Dr Shakuntala Misra National Rehabilitation University, Lucknow

Faculty of Law

(Alternative Dispute Resolution)

Assignment
“Alternative Dispute Resolution (An Overview)”

By :
Shailesh kumar
8th semester
Roll no:164140060

Under the guidance of:

Shambhavi ma’am

INDEX
 S.NO TITLE PA TEACHER’S
. GE SIGN.
NO.
1 Introduction 1
2 Types of ADR 2
3 Composition of Arbitral 3
Tribunal
4 Composition (with sections) 5
5 Conduct of Arbitral Proceedings 6-8
6 Bibliography 9
7
8
9
10

Acknowledgement

This project is as result of dedicated effort. It gives me immense pleasure to prepare this project report
on “Alternative Dispute Resolution (An Overview)”
I Would like to thank our project guide Shambhavi ma’am for consultative help and constructive
suggestion on the matter in this project . I would like to thanks our parents and our colleagues who
have helped me in making this project a successful one.

Thanks

Introduction

Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation, such as
arbitration, mediation, or negotiation. ADR procedures are usually less costly and more expeditious.
They are increasingly being utilized in disputes that would otherwise result in litigation, including
high-profile labor disputes, divorce actions, and personal injury claims.

One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation,
ADR procedures are often collaborative and allow the parties to understand each other's positions.
ADR also allows the parties to come up with more creative solutions that a court may not be legally
allowed to impose.

Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide
range of dispute resolution processes and techniques that act as a means for disagreeing parties to
come to an agreement short of litigation: a collective term for the ways that parties can settle disputes,
with the help of a third party. However, ADR is also increasingly being adopted as a tool to help settle
disputes alongside the court system itself.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained
widespread acceptance among both the general public and the legal profession in recent years. In fact,
some courts now require some parties to resort to ADR of some type, usually mediation, before
permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly
contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that
settlement must be reached through mediation).Additionally, parties to merger and acquisition
transactions are increasingly turning to ADR to resolve post-acquisition disputes.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the
perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the
desire of some parties to have greater control over the selection of the individual or individuals who
will decide their dispute.Some of the senior judiciary in certain jurisdictions (of which England and
Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.Since the 1990s
many American courts have also increasingly advocated for the use of ADR to settle disputes.
However, it is not clear as to whether litigants can properly identify and then use the ADR
programmes available to them, thereby potentially limiting their effectiveness.

An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an
arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award' even where
all of the claimant's claims fail (and thus no money needs to be paid by either party), or the award is of
a non-monetary nature.

Advantage

 Suitable for multi-party disputes

 Lower costs, in many cases it's free when involving consumers
 Likelihood and speed of settlements
 Flexibility of process
 Parties' control of process
 Parties' choice of forum
 Practical solutions
 Wider range of issues can be considered
 Shared future interests may be protected
 Confidentiality
Types of Alternative Dispute Resolution

There are several types of alternative dispute resolution methods, and each process has its advantages.
Some are court ordered, and not all require the presence of attorney. However, many parties still opt to
have their attorney represent them at ADR proceedings. Some alternative dispute resolution methods
are binding, meaning that the parties cannot ignore the ruling based on whether or not they agree with
decision.

Some types of alternative dispute resolution are case evaluation, collaborative law, divorce coaching,
and private judging. The two most common types are arbitration and mediation, both of which can be
broken down further into different variations:

Arbitration: Arbitration utilizes the help of a neutral third party, and is similar to an informal trial.
After hearing each side, the third party issues a decision that the disputing parties may have agreed to
be binding or non-binding. When binding, the decision can be enforced by a court and is considered
final. Although the arbiter is an active facilitator and will pronounce a decision, the arbitration process
is still less formal than an outright trial due to many of the rules of evidence not applying;

