baby boy.
Another influential figure, Philip the Second, had used arbitration to amicably resolve a
territorial dispute that took place way back in 337 BC. In Roman law, ‘compromissum’ was
used to indicate a process of dispute resolution that would draw out a compromise between
the parties. Therefore, we can see that there have been a number of examples of arbitration
that actually took place in the ancient era and can be seen as a trailblazer for the laws we have
today.
In India, arbitration came to be known and given recognition when the Arbitration Act
1899 was enacted, but its applicability only extended to Bombay, Madras and Calcutta. The
provisions were given an extension to the remaining areas in Section 89 as well as Schedule
II of the Code of Civil Procedure, 1908. However, it was observed that arbitration did not
reap the expected benefits to the public at large and to meet the economic reforms in the
country, the Arbitration Act was enacted in 1940. The previous Act, along with the provisions
in the Code of Civil Procedure, were repealed.
The Act can be seen as a consolidation of the existing laws; however, there was no stipulated
procedure pertaining to the enforcement of foreign awards. It was confined to the domestic
territory and therefore, it did not achieve the purpose behind its enactment. In the case
of Guru Nanak Foundation v. Rattan Singh, (1981), Justice D.A. Desai criticised the
ineffectiveness and poor implementation of the Act. He explained how the complex,
expensive and time-consuming court procedure involved in resolving disputes compelled
jurists to switch to a more effective forum; however, the way the forum operates has invited
harsh criticism from the courts.
The Arbitration and Conciliation Act, 1996, was then introduced with the objective of
providing speedy dispute resolution. The Act covered international arbitration as well and
was based on the UNCITRAL Model Law on International Commercial Arbitration. The Act,
however, was met with criticism due to exorbitant costs, the absence of a stipulated time
period for making an arbitral award, and interference by the court beyond a reasonable limit,
which went against the essence of the Act.
Subsequently, the Arbitration and Conciliation (Amendment) Act, 2015, was passed with a
number of amendments. After taking into account the recommendations made by a committee
headed by Justice B.N. Srikrishna, the Arbitration and Conciliation (Amendment) Act,
2019 was enacted. The Arbitration Council of India was instituted with the goal of promoting
ADR in India, boosting the established arbitration system in the country, and evaluating the
functioning of the arbitral institutions and the arbitrators.
On November 4, 2020, the Arbitration and Conciliation (Amendment) Ordinance, 2020 was
implemented with two major amendments. First, the enforcement of an arbitration award
could be stayed unconditionally if the court can infer that the contract/agreement or award
was given fraudulently or under undue influence. Second, after much scrutiny and discourse,
the qualifications and experience required for approving an arbitrator were deleted from the
Eighth Schedule of the said Act.

What is arbitration
Arbitration is one of the forms of Alternative Dispute Resolution (also referred to as
appropriate or amicable dispute resolution). Arbitration is one of the prominent forms of ADR
and is a type of private court where parties resolve their disputes without taking them to
court. This form of ADR is commonly used in disputes that are commercial in nature,
especially international commercial transactions, because of its time and cost-effective
nature. Contractual parties insert an “arbitration clause” in their contracts, where they
specifically mention and appoint a neutral third party referred to as the “arbitrator”, to whom
a dispute shall be referred if parties to the contract violate any provisions of the
contract. Section 16(1) of the Act entails that an arbitration clause which acts as a surviving
clause in the contract, i.e., even if the contract between the parties has come to an end or is
null and void, the arbitration clause shall not be terminated. Moreover, the parties
unanimously decide the jurisdiction, the language in which the proceedings shall take place,
and the laws which would be applicable so as to make certain that no party gets an undue
advantage. The decision made by the arbitrator with respect to the dispute is referred to as an
“arbitral award,” which shall be binding upon the parties to the contract.

Principle characteristics of arbitration

WIPO specifically defines the principle characteristics of arbitration, which are as follows –
Consensual Arbitration
The existing matter can only be taken to arbitration if both parties have agreed upon it.
Besides, the parties can insert arbitration clauses in their contract unanimously to refer their
subsequent disputes to arbitration. Once a dispute is referred to arbitration, a party cannot
unilaterally withdraw from arbitration.

The parties have the right to choose their arbitrator

As per Section 10 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the
“Act”), the parties are free to choose the number of arbitrators to be appointed. If parties
appoint more than one arbitrator, then the number of arbitrators should not be even. For
instance, if there is a three member arbitral tribunal, each party will appoint an arbitrator and
those two arbitrators shall decide on the third arbitrator.
Unbiased arbitration
Parties are free to decide upon the jurisdiction, language, and applicable laws of the
arbitration, which ensures that no party gets undue advantage and that the award given by the
arbitrator shall be treated as just and final.
The decision of the arbitrator shall be final
The decision made by the arbitrator is known as an “arbitral award.” The award given by the
arbitrator with respect to the ongoing dispute shall be treated as final and will be binding
upon the parties to the contract.
Matters that can be referred to arbitration
Arbitration deals with cases that are right in personam, i.e., rights that can be enforced only
against the individual party. Disputes that are right in rem, i.e., rights that are enforced
against society, are non-arbitrable in nature and such matters cannot be referred to an arbitral
tribunal for resolution. Commercial and almost all civil disputes, such as civil, labour, family
disputes, IPR disputes, etc., fall under and within the ambit of arbitration. However, matters
that are usually criminal or matrimonial in nature are often non-arbitrable and cannot be
resolved by arbitration.
Matters referred by parties to Arbitral Tribunal
If the parties have invoked an arbitration clause or separate arbitration agreement with respect
to the contract and such agreement is a valid agreement as per Section 7 and the subject
matter of the dispute is arbitrable in nature, then the parties can refer their dispute directly to
their arbitrator that has been decided by the parties within their agreement.
Matter referred by judicial authority to Arbitral Tribunal
The parties can, on their own, refer their dispute to the arbitral tribunal or the judicial
authority as per Section 8, which will refer the disputes of the parties that are subject matter
of arbitration to the arbitral tribunal only if the parties invoke an arbitration agreement within
their contract before filing the first statement. The judicial authority shall thereafter be
compelled to refer the matter to arbitration, until and unless there is a prima facie case stating
that no valid arbitration agreement exists between the parties. The parties cannot, in any case,
add an arbitration clause and refer their contract to arbitration after filing the first statement.
Section 8 of the Arbitration Act
Following are the essential ingredients covered under Section 8 of the Act –
1. There must be a valid arbitration agreement between the parties.
2. The matter must be brought before judicial authority and the matter referred to should
be a subject matter of arbitration.
3. There must be a prior arbitration agreement between the parties. The arbitration clause
or agreement should be invoked by the parties before the date of submitting their first
statement with respect to the dispute before judicial authority.
4. The application made by the party to refer the matter to arbitration shall produce
original arbitration agreement or its duly certified copy.
Invoking Arbitration agreement before first statement on dispute and not later than the date of
submission
Section 8 of the Act states that judicial authority can refer the matter to arbitration if parties
invoke an arbitration clause or agreement in their contract before filing their first statement.
But, once the first statement has been made or the date of submission has been exceeded, the
parties have waived off their rights to arbitration. Parties can only invoke arbitration clauses
within the time frame provided in the provision, i.e., “not later than the date of submitting
their first statement on the substance of the dispute”.
Matters that cannot be referred to arbitration
There is no specific provision under the Arbitration and Conciliation Act, 1996, that
categorises matters as arbitrable or non- arbitrable. But the courts have, from time to time,
interpreted through various judgements on what matters may be referred to arbitration and
what matters may not be referred to arbitration. The Supreme Court in the leading case Booz
Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011) has laid down that arbitrability and
non-arbitrability shall be determined by the nature of disputes, i.e., whether the subject matter
of dispute should be considered arbitrable or not. The court held that if the nature of the
disputes operates under right in rem, i.e., rights that are enforced against society, such
disputes shall be non-arbitrable in nature, whereas if the nature of the disputes operates
under right in personam, i.e., rights that are enforced only against the individual party, they
shall be arbitrable in nature. The Supreme Court in the case, also laid down certain examples
of disputes that are non-arbitral in nature –
1. Disputes that are criminal in nature.
2. Matrimonial Disputes such as divorce, judicial separation, etc.
3. Guardianship matters.
4. Insolvency and winding up matters.
5. Testamentary disputes such as grant of probate, letter of administration and succession
certificate.
6. Matters related to tenancy and eviction.
The Supreme Court in Shri Vimal Kishor Shah v. Jayesh Dinesh Shah & ors. (2016) added
Trust related disputes as a seventh category to the disputes that shall be considered as non-
arbitrable, since disputes/matters related to trust can be amicably resolved by the Indian
Trusts Act, 1882.
The Vidya Drolia Case – Four Fold Test
Vidya Drolia v. Durga Trading Corporation (2019) is the latest case that reviews the
arbitrability of the subject matter of the disputes. The Supreme Court in this case held down
the four-fold test to determine when subject matter is not valid. The factors that shall be
considered are as follows –
1. When the cause of action and subject matter of the dispute operate under right in
rem and do not fall under right in personam.
2. When the cause of action and subject matter of the dispute affect third party rights,
such as in cases in testamentary disputes, matters related to probate, etc.
3. When the cause of action and subject matter of the dispute are inalienable sovereign
and public interest functions of the state.
4. When the subject matter of the dispute is expressly recognised as non-arbitrable under
the statutes.
A mere allegation of fraud does not make the subject matter non-arbitrable
The issue was first decided in the case namely N. Radhakrishnan v. Maestro Engineers
(2009), where the Court held that if the subject matter involves “serious allegations of fraud”,
then the same shall not be arbitrable. But there’s no test or scope as to what subject matter
shall come under serious allegations of fraud.
Further, the Apex Court in A. Ayyasamy v. A. Paramasivam & ors. (2016), held that mere
allegation of fraud does not debar the dispute from being referred to arbitration until and
unless there is any serious allegation as to fraud. The Court laid down that the serious
allegations should be such that they make a virtual case of fraud and prima facie gives the
implication that such a case should be decided via litigation. The Court also stated that where
the fraud affects the arbitration clause/agreement or entire contract, including the agreement
to arbitrate, then all such cases shall be considered non-arbitrable.

