Answer 1

i.
Joey Entertainment Co. Ltd (“JEL”) could revert to non-adversary options like negotiation,
mediation, and conciliation which provides flexibility and control of timeline, terms by the
parties for the dispute arising out of a contractual agreement as opposed to litigation which is
an expensive, time-consuming process leading to delayed disposal of justice while ensuring
privacy and confidentiality.

Arbitration (No)
Arbitration is a dispute mechanism by which an arbitrator(s) on agreement of parties come up
with a binding decision to be followed by the disputed parties, thereby making the mechanism
adversarial in nature. Arbitration, in the present case shall appear to be more imposing since its
arbitrator driven. Given the facts that both, JEL and Bing Pvt. Ltd (“BPL)” are open to
communication, arbitration will not be the most appropriate ADR forum for resolution for
them.

Negotiation (No)
Negotiation is a form of direct or indirect communication, for the purpose of persuasion,
between two or more parties. In the present case, a facilitator seems necessary to guide the
conversation between the parties to an outcome, that negotiation cannot help reach.

Mediation (No) or Conciliation (Yes)

Adopting Conciliation as a mechanism for dispute resolution permits parties to amicably
resolve disputes in an economical manner and simultaneously also preserving relationships
ensuring an agreement at the end of such mechanism conclusion Therefore, I would suggest
JEL to resort to Conciliation as a dispute resolution process for solving their grievance.

All mechanisms aforementioned are closely interrelated and largely stem from the ‘pre-eminent
mode of dispute resolution’, negotiation. However, Conciliation1 is the best suited due to the
involvement of a neutral third party with the paramountcy of the parties’ right of self-
determination.

At the face of it, conciliation and mediation appear to be identical but the role of the third party
involved varies. In mediation, the mediator acts as a facilitator who helps parties reach an
agreement but cannot compel them to make a particular decision. Conversely, a Conciliator
acts as a facilitator, evaluator and interventionist, thereby having an active role, providing the
parties with probable solutions. With the parties knowing their interests in this transaction
given their prior communications concerning “Moo point”, an interventionist is necessary to
guide them with suggestions to reach a Settlement agreement, and executable a decree in court.
Contrastingly, mediation would only lead to an agreement between the parties enforceable by
law.

In conciliation, parties are themselves accountable for their own decisions and responsible for
the terms of any settlement that may be agreed. As parties control the outcome of the dispute
subject to a certain amount of intervention, it provides for a win-win solution thereby

1
One of the Alternative Dispute Resolution methods contemplated under Section 89 of the CPC.
improving the relationship between disputing parties. It is also a cost-efficient procedure as
there is no court fee.

ii. b.

The following would be a Multi-Tiered Dispute Resolution clause between Joey Entertainment
Co. Ltd and Bing Pvt. Ltd. using mediation and arbitration as the ADR forums:

Multi-Tiered Dispute Resolution

The Bombay High Court Mediation Rules of the Mumbai Centre for International Arbitration,
in effect on the date the request for mediation was made in accordance with these Rules, shall
apply to any disagreement, controversy, or claim arising out of or in relation to this contract,
including its validity, invalidity, breach, or termination.

The seat of the mediation shall be Mumbai in India, although the meetings may be held in
Delhi, Bangalore, Kolkata, Hyderabad or in any other city in India as mutually agreed in writing
by both parties. It is provided, that the mediation shall be conducted in English.

It will be arbitrated in accordance with the Bombay High Court Mediation Rules of the Mumbai
Centre for International Arbitration Centre in effect on the date the Notice of Arbitration was
submitted in conjunction with those Rules if the dispute, controversy, or claim has not been
fully resolved by mediation within 45 days from the date the mediator has been confirmed or
appointed by the Mumbai Centre for International Arbitration.

The number of arbitrators shall be 3.

The seat of the arbitration shall be Mumbai in India, although the meetings may be held in
Delhi, Bangalore, Kolkata, Hyderabad or in any other city in India as mutually agreed in writing
by both parties

It is provided, that the arbitration shall be conducted in English.

iii. b.

Under the given circumstances, there are two types of interim relief that are usually sought.
The relevant sections for the same are Section 9(ii) and Section 17 of the Arbitration and
Conciliation Act, 1996 (“Act”) . The former states the interim reliefs that can be ordered by the
Court i.e. “ party may, before or during arbitral proceedings or at any time after the making
of the arbitral award but before it is enforced in accordance with Section 36, apply to a court-
(d) interim injunction; or (e) any such other interim measure of protection as may appear to
the court to be just and convenient, and the Court shall have the same power for making orders
as it has for the purpose of, and in relation to, any proceedings before it”. The latter refers to
the relief that can be granted via the Arbitral Tribunal i.e., “the arbitral tribunal may, at the
request of a party, order a party to take any interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject-matter of the dispute”. However,
Section 17 would not be applicable in the present case because it’s a premature dispute and the
arbitral tribunal is not functional yet.2 It is pertinent the note that Section 9(3) of the Act does

2
Hero Wind Energy Private Limited v. Inox Renewables Limited (Del HC, 2020).
away with the jurisdiction of the Court concerning interim measures in specific from the
moment the Arbitral Tribunal is constituted.

