1.

1 REVIEW OF LITERATURE

Sukumar Ray, 2012, Alternative Dispute Resolution along with the Gram
Nyayalayas Act , Eastern Law House Calcutta, 2012. This author is Additional District and
Sessions Judge, Darjeeling. He has written a general book on Alternate Dispute
Resolution covering various Indian enactments. The book contains seventeen chapters
such as Arbitration, Conciliation, Mediation, Alternative Dispute Resolution under
CPC, Pre bargaining under Cr.P.C, Mini Trail, Gram Nayalayas Act, 2008 and others.
Since it is a general one, one cannot expect more specific and specialized information
relating to the efficacy of Arbitration in India. However, certain points discussed by the
author is note worthy. For example, he is covering the historical perspective right from
the Vedic era up to the British era. He traces the evolution of Arbitration System from
the 1859 code upto enactment of Arbitration Act, 1940.
However the author did not discuss the developments of Arbitrations taken place
in the International arena. The author compares 1940 Act and 1996 Act relating to
Arbitration and Conciliation in India. He also talks about the advantages of Adhoc
Arbitration and Institutional Arbitration. He rightly points out that the institutional
Arbitrational is more advantageous than the adhoc one. The researcher also agrees with the
afore stated view of the author. The author stresses upon the importance of simplified,
less technical, Complex free arbitration system as opined by the SupremeCourt of India
in the case of Food Corporation of India Vs Joginderpal Mohinderpal, AIR 1989 SC
1263. The author also talks about the exorbitant cost incurred by the parties when the
retired Judges are appointed as the Arbitrators, with which the Researcher also strongly
agrees. However, the author did not discuss anything with the improvement of the
efficacy of the Indian Arbitration System.
Krishna Sharma, Corporate Law Group, Momota Oinam, Angshuman Kuashik,
Indian Centre on Democracy , October 2009, Working Papers Number -103,
Development and Practice of Arbitration in India – Has it Evolved as an Effective Legal
Institution available at http://cddrl. Standford.edu. This is a paper prepared for the Law
and Economy in India project at the Centre on Democracy Development and the Rule of
Law - Free Spogli Institute for International Studies, Stanford University. The authors
have done a quite good job, they have conducted an empirical study relating to the
efficacy of Arbitration in India. This paper consists of three parts. The second one and
the third one is quite relevant to the subject matter of this research.
The Authors are rightly pointing out that unfortunately the Adhoc Arbitration
system is more prevalent in India rather than the Institutional Arbitration . They clearly
point out the comparative advantage as well as the cost advantage available with the
Institutional Arbitration system in India. For example, the availability of clear cut
standards, procedures, infrastructural facility, professional expertise, availability of well
trained and specialized Arbitrators and the fixed and transparent cost can be stated to be
the best advantage of an Institutional Arbitration System which is completely lacking in the
Adhoc Arbitration System. They point out the reason trends which indicate the
development of Institutional Arbitration System in India. The Authors are naming few
Institutions who are well recognized in this field. For example, ICA, ICADR, FICCI.
The paper specifically concentrates mainly on two types of specific Arbitration relating
to specific industries such as construction industries and IT industries. They nicely point
out, how the Supreme Court has eroded the none intervention class in the Arbitration &
Conciliation Act, 1996 in the ONGC case by giving wider interpretation to the Public
Policy . They also strongly criticize the practices followed by the Chief Justices under
Sec 11 of the Arbitration & Conciliation Act, 1996 in appointing the retired Judges as
the Arbitrators and the frequent adjournments grantedby the afore stated Arbitrators.
They clearly point out that how this practice has totally defeated the twin objectives of
the Arbitration Act i.e., cheap and quicker remedy as envisaged in this Act. They rightly
advocate the mind set in India should change otherwise it is not possible to improve the
efficacy of the Arbitration System in India.
The researcher strongly agrees with the above stated points of the authors. On
the same time, the researcher would like to point out that this paper focuses only upon
Commercial Arbitration, which will support only for the cause of Corporate and
Business community and will do nothing for the common man to get speedy and quality
Justice.
Ali Yesilimark - Provisional Measures in International Commercial Arbitration,
2006 - Published by Kluwer Law Internationals, Netherlands. The author has done his
Doctoral thesis in the area of Provisional Measures in International Commercial
Arbitration and published the same with a slight amendment of a book. This book
contains 4 Parts. Part 2 of the book is quite relevant to the subject matter of this
research. Of course, this author studies exclusory confined only to the International
Arbitration Tribunals in particular and International organs using ADR techniques in
general. The author explains what are all the provisional measures which can be granted
by a International Arbitration Institutions. For example, reservation of evidence,
production of certain documents, directing the parties to deposit the cost. However the
author makes it very clear in certain situations that it is really very difficult for any
International Arbitration Institutions to enforce its own provisional measures or interim
measures granted by the Tribunal against the parties.
The author rightly points out that International Arbitral institutions should rely
upon / depend upon the National judicial authorities for the enforcement of provisional /
interim measures. The author clearly distinguish the enforcement of interim measures
from the main award or the full award . He makes a thorough analysis of Article 36 of
UNCITRAL Model Law on International Commercial Arbitration and Article 5 of the
Newyork Convention. The author makes a specific reference that only a few national laws
provide mechanism for the enforcement of the provisional’s/ interim measures.
However, it is not to discuss what are the countries / nations which providefor such a
mechanism. The researcher would like to analyze and recommend the Indian Law should
also incorporate such a mechanism for effective enforcement of International
Arbitration Institution.
Faye Fangfei Wang, 2009 - Chandos Publishing (Oxford) Ltd., First Published in
Great Britain. This work of the author is slightest amendment of her Doctoral thesis
titled as Electronic Commercial Transaction a comparative study of International
European Union, US and Chinese Law. This book contains 6 parts. She refers the
difference between the normal commerce and E-commerce, benefits of E-commerce,
advantage of having a cyber court. She prescribes three step models known as secured,
effective and user friendly ICT tools. She relies upon the decisions taken by American
Arbitration Association (AAA) & American Bar Association (ABA). She compares the
ODR and the ADR including cost effectiveness transparency, non adversarial and other
benefits is available in the ODR. She relies upon European Convention and Directorate
2008/52/EC of the European Parliament and the Council of 21 st May 2008 on certain
aspects of Mediation in Civil and Commercial matters, Electronic Commercial
Transactions legislation, UNCITRAL Model Law on International Commercial
Arbitration, 1985.

