Alternate Dispute Resolution System Notes | LL.B. (Three Years) Semester 4 | SPPU | munotes

Contents

Module 01 Introduction

1. What Alternative Dispute Resolution Is, and Why a Law Student Studies It 1
2. Why ADR Is Needed: International Commitments, Domestic Needs and the Disputes ADR Suits 7
3. The Adversarial and Inquisitorial Methods, and the Other Methods of Dispute Resolution 14
4. Mediation: What It Is, and How It Differs from Conciliation and Arbitration 18
5. The Right to Free Legal Aid: Article 39A and the Cases That Made It Real 24
6. The Legal Services Authorities Act 1987: Its Shape, Its Commencement and Its Definitions 30
7. The National Legal Services Authority and the Supreme Court Committee 36
8. The State Legal Services Authority and the High Court Legal Services Committee 42
9. The District Legal Services Authority and the Taluk Legal Services Committee 47
10. Who Is Entitled to Legal Services, and on What Test 52
11. What 'Legal Services' Actually Means, and How a Person Applies for Them 58
12. Paying for It: Grants, the Three Funds, Accounts and Audit 63
13. Lok Adalats: What They Are, and How One Is Organised 67
14. How a Case Reaches a Lok Adalat: Cognizance, Reference and Pre-Litigation Matters 73
15. The Award of a Lok Adalat: A Decree That Cannot Be Appealed 78
16. The Powers of a Lok Adalat, and the Court Fee That Comes Back 85
17. Permanent Lok Adalats: The Forum for Public Utility Services 90
18. How a Permanent Lok Adalat Decides, and Why It May Decide at All 95
19. Para-Legal Training, Legal Literacy and Legal Services Clinics 102
20. Lok Adalats in Practice: National Lok Adalats, Mobile and Continuous Sittings 108
21. The Rest of the Act: Public Servants, Good Faith, Overriding Effect, Rules and Regulations 113
22. The Legislative and Judicial Sanction for ADR, and Online Dispute Resolution 119
23. Section 89 of the Code of Civil Procedure: How a Court Sends a Case Out to Be Settled 123
24. Pre-Institution Mediation: The One Place Mediation Is Compulsory 130
25. Conciliation in Family Disputes: the Family Courts Act, 1984 and the Hindu Marriage Act, 1955 135
26. Family Courts in Maharashtra: Section 9, Counselling and the Rules 139
27. ADR under the MSMED Act, RERA and the Companies Act 142
28. Conciliation in Industrial Disputes: the Industrial Disputes Act, 1947 and the Industrial Relations Code, 2020 147
29. Mediation under the Act 152

Module 02 Negotiation and Mediation

1. Negotiation: The Skill Underneath Every Other Method 156
2. Styles of Negotiation and Approaches to Negotiation 162
3. The Phases of Negotiation, the Qualities of a Negotiator and the Power to Negotiate 165
4. Models of Mediation and the Code of Conduct for Mediators 169
5. The Mediator: Qualities and Role, and the Essential Characteristics of the Mediation Process 173
6. The Mediation Act 2023: The Whole Scheme, and How Much of It Is Actually in Force 179
7. The Mediation Act 2023: Its Reach, the Mediator and the Proceedings 186
8. Mediated Settlement Agreements, the Mediation Council of India and Mediation Institutions 191

Module 03 Conciliation

1. Conciliation: What It Is, and How Proceedings Begin 196
2. Kinds of Conciliation, and the Conciliator: Qualities, Duties, Role and the Stages of Conciliation 201
3. The Conciliator's Role, and How a Conciliation Is Conducted 206
4. The Settlement Agreement: How It Is Made, and Why It Is as Good as an Award 212
5. Confidentiality, Termination, Costs, and What the Conciliator May Never Do Afterwards 217

Module 04 Arbitration

1. Arbitration: Meaning, Attributes, General Principles and Kinds, and the Qualities of an Arbitrator 223
2. The Advantages and Disadvantages of Arbitration 228
3. Definitions, and How Far Part I Reaches 231
4. Part IA: The Arbitration Council of India, In Force but Not in Existence 237
5. The Arbitration Agreement: What Makes One, and What Breaks One 242
6. Arbitrability: What Cannot Be Sent to Arbitration at All 248
7. Section 8: When a Court Must Send the Parties to Arbitration 253
8. Written Communications, Waiver of the Right to Object, and the Limit on Judicial Intervention 258
9. Deposits, Lien, Death, Insolvency, Jurisdiction, Confidentiality and Limitation 263

Module 05 Structure, Powers and Functions of Arbitral Tribunal

1. How Many Arbitrators, and How They Are Appointed 269
2. Independence and Impartiality: The Fifth and Seventh Schedules 275
3. Challenging an Arbitrator, and What Happens When One Cannot Act 282
4. Section 16: The Tribunal Rules on Its Own Jurisdiction 286
5. Section 17: Interim Measures by the Tribunal, and How They Are Enforced 290
6. Section 9: Interim Measures by the Court, Before, During and After 295

Module 06 Arbitration Proceedings and Award

1. Conducting the Arbitration: Equal Treatment, Procedure, Place, Commencement and Language 300
2. What Law the Tribunal Applies, and How a Panel Decides 305
3. Pleadings, Hearings, and What Happens When a Party Does Not Turn Up 310
4. Experts Appointed by the Tribunal, and Court Assistance in Taking Evidence 315
5. Time Limits for the Award, and the Fast Track Procedure 319
6. Section 30: Settling During an Arbitration, and the Award on Agreed Terms 324
7. The Arbitral Award: Form, Contents, Reasons, Interest and Costs 329
8. Termination of Proceedings, Correction, Interpretation and Additional Awards 334
9. Section 34: Setting Aside an Award, and What 'Public Policy' Now Means 339
10. Finality and Enforcement: Section 36 and the Automatic Stay That Was Abolished 346
11. Section 37: Which Orders Can Be Appealed, and Which Cannot 351
12. Part IV: Rules, Repeals, and the Section the Supreme Court Struck Down 355
13. The Schedules: Grounds of Ineligibility, Fees, and the One That Was Deleted 360

Module 07 International Perspectives and Enforcement of Foreign Awards - International Perspectives

1. The Arbitration and Conciliation Act 1996: Where It Came From and How It Is Built 366
2. Foreign Awards: Why Part II Has Two Chapters, and What a Convention Does 372
3. New York Convention Awards: Definition, Reference to Arbitration, and When an Award Binds 378
4. Section 48: The Grounds for Refusing a Foreign Award, and the Narrow Public Policy Test 383
5. Enforcing a Foreign Award in India: Procedure, Appeals and Savings 390
6. Geneva Convention Awards: The Older Scheme, and Why It Still Sits in the Act 395
7. The India International Arbitration Centre Act 2019 401