Therefore, by placing reliance on several cases concerning Section 9 of the Act, the procedures
through which Interim relief in this situation can be sought from the Court can be ascertained.

In Sundaram Finance Limited3, the Court held that the terms “before or during the arbitral
proceedings”, should be construed literally, thereby, proving the courts with the power and
authority to pass interim orders before the commencement of arbitral proceedings.
Furthermore, in the Avanta holding4, the court held that Section 9(3) of the Act forbids the
Court from grant of interim measures upon the constitution of the arbitral tribunal. It adds that
Court cannot also, usurp the jurisdiction which would fall within the ambit of an Arbitrator to
Arbitral Tribunal to such proceedings. As the court notes, this is to ensure that forum shopping
is prevented by the parties for obtaining interim relief from courts as opposed to an Arbitrator
or Arbitral Tribunal.

Keeping the aforementioned in mind, JEL can seek an interim relief under Section 9 of the Act
to restrict BPL from using ‘Moo point’ TM for any other product except bicycle locks. This is
the appropriate remedy based on the available facts which imply that arbitration has not been
instituted. Additionally, Section 17 of the Act cannot be invoked as stated above. Furthermore,
since the remedy sought under Section 9 would not make the remedy under Section 17
inefficacious, this is the proper recourse given the current factual matrix.

3
Sundaram Finance Limited Ltd. v. NEPC India ltd. (1999) Appeal (civil) 141-143 of 1999.
4
Avantha Holdings Limited v. Vistra ITCL India Limited (Del HC, 2020).
PART B

Answer 4

a.

Evolution of Conciliation
Conciliation as a mode of dispute settlement does not date back to pre-independence like the
Arbitration Act, 1940.

Conciliation was first recognised under Part III of the Arbitration and Conciliation Act, 19965
(“Act”) with the purpose to ensure speedier disposal of cases via an informal medium of dispute
resolution mechanism. This was developed by referring to the UNCITRAL Conciliation
Rules.6 Since, the Act fails to define Conciliation, IL0 (1983) is referred.7 In 2006, Conciliation
was mandated for disputes8 falling under Section 17 of the Micro, Small and Medium
Enterprises Development (MSME) Act, 2006.

However, it is apposite to note that a similar nature of proceedings (subject to limited

adjudicatory rights to the judges) to conciliation existed under the Legal Services Authorities
Act, 1987 which involved non-determination of the rights of parties.

Conciliation is a dispute resolution mechanism through which a neutral party acts as a

facilitator, evaluator and interventionist persuading parties to reach a Settlement agreement.
Conciliation under the Act is not bound by either the Civil Procedure Code or the Evidence
Act, 1972 as mentioned in Section 66. However, the agreement derived from conciliation is
executable as a decree of a civil court, thereby serving as an effective mechanism of dispute
resolution.

Nature and Scope of Conciliation’s Settlement Agreement: Section 73 and 74 of the Act
In Haresh Dayaram9 the court held that a settlement agreement can reach finality only after
both the parties in the dispute have agreed and signed to the observations and recommendations
following the clauses under Section 73 of the Act, thereby making it final and binding after due
authentication of such settlement agreement. The court added that such agreement shall hold a
status similar to that of an arbitral award as mentioned under Section 74 of the Act.

b.

Minimal judicial intervention is one of the most important aspects of successful arbitration.
The rationale behind this aspect is when parties consented to solve their dispute by the way of
ADR rather than the courts then courts should not intervene in the proceeding of arbitration as
it is against the party's autonomy. Avoiding any kind of judicial intervention is the general rule.

5
Section 61 to Section 81 of the Arbitration and Conciliation Act, 1996.
6
Dealing with assisting the disputes, settlement proposals, formulating and reformulating the terms.
7
“the practice by which the service of a neutral third party are used in a dispute as a means of helping the
disputing parties to reduce the extent of their difference and to arrive at an amicable settlement or agreed solution.
It is the process of orderly or rational discussion under the guidance of the conciliator”.
8
Section 18 of the Micro, Small and Medium Enterprises Development (MSME) Act, 2006.
9
Haresh Dayaram Thakur v. State of Maharashtra, AIR 2000 SC 2281.
Judicial non-intervention is codified in Section 5 of the Arbitration and Conciliation Act, 1996
(“Act”.) which stipulates that the courts will not intervene unless the Act expressly authorized
it. Section 8 of the Act also talks about the restriction of judicial intervention in arbitration.
Despite these Sections in the Act, the court has crafted certain exceptions for intervention in
arbitral proceedings. Exceptions are about the extent of intervention in the (a) ‘arbitrability of
the subject matter’ and ‘competence of tribunals to deal with it’.

Before the 2015 amendments, the power of the court was widespread under Section 8 regarding
refusing referral to an arbitral tribunal. After the amendments of 2015, the court’s scope of
intervention has reduced. In Pravin Electricals10, the Court clarified that its ambit is to just
check the prima facie arbitration agreement between the parties and not judge the case on its
merits and the arbitral tribunal is the final authority to check the details. A similar principle is
used in Emaar11.