4.When Removal of Arbitration Takes Place by courts?

INTRODUCTION
The parties to arbitration proceedings may become dissatisfied or have doubts regarding the
ability and neutrality of a chosen arbitrator. While there are many very good arbitrators, there
are some who are biased or simply incompetent. However, it can be fiendishly difficult to
dislodge even a very poorly performing arbitrator once he or she has been appointed. While
the best manner to avoid this predicament is to perform adequate due diligence on the
arbitrator prior to his or her selection, this note will discuss how to remove an arbitrator from
an ongoing arbitration proceeding, the steps that must be taken to remove an arbitrator, and
the potential consequences of his or her removal on ongoing arbitration proceedings.
1. Grounds to Remove an Arbitrator from Ongoing Proceedings
The grounds to remove an arbitrator may vary depending on the applicable law, the
arbitration agreement, and the rules of the institution administering the arbitration. However,
there are some common grounds for removing an arbitrator, which include:
1.1. Lack of Impartiality or Independence of the Arbitrator
The most common ground to attempt to remove an arbitrator is on the basis of their lack of
independence or impartiality. If a party can demonstrate that the arbitrator is biased or is not
independent, the arbitrator may be removed.
Most arbitration laws and rules recognise a lack of independence and impartiality as
justifiable reasons for a challenge. However, they do have different standards that are not
always implemented consistently.
Thus, the arbitration rules of the United Nations Commission On International Trade Law
(“2021 UNCITRAL Arbitration Rules”) allow challenging an arbitrator based upon
“justifiable doubts as to his impartiality or independency.
Similarly, the rules published by the International Chamber of Commerce (“2021 ICC
Arbitration Rules”) permit challenges to an arbitrator for “alleged lack of impartiality or
independence, or otherwise”.
It should be noted that, under most institutional rules, a party cannot challenge its own
arbitrator except for reasons it became aware of following the appointment.
Also, accusing an arbitrator of a lack of independence or impartiality without very strong
evidence of this may fail to remove the arbitrator, merely resulting in an irate arbitrator.
1.2. Failure of the Arbitrator to Disclose Current or Former Conflicting Relations
An arbitrator must disclose any potential conflicts of interest or relationships that could affect
their impartiality. If an arbitrator fails to disclose such information, he or she may be
potentially removed.
In this regard, national and institutional rules of arbitration require disclosing any relationship
or connection between an arbitrator and a party or its counsel. To ensure this, the UNCITRAL
Arbitration Rules require that:
When a person is approached in connection with his or her possible appointment as an
arbitrator, he or she shall disclose any circumstances likely to give rise to justifiable doubts
as to his or her impartiality or independence. An arbitrator, from the time of his or her
appointment and throughout the arbitral proceedings, shall without delay disclose any such
circumstances to the parties and the other arbitrators unless they have already been informed
by him or her of these circumstances.
The International Bar Association (“IBA”) has developed and published Guidelines on
Conflicts of Interest in International Arbitration (revised in 2014 to assist parties and
prospective arbitrators in deciding what kind of relationships or connections should be
disclosed.
However, there are not precise standards that are consistently applied, so arbitrators should
err on the side of excessive disclosure.
1.3. Failure of the Arbitrator to Conduct the Proceedings Fairly and Efficiently
An arbitrator must conduct the proceedings fairly and efficiently. If a party can demonstrate
that the arbitrator is delaying the proceedings, preventing the party from presenting its case or
failing to consider evidence or arguments, the arbitrator may hypothetically be removed.
Arbitrators’ conduct can be dilatory. They may be incompetent and unresponsive to the
parties’ requests or submissions. They could also become incapable of conducting arbitral
proceedings or rendering an award due to sickness, injury, or age This will also give potential
grounds to remove the arbitrator.
For example, the UNCITRAL Arbitration Rules provide that if an arbitrator fails to act, or if
the arbitrator is not able to perform arbitrator functions, the procedure in respect of the
challenge of an arbitrator, as provided in Article 13 of the UNCITRAL Arbitration Rules,
shall apply:
In the event that an arbitrator fails to act or in the event of the de jure or de facto
impossibility of his or her performing his or her functions, the procedure in respect of the
challenge of an arbitrator as provided in article 13 shall apply.
The ICC Arbitration Rules correspondingly provide that an arbitrator may be removed on the
ICC Court’s own initiative, without a challenge, if “the arbitrator is prevented de jure or de
facto from fulfilling the arbitrator’s functions, or that the arbitrator is not fulfilling his
functions in accordance with the Rules or within the prescribed time limits”.
1.4. Failure to Comply with the Applicable Law or Arbitration Agreement
The arbitrator is required to apply the applicable law and the terms of the arbitration
agreement. If a party can demonstrate that the arbitrator is applying the wrong law, ignoring
the terms of the arbitration agreement, or acting outside their authority, the arbitrator may
also theoretically be removed.

2. Steps to Remove an Arbitrator from Ongoing Proceedings

In international arbitration, the party seeking to remove an arbitrator must follow the
applicable law, the chosen arbitration rules, and the applicable law.
A formal challenge is not always required. Arbitrators are, at times, asked to voluntarily
resign by one or more parties, prior to a formal challenge. If he or she refuses, however, as is
often the case, a challenge procedure may be initiated.
Although most of the procedure is set by the arbitration rules, the starting point of a challenge
shall be the law of the seat.
Thus, the procedure for removing an arbitrator may vary depending on the applicable law, the
arbitration agreement, and the rules of the institution administering the arbitration. However,
there are some common steps that a party should follow when seeking to remove an
arbitrator.
The first step is to review the arbitration agreement and rules to determine the procedure
for attempting to remove an arbitrator. The applicable law, as well as the rules of the chosen
arbitration institution, will determine how to proceed.
Then, according to most rules, the party shall file a written request to the arbitral tribunal or
the institution administering the arbitration process by following the institution’s procedure
for removing an arbitrator. This request should clearly state the grounds for removal and
provide supporting evidence.
In this respect, most institutional arbitration rules provide that a party must promptly establish
objections to an arbitrator after the arbitrator’s nomination or after a party learns of the basis
for the challenge.
Hence, according to the UNCITRAL Arbitration Rules:
A party that intends to challenge an arbitrator shall send notice of its challenge within 15
days after it has been notified of the appointment of the challenged arbitrator, or within 15
days after the circumstances [on which the challenge is based] became known to that party.
The ICC Arbitration Rules similarly provide that:
For a challenge to be admissible, it must be submitted by a party either within 30 days from
receipt by that party of the notification of the appointment or confirmation of the arbitrator,
or within 30 days from the date when the party making the challenge was informed of the
facts and circumstances on which the challenge is based if such date is subsequent to the
receipt of such notification.
Such rules are intended to prevent a party from holding back a potential challenge to the
award based on the arbitrators in place and deciding to challenge the award only once an
unfavourable decision has been rendered.
The arbitrator and the other parties involved in the arbitration will have an opportunity to
respond to the request for removal. They may provide evidence or arguments supporting the
arbitrator’s continued involvement in the proceedings.
Finally, if the objections are still unresolved, the party may seek the relevant national court’s
intervention if it is provided for by the applicable law in such cases. The court of the seat of
the arbitration will usually have the final say on matters of arbitrators’ challenges. This is a
guarantee to preserve the integrity of the arbitration process.
3. Consequences of Removing an Arbitrator from Ongoing Proceedings
If the challenge is successful, the arbitrator will need to be replaced. Most arbitrational rules
provide that vacancies on the arbitral tribunal will be filled in the same way the arbitrator
being replaced was selected initially For example, the UNCITRAL Arbitration Rules provide:
[I]n any event where an arbitrator has to be replaced during the course of the arbitral
proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure
provided for […] that was applicable to the appointment or choice of the arbitrator being
replaced.
Of course, there are also adverse consequences of removing an arbitrator, such as delaying
the proceedings or impacting the overall outcome of the dispute. Thus, it is not always
prudent to challenge an arbitrator on the perceived basis of inefficiency, for instance, as the
challenge itself may lead to greater delays in the procedure. Conversely, arbitrators are also at
times challenged merely as a dilatory tactic.
The parties may also incur increased costs for filing a request to remove an arbitrator. The
parties will need to pay the new arbitrator’s fees and expenses and any additional costs
incurred during the delay in proceedings. This can include legal fees, expert witness fees, and
other costs associated with preparing for arbitration. For example, the rules of the Hong Kong
International Arbitration Center require the request to “be accompanied by payment, by
cheque or transfer to the account of HKIAC, of a non-refundable Challenge Registration Fee
of HKD 50,000 on account of HKIAC’s fees and expenses. If the party submitting the Notice
of Challenge fails to pay the Challenge Registration Fee the challenge will be dismissed”.
Conclusion
, challenging an arbitrator is a serious step that should be taken only in exceptional
circumstances, such as in cases of actual bias, conflict of interest, or serious misconduct. The
reality is that most challenges of arbitrators fail. While an arbitrator can be requested to
voluntarily resign, or can be formally challenged, parties should carefully consider the
potential consequences and consult their legal counsel before making a challenge. As most
challenges fail, the most frequent result is angering one or more arbitrators and delaying the
arbitral proceedings.
5.How can the Arbitral Proceedings be Terninated?

