Journal of Alternate Dispute Resolution (JADR) is a quarterly, peer-reviewed digital journal dedicated to the study and research of Alternate Dispute Resolution (ADR) methods. Launched in 2022 and bearing ISSN: 2583-682X, JADR provides a platform for scholarly discussions on ADR techniques and related subjects, with four issues published annually. The primary objective of JADR is to promote research on various ADR modes, such as mediation, arbitration, and conciliation, while also encouraging interdisciplinary studies that relate to dispute resolution. The journal follows a double-blind peer review process and maintains a plagiarism limit of 10% (as per Turnitin), ensuring high standards of academic quality. Though the journal primarily covers ADR practices in India, JADR welcomes submissions from researchers worldwide, as long as their work aligns with the central theme of ADR. Articles are published in English, making the journal accessible to a global audience.
License Terms Ownership and Licensing: Authors of research papers submitted to any journal published by The Law Brigade Publishers retain the copyright of their work while granting the journal specific rights. Authors maintain ownership of the copyright and grant the journal the right of first publication. Simultaneously, authors agree to license their research papers under the Creative Commons Attribution-ShareAlike 4.0 International (CC BY-SA 4.0) License. License Permissions: Under the CC BY-SA 4.0 License, others are permitted to share and adapt the work, even for commercial purposes, provided that appropriate attribution is given to the authors, and acknowledgment is made of the initial publication by The Law Brigade Publishers. This license encourages the broad dissemination and reuse of research papers while ensuring that the original work is properly credited. Additional Distribution Arrangements: Authors are free to enter into separate, non-exclusive contractual arrangements for distributing the published version of the work (e.g., posting it to institutional repositories or publishing it in books), provided that the original publication by The Law Brigade Publishers is acknowledged. Online Posting: Authors are encouraged to share their work online (e.g., in institutional repositories or on personal websites) both prior to submission and after publication. This practice can facilitate productive exchanges and increase the visibility and citation of the work. Responsibility and Liability: Authors are responsible for ensuring that their submitted research papers do not infringe on the copyright, privacy, or other rights of third parties. The Law Brigade Publishers disclaims any liability for any copyright infringement or violation of third-party rights within the submitted research papers.
Analysis of Arbitration in Public Procurement Contracts in India
The popularity of Arbitration in India rose due to three main reasons, namely the limited time period, Legal expertise on subject matter along with enforceability in the court of law. Arbitral Tribunals resolve disputes within a limited time period as compared to the excessive amount taken through litigation in courts. Tribunals usually consist of members having the requisite Legal expertise along with in depth knowledge of the subject matter of the dispute, thus being able to serve the specific needs of the disputes and cater better to the parties. Further, the enforceability of the arbitral award having the same effect as that of an award granted by the court of law ensures that issues concerning the legality of the said award are limited to the least . With the passage of time, the practice of Arbitration in the world in general and specifically in the country came to hold major ground and attracted large commercial clientele from various parts of the world. One of the major avenues of such audience consisted private to private agencies and private to government agencies involving commercial transactions over public procurement. Recently, the government through notification No. F. 11212024-PPD released the “Guidelines for Arbitration and Mediation in Contracts for Domestic Public Procurement” released by the Department of Expenditure Procurement Policy Division.
