Mediation In Commercial Disputes

Truth can be stated in a thousand different ways, yet each one can be true.         -Swami Vivekananda

Arbitration  in Commercial Disputes 

Arbitration and mediation are the Alternative dispute resolution(ADR), where parties to the dispute resolve their issue through ADR instead of going to the court. Arbitration is used in labor disputes, business and consumer disputes, and family law matters and commercial disputes.

Commercial disputes

Transaction which give rise to commercial relationship. Issues relating to maritime law, construction and infrastructure contracts, IPR , disputes relating to exploitation of natural resources, insurance and re-insurance, dispute relating to transaction between merchants, banker financier etc.Court process is lengthy and time consuming process, it takes time to resolve the issue.

Many acts have been passed to reduce the burden of court. Such as, Arbitration and conciliation (amendment) act 2015, Commercial courts, commercial division and commercial appellate division of the high court act, 2015.These acts are made to make speedy disposal of disputes, and Resolve the matter outside the court. If there is arbitration agreement between the parties, whether civil, commercial or non-commercial disputes. Court refers the matter for arbitration. 

Arbitration and conciliation act 1996 applies to both domestic arbitration in India and international arbitration.International commercial arbitration where at least one party having nationality of another country other than India or association whose central management and control is exercised in any country other than India.court judgement.

 In H. srinivas pai v. H.V. pai  ,2010 in this case court held that applicability of arbitration act does not depend upon the dispute being a commercial dispute. Applicability of arbitration act depends upon the existence of an arbitration agreement, whether it is civil dispute or commercial dispute.

Main objective of this act is to minimise the supervisory role of courts and permit the arbitral tribunal to use mediation, conciliation, or other proceeding in settlement of disputes.

A party aggrieved by such an arbitral award is free to make an application for setting aside the award under section 34 of the Act. Section 34(2)(a) inter alia permits a challenge to an award.

Parties can approach the court under section 9 of the Arbitration Act for interim measures, before or during arbitral proceeding or any time after the making of the arbitral award but before it is enforced. 

Sec. 89 with order 10 code of civil procedure empower the court to refer the matter for arbitration and mediation if element of settlement arises. If parties agree on settlement of dispute before the court.

Benefits of ADR

  • Speedy and informal process comparative to civil litigation, because it does not apply the rule of evidence.
  • Cost efficient, parties must pay the cost of the arbitration which is less than court fee and lawyer’s feeImpartial arbitrator this act provide arbitrators should be independent and impartial, treat each party equally and give each party an equal opportunity to present their case. Parties select their respective arbitrator, arbitrator cannot be bias against the parties.Arbitration hearings are private, Arbitration takes place only by the party’s mutual consent. Parties decide the place of arbitration mutually or court decide the place of arbitration.
  • Confidentiality sec 76 of act provide confidentiality in conciliation proceedings. Arbitration proceedings must be held in private.Number of organisations are established to resolve the dispute before the court. These organisation do settle the dispute at national and international level. Arbitration has become one of the most valuable means of dispute resolution in disputes between government entities and private parties. Indian arbitration organisations include the:Delhi International Arbitration Centre.Construction Industry Arbitration Council (CIAC)Indian Council of Arbitration (ICA) India chamber of commerce (ICC).



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