In the world, the entire legal system works on the basis of two methods that aim to dispense justice and provide effective dispute-resolution mechanisms to each and every individual in society. These two systems of dispute resolution mechanisms can be claimed as ‘Adversarial’ and ‘Inquisitorial’ Systems. In the Adversarial System, the parties and lawyers play a proactive role in gathering evidence and raising arguments in the cross-examination of the court to support their claims and attain justice.
The Judges play a passive role here as they give their judgment based on the evidence presented by the prosecution and defense. In the Inquisitorial system of dispensing justice to the people, the Judge plays an active role by determining the facts, issues, and evidence in the case to resolve the dispute. The adversarial system of the ‘Dispute Resolution Mechanism’ is adopted in the U.K, U.S., Australia, India, etc which induces effectiveness and efficiency in the control process.
Contextuality Of Alternative Dispute Resolution Mechanism
- The various methods of settling a dispute between two parties without getting into the convolutions of the court are deemed to be the employability of ‘Alternative Dispute Resolution Techniques.’
- These methods have evolved since the Vedic Ages when, different communities such as ‘Puga’ (Commercial Traders); ‘Shreni’ (Artisans), etc had a dominant third party who was neutral in considering the concerns of the society and assisted in dispute redressal.
- The ‘Alternative Dispute Resolution Techniques’ aim to resolve disputes in a cost-effective, efficient and quick manner that is inclusive of Arbitration, Mediation, and Conciliation methods. These are the Non-Adversarial methods of dispute resolution that are based on the principles of justice, equity, and speedy trial as specified under ‘Article 39 A’ of the Indian Constitution.
Contingent Susceptibility Of Arbitration and Conciliation Act 1996
The ‘law of arbitration’ and its disputes were previously dealt with under 3 acts but, the economic objectives along with social and moral objectives were considered to resolve disputes between the parties of trade, industry, and society. Thus, the United Nations considered international and municipal legislations to formulate the ‘Model Law on International Arbitration and Conciliation’ in 1985.
Under the stipulated Act, domestic commercial arbitration and conciliation were initiated in a specific manner that involves equity and justice to minimize the role of courts and designate ‘Arbitral Awards’ to deter misdeeds.
In the Indian Context, ‘Section 2’ of the act lays efficacy to initiate an alternative to provide flexibility and diminish the burden on courts. The section reflects upon the involvement of a neutral third party to settle the dispute amongst the parties and raise the claim of redressal. Further, ‘Section 8’ appropriates a case to be referred to arbitration and the mode of settlement can be proposed by the Arbitration Tribunal.
The arbitral awards presented by the arbitrators need to be implemented by setting out reasons to specify the terms of settlement in the agreement. The tribunal can make an interim award under ‘Section 36’ (DOMESTIC ACT) and ‘Section 47’ (FOREIGN ACT) that can demonstrate the final award. The cost incurred and losses suffered by the injured party can also be included in the consideration of the ‘Arbitral Award.’ The Arbitral Award is enforceable in courts under ‘Section 36(1)’ that persists the effect of a decree in the civil courts.
Realm of Section 9 of the arbitration and conciliation act 1996
- The act is comprehensive and lays arbitral proceedings for granting interim relief which is envisaged under ‘Section 9’ of the ‘Arbitration and Conciliation Act 1996.’The authority of the court to grant interim relief before, during, or after passing the arbitral award in the proceedings is sanctioned under ‘Section 9’ of the above-mentioned act.
- The section also lays down limitations under ‘clause (3)’ over the Arbitral Tribunal constitution until and unless situations arise that develop a remedy under ‘Section 17’ is counterproductive.
- ‘Section 9’ provides assistance to those who desire to file an appeal in the court again even when the arbitral award is declared but, yet not enforced. The due period to wait effectively before enforcement is 90 days as stipulated under ‘Section 34’ of the act. But the court acknowledges the appeal under provisions of ‘Section 9’ of the ‘Arbitration and Conciliation Act 1996’ if the conditions of the case are satisfied.
- The underlying section is divided into two parts: Section 9 (1) (i) and Section 9 (1) (ii)
- Section 9 (1) (i) : Under ‘Section 9 clause (i)’ of the ‘Arbitration and Conciliation Act 1996’, the person can file an application to court for the appointment of a guardian to the minor or a person of unsound mind representing in the court of law during the arbitration proceedings.
- Section 9 (1) (ii) : Under ‘Section 9 (ii)’ of the ‘Arbitration and Conciliation Act 1996’; there are sub clauses to regulate the power of granting interim relief to the individual by the adjudicating authority:
- Under ‘Section 9 (1) (ii) (a)’; the Court may grant interim relief to reserve the conservation and sale of goods considering the arbitration agreement of contractual obligation as mentioned under ‘Section 7’ of the ‘Arbitration and Conciliation Act 1996.’
- Under ‘Section 9 (2) (ii) (b)’; the Court may grant interim relief to secure the amount in dispute. This section proclaims that the additional amount lost or considered as an expense may be added to the amount conceived during the arbitration proceedings.
- Under ‘Section 9 (2) (ii) (c)’; the Court may grant interim relief with the help of an individual entering the land or building in possession for making observations which is crucial to attain full information.
- Under ‘Section 9 (2) (ii) (d)’; the Court may grant interim relief if the conditions are established in the ‘prima facie’ case to equate the favour and irreparable damages maintained. Under this ‘sub clause of Section 9’; the court may appoint an officer to supervise the disputed things involved in the subject matter of the case.
- Under ‘Section 9 (2) (ii) (e)’; the Court is authorised with discretionary powers to provide for interim relief in addition to those stipulated above only if the court designates it to be fair and fit trial. Simultaneously, the court is allowed to assert powers like any other arbitral proceedings before it.
Arbitration, Mediation, and Conciliation are substitutes forConventional Modes of Dispute Resolution Mechanisms whereby the parties resolve the dispute with the involvement of a third party and without the intervention of Courts. In countries like India, where lakhs of cases are pending; these Non-Adversarial Systems of dispute adjudication can prove to be effective in the resolution of disputes in an easier, more convenient, and speedier manner. It can effectively reduce the burden on Judiciary and courts and prove to work in an efficient manner in the Future only after the faith of the individuals is entrusted upon.
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"