Aswini K.Bansal - Arbitration and Procedure and Practice - Advocate, Supreme

Court of India and Punjab & Harayana, High Court and Arbitration Consultant,
Published by Lexis Nexis, Butterworths Wadwa. The author happens to be the executive
director for Indian Counsel for Arbitration (ICA) and also Assistant Secretary General to
the FICCI. The rich practical experience which he has acquired by virtue of afore stated
office is highly reflected in this book. He focuses on many technical issues including the
enforcement of Award, Award based on New York Convention, Award which is not
based on New York convention, enforcement of Award under International Commercial
Arbitration, Domestic Award, enforcement of Award under other procedural laws in
Indian system. He also focuses many procedural issues such as cost, interim measures,
security deposits, Limitation Appeals and other judicial remedies. The uniqueness of the
book is that he has made as specific concentration relating to Arbitration in the
Construction Industries in general and CPWD Construction contractors in particular. He
defines what is meant by construction works,

Terminologies associated with the construction works and the stages in the construction
works. He refers following various 10 stages in execution of construction projects. They
are as follows.

a. Handing over of the site by the employer and taking over of the possession of
by the contractor.

b. Appointment of Surveyor, Architect or Engineer.

c. Site surveys, soil testing and completion of reports.

d. Structural Engineering, drawings, bills of materials and documents.

e. Scaffolding.

f. Making available the plant & machinery like excavators, drainage pumps,
power supply systems and Dispute resolution in construction.

g. Procurement of construction materials.

h. Constructions.

i. Testing of inspection Architects / Engineers.

j. Handing over the project.

