21 January, 2018, 10:00am-2pm:
The fourth technical session on the “Role of Mediation, Conciliation & Lok Adalat as ADR Mechanisms: Growth and Contemporary Challenges,” was chaired by Prof. (Dr.) SC Srivastav, National Professor, UGC and co-chaired by Mr. GP Tiwari, Secretary, DLSA, Lucknow.
On the basis of discussions on various papers, the session concluded with a consensus in the house on the need for formal institutionalization of ADR mechanisms like conciliation, mediation and negotiation in India.
The final session was a plenary one, chaired by Prof. (Dr.) SC Srivastava and co-chaired by Mr. Prasenjit Kundu, Asst Prof, RMLNLU. The keynote speaker was Mr. D Sengupta and a discussion on International Commercial Arbitration and hybrid processes ensued, along with limitations of mediation and conciliation. The recommendations of the discussion were that regular legislative amendments would be required for Indian law to keep abreast with economic changes all over the world.
The valedictory ceremony that concluded the 4th RMLNLU National Mediation Competition and the RMLNLU International Conference on ADR, witnessed a presentation of a summary report on the outcomes of all sessions by Mr. Prasenjit Kundu.
20 January 2018, 10:30am-12pm:
The RMLNLU National Mediation Competition 2018 is being conducted along with the RMLNLU International Conference on “The Challenges and Prospects of Arbitration and other forms of ADR in India.” The purpose of the same is to foster awareness about alternative dispute resolution mechanisms in India.
The first technical session was conducted on “The Challenges of International Commercial Arbitration in India: Role of the National Court- The Legislature and Executive.”
The session was chaired by Mr. D Sengupta, Additional Director-Registrar, ICA and co-chaired by Dr. Atul Kumar Tiwari, Associate Professor (Law), RMLNLU.
The paper presentations by the participants ranged from discussing the judicial approach to international commercial arbitration, determining whether it is supportive or interventionist, to exterminating impediments while conducting international commercial arbitrations in India.
Recognizing that the touchstones of arbitration are party autonomy, separability and the competence-competence principle, the authors found that the intellectual and administrative infrastructure are unfortunately ill-equipped to create an environment in India that renders it more suitable for selection by foreign parties, as the seat of arbitration.
An author argued that the Indian Courts do not support autonomy of parties or separability, resulting in a relationship of “forced cohabitation” between the Arbitral Tribunals and Courts, instead of a “true partnership.”
While decisions like BALCO v Kaiser are outnumbered by decisions like Bhatia International v Bulk Trading, there are several unresolved questions of law. On determining the prospects of the 2015 Amendment Act, the authors found several loopholes that could be exploited by the judiciary.
The question of whether two Indian parties can choose a foreign seat is yet unanswered and though the judicial and legislative approach has gradually grown more encouraging for international commercial arbitration, an author warned that the Courts must be conscious of maintaining a distinction between supervision and intervention.
Mr. D Sengupta observed that the objective of the 2015 Amendment was to essentially expedite the arbitration process. A decision, that is primarily about the psyche of the business industry to avoid pro-court approach in arbitration.
He remarked that given the inadequacy of intellectual infrastructure and complacency in conducting arbitrations in the country, a key to guide approaches of future lawyers is to remember that “in Court, you get justice. In arbitration, you get a settlement.”
The second technical session was conducted by Mr. Sumit Rai, Advocate at Bombay High Court and co-chaired by Dr. AP Singh, Associate Prof, RMLNLU, on “Online Dispute Resolution Mechanism:Prospects and challenges in India”.
ODR mechanisms were defined and the challenges to its implementation discussed in light of issues of lack of access, confidentiality and standard guidelines.
A comparative analysis was conducted between EU and Indian law, concluding that while the former is sophisticated, there is an absence of a specific legislation catering to ODR mechanisms in India.
However, a couple of authors argued that, to demonstrate a legislative acceptance of ODR in India, an analogy can be to the amendment in the Civil Procedure Code that led to the insertion of section 89, that focuses on the need to resolve disputes out of court.
The third session on “Emerging Issues in International Commercial Arbitration” was chaired by Mr. Sumit Rai again and co-chaired by Mr. Sheelendra Kumar.
The theme saw discussions on enforcement of foreign arbitral awards and third party funding. While the former discussed provisions of the New York and Geneva conventions, the latter analyzed the challenges to third party funding like maintenance issues and public policy concerns.
The question of favorability of institutional arbitrations over ad-hoc arbitrations was answered by Mr. Sumit, who stated that the former is often misconceived to be more expensive than ad-hoc arbitrations, which in fact are more cost-ineffective.
The conclusion that pervaded the discussion was that introduction of an institutional arbitration establishment in India would make it a hub for international commercial arbitration.
Mr. Sumit Rai found the sessions to be “very interesting” and said, “The fact that there is a paper presentation on ADR is very heartening to see. Writing papers is an art, in a world that is limiting itself to 140 characters. It was good to see great participation and robust discussions on interesting topics.”