Copyright (c) 2024 https://creativecommons.org/licenses/by-nc-sa/4.0
Third-Party Funding in International Arbitration
Globalisation has created closer connections among nations. It has enabled cross-border agreements, allowing individuals from various countries to engage in commercial and non- commercial activities. Disputes between the parties in such situations are not uncommon. International Arbitration offers a straightforward, cost-effective, and efficient avenue for resolving conflicts between parties of different nationalities. This process involves selecting a neutral individual, known as the arbitrator, to resolve the disagreement according to the procedures agreed upon by the parties outside the jurisdiction of domestic courts. International arbitration offers a more impartial setting compared to local courts that adhere to the laws of a specific nation. Conversely, Arbitration Tribunals are private entities that do not comply with the laws of any particular country and can effectively handle disputes stemming from international transactions. Third-party funding refers to a practice where an outside party covers the legal costs of one disputing party in exchange for a contingent portion of any financial award received, depending on a favourable result. Although this practice is common in various regions, it is still relatively unexplored in the context of international arbitration in India. The lack of a thorough regulatory framework has created significant anxiety and reluctance to engage in such funding, making arbitration an increasingly inaccessible form of dispute resolution for many, mainly due to its perception of high costs. This paper promotes the acceptance of third-party funding in arbitration in India. It seeks to reconcile the differing viewpoints regarding the need for and extent of mandatory disclosure of such financing to establish a balanced approach that upholds the interests and rights of all parties involved. It argues for and demonstrates the need for a clear framework that requires the disclosure of such funding while offering several provisions to respect the third-party funder's wish to remain anonymous behind the ‘funding veil.’ Additionally, it assesses this proposed framework in light of the recent confidentiality regulations introduced in India under the Arbitration and Conciliation (Amendment) Act, 2019 to create a practical regulatory structure by comparing it to various international practices, thereby promoting the growth of third-party funding in India in line with the country's goal to become a leading hub for international arbitration. Third-party funding is officially acknowledged in civil lawsuits according to the Civil Code of Procedure in states like Maharashtra, Gujarat, Madhya Pradesh, and Uttar Pradesh. This acknowledgement of third-party funding can be inferred from the Civil Procedure Code 1908, which regulates civil court processes in India. Amended by Maharashtra, Gujarat, Madhya Pradesh, and Uttar Pradesh, Order XXV Rule 1 of this code allows courts to secure litigation costs by requiring the financier to join the case and deposit the expenses with the court.
Professional Liability of Mediators in Maryland, USA: Ethics and Practice
The professional liability of mediators can be examined from diverse perspectives: the need for regulatory provisions, leniency because mediators in most jurisdictions have maintained a high standard of professionalism and thus a low record of professional liability, and the fear that a stricter liability regime could stifle the flexibility of the mediation process and encroach on the professional and procedural diversity mediation currently enjoys. This article aims to define the mediator's professional liability and examine such liability in Maryland, USA. Additionally, tips to keep the mediator out of professional liability, such as promoting parties' self-determination, keeping one's practice within designated legal boundaries and professional standards, maintaining professional liability insurance if necessary, co-mediating with experts, attending training and fulfilling continuing education requirements, making disclosures, and drafting professionally, will be examined.
Desire for affordable and quick justice is universal. Justice, a crucial aspect of any civilized society, intends to establish fairness, equity, and equal opportunities for all members or citizens. The Preamble of India reflects this goal with aspirations of "justice-social, economic, and political." Article 39-A of the Constitution ensures equal access to justice. The administration of justice involves protecting the innocent, punishing the guilty, and resolving disputes satisfactorily. In India's modern legal system, there has been a growing dependence on Alternative Dispute Resolution (ADR) mechanisms to address legal disputes outside of the traditional courtroom setting. This study examines how ADR processes impact access to justice for marginalized communities. It uses a mixed-methods approach, analyzing ADR case outcomes. The research will begin by examining the historical development of ADR mechanisms and their integration into legal systems worldwide. The study will pay special attention to the potential benefits and challenges these mechanisms pose concerning access to justice, focusing on factors such as cost, efficiency, and inclusivity. Quantitative data will be collected from diverse ADR cases to assess their outcomes compared to traditional litigation. This research contributes to the ongoing discourse on the intersection of ADR and access to justice, providing practical recommendations for policymakers, legal practitioners, and scholars. The findings aim to inform the refinement of ADR frameworks to better address the diverse needs of individuals seeking justice outside the conventional legal system. The study's results suggest that ADR can be a valuable tool for improving access to justice. However, the study highlights the difficulties in ensuring equal representation and participation. More work is needed to address the challenges that arise in implementing ADR mechanisms effectively. So, precisely saying, ADR aims to provide justice that not only resolves disputes but also harmonizes the relation of the parties.