The amendments to Section 8 limit the scope of judicial intervention and specify that "when
an arbitration agreement is part of the facts" in a case before a judicial authority, the parties
should be directed to arbitration. The Act is structured in such a way that judicial intervention
is minimised and corporate conflicts are resolved through arbitration. Additionally, this helps
to save time in the courtroom and facilitates the amicable resolution of conflicts, thereby
satisfying the objective of the Act of providing speedier justice.

Lastly, there exist several precedents which have permitted judicial intervention to the extent
that it violates public policy12 and the award made was perverse or unreasonable13, or based on
no evidence or ignorance or crucial evidence applying Section 34 of the Act.14

10
Galaxy Infra And Engineering Pvt. v. Pravin Electricals Pvt. Ltd, CIVIL APPEAL NO. 825 OF 2021.
11
Emaar MGF Land Ltd. v. Aftaab Singh, (2018) SC 277.
12
Renusagar Power Co. Ltd v. General Electric, [1987] 3 SCR 858; Ssangyong Engineering & Construction Co.
Ltd. v. National Highway Authority of India, Civil Appeal No. 4779 of 2019.
13
Oil & Natural Gas Corp. Ltd v. Western Geco International Ltd, (2014) 9 SCC 263.
14
Associate Builders v. Delhi Development Authority, 2014 SCC OnLine SC 937 .
Answer 5

Introduction
Arbitration was intended to be used as a substitute for conventional court proceedings in a
number of contexts. However, it grew complex and expensive over a long period of time.15

During the onset of the COVID-19 epidemic, ODR has emerged and evolved into a more
refined and practical approach that has aided in easing the strain on the judicial system of the
country.

Online Dispute Resolution (ODR)

ODR is basically the resolution of disputes using modern technology with the help of
Alternative dispute resolution (ADR). 16 ODR worked as a primary means of access to justice
during COVID-19. It was cost-effective, convenient and speedy dispute resolution occurred,
and this became a more business-friendly way of ADR.

Lok Adalats

In contemporary India, Lok Adalat is seen as a way of gaining access to justice.

Lok Adalats are a form of alternative dispute resolution that comprises a venue for resolving
and peacefully conceding conflicts awaiting judgment from a court of law or even before the
commencement of the litigation process. Lok Adalat's foremost distinguishing characteristics
is that it seeks to deliver free and skilled legal aid and education to the underprivileged and
people from economically weaker sections of the society who are unable to bear the expenses
of employing legal counsel as well as any additional court-related expenditure.

Lok Adalats, as an ADR mechanism, have been afforded legal status after being codified in
the 1987 Legal Services Authorities Act. Any decision delivered by a Lok Adalat is legally
enforceable on all stakeholders in the dispute and is regarded to be the equivalent of a civil
dispute’s verdict in accordance with that legislation.17 The principle behind the Lok Adalat’s
pro-bono services is enshrined within Article 39-A of the Constitution of India. This provides
for ‘equal justice and free legal aid’ to the poor and weaker sections of society. It essentially
codifies the fact that the function of the legal system is to foster the rule of law, on the premise
of equality and justice. To achieve these goals the government endeavours to extend free legal
aid, by enacting appropriate laws as well as arrangements to make sure that options to
guarantee justice are not neglected.

Analysis
The challenges to ODR and Lok Adalat during and post-COVID-19 cannot be sneezed at.

Assuming that the prerequisites for the functioning of ODR are readily available to and
affordable by all is a biased stretch. Even in cases where such luxuries are in access, chances

15
Department of Justice, ‘Online Dispute Resolution Through Mediation, Arbitration, Conciliation, etc.’
https://doj.gov.in/page/onlinedispute-resolution-through-mediation-arbitration-conciliation-etc.
16
Richard Susskind, Online Courts, and the Future of Justice (OUP 2019) 61.
17
Section 21, 22 of the Legal Services Authorities Act, 1987; K.N. Govindan Kutty Menon v. C.D. Shaji, 2012 (1)
CTC 96.
are that there is little to no knowledge regarding the employment and operation of such
technology.

(i) Digital Literacy

As a precondition, ODR demands a basic level of digital literacy. In India, digital literacy varies
widely by age, ethnicity, and location. This digital divide must be bridged in order for ODR to
be adopted by the entire society and not just metropolitan areas, which shall subsequently build
confidence in ODR.18

(ii) Digital infrastructure

Widespread adoption of ODR will necessitate the installation of critical technical infrastructure
throughout the country ensuring privacy and data protection. For instance, in remote areas due
to a lack of internet facilities justice will be difficult to be served.

However, if ODR is used in the Lok Adalat, physical and logistical barriers will no longer be
barriers but satisfy the purpose of Lok Adalat to uphold the principle, ‘equal justice and free
legal aid’. Therefore, it will be critical for the judicial system and the administration to
collaborate on these technologies and embrace them for general community utilization to
ensure that Lok Adalat’s purpose is met. 19

18
Ibid.
19
ODR: The Future of Dispute Resolution in India, Vidhi Centre for Legal Policy (2020)