Mediation: Mediation and arbitration are incredibly similar. One of the main differences is that a
mediator, or impartial third party, cannot force the parties to agree and is not allowed to decide the
outcome of the dispute. The mediator works with the parties to come to a solution that is made
mutually, and the agreements are generally non-binding. Courts can mandate that mediation be
required, but the process itself is still voluntary, therefore allowing the parties to refuse to come to an
agreement. While in mediation, the parties maintain significant control over the process. Mediation is
completely confidential and, since it is non-binding, parties retain the right to pursue litigation
following the mediation process;

Med-Arb: This form of ADR in one in which the arbiter starts as a mediator, but, should the
mediation fail, the arbiter will impose a binding decision. Med-arb is a mixture of mediation and
arbitration that pulls from the benefits of the two;

Mini Trial: A mini trial is not so much a trial as it is a settlement process. Each party presents their
highly summarized case. At the end of the mini trial, the representatives attempt to settle the issue. If
they cannot, an impartial advisor can act as a mediator, or declare a non-binding opinion regarding the
likely outcome of the issue going to trial. Mini trial is a unique ADR method, as it often comes after
formal litigation, as opposed to before;

Summary Jury Trial (SJT): An SJT is similar to a mini trial. However, the case is presented to a
mock jury. The mock jury produces an advisory verdict. Additionally, it is order by the court rather
than the parties. After the hearing the verdict, the court usually requires the parties to at least attempt
to settle before litigation.

Negotiation: This form of ADR is often overlooked because of how obvious it is. In negotiation,
there is no impartial third party to assist the parties in their negotiation, so the parties work together to
come to a compromise. The parties may choose to be represented by their attorneys during
negotiations.

Composition of Arbitral Tribunal

An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicators which is convened
and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there
may be two or more arbitrators, which might include either a chairman or an umpire. Members
selected to serve on the tribunal are typically professionals with expertise in law and mediation,
although some scholars have suggested that the ideal composition of an arbitral tribunal should include
at least one economist, particularly in cases that involve questions of asset or damages valuation.

The parties to a dispute are usually free to determine the number and composition of the arbitral
tribunal. In some legal systems, an arbitration clause which provides for two arbitrators (or any other
even number) is understood to imply that the appointed arbitrators will select an additional arbitrator
as a chairman of the tribunal, to avoid deadlock arising. Different legal systems differ as to how many
arbitrators should constitute the tribunal if there is no agreement.

Appointment

The parties are generally free to determine their own procedure for appointing the arbitrator or
arbitrators, including the procedure for the selection of an umpire or chairman. If the parties decline to
specify the mode for selecting the arbitrators, then the relevant legal system will usually provide a
default selection process. Appointments will usually be made on the following basis:

 If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not
later than 28 days after service of a request in writing by either party to do so.
 If the tribunal is to consist of three arbitrators:
 Each party shall appoint one arbitrator not later than 14 days after service of a request in
writing by either party to do so, and
 The two so appointed shall forthwith appoint a third arbitrator as the chairman of the
tribunal.
 If the tribunal is to consist of two arbitrators and an umpire-
 each party shall appoint one arbitrator not later than 14 days after service of a request in
writing by either party to do so.
 The two so appointed may appoint an umpire at any time after they themselves are
appointed and shall do so before any substantive hearing or forthwith if they cannot
agree on a matter relating to the arbitration.

COMPETENCE OF ARBITRAL TRIBUNAL TO MAKE A BINDING DECISION ON

ITS OWN JURISDICTION

There was no provision under the Arbitration Act of 1940 which allowed the Arbitral

Tribunal to make a decision on its own jurisdiction and it was the job of the court to decide

on the jurisdiction of the arbitral tribunal. But under Section 16 of the Arbitration and

Conciliation Act, 1996 the Arbitral Tribunal has been granted the power to make a ruling on

its own jurisdiction. Section 16 (1) of the Arbitration and Conciliation Act states that the

Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objection with

respect to the existence or validity of the arbitration agreement.