The author specifically refers relating to the relationship between the Indian
Contract Act, 1872 and the Arbitration Conciliation Act, 1996. For example, he refers
the application of following provisions of Indian Contract Act for the arbitration
proceedings in the construction projects. They are as following: Section 39, Section 41,
Sections 55-60, Section 73 and others. The author clearly divides the three stages of
arbitration which is followed in the construction works. They are Firstly, Settlement by
competent authority, the competent authority shall consist of the sole Arbitrator above
the Rank of Engineer, the competent authority should provide the decision within the 45
days, dissatisfied parties are free to approach the competent Court, Secondly, the
decision can be appealed to the appellant body known as Standing Committee Experts,
comprising of 3 members 1. Officer above the rank of Additional Secretary to the State

Government, 2. At the rank of Chief Secretary, 3. Non official member should be

appointed by the employer from the panel of experts maintained for this purpose. This
committee should give its decision within 90 days, if dissatisfied parties are free to
approach the competent Court. The 3rd stage is known as Decision Review Board
(DRB). The author traces the evaluation and the development of the concepts of DRB in
the US and the successful application and the adoption at the same process by the world
bank and other international development authorities. The author points out the slow
acceptance and the reluctance shown by the enterprises and entities in India. However,
he points out the successful implementation of DRB by the National Development
Highway Authority and the Mumbai Sewerage Board in their appropriate projects. He says
that only 0.5 % of cost is involved in this process comparing with normal litigation
process. The researcher feels it is a welcomeable trend, but this practice should be
disseminated and followed across the sectors as various Industries in India.

R.D.Rajan - A premier on Alternative Dispute Resolution - Barathi Law Publications,

Tirunelveli, 2005. This book is dealing with general Alternative Dispute Resolution
ADR. However, the author throws light on two important features of Alternate Dispute
Resolution which is note worthy. They are one, he emphasizes employment of
Alternative Dispute Resolution techniques, resolution of the dispute relating to health
care industries. He strongly advises the application of the principles of Arbitration and
Mediation in finding amicable solutions for the dispute which is arising or likely to arise
in the Health Care Industries. The author rightly points out that India is an emerging
leader in the field of health care, Pharmaceuticals and related field. However, he does
not provide any specific means or discuss anything especially how the arbitration
proceedings are held in health care industries, like the researcher, who has already
discussed relating to the Construction Industries. The author is expressing his optimistic
views and the development of Alternative Dispute Resolution in general and Arbitration
in particular. He provides the following reasons for that he suggest the high economic
growth, on line dispute resolution with the advent of Information Communication
Technology (ICT) uniformity with enforcement of UNICTRAL Model Law on
International Commercial Arbitration. However, he did not discuss anything