Introduction
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 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, and it is only under exceptional
circumstances that the tribunal may be reconstituted.
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. 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.
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. 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.
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, 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 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.
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. 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. In this regard, the Supreme Court opined:
Whether termination of proceedings in the present case can be treated to be covered by
Section 32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for
termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for
any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated
under Section 32 shall arise only when the claim is not terminated under Section 25(a) and
proceeds further. The words “unnecessary” or “impossible” as used in clause (c) of Section
32(2), cannot be said to be covering a situation where proceedings are terminated in default
of the claimant. The words “unnecessary” or “impossible” has been used in different contexts
than to one of default as contemplated under Section 25(a).
The explanatory notes for article 32 of the Model Law, which inspired section 32 of the
Arbitration Act, also indicate that the expressions ‘impossible’ and ‘unnecessary’ found under
article 32(2)(c) of the Model Law prescribe a high threshold. The explanatory notes prescribe
that the termination is only triggered when the continuation of the proceedings is manifestly a
waste of time and money.
The explanatory notes also evidence that the word ‘inappropriate’ was consciously changed
to ‘impossible’ in article 32(2)(c) during the drafting stage of the Model Law. This shows that
the drafters of the Model Law conceived a high threshold for the application of the exception
clause envisaged under article 32(2)(c).
Ilias Bantekas, in the commentary to article 32 of the Model Law, indicates that certain
situations (eg, a failure of the parties to pursue the arbitration proceedings despite being so
requested by the arbitral tribunal, or a refusal by the parties to make an advance on costs or
arbitration fees) may be grounds to terminate arbitration proceedings under article 32(2)(c) of
the Model Law. Bantekas also mentions that arbitration proceedings:
may be characterised as unnecessary where the respondent has satisfied the claimant’s claims
and hence there is no longer a need to proceed with their examination in arbitral proceedings.
The same is equally true where the claimant fails to pursue its case, or withdraws its case
altogether, or where the subject matter of the arbitration becomes moot.
Other experts have expressed the following views on article 36(2) of the UNCITRAL
Arbitration Rules 2010, which is similar in some respects to section 32(2)(c) of the
Arbitration Act:
19. Article 36(2) of the 2010 Rules addresses any other situation where the proceedings
are to be terminated because their continuation has become “unnecessary or
impossible”. As noted, a tribunal faced with this situation will either (i) order the
termination of the proceedings (which, as mentioned above, is not intended to have
res judicata effect) after having informed the parties and heard them; or (ii) continue
the proceedings because, after having heard the parties, it considers that ‘there are
remaining matters that may need to be decided and the arbitral tribunal considers it
 appropriate to do so’. The provision is similar in its conception and operation with
article 30(1)(a).
20. The travaux préparatoires of the 1976 Rules and of the Model Law provide little
guidance as to how the tribunal should make the determination that continuation of
the proceedings has become unnecessary or impossible. Nor did the Working Group
discuss the meaning of the terms “unnecessary” or “impossible”, or the distinction
between them. It appears that they are used as compendious terms intended to cover a
variety of possible circumstances. As a notion, the term “unnecessary” encompasses
situations where the parties have no legitimate interest in continuing the proceedings –
for example, where the dispute has become moot – whereas the term “impossible”
implies a legal or material barrier to the continuation of the proceedings (for example,
a party has ceased to exist and there is no successor).
The Indian courts have interpreted section 32(2)(c) of the Arbitration Act similarly and
construed it to cover only exceptional situations. The courts have held that the termination of
arbitration proceedings is warranted in cases where the continuation thereof is rendered
impossible or becomes infructuous. In Maharashtra State Electricity Board v Datar
Switchgear Ltd, the Bombay High Court observed:
Clause (c) of sub-section (2) of section 32 has vested a residuary power in the Arbitral
Tribunal to terminate the proceedings where it finds that a continuation thereof has for any
other reason become unnecessary or impossible. The legislature has advisedly left it to the
Tribunal to determine as to when the continuation of the proceedings has become
unnecessary or impossible. The expression “unnecessary” may for instance involve a
situation where proceedings are rendered infructuous. A situation may have arisen as a result
of which an adjudication into the dispute has become unnecessary either as a result of the fact
that the dispute does not survive or for any other valid reason. Situations may also arise
where a continuation of proceedings is rendered impossible. Impossibility is not merely to be
viewed from the point of view of a physical impossibility of an adjudication, but may
conceivably encompass a situation where a party by a consistent course of conduct renders
the very continuation of the arbitral proceedings impossible. Then again a party which has
been guilty of contumacious conduct cannot be heard to seek the benefit of its conduct to
seek termination. It is impossible to catalogue the circumstances in which the Arbitral
Tribunal may hold that it is either unnecessary or impossible to continue the arbitral
proceedings.
The onus lies on the party seeking the termination of arbitration proceedings to satisfy the
arbitral tribunal that the exception envisaged under section 32(2)(c) of the Arbitration Act
applies to their case and that the continuation of the arbitration proceedings has, indeed,
become impossible or unnecessary. It is not uncommon for recalcitrant parties to file
frivolous applications under section 32(2) with the sole purpose of derailing and delaying the
completion of arbitration proceedings. It is therefore essential to purposively and objectively
interpret section 32(2)(c) such that parties are not allowed to seek termination of arbitration
proceedings merely by filing recalcitrant applications.
The Bombay High Court has held that ‘the word “shall” in section 32 thus has to be
construed as “may”’ to afford arbitral tribunals the discretion ‘to suppress any public
mischief’ or guerrilla tactics that render the continuation of proceedings impossible or
unnecessary ‘to prevent injustice’. In view of this, it is clear that section 32(2)(c) of the
Arbitration Act does not enumerate the specific situations and circumstances that may
warrant the termination of arbitral proceedings, which are ‘impossible to catalogue’. The
arbitral tribunal is entrusted with deciding whether circumstances exist that render it
unnecessary or impossible to continue with the arbitration proceedings. The application of
section 32(2)(c), as well as the meanings to be ascribed to the words ‘unnecessary’ and
‘impossible’, should be carried out in a practical way and with the use of common sense,
having regard to all the circumstances of the case, and the need to ensure a fair and efficient
resolution of all disputes between parties. The precise thresholds that the words
‘unnecessary’’ and ‘impossible’ prescribe may therefore not be as important as the notion that
the words themselves seek to convey.

Nature of orders passed under section 32(2)(c)