Section 16 of the Arbitration and Conciliation Act incorporates the principle of competence. It has two
aspects:

 the tribunal may decide on its jurisdiction without support from the courts
 the courts are prevented from determining this issue before the tribunal has made a
determination on this issue.

But does this determination by the Arbitral Tribunal have a binding effect? Can it not be
challenged in courts?

In the case of Union of India vs. M/s. East Coast Boat Builders & Engineers Ltd. It was

stated:

“From the scheme of the Act it is apparent that the legislature did not provide appeal against

the order under section 16(5) where the arbitral tribunal takes a decision rejecting the plea

that the arbitral tribunal has no jurisdiction. The intention appears to be that in such case, the

arbitral tribunal shall continue with the arbitral proceedings and make an award without delay

and without being interfered in the arbitral process at that stage by any court in their

supervisory role."

In the case of Nav Sansad Vihar Coop. Group Housing Society Ltd. (Regd.) vs. Ram Sharma

and Associates, it was stated that if a plea is rejected by the Arbitral Tribunal under section

16(5) of the Arbitration and Conciliation Act the arbitral proceedings shall continue, an

award shall be given and the aggrieved party shall have to wait till the giving out of the award

and there is no separate remedy against such order.But under section 37(2) of the Arbitration

and Conciliation Act a decision of the tribunal accepting the plea that it does not have

jurisdiction or is exceeding its scope of authority is appealable. In the case of Pharmaceutical

Products of India Ltd. vs. Tata Finance Ltd. it was stated:

“Where the Arbitral Tribunal decides to reject the plea regarding its jurisdiction, sub-section (5)
clearly empowers the Tribunal to continue with the arbitral proceedings and make an arbitral award.
Sub-section provides for the manner in which such an arbitral award may be challenged. It provides
that such an award can only be challenged in accordance with section 34.

Composition.

Section 12.Number of arbitrators

The parties are free to determine the number of arbitrators. Failing such determination, the number of
arbitrators shall be three.

Section 13.Appointment of arbitrators

The arbitrators shall be impartial and independent of the parties and shall be qualified for the office.

The parties shall if possible appoint the arbitrators jointly.

If the arbitral tribunal is to comprise three arbitrators and the parties fail to agree on its composition,
each party shall appoint one arbitrator. The time-limit for making the appointment shall be one month
after the party received the request to appoint an arbitrator. The two arbitrators thus appointed shall
within one month jointly appoint the third arbitrator who shall act as chairman of the arbitral tribunal.

If the arbitral tribunal cannot be established pursuant to the agreement or subsections 2 or 3, each of
the parties may ask the court to appoint the remaining arbitrator or arbitrators. Such appointment shall
not be subject to any appeal.

Section 14.Grounds for challenge of arbitrators

When a person is approached in connection with his possible appointment as an arbitrator, he shall of
his own accord disclose any circumstances likely to give rise to justifiable doubts about his
impartiality or independence. From the time of his appointment and throughout the arbitral
proceedings, an arbitrator shall immediately disclose any new such circumstances to the parties.

An arbitrator may only be challenged if there are circumstances that give rise to justifiable doubts
about his impartiality or independence or if he does not possess the qualifications agreed on by the
parties. A party may challenge an arbitrator in whose appointment he has participated only for reasons
of which he became aware after the appointment was made.

Section 15.Challenge procedure

Unless the parties have agreed to a different procedure, a challenge of an arbitrator shall state the
reasons for the challenge and shall be submitted in writing to the arbitral tribunal within fifteen days
after the party became aware of the appointment of the arbitrator and the circumstances on which the
challenge is based. Unless the challenged arbitrator withdraws from his office or the other party agrees
to the challenge, the arbitral tribunal shall decide on the challenge.