especially howfar the Arbitration proceedings is successful in resolving the disputes in the
past.
S.K.Chawala, Law of Arbitration Conciliation Practice and Procedure, Eastern
Law House, 2nd Edition 2004. This book is dealing with the entire law relating to
Arbitration and Conciliation and its application, practice and the procedural aspects
prevailing in India. The author also compares the law of Arbitration prevailing in India
and in UK. The author’s contribution relating to the application of decisions rendered
by the UK Courts by the Indian Court in resolving the disputes under the law of
Arbitration is highly note worthy.
The author discusses important cases decided by the Hon’ble Supreme Court of
India relating to the Law of Arbitration, For Example, he cites the decision rendered by
the Hon’ble Supreme Court in the case of Superintendent and Remembrancers of Legal
Affairs, West Bengal Vs. Corporation of Calcutta (7 Judge Bench Case), AIR 1967 SC
997, in this case the Hon’ble Supreme Court has held that though UK Act is different
from the Indian Act, wherever the Indian Act is silent the court can resort to the
decisions rendered by the House of Lords in UK. For the simple reason India is
following a common law principles in general and also the word ‘Law’ in force used in
the Constitution of India will include not only the law which was in force at the time of
the commencement of the Constitution, which have been enacted by the colonial
legislature, but also includes the law enacted by the British Parliament. The Hon’ble
Supreme Court has reiterated the same view in the case of Tarapore & Company Vs.
Cochin Shipyards, AIR 1984 SC 1072. The court has rightly cautioned that whenever
there is patent and latent ambiguity in the Indian Act, the court can resort to the English
decisions. When the act is so clear and unambiguous then intention of legislature should
be ascertained within the four corners of the act. It should be strictly construed as per
the languages used in that.
P C Rao, Secretary - General, International Centre for Alternative Dispute
Resolution, New Delhi and William Sheffield, Judge of the Superior Court of California
(Retd.), California, Alternative Dispute Resolution, What it is and how it works -
Universal Law Publishing Co.Pvt.Ltd, New Delhi - Edition 1997, Reprint

2012. The author also happens to be one of the editor of this reputed compilation work
forwarded by none other than Shri. A.M.Ahmadi, the then Chief Justice of India and the
editor himself has contributed several articles to the book published by one of the most
pioneering institute in the International Centre for Alternative Dispute Resolution known as
ICADR. He has contributed an Article Alternatives to litigation in India. In this article,
the author traces evolution of Alternative Dispute Resolution System in general and in
India in Particular.
The author divides the Alternative Dispute Resolution system in two types
known as adjudicatory and non adjudicatory, the former is binding and the later is non -
binding. He strongly bats for the promotion of Alternative Dispute Resolution system
for the purpose of providing speedy and qualitative justice and to promote access to
justice to all at lesser cost. The author rightly analyse the scope for Arbitration in
various fields such as Civil, Commercial, non performance of contract, Insurance,
Banking , Intellectual Property Rights, Construction, Real Estates , Securities , Family
Affairs, Matrimonial Disputes, Industrial and others. The author rightly point out that
the Alternative Dispute Resolution is not a substitute but surely a supplementary one.
For example, he rightly identifies in the matters relating to Constitution and the
Criminal law that there is no scope for the Alternative Dispute Resolution system.
However in the recent trends, the Criminal law is also adopting this concept. For
example the Lok Adalat have empowered to entertain cases relating to compoundable
offences and cases relating to maintenance under Section 125 of Criminal Procedure
Code . However, this aspect goes beyond the subject matter of the research.
The author strongly points out various advantageous arising out of successful
adoption of Alternative Dispute Resolution system even it is failed, the author states that
it is highly useful to understand each other concerned relating to the dispute. The author
rightly suggests that there are three things which are highly needful for the effective
functioning of Arbitration mechanism in India. They are needed for good law,
infrastructural facility and trained professionals including the lawyers relating to the
first aspect that is good . The author states that the Arbitration & Conciliation Act, 1996
has been placed in the statute book, he terms as a good law. The researcher humbly
defers the opinion of the author and the stand has been timely proved by various
factors that the present Act has miserably failed in fulfilling the aspirations and
expectations of the litigants due to various factors including the excessive intervention
of the courts. That is why, the matter has been referred for the recommendation of the
Law Commission and the NDA Government also acted upon the 176th Law Commission
Report and introduced an amended bill in the Rajya Shaba for the purpose of union
anomalies contained in the Arbitration and Conciliation Act, 1996.

