ADR notes for the LAw, Study notes of Law

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Law Students Federation

LL.B. Notes

th

Semester

My Fair Garden, Flat # 103, Beside Ohris, Petrol Bunk, Hyderabad. Abdul Kareem, 7799224814

Q1. Explain various authorities specified in ADR machinery & its advantages & disadvantages.

Ans. ADR machinery means to file civil matters before authorities other than court. ADR machinery is very popular in many countries such USA, AK, SWEDEN, CANADA, JAPAN. India have also adopted it & pass the legislation called as Arbitration & conciliation Act 1996. According to “ROBSON” ADR machinery disposed civil matter more speedy, more cheaply & more efficiently.

Following are the authorities under ADR machinery.

1. Arbitration:- Arbitrator is mediator &not a judge, there is panel of arbitration & parties who want to refer dispute can appoint one (or) more arbitrators, they make hearing of both sides & gives the decision in writing called as “AWARD” & award is signed by arbitrator, if there are more arbitrator then they give award collectively (or) by majority opinion. Any party can make appeal against award in civil court having jurisdiction.
2. Conciliation: - Conciliation officer is also mediator, parties can appoint one (or) more conciliation officer by mutual consent, conciliation officer should have experience of particular trade (or) business, he makes hearing of both sides & proposal for settlement of dispute, if party agrees to proposal them they execute a document & it is signed by both sides parties & conciliation officer, if one (or) both sides disagree to proposal then conciliation is failure & there is no settlement.
3. Lok adalath: - There is separate Act called as legal services authorities Act 1987. Under these Act there is provision to constitute lok adalath in every court generally on holiday. In lok adalath there is one judge & two senior advocates, parties can refers dispute to lok adalath. Lok adalath make hearing in brief & give proposal to settle the dispute, if parties agree to proposal then they execute document signed by lok adalath members called as settlement deed & it has legal validity. If one (or) both parties refuse proposal then there is no settlement.
4. Tribunals: - Tribunals are retired persona, appointed for fixed term, which is generally 3years (or) 5years, tribunals in Quasi judicial authority, he deals with particular type of cases such as, tax tribunal, insurance tribunal, service. Appeal from tribunal is allowed to high court.
5. Family counseling centres: - There are family counseling centre in city, they charge fee & do counseling between husband & wife having dispute, they try to settlement dispute between family members.
6. Gram panchayath: - In villages five member are elected by voting people called as gram panchayath, one person is chairperson called as sarpanch, people of the village can refer dispute to gram panchayath, they can refer dispute to gram panchayth, they make hearing & settlement the dispute if parties agree for it.

Q2. Explain provision of negotiations, conciliation, arbitration & distinguish between it.

Ans. Negotiation means participation in discussion to settle the dispute, negotiation is also called as collective bargaining, if negotiation is successful then there is possibility of settlement of dispute the term negotiation includes following points.

1. There are representatives of both sides appointed for purpose of negotiation.
2. Opportunity to be given to all the representative to participate in negotiation & express their opinion.
3. Negotiation may be done voluntarily (or) in pressure of mediators.
4. Negotiation to be done on points of dispute (or) points of agenda.
5. Negotiation can be done orally as well as submission of written document.
6. Negotiation can be done in one meeting (or) more no of meetings.
7. In negotiation party should not be adamant otherwise there may not be settlement. Conciliation:- Conciliation in very popular among business community when there is dispute then relevant parties appoint one (or) more conciliation officer. If one person is appointed then he is called as Sole conciliator. If more conciliation officers are appointed then they are generally 3 (or) 5 so that there opinion should not divide equally conciliation officers make hearing of both sides they also examine relevant documents & parties after completion of hearing they give proposal they document in prepare & both side parties sign it & after that conciliation officers also sign the document it is called as settlement deed no appeal is allowed against settlement deed because both sides parties have sign it voluntarily & by consent.

Arbitration:- Under arbitration & conciliation act 1996 parties can refer dispute for arbitration, there is panel of arbitrators in the institution of arbitrator. Parties can appoint arbitrators from the panel & also fix their remuneration. If one arbitrator is appointed then he is called as sole arbitrator, if more arbitrators are appointed then they are generally 3 (or) 5 arbitrators, they fix the date & place of arbitration proceeding by consent of parties, arbitrator makes hearing of both sides & examine witnesses & documents produce by them, after completion of hearing they give the decision collectively (or) by majority opinion called as Award, & award is signed by all the arbitrators, award is binding on parties if award is not complied then petition can be file in court for enforcement of award & award can be challenged in court on reasonable grounds & court can decide validity of the award.

Distinguish between conciliation & arbitration. Conciliation Arbitration It is generally done among businessman.

It is generally done when there is dispute in Industry, factory, company. There is no prior agreement of conciliation.

There can be prior agreement of arbitration. Conciliation may do settlement. Arbitration declare award. Conciliation is recommendatory. Arbitration is mandatory. Settlement deed cannot be challenge. Award can be challenge,

Q3. Explain the provisions of appointment of arbitrator & their powers & grounds of terminations of arbitrators.