If a challenge is unsuccessful and the parties have not agreed to a different procedure, the challenging
party may bring the issue before the courts within one month after he received notice of the decision
rejecting the challenge. The court shall determine the issue by way of interlocutory order. The
interlocutory order shall not be subject to appeal. The challenge may not subsequently be invoked as
grounds for invalidity or an objection to recognition and enforcement of the award. While such issue is
pending before the courts, the arbitral tribunal, including the challenged arbitrator, may continue the
arbitral proceedings and make an award.

Section 16.Failure by an arbitrator to perform his functions

If an arbitrator becomes de jure or de facto unable to perform his functions or if an arbitrator for other
reasons fails to act without undue delay, his mandate shall terminate if he withdraws from his office or
if the parties agree on the termination. Otherwise, any party may ask the courts to decide by way of
interlocutory order whether the mandate shall terminate for one of the said reasons. The interlocutory
order shall not be subject to appeal.

The withdrawal by an arbitrator from his office or an agreement between the parties to terminate the
mandate pursuant to subsection 1 or section 15 subsection 1 shall not imply acceptance of the validity
of any challenge pursuant to subsection 1 or section 14 subsection 2.

Section 17.Appointment of substitute arbitrator

Where the mandate of an arbitrator terminates pursuant to sections 15 or 16 or because of his

withdrawal from office for any other reason or because of the revocation of his mandate by agreement
of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the arbitrator to be
replaced.

If a substitute arbitrator is appointed, all previous arbitral proceedings that form part of the basis for
the ruling in the case shall be repeated.

Conduct of arbitral proceedings

Section 20.Equal treatment of the parties

The parties shall be treated equally at all stages of the arbitral proceedings and each party shall be
given a full opportunity to present his case.

Section 21.Procedural rules

The arbitral tribunal shall conduct the arbitration in such manner as it considers appropriate within the
limits prescribed in the arbitration agreement and this Act. As soon as it is appointed, the tribunal or
the chairman shall draw up a plan for the further conduct of the case following discussion with the
parties, unless otherwise agreed.

Section 22.The place of arbitration

Failing agreement on the place of arbitration, the arbitral tribunal shall determine the place of
arbitration having regard to the practical conduct of the case, including the prospects for the parties to
participate in oral proceedings.

The place of arbitration, the arbitral tribunal may, unless otherwise agreed between the parties, meet at
any place it considers appropriate to deliberate among its members, to examine witnesses, experts or
parties, or to inspect evidence.

Section 23.Commencement of arbitral proceedings

Unless otherwise agreed between the parties, the arbitral proceedings are deemed to commence on the
date when the respondent received the request for the dispute to be referred to arbitration.

Section 24.Language of the arbitration

Failing agreement on the language of arbitration, the arbitral tribunal shall determine the language of
the arbitration. If the language of the arbitration is Norwegian, the proceedings may also be conducted
in Swedish or Danish. The language of the arbitration shall apply to any written statement by a party,
any oral hearings and any ruling or other communication by the arbitral tribunal.The arbitral tribunal
may order that any documentary evidence shall be accompanied by a translation into the language
agreed on by the parties or determined by the arbitral tribunal.

The parties may contract out of the provisions of subsections 2, 3 and 4.

Section 25.Particulars of claim and reply

The claimant shall submit particulars of claim to the arbitral tribunal within the time-limit agreed
between the parties or determined by the arbitral tribunal. The particulars shall state the claim that is
being made, a prayer for relief which states the outcome the claimant is requesting by way of award,
the factual and legal grounds on which the claim is based and the evidence that will be presented.

The respondent shall submit a reply to the arbitral tribunal within the time-limit agreed between the
parties or determined by the arbitral tribunal. The reply shall state whether the claim is accepted or
contested and whether there are objections to the arbitral tribunal dealing with the case. The reply shall
contain the respondent's prayer for relief which states the outcome the respondent is requesting by way
of award, the factual and legal grounds on which the prayer for relief is based and the evidence that
will be presented. If the respondent is also bringing a claim in respect of which he requests an award,
the provisions on particulars of claim and reply shall apply to such claim.

