• LAWGIC STRATUM

INDIA ENTERS A NEW ERA OF ARBITRATION

Author: Karthik



The use of the Alternative Dispute Resolution method is not new to the people of this country. It's been around for a long time in India. According to legal history, man has experimented with procedures throughout history in order to make obtaining justice easy, cheap, reliable, and convenient. Law is a tool for determining how far a community has progressed in terms of social fairness, public welfare, and the provision of freedom and security from infringing groups.Village level institutions have played a key role, with elders resolving issues through the Village Council, also known as Panchayats, which isan informal type of mediation in which the elders decided any disputes that arose within their village or districts. Disputes rarely reached the courts in the past. Everyone respected the Panchayat's decisions, no matter how erroneous they were.


Dispute settlement outside of the courts is not a new practice; society has used it to settle disagreements for millennia. In today's society, we need to promote and escalate ADR models widely, expand the use of court-connected ADR, and use ADR as a vehicle to achieve purposes other than the resolution of specific disputes.


Given the fact that Indian courts now have a caseload that exceeds their apparent capacity, there is now a massive backlog of cases. Several cases have been filed in Indian courts, and they have been dragged for many years. Additionally, there is a shortage of Judges due to which existing Judges have a heavy load to deal with. As a result of reaching this point, a new resolution called alternative disputes resolution was born.


ADR is a means of settling a disagreement outside of the formal judicial system, and its decision is equivalent to a court judgment. One of the most essential aspects of arbitration is that it believes in sorting out the issues and that it saves us money and time by avoiding judicial battles.


There is no definition of arbitration in any statute. As a result, the definition of arbitration must be determined using legal dictionaries, works by famous jurists, and judicial pronouncements from various jurisdictions. In the case of Collins Vs. Collins[1], Justice John Romilly defined arbitration as "a reference to the decision of one or more persons, either with or without an umpire, of some issue or matters in dispute between the parties."“Referral of a dispute or difference between not less than two parties for determination, after judicially hearing both sides, by a person or persons other than a court of competent jurisdiction,” according to Halsbury's Law of England. Similarly, “arbitration” is defined in Black's Law Dictionary as “An arrangement for taking and abiding by the judgement of selected persons in some disputed matter, rather than carrying to established tribunals of justice, and is intended to avoid the formalities, delay, expense, and vexation of ordinary litigation.”


For the growth of ADR in India, we need a fantastic panel of judges, including international jurists with adequate qualities and experience that we mention for Judges and the basis on which they would be appointed. The arbitrator is allowed to set a uniform standard. In the event of a disagreement, a quality panel will be formed. These must be established in order to provide environmentally responsible economic consumption. If there is a contract between two Indians, two Indian firms, or two international companies, there should be an arbitration agreement between the two parties. If there isany problem between these two parties, they will resolve their issues through arbitration. The importance of a well-drafted arbitration/mediation clause cannot be overstated; if this step is followed, half of the issues are handled shortly after the disagreement arises.


One of the most essential points I'd emphasise is that India should provide foreign certified lawyers an opportunity to represent parties to arbitration in India,because, if there are any disagreements between two countries, we have people from other countries who can arbitrate the dispute, and we don't have to travel to other countries to do so.If disputes are resolved in our own country, there will be less corruption or foreign organisations will be driven to selfishness in order to exploit Indians. This reminds me of a quote by George Bernard Shaw, who said, "When a man wants to murder a tiger, he calls it sport; when a tiger wants to murder him, he calls it ferocity."


To improve on traditional arbitration, we must reform the process such that counsel representing the parties can ask questions tothe experts and experts can ask questions toeach other during the hearings. This reduces the amount of time spent in court, and the specialists assist the courts in resolving disputes in the most efficient manner possible.


If the procedures outlined above are implemented, India will not only have an excess number of cases decreased, but it will also become a centre for arbitration and mediation. The judiciary, as an independent government entity, must assist citizens in addressing the problem of a lack of understanding regarding arbitration in a simple and cost-effective manner.


REFERENCE


1. Brillopedia

2. Lexforti

3. Legal service India

[1] 48 Cal.2d 325


Edited by Sathyanarayanan Iyer .G , Associate editor, Lawgic Stratum.

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