Under Indian law, for a decision of the arbitral tribunal to qualify as an award, the decision
must finally decide a point or claim at issue in the arbitration proceedings. An order under
section 32(2)(c) of the Arbitration Act to terminate arbitration proceedings is therefore merely
a procedural order and does not constitute an award on the merits, as such an order does not
answer any issue at dispute in arbitration between the parties and is merely an expression of
the decision of the arbitral tribunal not to continue with the arbitration proceedings.
An order under section 32(2)(c) is also not subject to proceedings under section 34 of the
Arbitration Act, which permits a challenge to an award on the grounds listed therein, as is
otherwise the case with an arbitral award to the same effect. In fact, section 32 recognises a
clear distinction between a final award and an order to terminate the arbitration proceedings
passed under section 32(2). This distinction is also manifest from a reading of section
32(2)(a), which allows the respondent to seek an award as against an order for termination as
a matter of legitimate interest in situations where the claimant withdraws its claims.
In view of the above, the arbitral tribunal is not required to consider the merits of the dispute
upon an application under section 32(2)(c). (ie, grounds that ultimately relate to the
substantive defences to claims of the claimant cannot be relied upon as grounds on which to
seek termination of the arbitration proceedings, as such grounds would be required to be
considered and disposed of in the usual way).
An application under section 32(2)(c) cannot be successfully based on the argument that no
relief can be granted to the claimant on account of the underlying agreements between the
parties being void; for instance, a mere assertion that the contract forming the subject matter
of arbitration proceedings that involve claims of breach of contract was void from the
beginning, or has now become null and void, would be tantamount to asserting a defence on
the merits and may not be appropriate grounds on which to seek the termination of arbitration
proceedings.
Any arguments that address the merits of the respondent’s defences to the claimant’s claim in
arbitration proceedings would be required to be addressed in a final award by the arbitral
tribunal. Such an award can only be passed after all parties have been granted an opportunity
to be heard and to fully present their arguments on all issues at dispute. All such arguments
are, by the very nature of arbitration, destined to be tried by the arbitral tribunal as its primary
mandate and reason for constitution. Due process requires that all substantive contentions that
address the merits of the case must be considered in accordance with established procedural
rules. In this regard, the doctrine of severability also becomes relevant as it allows the arbitral
tribunal to retain jurisdiction over the parties. This is due to the fact that an arbitration
agreement is an independent and separate agreement that continues to subsist even if the
underlying agreement is held illegal or unenforceable, per the provisions set forth in section
16(1)(b) of the Arbitration Act.
An application under section 32(2)(c) cannot be equated to, or used as, a proxy application
for summary or early dismissal of claims. For instance, Rule 29 of the Singapore
International Arbitration Centre Arbitration Rules 2016 allows a party to apply to the arbitral
tribunal for early dismissal of a claim or a defence on the basis that the claim or defence is
manifestly without legal merit or manifestly outside the jurisdiction of the arbitral tribunal. In
early dismissal cases, the arbitral tribunal may allow the application for early dismissal of a
claim or defence, and make an award on application. This is substantially different from
section 32(2)(c) of the Arbitration Act, wherein the arbitral tribunal does not exercise its
powers to terminate the arbitration proceedings based on its view of the merits of the case.
The power to terminate arbitration proceedings under section 32(2)(c) cannot be relied upon
merely because, in the view of the arbitral tribunal, the case of the claimant is so
unmeritorious or doomed to fail on technical grounds that there is no point in continuing on
with the arbitration proceedings.
Section 32(2)(c) cannot be used as an impermissible shortcut through the arbitral process or
to seek a summary award on the merits without hearing all issues at dispute. The power
entrusted to the arbitral tribunal under section 32(2)(c) is to be applied when it has become
physically, legally or financially impossible or unnecessary for the arbitration proceedings to
continue due to extraneous circumstances.
Challenge against an order passed under section 32(2)(c)
Recently, the right to challenge an order passed under section 32(2)(c) of the Arbitration Act
drew significant attention in India with the dismissal of an application filed by Future Group
seeking the termination of its ongoing Singapore International Arbitration Centre-
administered arbitration proceedings against Amazon (Amazon v Future Group). On 25
March 2021, in the midst of Amazon v Future Group, Future Group filed a complaint with the
Indian antitrust regulator, the Competition Commission of India (CCI), seeking revocation of
the approval that was granted to Amazon on 28 November 2019 for its investment in Future
Group.
Despite the questionable timing of the complaint, Future Group successfully secured an order
from the CCI wherein, on 17 December 2021, the CCI held in abeyance the approval granted
to Amazon for its investment and directed Amazon to reapply for the approval pursuant to
fresh filling. Based on the CCI’s order, Future Group filed an application under section
32(2)(c) of the Arbitration Act seeking termination of the Amazon v Future Group arbitration.
The basis of the application was that, absent an existing CCI approval, the underlying
agreements that were the subject matter of the arbitration were rendered incapable of
performance under Indian law On 28 June 2022, the termination application was dismissed
by the arbitral tribunal on the grounds that the continuation of Amazon v Future Group was
not rendered unnecessary or impossible, and arguments based on the CCI’s order would be
required to be considered and determined by the arbitral tribunal in the final award.
Aggrieved by this, Future Group filed a petition before the Delhi High Court under article
227 of the Constitution of India, which grants supervisory jurisdiction to the high courts over
all lower courts and tribunals in India. The jurisdiction of the high courts envisaged in article
227 is required to be exercised in exceptional circumstances (eg, the order passed suffers
from a fundamental lack of inherent jurisdiction, one party is left remediless under the statute
or clear bad faith is shown by one of the parties). In light of this position, the Delhi High
Court dismissed the petition filed by Future Group as being impossible to maintain and, in
doing so, clarified the manner in which orders under section 32(2)(c) of the Arbitration Act
can be challenged under Indian law.
The Delhi High Court highlighted a distinction between the two kinds of orders that
may be passed under section 32(2) of the Arbitration Act, which are:
 when the arbitral tribunal allows an application under section 32(2) and terminates the
arbitration proceedings; and
 when the arbitral tribunal rejects and dismisses an application under section 32(2),
resulting in continuation of the arbitration proceedings.
In the first scenario, the Delhi High Court held that the party may be left remediless as there
is no provision under the Arbitration Act that would permit the party to raise a challenge
against such an order because it would neither be an award amenable to challenge under
section 34 or an interim order amenable to challenge under section 37. In such situations, the
Delhi High Court has opined that a petition under article 227 of the Constitution of India may
be held to be maintainable against an order passed under section 32 of the Arbitration Act. In
the second scenario, however, the right to challenge the final award under section 34 of the
Arbitration Act would subsist and is merely deferred until the final award is passed.
Accordingly, if the arbitration proceedings deserved to be terminated, the option for the party
to urge the same grounds (if the occasion arose) in a challenge to an award under section 34
would always be available. In such situations, it has been held that a petition under article 227
of the Constitution of India would not be maintainable against an order passed under section
32 of the Arbitration Act. In light of this, the petition filed by Future Group seeking
termination of its arbitration with Amazon was dismissed as being impossible to maintain.
This judgment of the Delhi High Court upholds the sanctity of the arbitral process, and
ensures that there is no unwarranted interference with the arbitration proceedings in cases
where the arbitral tribunal dismisses an application under section 32 of the Arbitration Act
and continues with the arbitration proceedings. Recognising the principle of indestructability
of arbitration proceedings, the Delhi High Court observed:
Clipping of arbitral wings is against the basic ethos of the 1996 Act. Allowing free flight to
arbitration is the very raison d’etre of the reforms that the UNCITRAL arbitral model sought
to introduce. The 1996 Act, founded as it is on the UNCITRAL model, is pervaded by the
same philosophy.
At the same time, the judgment recognises the right of a party to challenge an order
terminating the arbitration proceedings to ensure that no party is left remediless.
Conclusion
Given the significant ramifications of a termination of arbitration proceedings, applications
filed under section 32(2)(c) of the Arbitration Act ought to be carefully and purposively
considered by arbitral tribunals. Frivolous applications filed with the sole purpose of
derailing the arbitral process should be discouraged. The application of section 32(2)(c), as
well as the meaning to be ascribed to the words ‘unnecessary’ and ‘impossible’, should be
carried out in a practical way and with the use of common sense, having regard to all the
circumstances of the case, and the need to ensure a fair and efficient resolution of all disputes
between parties.

6.Write a note on Negotiation and Conciliation.

Introduction
Though litigation has been in practice for many years, it does not serve every client’s
interests. Litigation is often considered expensive, unpredictable, slow and usually solves
little. Courts are considered an essential institution that helps society avoid chaos, and their
importance cannot be stressed enough. Several disputes can be solved without the
intervention of judicial authorities. Conflicts of such nature need some specific form of
formal guidelines to achieve and meet their ends. To reduce this burden from judicial
authorities, the concept of dispute resolution comes into play. To help the parties reach an
amicable settlement, Alternative Dispute Resolution (ADR) methods and techniques allow
them to settle their differences. Now, ADR is widely accepted and has gained national as well
as international recognition. Though these modes of ADR have been in existence long before
the sophistication of civilization, they have only recently gained global recognition.
Continuous efforts are made by the third party to resolve or come to a settlement in a dispute.
Generally, this third party is a neutral party appointed with the consent of the disputing
parties. ADR involves a vast range of legalities and aspects. In short, in today’s era, people
avoid pooling vast resources for litigation and preferably go for ADR methods to resolve
disputes between individuals or groups of individuals or organisations. Arbitration,
mediation, conciliation, and negotiation are widely accepted methods of ADR.

This article deals with the difference between conciliation and negotiation.
Meaning
Conciliation
A confidential, voluntary, and private dispute resolution method in which a person (neutral) is
appointed to help the parties reach a settlement is called conciliation. Disputing parties are
provided with an opportunity to explore and analyse the options provided by a third party to
determine if a settlement is possible or not. The process is carried out by a conciliator, who
meets with the parties together as well as separately in order to come to an amicable
settlement. This is a flexible process, and decisions are taken by reducing tensions, improving
communications, and adopting other methods. This is a risk-free method and is not binding
upon the disputing parties until or unless they sign it.
Negotiation
A process wherein direct and indirect forms of communication are used and through which
the parties to a conflict form a joint action aiming to resolve the dispute between them is
called negotiation. The history of negotiation can be traced back to the era of monarchies,
when the king used to negotiate at the time of war to prevent bloodshed. The scope of
negotiation has increased with the passage of time. Negotiation overrides the bulky
paperwork, excessive time consumption, delayed process, and expensive disadvantages of
litigation.

Legal norms
Conciliation
The Arbitration and Conciliation Act, 1996, covers both domestic and international disputes
pertaining to conciliation. As regards conciliation of an international nature, it is confined
only to the commercial nature of disputes. The Act goes on to define international
conciliation as proceedings related to a dispute between two or more parties where at least
one party is foreign. A foreign party may be an individual (a foreign national), a company
(incorporated outside India), or the government of a foreign country.
The rules given under the UNCITRAL Rules on Conciliation, 1980, are closely followed by
the Indian legislators under Part III of the Act. These rules define conciliation as a method of
amicably settling disputes that arise in the context of international commercial relations and
the adoption of uniform conciliation rules by countries belonging to different legal, social,
and economic backgrounds.
An amendment to the Code of Civil Procedure, 1908 (CPC) in 1999 enabled the courts to
refer pending cases to ADR to reach an amicable solution. Ever since Section 89 was inserted
in the CPC, a court can refer a case to arbitration, conciliation, or mediation, wherever it
appears to the court that there are elements of a settlement that may be acceptable to the
disputing parties.
Negotiation
In India, negotiations don’t have statutory recognition. There is no particular statute for
negotiation as a mode of ADR. It is rather a form of self-counselling between the parties to
resolve the dispute at hand. It is the simplest means for the redressal of disputes. The parties
begin by talking to each other without the interference of a third party. Negotiation acts as a
dialogue that is intended to resolve the dispute and produce an agreement to bring out the
cause of action and bargain for collective advantage.
Role of a conciliator and negotiator