Investment Arbitration's Precarious Perch: A Jurisprudential Lack of Consensus on Pre-Conditions
Investment arbitration, hailed as a cornerstone of international trade and investment, finds itself embroiled in a critical debate regarding the interpretation and application of pre-conditions to arbitration. This article delves into the heart of this debate, analysing the lack of consensus within the jurisprudence and its implications for the legitimacy and effectiveness of the system. Investment arbitration is a method of resolving disputes between foreign investors and host states. Typically, these disputes arise from breaches of investment agreements, bilateral investment treaties (BITs), or other international agreements. Arbitration clauses within these agreements often contain pre-conditions that must be met before initiating arbitration proceedings. These pre-conditions serve various purposes, including negotiation periods, cooling-off periods, and requirements for amicable settlement attempts.
The Rights to Access to Justice and Fair Trial before the International Chamber of Commerce
The rights to access justice and to have a fair trial are enshrined and safeguarded in various international human Rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) the African Charter on Human and Peoples' Rights, the Inter-American Convention on Human Rights and the European Convention on Human Rights. Founded at Paris-France in 1923, the International Chamber of Commerce is one of the oldest commercial organizations harbouring an international arbitration jurisdiction known as the International Court of Arbitration (ICA). The ICA stands apart from other institutions in its ability to handle even the most complicated disputes involving large sums of money, while appraising the competence of its arbitrators, flexibility, and efficiency in its hearings and of timeliness in the delivery of its arbitral sentence. Luis Alfonso writes in this regard that the International Chamber of Commerce possesses the necessary facilities and capable personnel to run arbitration in a fairly efficient way. It is in consideration of these elements that we would pose the question does the arbitration system within the International Chamber of Commerce effectively safeguard the rights to access to justice and a fair trial in its court? A content analysis of the 2021 ICC Rules will enable one to determine whether the guarantee of the right to access justice and the right to a fair trial within the ICC’s arbitral system is effective.
The objective of this work is to analyze mediation as an alternative dispute resolution method with much emphasis on the autonomy of the parties. Notwithstanding the fact that the traditional way of dispute settlement has been in the court of law, mediation and other out of court settlement methods have gained widespread acceptance among both the public and the legal profession in recent years. This method of dispute resolution is mostly used by disagreeing parties who cannot come to an agreement short of litigation, Hence a third party is called upon to resolve the issue between them. The objective of this paper is to examine the existence of party autonomy at the different stages of the mediation process. The Methodology employed in this work is mainly analytical in nature. This methodology permits us to analyze various literature related to the field of study. Our findings reveal that, despite court settlement being the primary method of dispute resolution, the workload in courts have provided a fertile ground for the growth of mediation as an alternative dispute resolution method which provides autonomy to the litigants.
Copyright (c) 2023 https://creativecommons.org/licenses/by-nc-sa/4.0
LEGAL CHALLENGES FACING LAND DISPUTE MACHINERY IN RESOLVING LAND DISPUTE BY USING ALTERNATIVE DISPUTE RESOLUTION IN TANZANIA: AN ANALYSIS OF LAWS AND PRACTICES
This article focuses on addressing problems and challenges facing land dispute machinery in resolving land dispute by using Alternative Dispute Resolution (ADR) in Tanzania. The article reveals that disputes over the land are inevitable because land is the principal means of production. Long-drawn-out land disputes undermine effective land utilization and sustainable development. The competing interests over land have necessitated the need to have specialized machinery for land dispute settlement in the country. Nonetheless, it has never been a simple task to establish ideal land dispute machinery that strikes the balance between competing interests while maintaining peace, security and social order. Effective implementation of any dispute resolution approach mainly depends on the legal framework of a particular country where it is subjected. The institutional framework also plays a great role in considering what the system can deliver to its stakeholders. In most developing countries like Tanzania, ADR techniques are lowly used in resolving land disputes despite of ADR being incorporated into National laws. Motivations for the use of ADR included relationship building, perception of fairness and justice, and relatively cheaper and quicker processes of adjudication compared to traditional court system. The article concludes that ADR is an effective machinery for solving land disputes but it is not effectively used due to legal challenges facing land dispute machineries in enforcement of ADR.