The author has rightly pointed out that the Supreme Court has clearly disfavored
the tribunalisation. Alternative Dispute Resolution is the only supplement to promote
access to the justice as envisaged in the Constitution of India. The Author also points
various schemes relating to the practice of Arbitration by the various Departments of
Central and Public sector Units. The researcher hopes a welcome trend, provided if it is
followed in letter and spirit.
 F.S.Nariman, Arbitration and ADR in India - P C Rao, Secretary - General,
International Centre for Alternative Dispute Resolution, New Delhi and William
Sheffield, Judge of the Superior Court of California (Retd.), California, Alternative
Dispute Resolution, What it is and how it works - Universal Law Publishing
Co.Pvt.Ltd, New Delhi - Edition 1997, Reprint 2012. The author happens to be a great
jurist and a leading lawyer in India. Though the title uses the word ADR, he has given
more and specific focus to the Arbitration in general and International Commercial
Arbitration in particular. He rightly points out that Section 28 of the Indian Contract
Act,1872 specifically exams the Arbitration Proceedings from the Void Agreements.
However, International Commercial Arbitration has not trained women in India even
after the globalization. He points out that lawyers must change the confront testimonial
attitude and promote co-operational attitude. He does not favour the more court
controlled and court structured arbitration. He rightly points out that unless it is done,
there will be prosperity only through the arbitrators and arbitral institutions and not for
arbitration. The researcher strongly agrees with afore stated view of the author. The
author also states that lawyers are needed in the proceedings. The author expresses his
grave concern that in judicial trend in India is not at all favorable for the development of
International Commercial Arbitration. The development of International Commercial
Arbitration is the need of the hour for the promotion of fast economic growth.

The author rightly recalls his experience relating to the Korean and US disputes
destroying the confidence and the good faith and ethical behavior of the Korean
businessman. The author also has rightly stated that the Japanese attitude that they never
prefer lawyers role in the business activities. The author also points out that many of the
third world countries are feeling that arbitration has been post upon them. This attitude
must change. The author strongly condemns the commercial attitude of the lawyers
particularly the tendency of the losing party to ensure that the arbitration awards of the
set aside by the domestic courts if not possible to see that enforcement to getting delay
are avoided. However the author does not speak anything about non commercial
arbitration i.e., need of the hour to promote justice to the common man in the
developing countries.

Milon K. Banerji, Arbitration Versus Litigation - P C Rao, Secretary - General,

International Centre for Alternative Dispute Resolution, New Delhi and William
Sheffield, Judge of the Superior Court of California (Retd.), California, Alternative
Dispute Resolution, What it is and how it works - Universal Law Publishing
Co.Pvt.Ltd, New Delhi - Edition 1997, Reprint 2012. The author happens to be Former
Attorney General of India, has rightly started the opening passage of the article that the title
shall not be treated are constructed as a deformation either side that is arbitration
proceedings or to the judicial proceedings. He emphasizes the relevance of the presence of
the lawyers whether it is in arbitration or in the normal judicial proceedings. He simply
asks one question, what is meant by dispute? It must be construed only in accordance
with the definition contained in the Act and not otherwise. For the purpose of defining
dispute itself requires the lawyers assistance whether it is a consensual based one or an
contentious based one? He divide the disputes into three broad categories which are
exclusively determined by the judiciary disputes which can be determined by the
arbitration and other disputes which can be determined either by the arbitration or by
any other means of settlement. For example, the author points out the questions
involving a nature of public policy cannot be determined by the Arbitrators. He sights
the decisions made by the arbitrations under the Bombay Rent Control Act and set aside
by the Supreme Court on the ground there is a statuary bar. He also cites the Consumer
Protection Act, Rent Control Act, Industrial Dispute under the Industrial Dispute Act,
1947. Cases filed by the Government servant before the Central

Administrative Tribunal, Consumer complaints under Consumer Protection Act,1986

and family disputes are one example of situation where, though the court of law are
wide open and are quite often invoked, it has not always been found to be a satisfactory
means of solving such disputes. However, the author does not suggest anything to
improve the efficacy of the arbitration specifically.

The Researcher has done a thorough Review of Literature, but none of the
authors/ researchers have worked in this direction in which the researcher has carried
out this research.