Conciliator
The main role of a conciliator is to reach an amicable dispute as written in Section 67 of the
Act. As far as Section 80 is concerned, the conciliator strives to support the disputing parties
in generating options and finding a solution that is compatible for both parties. The
conciliator is not a person who decides for the parties; rather, he only supports them and helps
them reach a common solution. Section 67(4) especially enables the conciliator to make
proposals at any stage of conciliation proceedings for the settlement of disputes. To obtain all
these, a conciliator must act independently and impartially and abide by all the principles of
objectivity, fairness, and justice.
Negotiator
A negotiator is a person who represents his party, and his duty is to make the best deal
possible for that party. The negotiator tends to use various forms of resolution techniques and
other communication methods to bring the parties down to a common settlement. The main
aim of all these arrangements is to reach an agreement that is fair and acceptable to the
parties to the dispute.
Stages
Conciliation
Commencement of conciliation proceedings
The commencement of proceedings has been talked about under Section 62 of the Act. There
should be a written invitation that has to be sent by either of the parties to the dispute. The
parties can go ahead with the invitation only if the recipient party accepts it. The invitation
shall be considered rejected if it does not get a reply within 30 days.
Appointment of conciliators
If both parties agree to the terms and conditions of each other then they can appoint a sole
conciliator. If they don’t, then they can appoint two conciliators, one for each. If parties wish
to choose and go for three conciliators, then they shall appoint one conciliator each, and the
third conciliator can be decided mutually.
Submission of the written statement to the conciliator
The conciliator, at his own discretion, may ask for a written statement from both parties that
includes facts and other related information about the case. Along with the conciliators, the
parties are also expected to send this written statement to each other as well.
Conciliation proceedings’ rules and conduct
As per Section 67(3) and Section 69(1) of the Act, the conduct of conciliation proceedings is
defined. The communication with the parties can either be oral or written or both forms as
they may agree to. The conciliator may decide to meet together or separately.
Administrative assistance
The conciliator may ask for administrative assistance from an institution or a person if he
feels the need. The consent of both parties is mandatory in order to seek administrative
assistance. The conciliator can’t go ahead with the administrative assistance at his own
discretion.
Negotiation
Initial assessment
Negotiation is a voluntary process, and it is important to know whether or not both parties
agree to negotiate. It begins with a signal of communication from one end showing the
willingness to bargain. Before negotiation begins, it is important to determine when and
where it will take place, along with who will attend the discussion and negotiation sessions.
 Discussions
Once it is established that the parties agree to go for negotiation, further arrangements are
made with the third party. In this stage parties put forth their case and try to understand the
vice versa situation as well. An equal opportunity shall be granted to the negotiating parties,
and all clarifications and disagreements shall be spoken and heard thereabout.
Clarification of goals
After completing the second stage and hearing what all parties have to say, the viewpoints of
the negotiating parties for this agreement need to be clarified further. A common ground shall
be established. Clarification is the most crucial part of negotiation because if it is not put
forth without any ambiguity, it will become difficult to come to a common resolution.
Negotiating towards a win-win situation
From here on, it becomes very clear that there is not always a win-win situation for the
parties, but they should try their best to reach the most suitable solution. In this stage, the
parties focus on ideas that can be termed a win-win outcome where both parties are satisfied.
Agreement
The parties can reach a common solution only when they understand each other’s point of
view along with their interest simultaneously.
Implementation of action
Once the parties have analysed all outcomes and probabilities and have reached a proper
course of action, they should start working on its implementation so that the decision can be

S.
Advantages Disadvantages
No.

1. Flexible because the process is informal. The parties are not bound by the process.

Expertise of conciliators in the disputed field helps to

2. There is no avenue for appeal.
reach an amicable solution.

There are chances that the parties might

3. Economic in nature as compared to litigation.
not reach a settlement.

If the parties are not satisfied with the proceedings, Reaching out to the court of law defeats
4.
they can reach out to the court of law. the purpose of ADR.
S. Advantages Disadvantages
No.

Being an informal process makes it There are chances that parties to a dispute might
1.
flexible. not come to a settlement.

Quick resolutions in comparison to

2. Lacks legal protection for the parties to the conflict.
litigation.

3. Takes place in a private environment. Imbalance of powers between parties.

Maintains a healthy relationship between

4.
the disputing parties

Conciliation
Negotiation

Main difference between conciliation and negotiation – a tabular representation

S.
Basis Conciliation Negotiation
No.

Facilitator, Evaluator, and

1. Neutral third-party Facilitator, Negotiator.
Conciliator

Level of
2. As determined by law. Based on trust.
confidentiality

It is not laid down in statutory

3. Legal perspective It has a statutory existence.
provisions.

Conclusion
There are various modes of ADR systems that exist, but we have mainly discussed the
differences between conciliation and negotiation. Both methods are unique in their own way
and can be used as per the parties’ requirements. It varies from dispute to dispute which
method shall be used for resolving it. These methods aim to provide diverse techniques that
can be used to help parties amicably resolve the dispute.
Frequently Asked Questions (FAQs)
What is the main disadvantage or limitation of conciliation?
The major limitation of conciliation is that it is not binding upon the parties to the dispute.
There are chances that parties may not be able to resolve the conflict.
Why is negotiation used as a mode of ADR to resolve disputes?
Negotiation is considered the most informal and flexible form of ADR among other
processes. Parties attempt to come to an agreement on the matters in dispute, either directly
or through negotiators. It is generally used by private individuals involved in a dispute.
Is negotiation an informal form of ADR?
Yes, it is the most flexible and informal form of the ADR method. It is voluntary as well as
non-binding on the parties.

7.Write a note on Mediation and Lok Adalat.

Introduction
Before the establishment of modern courts, people from all countries have a lengthy history
of informal dispute resolution. These indigenous processes for dispute resolution vary widely
in their characteristics, due to cultural, political, and other influences.
In India, one contemporary process for dispute resolution that is rooted in ancient tradition is
called Lok Adalat (meaning “People’s Court”). It draws from the panchayat system of justice,
where panchas, or village elders, helped villagers resolve their disputes. Lok Adalat, as it is
currently practiced, is a type of a swift settlement conference presided over by a judge and/or
a panel of attorneys, with the distinctive feature being that the neutral party, the Lok Adalat
judge, is often viewed by the parties as an authority figure. Lok Adalat judges frequently
propose monetary solutions to a dispute. Such settlement proposals are often accepted by the
parties by virtue of the Lok Adalat judge’s perceived authority.
In modern times, Lok Adalat was authorized by the Legal Services Act of 1987 promulgated
by the government of India. It is provided free of charge to litigants by government-funded
agencies and the courts. Lok Adalat is used in disputes where monetary compensation is
claimed, including insurance disputes and automobile accident proceedings. The use of Lok
Adalat on a wide scale has been instrumental in reducing the backlog of the courts, including
recently in Bangalore, India, where coordinated statewide Lok Adalat programs have
resolved over 20,000 cases in a single day.
Mediation, likewise, is being used by the Bangalore courts, and elsewhere in India, to resolve
civil lawsuits on a broad scale. Disputes that are being referred to mediation include complex
and long-standing property disputes, marital disputes, and commercial disputes. In a recent
Bangalore mediation, a complex property dispute filed in the 1960’s was settled completely
by all interested parties after only 4 hours of mediation. For more than a decade, the Institute
for the Study and Development of Legal Systems (ISDLS), a non-governmental organization
based in San Francisco, California, has contributed to the development of mediation in India
through the use of mediation study exchange groups, judicial and professional delegations,
and mediation training programs.
Both mediation and Lok Adalat are dispute resolution processes in which the parties attempt
to settle their civil disputes through negotiation. In its contemporary form, Lok Adalat shares
some of the features of the mediation process, but is also distinct in several important ways.
Consequently, different types of disputes may lend themselves to mediation, Lok Adalat, or
both, depending on the characteristics of the dispute.
This article attempts to identify the essential characteristics of Lok Adalat and mediation,
including similarities and distinctions between the processes. [1] The article also will identify
characteristics of disputes that lend themselves to Lok Adalat, mediation, or both. It is
suggested that, due to their structural and procedural features, both Lok Adalat and mediation
can co-exist as dispute resolution alternatives for the benefit of disputing parties.