MEDIATING INDIGENOUS DISPUTES: LESSONS FROM AFRICA AND CANADA
Mediation is not novel to indigenous peoples in Africa and Canada. It has been in existence long before codified regulation of mediation.i For instance, the ancient Yoruba peoples of Nigeria have been known to mediate street fights, trade and communal disputes long before the emergence of formal courts and institutional mediation. ii Indigenous mediation in Africa and Canada share certain characteristics. First, the recognition of the supernatural and/or ancestry. Secondly, these mediations possess some cultural flavour peculiar to the indigenous peoples represented at the session, particularly reflected in their language, attire and the use of proverbs. And thirdly, many indigenous mediations are facilitated by elders who often hold governance functions in their respective families and communities. This article addresses common causes of indigenous disputes, factors that enhance mediation of indigenous disputes and hindrances to successful indigenous mediation, especially in Africa and Canada. Indigenous mediation in this article includes situations where indigenous persons participate in mediation as parties and disputes mediated by indigenous persons.
VOLUNTARINESS OF MEDIATION - THE MEDIATOR’S PERSPECTIVE
Mediation is a process where parties meet with a mutually selected impartial and neutral person who facilitates the resolution of their dispute, with the aim of arriving at a self-determined outcome. The voluntary characteristic of the mediation process requires all sides to agree to mediate and have an equal stake in resolving the dispute. The parties in the dispute have the freedom to resolve the dispute in their time and terms. The right of the parties to reach a voluntary agreement is fundamental to the mediation process. Consequently, a mediator should act and conduct the process in ways that maximize its voluntariness. The mediation process is voluntary for the parties as well as the mediator. What is voluntariness from the mediator’s perspective? What situations warrant the exercise of the mediator's voluntary rights? What are the implications of the mediator’s voluntary rights on the quality of the mediation process? This article addresses voluntariness from the mediator’s perspective, rationales for voluntariness and ethical concerns in the exercise of the mediator’s rights.
ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA: BREAKING NEW BOUNDARIES
The field of Alternative Dispute Resolution is familiar. This may be due to the invariably recurring decimal of conflicts in society’s various human and commercial interactions. This paper examines the legislative framework of Nigeria’s Arbitration and Mediation Act and the fundamental guiding principles from which arbitration laws are derived. Arbitration has moved from the stage of rejection to suspicion and acceptance. It is still budding in the Nigerian legal system but creating workable avenues and mechanisms to solve conflicts remains indispensable. Litigation, being the structured court system based on adversarial conversations and determination of the disputes, which is determined by a judgment produced in a win-lose situation, may therefore be defined as the opposite of Alternative Dispute Resolution, which is purely non-adversarial and utilises the expertise and assistance of a skilled, impartial and neutral third party. Since the 2005 Bank Consolidation Era and the 2008 Financial Crisis, there have been calls for the arbitration of banking disputes. However, these calls are yet to be embraced, given the reactionary response of banks toward referring conflicts to litigation forums. This leaves so much to be desired. As a result, this paper highlights the recent incorporation of Alternative Dispute Resolution into conflict resolution rules and discusses the necessity for appropriately specified procedural frameworks.
THE INTERNATIONAL LAW AND THE RUSSIAN - UKRAINE CONFLICT RESOLUTION
This paper examines a summary of the historical ground of the Russian and Ukraine War along with basic principles of international law in dispute resolution. The paper classifies the basic principles of international law as including the principle of non-use of force; the principle of the territorial integrity of the state; the principle of peaceful settlement of international disputes; and the principle of international good faith. The study upon which this paper is based is the analysis of the prevailing situation in Ukraine concerning the UN Charter and International law. The study has found the situation in Ukraine to be fueled by the expansionism policy by Russia. The war has resulted in the massive killing of innocent people. International law has been ignored and the world is indeed witnessing. Given the situation in Ukraine, it is high time for the UN to effectively intervene to control and contain the situation. There are tangible pieces of evidence that demonstrate the violations of international law. This is in particular violation related to human rights. By doing so, the UN will be implementing its obligatory duties and should not end up with declarations. Thus, it is recommended that the UN should get the lead in the efforts of Russia and Ukraine dispute resolution. This paper underscores the value of implementing the UN Charter and international law to solve international disputes. It divulges the negative impacts of using war as a means to solve international disputes. It reminds the world of the impotence of using peaceful means as a comprehensive method of solving disputes permanently.