The parties may contract out of the provisions in subsections 1 and 2 on the requirements of the
particulars of claim and the reply.

Unless otherwise agreed between the parties, either party may bring new claims, broaden the prayer
for relief in respect of existing claims, submit new grounds on which to base such prayer and present
new evidence. At the request of a party, the arbitral tribunal may disallow the amendment if it finds
that it should not be permitted out of regard for the progress of the case or other important
consideration.

Section 26.Oral hearings and written proceedings

The arbitral tribunal shall decide whether to hold oral hearings or whether the case shall be decided on
the basis of written proceedings. A party may request an oral hearing, which hearing shall then be held
at an appropriate stage of the proceedings.

The arbitral tribunal shall give the parties reasonable advance notice of any oral hearing and of any
meeting which the parties are entitled to attend.

All statements, documents and other information supplied to the arbitral tribunal by one party shall at
the same time be communicated to the other parties. If the arbitral tribunal receives material directly
from third parties, it shall immediately send copies to the parties.

The parties may contract out of the provisions of this section, except in consumer relations.

Section 27.Default of a party

The arbitral tribunal shall terminate the arbitral proceedings if the claimant fails without reasonable
cause to submit particulars of claim in accordance with section 25 subsection 1.

The arbitral tribunal shall continue the proceedings if the respondent fails without reasonable cause to
submit a reply in accordance with section 25 subsection 2. Such failure on the part of the respondent
shall not be construed as an admission of the claims submitted by the claimant.

If a party fails without just cause to appear at an arbitral hearing or fails to submit documentary
evidence, the arbitral tribunal may continue the proceedings and make the award on the basis of the
evidence before it.

The parties may contract out of the provisions of this section.

Section 28.Evidence

The parties are responsible for substantiating the case and are entitled to present such evidence as they
wish.The arbitral tribunal may disallow evidence that is obviously irrelevant to the determination of
the case. The arbitral tribunal may limit the presentation of evidence if the extent of such presentation
is unreasonably disproportionate to the importance of the dispute or the relevance of the evidence to
the determination of the case.The parties may contract out of the provisions of this section.

Section 29.Experts

The arbitral tribunal may appoint one or more experts to report to it on specific issues to be determined
by the arbitral tribunal. The arbitral tribunal may require the parties to provide the expert with relevant
information and to produce or provide access to evidence.

If requested by a party or the arbitral tribunal, an expert who has submitted a written report is obliged
to attend an oral hearing where the parties have the opportunity to put questions to him and to present
expert witnesses to testify on the points at issue.

The provisions on challenge of arbitrators in sections 14 and 15 subsection 1 apply correspondingly to

experts appointed by the arbitral tribunal as far as they are appropriate.The parties may contract out of
the provisions of this section.

Section 30.Court assistance in taking evidence

The arbitral tribunal or a party with the consent of the arbitral tribunal may ask the court to take
testimony from parties and witnesses and take other evidence. The arbitral tribunal shall be given
reasonable advance notice of the taking of evidence. The arbitrators are entitled to be present and to
ask questions.Unless otherwise agreed between the parties, an arbitral tribunal that is required to take a
position on the interpretation of the EEA Agreement, including its protocols, annexes and the
legislative acts with which such annexes are concerned, may, of its own accord or at the request of a
party, ask the courts to submit the interpretation issue to the EFTA Court pursuant to the provisions of
section 51 a of the Courts of Justice Act. The courts may seek an advisory opinion from the EFTA
Court on the interpretation of the EEA Agreement.

Bibliography

 https://en.wikipedia.org/wiki/Alternative_dispute_resolution
 https://hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-resolution.html
 http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/jurisdiction_of_arbitral_tribunal.pdf
 https://lovdata.no/dokument/NLE/lov/2004-05-14-25/KAPITTEL_6#KAPITTEL_6