DEFINITIONS
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.
1. Nature of the process.
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].
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.
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 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.
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.
In Lok Adalat, advocates are permitted very limited time to present their case and to engage
in limited negotiations. The agreement has to be reached in a limited amount of time as the
appointment of Lok Adalat judges is only for a specified day or period of time.
11. Control over the outcome.
In mediation, the parties control the outcome and work together in arriving at a settlement
with the assistance of the mediator.
In Lok Adalat, the parties retain the right to agree or disagree to a settlement proposed by
panelists. However, in practice, Lok Adalat judges/panelists exert considerable influence over
the decision to settle (whether to settle and the terms of settlement). The role of Lok Adalat
judges is to be highly evaluative and to propose settlement terms when the parties are unable
to resolve the dispute between themselves.
12. Referral of dispute and payment of mediator’s fees.
In mediation, reference to mediation may be made by court order, or by consent of the
parties, or pursuant to a contract clause, etc. Mediation may provided on a volunteer basis or
for a fee. The parties pay for mediation or the court may pay for mediation, if the program
provides funds.
In Lok Adalat, reference generally is made by the court, with the consent of the parties or
their advocates. Parties may opt to appear or not to appear. Parties do not pay for Lok Adalat
expenses. Attorney panelists are unpaid volunteers. Facilities, scheduling, and organizational
expenses are mostly made and funded by the Bar Association and the Legal Services Agency.
13. Confidentiality.
Mediation is a private process that is not open to the public. It is generally a confidential
process, by agreement or statute. Without consent of the parties, neither the parties nor the
mediator may disclose the statements made during mediation or documents prepared for
mediation.
In Lok Adalat, the process is generally not private. It takes place openly in a large conference
room, courtroom, or hall, and in presence of all others who have assembled for their
respective cases.
14. Depth of analysis.
In mediation, the factual and legal analysis is detailed and in depth. The history of a dispute is
examined, along with the current circumstances of the parties, their future needs, and any
specific interests that may warrant non-traditional terms of settlement.
Due to time constraints and the nature of the process, Lok Adalat judges rarely engage in an
extensive discussion of a claim (the precise nature of the claim, the factual background and
damages and possible settlement terms).
15. Types of disputes resolved.
In mediation, all types of disputes, including complex commercial disputes, property
disputes, partition disputes, family disputes, contract disputes, personal injury claims, real
estate, probate, etc., are resolved.
In Lok Adalat, mainly motor accident claims and insurance claims are handled. Commercial
and other disputes which require creative solutions are rarely referred to Lok Adalat.
16. Role of the neutral.
In mediation, the neutral person works in partnership with the parties to assist them in finding
a solution that meets with their needs, interests, priorities, future relationships, etc. A
mediator applies specialized techniques to facilitate communication between the parties and
specialized negotiation techniques to overcome impasses. A mediator constantly and carefully
intervenes in the negotiation process, at the same time respecting the parties’ right to decide
for themselves whether to settle and what the terms of settlement should be. A mediator meets
separately and privately with the parties to brainstorm settlement options and to discuss
confidential information.
In Lok Adalat, judges/panelists seek to persuade the parties to settle their case in the amount
proposed by the Lok Adalat judge/panel. There is minimal focus on working together with
the parties/advocates to find solutions that meet with the parties’ individual needs, interests,
priorities, future relationships, etc. Creative, non-traditional agreements that are personalized
to the parties generally are not explored.
17. Role of the parties.
In mediation, parties play an active role in presenting factual background, discussing
positions, developing offers and counter offers, making decisions, etc.
Parties generally do not have an active role in Lok Adalat. They play no active role in
presenting information, identifying interests, making offers of settlement, responding to
offers of settlement and shaping the terms of settlement.
18. Role of Advocates.
In mediation, advocates play an active role, presenting the case, discussing positions,
developing offers and counter offers, and advising clients regarding terms of settlement.
In Lok Adalat, advocates play a primary role in presenting a case to the panel and advising
their clients to settle if they consider it advisable.
19. Range of Possible Outcomes–Traditional/Non-Traditional. In mediation, parties are
not limited to traditional legal remedies (e.g., monetary damages). Highly creative, innovative
and non-traditional solutions are possible. In addition, it is possible to build future
relationships by re-writing contracts, re-structuring relationships, etc.
Usually, in Lok Adalat the case is reduced to monetary damages. Imaginative solutions
involving non-monetary or non-traditional remedies are not usually considered.
20. Post-Hearing Follow-Up.
In mediation, in cases where the parties do not reach a global settlement of all claims during
mediation, the mediator will offer to continue to work/negotiate with the parties to reach a
mutually satisfactory agreement.
In Lok Adalat, there is no follow-up by the Lok Adalat judge/panel in the event of non-
settlement or less than global settlement.
DISPUTES SUITABLE FOR BOTH LOK ADALAT AND MEDIATION
 Parties want to preserve financial resources
 Parties want a prompt resolution of their dispute
DISPUTES SUITABLE FOR LOK ADALAT
 Automobile accident cases, insurance claims, and other non-complex disputes
 Disputes there the parties do not desire to be actively and directly involved
 Disputes where the parties do not desire confidentiality
 Disputes where the issues are easily reduced to money damages (including bad
cheque cases)
 Disputes where one or more parties refuses to negotiate directly with the other party
 Disputes where the parties cannot afford private mediation
 Disputes where the parties defer to authority figures
DISPUTES SUITABLE FOR MEDIATION
 All types of disputes, any amount in controversy, any subject matter (including
personal injury, employment, government agency, commercial, insurance, intellectual
property)
 Complex, multi-party disputes
 Parties wish to negotiate monetary and non-monetary terms
 Parties want to have the freedom to choose their mediator
 Parties want to be actively and directly involved in the negotiation process
 Small cases (“micro-mediation”), multi-party complex high stakes litigation (“mega-
mediation”), class actions
 Parties want confidentiality
* Trade secrets
* Proprietary information
* Parties want to preserve reputation/public image
* Intellectual property

 Parties have on-going relationship that they want to preserve

* Family relationships
* Social relationships
* Community relationships
* Business relationships

 Parties want the freedom to create non-traditional agreements

* Parties want to re-structure their relationship
* Parties want to create business solution to the dispute
* Dispute lends itself to multi-term agreement and is not easily reduced to money
damages
* Landlord/tenant disputes
* Commercial disputes
Both mediation and Lok Adalat offer litigants significant advantages over the lengthy,
expensive and unpredictable trial process. [3] As a result of their distinct characteristics,
mediation and Lok Adalat provide different benefits and they can exist side-by-side as part of
an integrated approach to reducing the court backlog and expenses associated with trial.
Together, these dispute resolution processes can be part of a multi-faceted approach to
improving access to justice. A careful analysis of the parties’ needs and the nature of a dispute
will provide a basis for selecting mediation and/or Lok Adalat as an appropriate dispute
resolution process in a particular case.
End Notes
1 Lok Adalat and mediation are compared in the context of an Analytical Template of ADR
Processes developed by Gregg Relyea, which attempts to identify the essential elements of
ADR processes: nature of the process (investigation, negotiation, adjudication, hybrid, other),
forum (where it takes place), temporal focus (past, present, and/or future), neutral-centered or
party-centered, focus on liability v. problem-solving, collaborative/adversarial, structure of
the process, control over the process, control over the outcome, selection of the neutral, role
of the neutral, role of the parties, role of the attorney, range of remedies/terms of agreement–
traditional and/or non-traditional, private (not open to the public), confidentiality, level of
formality, role of the rules of evidence, time allotted to the process, depth of factual and legal
analysis, collaborative/adversarial, source of options for agreement.
2 Processes that are described in dualistic terms, e.g., fact-finding/blaming or problem-
solving, may include elements of both in varying degree.