THE APPLICATION OF GOOD FAITH PRINCIPLE IN WORLD TRADE ORGANIZATION’S (WTO) DISPUTE SETTLEMENT
The World Trade Organization (WTO) is the only international organization with a global vocation that deals with the rules governing trade between countries. At the heart of the Organization are the WTO Agreements negotiated and ratified by members. The main aim is to promote predictability in free flow of goods and services with legal guarantees in disputes settlement between member countries through the principle of "good faith".The current WTO dispute settlement mechanism, characterized by the considerable and automation of procedures as compared to its pre-inception or the era of the General Agreement on Tariffs and Trade (GATT) has proven at least effective and efficient. It is fair to say that the WTO Dispute Settlement System as it stands today remains ipso facto a well-respected international regime and has over the past two decades remarkably active. For instance, more than 551 disputes have been initiated by WTO Members, resulting in more than 230 circulated panel reports and 136 circulated AB reports. More than 65% of WTO Members have engaged in dispute settlement as complainant, respondent, or third party. However, as any other human endeavor, the DSB is confronted with certain deficiencies or conflicts as far as the respect of “good faith principle” in dispensing WTO Rule of Law is concerned starting from its interpretation; some provisions are not clear as to what they mean in practice. Secondly, DSB encounters new issues during proceedings that were not foreseen at the time the rules were drafted and this has been a major cause hindering DSB many times to completely exhaust a case despite the well-structured stages (Panel and Appellate). There is also an overriding force of “political will” propelled by some stronger economies through the “Green Room Theory” that under minds the smooth application of “Good faith principle” during dispute proceedings. This has caused some members to rather seek solutions to their differences in other regional courts or trade disputes centers.
ARBITRATING CONSTRUCTION DISPUTES IN INDIA
The construction industry is expected to be one of the main drivers of global economic growth. It covers a wide range of activities related to complex infrastructure projects, engineering works, commercial and residential constructions, development projects, and more. The construction industry has important links with other sectors, so its impact on GDP and economic development far exceeds the direct contribution of construction activities. Hence, it is clear that construction is proving to be one of the fastest-growing industries not only globally but also in India. Given such a highly technical and complex industry, it is reasonable to infer that disputes arising from construction activities will also require distinct expertise and an in- depth understanding of the surrounding issues. One of the top ten industries in India generating the most foreign direct investment is construction (infrastructure). The Global Infrastructure Construction Market was estimated to be worth USD 2,242.3 billion in 2021 and is projected to increase to USD 3,267.3 billion by 2027, growing at a 6.48% CAGR during the forecast periodi An overview of construction contracts, contract types, and problems associated with construction contracts is given in this research article. The rights of the parties, their potential remedies, and the process for resolving conflicts when they arise in the construction industry are also covered. The primary emphasis of this article is arbitration as an efficient way of alternative dispute resolution and the necessity of efficient case management strategies in arbitration to facilitate effective and timely dispute resolution of construction disagreements.
SETTLEMENT OF BIOPIRACY DISPUTES: IS THE WTO AN ELIGIBLE FORUM?
In 2001, the World Intellectual Property Organization Intergovernmental Committee (WIPO IGC) set out to create an international legislature for the regulation of traditional knowledge and genetic resources (TKaGR). More than two decades later, the legislative process is still inconclusive. One of the most significant indigenous problems this law would have addressed, is the scourge of biopiracy. Biopiracy encompasses a wide range of practices including unauthorised access, uncompensated use and unjust enrichment from TKaGR. Currently, TKaGR custodians have the option of seeking redress at national courts under diverse IP headings and unfair competition as the facts of each biopiracy case dictates. This article will examine the basis for initiating a settlement at the World Trade Organization Dispute Settlement Body (WTO DSB), appropriate case categorisation, possible remedies and likelihood of success.
