Arbitration & Mediation Laws

Common questions on Arbitration & Mediation Laws

• What is Arbitration law?
• What is Mediation law?
• How are Arbitration and Mediation different?
• Can meditator become an arbitrator?
• What are laws relating to it in India?

Traditional litigation requires a lot of time and procedural formality to be followed for coming into a conclusion. At times, the person who wins a case realises that he has actually won a pyrrhic victory. That’s why the concept of Alternate Dispute Resolution is gaining prominence. Arbitration and Mediation are two forms of Alternate Dispute Resolution.

• Arbitration in India:

The governing law for Arbitration in India is the Arbitration & Conciliation Act 1996. It is heavily influenced by the UNCITRAL Arbitration Rules 1976 & the 1985 UNICITRAL Model Law on International Commercial Arbitration, provisions of the Indian Oath’s Act 1969 are also attracted.

There are certain features which distinguish arbitration from traditional litigation. Some of the features are-

• Role of the Courts have been minimised, their role is to refer parties to arbitration in presence of an arbitration agreement and for providing interim reliefs, and for the appointment of an arbitrator
• Section 11 of the Arbitration & Conciliation Act, 1996 deals with the appointment of arbitrators and in the case of S.B.P & Co. the Supreme Court held the function under Section 11 to be of a judicial nature.
• ‘Arbitrators are masters of their own procedure’, they have the power of guiding their proceedings in the way they deem fit. Code of Civil Procedure, Evidence Act are not binding on the arbitration proceedings
• Supreme Court in the case of ‘TDM Infrastructure (P) Ltd. v. UE Development India (P) Ltd’ observed that companies incorporated in India have to make Indian law as the principal law of the arbitration proceedings.
• As per the case of Renu Sagar Power Co. Ltd v. General Electric Co., an award which is contrary to the public policy of India cannot be enforced in India and can be set aside.

• Mediation in India:
• Mediation if a type of ADR mechanism which is spoken of in Section 89 of the Code of Civil Procedure, 1908 as well.
• Procedures for mediation are to be the ones that are prescribed by the Court
• Confidentiality is upheld in Mediation proceedings
• Mediator, unlike an arbitrator, does not have the powers of giving a binding decision on the parties involved in the dispute.
• Mediation completes with an agreement between the concerned parties
• Mediation refers to interactive procedure of apt negotiation techniques being involved with the aim of assisting the parties at concluding to the best solution for their dispute.