8.What is an Arbitration Tribunal? What are the grounds to challenge the

composition of Arbitration Tribunal?
Introduction
The judicial system in India is extremely overburdened with cases and slow in disposing
them. On an average, around 1.65 lakh cases are pending in each High Court of the country
and more than 2.6 crore cases are pending in the subordinate judiciary.
Due to this reason, the Arbitration and Conciliation Act, 1996 (the Act) was passed with
the goal to provide a faster and effective mechanism to resolve disputes. It was an attempt to
decrease the burden of the courts and promote arbitration as an alternative dispute resolution
mechanism in India.
The most Commercial entities include arbitration clauses in all of the agreements that they
sign with other entities or sign a separate arbitration agreement altogether. With such heavy
reliance placed on arbitration, it is important that the arbitrators appointed are impartial. The
Supreme Court of India has observed that the impartiality and the independence of an
arbitrator is the hallmark of arbitration, and it is a fundamental principal of natural justice.
Section 12 of the Act states the grounds on which and arbitrator can be challenged.
Additionally, the 2015 amendment to the Act has added a schedule to this section which lays
down additional criteria that may give rise to a challenge of an arbitrator.
Grounds for Challenge (Section 12 of the Arbitration and Conciliation Act, 1996)
 When a person has been approached for possible appointment as an arbitrator, he shall
disclose in writing any circumstances which are likely to give rise to justifiable doubts
about his independence or impartiality.
 From the time of an arbitrator’s appointment and throughout the arbitral proceedings,
he shall without delay willingly disclose to the parties in writing any circumstances
referred to in sub-section (1) unless it has already been informed to them by him.
  An arbitrator may be challenged only if
o circumstances exist that give rise to justifiable doubts about his independence
or impartiality, or
o he does not possess the qualifications agreed to by the parties.
 A party may challenge an arbitrator who has been appointed by the party himself or in
whose appointment he has participated, only for reasons of which the party becomes
aware after the appointment has been made.
Amendment of Section 12 in the year 2015
(i) for sub-section (1), the following sub-section shall be substituted, namely:
(1) When a person is approached in connection with his possible
appointment as an arbitrator, he shall disclose in writing any circumstances, —
such as the existence either direct or indirect, of any past or
present relationship with or interest in any of the parties or in relation to
the subject-matter in dispute, whether financial, business, professional
or other kind, which is likely to give rise to justifiable doubts as to his
independence or impartiality; and
(b) which are likely to affect his ability to devote sufficient time to
the arbitration and in particular his ability to complete the entire arbitration
within a period of twelve months.
(ii) after sub-section (4), the following sub-section shall be inserted, namely:
(5) Notwithstanding any prior agreement to the contrary, any person
whose relationship, with the parties or counsel or the subject-matter of the
dispute, falls under any of the categories specified in the Seventh Schedule
shall be ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having arisen between
them, waive the applicability of this sub-section by an express agreement in
writing.
Fifth Schedule
The fifth schedule deals with the following types of relations which may give rise to
reasonable doubts:
 Any relationship of the arbitrator with the parties or the council.
 Relationship of the arbitrator related to the dispute.
 Any personal interest of the arbitrator in the dispute.
  Any past involvement of the arbitrator with the dispute
 Relationship between the co-arbitrators
 Relationship between arbitrators and parties as well as other who are involved in the
arbitration.
 Other Circumstances.
If a scenario of a case falls under the above headings, then the party can challenge the
arbitrator. The above-mentioned points are extensive headings which various scenarios to
ensure maximum impartiality. Although, ‘Explanation 3’ of this schedule states that if it is a
specialized arbitration which involves niche fields, and it is custom to appoint same
arbitrators from a specialized pool, then it should be noted by applying these rules. None of
these heading can immediately bar an appointment of an arbitrator.
Seventh Schedule
This schedule covers most of the headings stated under the Fifth Schedule. As this list is not
as exhaustive as the Fifth Schedule, it simply acts as a bar to appointment an arbitrator. This
bar can be also waived by the parties by the agreement by the parties in writing.
This schedule covers:
 Any relationship of the arbitrator with the parties or the council.
 Relationship of the arbitrator related to the dispute.
 Any personal interest of the arbitrator in the dispute.
Key Points of Section 12
Duty to disclose by the prospective arbitrator
Sub- section (1) and (2) of Section 12 of the Arbitration and Conciliation Act,1996 makes it
mandatory for the prospective arbitrator to disclose to the parties in writing about any
circumstances which are likely to give rise to justifiable doubts about the arbitrator’s
impartiality or independency. The use of the expression “shall” connotes that these provisions
are imperative. An arbitrator has to discharge his obligation “without delay” i.e., before he
takes over as an arbitrator.
Significance of the word “only” in Section 12(3)
It appears that the word “only” signifies that the grounds mentioned in the said provisions are
available for challenging an arbitrator, thus other grounds are not available therein. Any other
flimsy grounds cannot be used to challenge an arbitrator.
The Supreme Court in Jiwan Kumar Lohia v. Durgadutt Lohia has observed that a
reasonable apprehension of bias in the mind of a reasonable man can be a good ground for
termination of the mandate of an arbitrator.
It is necessary that a reasonable apprehension of bias must be based on materials and also
must be prima facie proved. The Supreme Court in Secretary to the Government, Transport
Department, Madras v. Munnuswamy has held that any pre-disposition concerning a decision
for or against one party, without giving proper regard to the true merits of the dispute
amounts to bias. Any reasonable apprehension has to be based on cogent evidence. Only a
mere doubt that an arbitrator is biased would not be sufficient to constitute bias on the part of
an arbitrator.
An appointed arbitrator must possess qualifications agreed to by the parties
It needs to noted that the old Arbitration Act, 1940 contained no such prescribed qualification
for the appointment of an arbitrator. Whereas in the present Arbitration and Conciliation
Act,1996, namely, Section 12(3) states that the appointment of an arbitrator can be
challenged if he does not possess the qualifications agreed to by the parties. It important
addition was essential because a number of disputes could not be settled due to the lack of
expertise in the field which is in dispute like mining, engineering, blasting etc., thus the
appointed arbitrator must have specific knowledge in the field concerning the subject matter
of the dispute.
Bombay High Court in the case of Anuptech Equipment Pvt Ltd. v. Ganpati Cooperative
Housing Society Ltd has held that if by any reason the appointed arbitrator fails to possess
the qualification which has been agreed by the parties in the arbitration agreement, the very
appointment of such arbitrator will be void ab initio as well as the arbitration proceedings
would be totally null and void including any order passed by him.
Refusal to act as an Arbitrator
When a person is offered to act as an arbitrator, such person has the choice to refuse such
offer expressly or impliedly. An unwilling arbitrator cannot be compelled to act. The Apex
Court in the case of State of West Bengal v. National Builder has explained the meaning of
the expression “refusal” and, according to the court,“refusal” to act means denial to do
something which one is obliged to do under law.
Thus, under a situation where the arbitrator has declined to grant an extension of time and
close the proceedings and the parties have been directed to determine their upcoming course
of action, in such circumstances a reasonable presumption would be drawn that he has
declined to continue as an arbitrator any further. In such a situation the parties can substitute a
new arbitrator.
Power of the court regarding appointment when an authorised person fails to appoint
The expression “without delay” stated in Section 12(2) of the Arbitration and Conciliation
Act, 1996 denotes that there should not be unreasonable or undue delay on the part of the
arbitrator to disclose when such person is first approached for possible appointment as an
arbitrator. It needs to be noted that Sub-section 2(2) of Section 12 also provides that this duty
of the arbitrator needs to be discharged from the time of the appointment and maintain it
throughout the arbitral proceedings. Thus, an arbitrator needs to discharge his duty “without
delay”. This provision is intended to ensure that the parties receive speedy arbitration and its
adjudication.
The Delhi High Court in the case of Union of India v. Somnath Chadha has observed that
the most important objective of referring any dispute to an arbitrator for adjudication is the
speedy end of the strife. It was held that any unreasonable delay or negligence in the
appointment of the arbitrator or the commencement of the proceedings would defeat the
purpose of the arbitration. In these circumstances the court may intervene and appoint an
arbitrator.
In the case of Sankar and Sankar v. State of West Bengal, it was held that if a person who
is permitted to appoint an arbitrator under arbitration clause neither appoints such arbitrator
not enters on the reference himself and there is silence for more than one year then it would
be a case of failure and negligence and under such circumstance the court can appoint an
arbitrator himself.
Under what circumstances is the composition or the procedure of the Arbitral Tribunal
challengeable?
The Supreme Court in the case Narayan Prasad v. Nikunj Lohia & Ors, held that when the
composition or the procedure of the arbitral tribunal is not in accordance with the agreement
of the parties, it can be challenged. Under such circumstances the parties get a right to
challenge the award but only if the agreement of the parties is in conflict with a provision of
Part I which the parties cannot derogate. In other words, if the composition of the tribunal or
the procedure is not in accordance with the agreement of the parties, the parties have the right
to challenge, but if such composition or procedure is in accordance with the provisions of the
Arbitration and Conciliation Act, 1996, then the party cannot challenge the award.
Procedure for Challenging an Arbitrator (Section 13 of the Arbitration and Conciliation
Act, 1996)
1. Subject to sub-section (4), the parties have the liberty to agree on a procedure for
challenging an arbitrator.
2. If the parties fail to reach an agreement which has been referred to in sub-section (1), a
party who intends to challenge an arbitrator shall within fifteen days after becoming aware of
any circumstances which have been mentioned under sub-section (3) of Section12 send a
written statement of the reasons for the challenge to the arbitral tribunal.
3. Except if the arbitrator who has been challenged under sub-section (2) withdraws from his
office or if the other party agrees to the challenge, the arbitral tribunal shall decide on the
challenge.
4. In case of the failure of the challenge under any procedure which has been agreed by the
parties or under procedure mentioned under sub-section (2), the arbitral tribunal will continue
with the proceedings as well as make an arbitral award.
5. In such circumstances when an arbitral award has already been made under sub-section (4),
the party who is challenging the arbitrator may make an application in accordance with
section 34 for setting aside such an arbitral award.
6. When an arbitral award has already been set aside on an application made under sub-
section (5), the Court may decide as to whether the arbitrator who has been challenged is
entitled to any fees.
Failure or impossibility to act (Section 14 of the Arbitration and Conciliation Act, 1996)
Section 14 of the Arbitration and Conciliation Act,1996 has been modelled on Article 14
of the Model Law which provides various circumstances in which the mandate of an
arbitrator fails or becomes impossible to act. In these kind of situations, the mandate of an
arbitrator shall be terminated and/or the arbitrator’s authority shall be terminated.
1. The mandate of the arbitrator shall terminate and he shall be substituted by another
arbitrator if–
a) The arbitrator becomes de facto or de jure unable to perform his functions or for any other
reasons fails to act without undue delay; and
b) The arbitrator withdraws from his office or the parties agree to the termination of his
mandate.
2. If there are any controversies regarding any of the grounds referred to in clause (a) of sub-
section 1, then a party may, if not otherwise agreed by the parties, apply to the court to decide
on the termination of the mandate.
3. Under this section or sub-section (3) of section 13, if an arbitrator withdraws from his
office or the parties agree to the termination of the mandate of an arbitrator, it does not imply
any acceptance of the validity of any ground which is referred to in this section or sub-
section (3) of section 12.
Termination of mandate and substitution of an arbitrator (Section 15 of the Arbitration
and Conciliation Act, 1996)
1. In addition to the circumstances referred to in section 13 and 14, the mandate made by an
arbitrator shall be terminated if-
a) If the arbitrator withdraws from his office for any reason; or
b) The parties have an agreement to terminate the arbitrator’s authority.
2. When the mandate of the arbitrator has been terminated, a substitute arbitrator will be
appointed by the rules which were applicable to the appointment of the arbitrator who was
replaced.
3. If not otherwise agreed, when an arbitrator has been replaced under sub-section (2), any
hearing which has been held previously may be repeated at the discretion of the arbitral
tribunal.
4. If not otherwise agreed, any order or ruling of the arbitral tribunal which has been made
prior to the replacement of the arbitrator under this section shall be held invalid because there
has been a change in the composition of the arbitral tribunal.