THE FARMER-GRAZIER CONFLICT: THE CASE STUDY OF MPUNDO-BALONG VILLAGE IN MUYUKA SUB-DIVISION
The Farmer-Grazier Conflict is a perennial challenge in most African Communities, especially in sub-saharan African countries. In most sub-Saharan African countries, the farmers and graziers cohabit side by side and there's no clear and distinct boundary between farmland and grazing land. This is the case in Mpundu-Balong village. A land that was used for grazing this year can be used the previous year for farming and vice-versa. This situation facilitates conflict between the farmers and graziers on a perennial basis. The case of Mpundu-Balong village is an intriguing one and thus the essence and raison d'etre of this article. This study has as its main objective to examine the Farmer-Grazier Conflict in Mpundo-Balong village in Muyuka Sub-Division. The attainment of this objective was guided by the empirical and the doctrinal research method. The internet was a principal source of data and this was accompanied by first hand information and interviews of some key informants. Our findings reveal that, the measures put in place to prevent farmer-grazier conflicts in Mpundo-Balong village are insufficient. We therefore recommend that a clear cut distinction should be made between grazing land and farm lands.
ONLINE DISPUTE RESOLUTION: ITS SCOPE AND EFFECTIVENESS IN E-COMMERCE
In current times the majority of transactions take place in digital spaces. These days, everything can be bought online, from books to apartments. Nevertheless, there would inevitably be a rise in e-commerce conflicts as e-commerce transactions expand. However, the absence of an effective dispute resolution process in cyberspace would hinder the growth of electronic commerce. Therefore, it is important to recognize that several difficulties, including jurisdictional issues, choice of law issues, and high costs of cross-jurisdictional litigation issues, might relate to a variety of dispute types. According to the traditional definition of jurisdiction, a court must determine whether it has territorial, financial, or subject matter jurisdiction before it may hear a case. Bearing this in mind this paper argues that online activities, notably e-commerce, have given prospective disputes and dispute resolution methods a new dimension. Since the internet makes it simple to conduct modest transactions across jurisdictional boundaries, out-of-court settlements are becoming increasingly significant. This paper fervently argues that alternative dispute resolution mechanisms play a crucial role in the context of e-commerce and jurisdiction in cyberspace, primarily by enabling users to settle conflicts more effectively even when the parties are from different jurisdictions.
Arbitration is the submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award - a decision to be issued after a hearing at which both parties have an opportunity to be heard. Religious communities in the U.S, like their counterparts in commercial and family law have as well, embraced arbitration as a means of settling disputes among their adherents. For the most part, this has been the case in the Catholic Church despite the Catholic Code of Canon Law’s provisos for the wide use of arbitration in dispute resolution amongst her members. This paper is a call for action in that regard and an attempt at the correction of wrong notions of arbitral practices within the ecclesial body. In this regard, it is posited that the Catholic marriage tribunal for instance is neither a marital arbitration tribunal nor “Catholic divorce.” The paper argues in conclusion that the lack or underuse of the arbitral system in the Catholic Church is a great omission and a missed opportunity – a missed opportunity of having Catholics settle disputes according to Catholic Christian principles as against the use of the emotionally and financially expensive civil litigation method.
CHALLENGES OF IMPLEMENTING ARBITRATION AGREEMENTS IN TANZANIA: A COMPREHENSIVE REVIEW
The application of arbitration agreements has increased with the growth of commercial interactions worldwide. There are debates on its application. One side allows the application of arbitration agreement because it reduces the burden to the court of law to resolve the disputes. The other side restricts its application to protect the weaker parties in society. An arbitration agreement is the creature of the law. the law regulates its application. Several ways are in place to enforce it such as the stay of the legal proceeding, respecting it, separability and others. Numerous challenges on enforcing arbitration agreements are no-issuance of specific performance and discretionary leave of the court. All in all, the arbitration agreement is a statutory creature with strengths and weaknesses in its enforcement in Tanzania.