Conclusion The Amendment of the Act which was made in 2015 was aimed to promote
arbitration in India and to provide utmost transparency and reliability on the same. Section 12
has gained much more importance with the amendment, and hopefully, it will make
arbitration a much popular recourse than judicial courts. Section 13 has mentioned the
procedure which needs be followed when the grounds mentioned in Section 12 give rise to
challenging an arbitrator. Section 14 and 15 has mentioned various circumstances in which
the mandate of an arbitrator can be terminated. All these sections are the backbone of
arbitration as it helps the parties get justice when the arbitrator is at fault.
9.When a party to an Arbitration Agreement can Apply in court for interim
measures?
Introduction
Arbitration has become the most preferred method of alternative dispute resolution which
parties resort to for resolution of any commercial dispute in a contract which contains an
arbitration clause or an arbitration agreement that exists between the parties. Although it is
well known that the time required for resolution of disputes through arbitration is much lesser
than the time required by any court of law, still it takes considerable time to complete the
entire process of arbitration – right from invocation of arbitration to enforcement of award.
Further, in some cases, it is seen that one of the parties deliberately prolong the time for the
arbitration proceedings to prejudice the rights of the other party or for some other reason
beneficial to them or to delay the pronouncement of the arbitral award against them and
thereby delay the enforcement of the award. Such tactics by one party may render
meaningless the final arbitral award for the aggrieved party unless the arbitral tribunal and/or
the court safeguards the rights of the aggrieved party before, during and after the arbitral
proceedings till the award is enforced.
Therefore, it is imperative that some interim measures or interim relief be granted by the
arbitral tribunal or the court in order to protect the rights of the aggrieved party. In some
particular instances, the interim relief may involve directives to some third parties also.
Interim relief is like an urgent remedy granted in exceptional circumstances.
Generally, interim relief is granted when:
a. prima facie there is a case;
b. the balance of convenience lies with the aggrieved party who is seeking the relied;
and
c. irreparable damage or injury may be caused if the interim relief is not granted.
There are certain provisions in the Arbitration and Conciliation Act, 1996 (Amended 2015
and 2019) [hereinafter called the Act], which safeguard the interest of one party over the
other. Section 9 and Section 17 of the A&C Act enable any party to any arbitration agreement
to file an application for interim relief from the court or arbitral tribunal respectively.
Interim relief under Section 9 of the Act
Section 9 of the Act mentions that a party may put up an application for interim relief to the
court before the commencement of arbitration proceedings, during arbitration proceedings or
at any point of time before the enforcement of the arbitral award. However, generally, courts
do not allow a petition for interim relief after the arbitral tribunal has been constituted unless
the aggrieved party proves beyond doubt that the interim relief that has been / may be
provided by the arbitral tribunal under Section 17 of the Act is/shall be futile.
Nevertheless, the power to grant interim relief to the aggrieved party before the arbitral
tribunal is constituted and after the arbitral award is passed lies with the courts only. Further,
Section 9 also states that in case the court passes an order for interim relief before the
commencement of arbitral proceedings, then the arbitral proceedings shall have to be
commenced within 90 days from the date of the interim relief order or within such further
time that the court may grant.
Interim relief that can be sought under Section 9
Section 9 of the Act describes the type of interim relief that may be sought by a party.
Application for interim relief may include the following:
1. Appointment of guardian for a minor or person of unsound mind;
2. Preservation, interim custody or sale of goods (if the goods are of perishable nature)
for any goods related to the arbitration agreement;
3. Securing the amount of claims;
4. Allowing the detention, preservation or inspection of any property or thing,
authorizing any person to enter upon any land or building, authorizing any samples to
be taken or observations to be made or experiments to be tried in order to expedite the
process and obtain accurate & complete information or evidence;
5. Allowing interim injunction or appointment of receiver;
6. Any other reliefs which the court considers proper taking into account the facts and
circumstances of the case.
Any party to the arbitration agreement may file an application to the concerned court under
Section 9 before or during the course of the arbitration. However, after the pronouncement of
the arbitral award only the successful party, who is entitled to seek enforcement of the arbitral
award, may file an application for interim relief under Section 9. The unsuccessful party of an
arbitral proceeding would not be entitled to file an application for interim relief under Section
9 because there is no award which is to be enforced in its favour.

Furthermore, in case the arbitral award has been set aside, the unsuccessful party, i.e. the
party whose claims were rejected vide the award, cannot apply to a court for interim relief
under Section 9.
Jurisdiction of court for the application of Section 9
The court of the seat of arbitration has exclusive jurisdiction over the arbitration proceedings
under the Act. Therefore, Section 9 application by any party has to be made in the relevant
district court or High Court.
However, in the case of international commercial arbitration, i.e. when at least one of the
parties is non-Indian, then Section 9 application may be made only in the High Court. After
the amendment of the Act in 2015, a party of a foreign seated international commercial
arbitration may apply for interim relief under Section 9 in Indian courts, provided they have
not, in any express or implied way, agreed to exclude the applicability of Section 9 of the Act.
In case an application for interim relief is pending before a court and the arbitral tribunal is
constituted in the meantime, it does not imply that the court cannot deal with the pending
application. There is no provision in the Act which states that the court is required to relegate
or transfer a Section 9 application to the arbitral tribunal the moment it is constituted.
It would also be pertinent to mention here that all subsequent applications under Part I of the
Act must be made at the same court in which the Section 9 application has been made.
Enforceability of and appeal against interim relief granted under Section 9
The interim relief granted by a court has to be enforced like any other order of the court. Any
willful non-compliance or disobedience of the interim relief order may be treated as contempt
of court and dealt with according to the existing laws of the land. However, an appeal against
an interim order may be made to the suitable court as per Section 37(1)(b) of the Act.
Enforcing an interim relief granted by an arbitral tribunal seated outside India
As Section 17 falls under Part I of the Act, parties can apply for interim relief under Section
17 only if the seat of arbitration is in India. Any interim relief order passed by an arbitral
tribunal seated outside India cannot be directly enforced in India as there are no relevant
provisions in the Act which permit the enforceability of interim orders granted by tribunals
seated outside India. In order to enforce an interim relief order granted by an arbitral tribunal
outside India, the party shall have to file an application under Section 9 of the Act provided
the parties to the arbitration agreement have explicitly excluded the applicability of Section 9
from the contract.
Interim relief under Section 17 of the Act
Section 17 of the Act gives the arbitral tribunal the power to pass an order for interim
measures if a party applies to the tribunal for such interim relief. A party may apply for
interim relief under Section 17 of the Act only after the arbitral tribunal has been constituted
till the arbitral award is passed. During this time, generally, the courts do not allow an
application for interim relief under Section 9. The arbitral tribunal cannot pass an interim
relief order containing directives to some third party. The jurisdiction of the arbitral tribunal
is limited to the parties of the arbitration agreement only.
The interim relief that can be sought under Section 17 of the Act is the same as that can
be sought under Section 9. Application for interim relief may include the following:
1. Appointment of guardian for a minor or person of unsound mind;
2. Preservation, interim custody or sale of goods (if the goods are of perishable nature)
for any goods related to the arbitration agreement;
3. Securing the amount of claims;
4. Allowing the detention, preservation or inspection of any property or thing,
authorizing any person to enter upon any land or building, authorizing any samples to
be taken or observations to be made or experiments to be tried in order to expedite the
process and obtain accurate & complete information or evidence;
5. Allowing interim injunction or appointment of receiver;
6. Any other reliefs which the court considers proper taking into account the facts and
circumstances of the case.
Any party to the arbitration agreement may file an application to the arbitral tribunal under
Section 17 during the course of the arbitration, i.e. after the arbitral tribunal has been
constituted and up to the time the arbitral award has been made.
Enforceability of and appeal against interim relief granted under Section 17
The interim relief orders passed by the arbitral tribunal shall have the same force and shall be
deemed to be an order of the court for all purposes similar to the powers of the court under
Section 9. The order shall also be enforceable as if it were an order of the court. Further, the
non-compliance of an interim relief order by the arbitral tribunal shall be treated as a
contempt of court and can be dealt with appropriately as per the prevailing laws of the land.
However, an appeal from an order granting or refusing to grant an interim relief under
Section 17 may be made as per Section 37(2) of the Act.

Conclusion
Thus, it is clear that the right of the aggrieved party is protected at every stage, i.e. even
before the commencement of arbitration, during the arbitration proceedings and even after the
passing of the arbitral award. The interim relief orders granted by the court or the arbitral
tribunal are enforceable. The provisions of Section 9 and Section 17 are of paramount
importance and are an indispensable component of the arbitration mechanism.

10.Explain the Salient Features of the District Legal Service Authority Act.

INTRODUCTION
The Legal Services Authorities Act, 1987 has been framed to provide free and competent
legal services to the weaker sections of the society to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities and to
organize Lok Adalats to secure that the operation of the legal system promotes Justice on a
basis of equal opportunity and in order to fulfill the constitutional mandate held out under
Article 39A of the Constitution of India.

The State Legal Services Authority, West Bengal has, been constituted with effect from 23rd
day of April, 1998 through a Gazette Notification under no. 3536-J dated 22.4.98 consisting
of 25 senior officers and eminent persons of the society as members of the State Authority
and the number was raised to 26 through amendment.

The State Legal Services Authority, West Bengal started functioning from the month of
August 1998 and prior to that rules and regulations were framed under the Chairmanship of
Hon’ble Justice Mukul Gopal Mukherji, the retired Chief Justice of Rajasthan High Court as
the Executive Chairman and the guidance of the Hon’ble Patron-in-Chief, the then Chief
Justice of Calcutta High Court. Prior to that legal Aid services were being managed and
arranged by the West Bengal Legal Aid and Advice Committee under the Judicial
Department, Govt. of West Bengal.

At present there are 22 District Legal Services Authorities in West Bengal. There are
Alternative Dispute Resolution (ADR) Centres in 19 Districts and the process of setting up
ADR Centres in the Districts of Jhargram, Paschim Bardhaman and Kalimpong is under
process.

The Hon’ble Mr. Justice Mukul Gopal Mukherji, Chief Justice (Retd.), Rajasthan High Court,
happened to be the first Executive Chairman of the West Bengal State Legal Services
Authority.
Functions of State Legal Services Authority

1. To give effect to the policies and directions of the Central Authority.

2. To provide legal service to persons who satisfy the criteria laid down in the Legal
Services Authorities Act, 1987.
3. To conduct Lok Adalats at various levels.
4. To encourage the settlement of disputes by way of Mediation, Negotiation, Arbitration
and Conciliation.
5. To secure the legal rights of poor, down trodden and weaker section of the society.
6. To ensure that the operation of the legal system promotes justice on a basis of equal
opportunity.
7. To give people a platform where they receive effective counseling in order to resolve
their disputes in an amicable manner and at pre-litigative stage.
8. To carry out legal literacy campaign across the State of West Bengal.
9. To publicize legal aid schemes so that the target group, for whom Legal Services
Authorities Act has provided for free legal aid, may come to know about the same and
approach the concerned legal service functionaries.
10. To make special efforts to enlist the support of voluntary social welfare institutions
working at the grass-root level, particularly among the Scheduled Castes and Scheduled
Tribes, Women and Rural and Urban labour.
11. To act in coordination with other governmental agencies, non-governmental voluntary
social service institutions, universities and other bodies engaged in the work of
promoting the cause of legal services to the poor.
12. To sensitize people about the aims and objectives of the Legal Services Authorities Act,
1987 and their legal rights.
13. To provide Victim Compensation as per West Bengal Victim Compensation Scheme,
2017.
14. To perform such other functions as the State Authority may, in consultation with the
Central Authority, prescribe by regulations