ONLINE DISPUTES RESOLUTION IN INDIA: AN OVERVIEW
The concept of online disputes resolution in India is at a nascent stage. The incidence of Covid- 19 in India, in particular and the unprecedented advancement of technology in the field of computers and Internet have proved to be the major catalytic factors in the introduction of online disputes resolution mechanisms in solving disputes of various kinds. Besides that, ever- increasing pendency in the courts and the concurrent wastage of time and money in resorting to judicial process have also initiated this new process of disputes resolution. In India, NITI Aayog had constituted a high-level committee in June 2020 under the chairmanship of Justice A.K. Sikri, retired Judge, Supreme Court of India. Its report was released on 29.11.2021. The report has suggested various measures to face the challenges in implementing online disputes resolution in India. Online ADR system operates with the help of several online techniques including video-conferencing, zoom and other apps, online audio systems etc. Mainly the process of arbitration, conciliation and mediation are being conducted online. Recently, virtual Lok Adalats also took place. So far, the results have been satisfactory. But at the same time, there are many challenges too. Low Digital literacy is a major problem. The issues of privacy and data protection are of utmost importance. Moreover, people's trust in the system is another grey area. The appropriate legal regime is another challenge. This paper explores various dimensions of online disputes resolution in India and attempts to find solutions also.
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN INDIA – CURRENT ISSUES AND CHALLENGES
This research paper is concerned with the enforcement of Foreign Arbitral Awards under the relevant regimes in India, both local and International. The easy enforceability of arbitration awards is considered one of the main factors in the success of International Commercial Arbitration. This paper not only attempts a comprehensive analysis of requirement and procedures for recognition and enforcement of foreign awards in India but also evaluate whether Indian laws and practice comply with best International practice standards especially embodied in the New York Convention 1958 on enforcement of foreign arbitral awards. This research work comprises five Parts. The first part examines the legal framework and provides a brief history of rules governing arbitration and enforcement of foreign arbitral awards. Chapter two looks at general principles governing the enforcement of foreign arbitral awards. Part three covers jurisdiction in the enforcement of arbitration awards in India. Part four examines procedural steps required by each state for enforcement of an award, looking particularly at the import of relevant international conventions on other issues. Part five deals with the limitations in the enforcement of foreign arbitral awards. The concluding chapter deals with a summary of all the problems and suggests a common way forward for the legal system of the state in dealing with these issues. There needs to be a lot to be done in the area of arbitration concerning foreign awards. The Act itself needs a review and the precedent set up by the courts are somewhat perplexing. The enforcement of foreign awards requires cooperation at both national and international levels. There needs to strike a balance between the New York Convention and the Arbitration & Conciliation Act of 1996.
AN EVALUATION OF THE PRO-BONO CULTURE AND INTERFACE OF LEGAL AID IN THE NIGERIAN LEGAL SYSTEM
Speaking of lawyers and their duty to the society cannot be a complete communiqué if the concept “pro-bono publico” is not endured. Over the years, the Nigerian legal system has been hesitant to enacting a legal framework specifically mandating or encouraging lawyers to render pro-bono services, invariably making it a duty at will. Although, behind the scenes there have been some latent efforts geared at placing the workings of public interest litigation/pro-bono at the frontier of the of the legal profession, but this feat has undoubtedly encountered some bridle as a result of the myriad challenges inherent in the Nigerian legal system. It is in the light of these, that the desire of this discourse is prompted. The ensuing discourse would flash a beam into the lagging pro-bono culture in Nigeria, challenges confronting legal institutions and stakeholders in the justice system saddled with the responsibility of providing pro bono and legal aid services to the citizenry, especially the indigents. This research would further highlight legal and institutional frameworks established for the effectual actualization of easy access to justice via pro-bono and legal aid initiatives, while rounding off on necessary recommendation and solutions.
ARBITRATION IN SECURITIES MARKET IN INDIA
With changing times, alternative dispute resolution (ADR) mechanisms are envisioned as a last resort. It is regarded as the new paradigm for litigating cases. An unusual way that securities arbitration resolves disputes is between trading participants and their clients on the exchange. The governing body that creates bylaws for any kind of stock exchange is called "Securities and Exchange Board of India." Arbitration is described by SEBI as an alternative dispute resolution method for resolving exchange disputes. This essay primarily focuses on strengthening SEBI Act provisions that mandate arbitration as a form of alternative dispute resolution and also provides examples of how the "Market Intermediaries Regulation and Supervision Department" operates in this regard. This essay also covers the topic of dispute arbitrability as well as a number of aspects of securities arbitration and investor dispute resolution.
Copyright (c) 2022 https://creativecommons.org/licenses/by-nc-sa/4.0
ACCESSING JUDICIAL SYSTEM VIA ALTERNATE DISPUTE RESOLUTION
An individual typically goes to the authorities who can fix his problem during times of crisis. It can be to make his complaint known or to stand up for himself. When this happens, drawn- out and difficult processes tend to make the issue the person is having worse. Access to justice becomes difficult when the same event is taken into account in adjudication or alternative dispute resolution. The rising costs and delay in finding a solution make it much more challenging. The entire goal of access to justice is defeated since the individual is burdened with additional burdens of procedural complexity, time commitment, and financial investment in order to get a resolution. The purpose of the essay is to examine what access to justice means and how it is viewed in relation to its legal system for resolving disputes. This is accomplished by taking into account the person's socioeconomic status, financial resources, and time commitment to presenting the case in court. Access to justice would depend on the person's willingness and ability to engage in any type of dispute settlement. This essay examines the effectiveness of ADR methods by concentrating on three factors: the procedure involved, the cost, and the amount of time.
ALTERNATE DISPUTE RESOLUTION IN HUMAN RIGHTS
The likelihood that the legal system will serve as the primary forum for dispute resolution is eroding. Procedures for alternative dispute resolution (ADR) will often proliferate and formalise. These techniques include ADR based on causing notice and ADR based on agreements (such as appeasement and intercession) (like intervention). Inquiringly, despite these developments, two important ADR and appropriate compromise problems continue to be murky in international human rights law (IHRL). The primary focus of the inquiry is on the equity standards anticipated by ADR/PDR (whether entered deliberately or compulsorily). The crucial component is the legal requirements that can require parties to a dispute to use ADR/PDR instead of, or in conjunction with, going to court.
USE OF TECHNOLOGY IN ONLINE DISPUTE RESOLUTION
Since quite some time, there has been a significant digital transition taking place, and technology is now part of our daily life. It has also infiltrated the area of consumer policy, where it is promoted to utilise technology to settle consumer disputes. A significant portion of consumer transactions now occur online as technology takes over. This has led to a rapid increase in disagreements and disputes, which cannot be avoided even if all parties behave with good faith. Since the majority of these are for low-value goods and services, consumers have little motivation to spend time and money on court cases or other frequently time- and money- consuming out-of-court settlement processes. In order for consumers to actively use their rights, the usage of online forums to settle such issues is being promoted. Online Dispute Resolution Mechanisms are those processes that use software and technology to settle conflicts. In the West, national authorities are creating open Online Dispute Resolution forums to settle minor conflicts, and it is getting more and more popular. Nevertheless, while growing in popularity, the mechanism faces a number of dangers and difficulties. These include a lack of understanding of the function of online platforms that offer such mechanisms and a lack of consumer awareness and trust. Therefore, it is crucial to address these difficulties before online conflict resolution techniques replace or take over traditional dispute resolution mechanisms in order to increase the system's dependability and accessibility for users.
INDIAN JUDICIARY AND THE ENFORCEMENT OF FOREIGN ARBITRAL AWARD
The border separating the jurisdiction for enforcing foreign awards and the jurisdiction for contesting them is hazy. This distinction becomes crucially important in light of the important topics to be covered in this note, such as whether the current conventions' structure permits the Challenging Jurisdiction of convention awards to be considered concurrent between the "territory where the award is relied upon" and the "territory where the award is enforced"; what are the current Challenging Jurisdiction under the Arbitration and Conciliation Act and its interpretation under This note addresses these issues and makes an effort to delve into the elements that hinder the successful conclusion of the arbitration process and the enforcement of awards in India. It also emphasises the need to reduce excessive court involvement so that the goals of arbitration as a form of alternative dispute resolution are realised.