Ans. Under arbitration & conciliation act 1996 there are provisions relating to appointment of arbitrator, powers of arbitrator & grounds of termination of the arbitrator.

Appointment of arbitrator:-

1. If one arbitrator is appointed then it is done by mutual consent of both side parties.
2. If three arbitrators are appointed then one party appoint one arbitrator, other party appoint one more arbitrator & appointed arbitrator appoint one arbitrator.
3. If 5arbitrators are appointed then each parties appoint 2arbitrators & appointed arbitrator take one more arbitrator.
4. If parties may not agree then petition can be filed in the court & court may appoint arbitrator.

Powers of arbitrator:- Following are the rights (or) powers of arbitrator.

1. There is right of arbitrator to fix the remuneration which parties have to pay them.
2. They have right to fix date, time & place of arbitration proceeding in conciliation with parties.
3. There is right to direct parties to file relevant document.
4. Right to take expert opinion if it is necessary & parties have to pay the coast.
5. There is right take opinion of the parties & mention in award.
6. Right to examine parties & witnesses.
7. Right to postpone the date of hearing on reasonable grounds.
8. Right to spend money for typing, steno, Xerox & parties have to pay it.
9. If any remains absent without intimation then arbitrator have right to direct party to pay coast to other party.
10. Arbitrators have right to give separate opinion but award is declared by majority opinion.

Termination of arbitrator: Following are the grounds of termination of arbitrator.

1. When arbitrator is incompetent person.
2. When he fails to attend 3meetings in continuity.
3. When arbitrator is relative of any party & he cannot be impartial.
4. If it comes to notice that he has taken bribe to show favor to any party.
5. When he discontinuous himself because of some personal reason.

These is detail about appointment, powers, grounds of termination of arbitrator.

Grounds to challenge Award:- Settlement cannot be challenged because parties have signed it by consent award can be challenged by any party on reasonable grounds in the court having jurisdiction. Following are the grounds on which award can be challenged.

1. when arbitrator is not impartial & he has done partiality.
2. If arbitrator fails to give reasonable opportunity to any party to represent the case.
3. When award has been declared without examining documents produced by parties.
4. When arbitrator have declared award in wide (or) wide able contract.
5. When award is exceeding the amount claimed by the party.
6. When award has been given in the transaction between incompetent parties.

When award is challenged then court has power to confirm, alter, set aside the award, court can convert award in to decree & enforce it.

These is details about contents of award, grounds to challenge it & enforcement of award.

Short Questions.

Q5. Foreign award.

Ans. There are provisions relating to foreign award in arbitration & conciliation act 1996. It includes following points.

1. One party (or) company is from India & other party is from some other country.
2. They have to agree to refer dispute to arbitration.
3. One arbitrator can be appointed by mutual consent.
4. If there are 3 (or) 5 arbitrators then both appoint equally & appointed arbitrator take one more.
5. They have to decide law of the country to conduct arbitration & country where it should be conducted.
6. It is in English language.
7. Foreign award is enforceable through respective court of the country.

Q5. Explain provisions constitution & functions of administrative, tribunals & its advantages & disadvantages.

Ans. Tribunal are Quasi judicial authorities by 42 nd^ amendment article 323A & 323B have been added in constitution to established state tribunal & central tribunal. Tribunal have all the powers of court but exactly it is not court, retired persons are appointed as tribunal on consolidated payment for 3years (or) 5years, according to ROBSON tribunal decide cases more speedily more cheaply & more efficiently.

Kinds of tribunals:-

1. State service tribunal:- These tribunal decide service matters of state government employees when there is dispute, appeal from these dispute to high court.
2. Industrial tribunal: - These tribunal service matter of labor working in industries & factories.
3. Central administrative tribunal: - These tribunal is generally retired judge of supreme court (or) high court, he deals with dispute of central government employees such as railways, post, nationalize banks, LIC, Airlines.
4. Insurance tribunal: - When there is dispute between policy holder & insurance company then these dispute is settle by tribunal, appeal from these tribunal is allow to high court.
5. Railway tribunal: - These tribunal is appointed for a short period, when there is train accident then it decide cases of compensation.
6. Intellectual property tribunal:- These tribunal deals with cases of violation of trade mark, copy right & patent right which come under intellectual property.
7. Income tax appellate tribunal: - When there is dispute between Assesse & income tax department then these tribunal is decide it & after that appeal is allow to high court.
8. Sell tax appellate tribunal: - These tribunal is retired superior officer of sell tax department when there is dispute between assesse & sell tax department then these tribunal is decide it.
9. Land grabbing tribunal: - These tribunal decide land grabbing cases between land grabber & high court, appeal from these tribunal is also allow to high court.

Advantages of tribunals:-

1. Barden of cases on court are reduced because many cases are decided by tribunals.
2. There is less expenditure because tribunals are paid consolidated salary.
3. There is less court fee in court of tribunals.
4. They have experience & decide matters speedily.
5. Tribunals deals with particular type of cases & there is no waste of time.

Disadvantages of tribunals:

1. Many tribunals are not legal expert & they commit errors.
2. Some tribunals have no regular sitting & it cause inconvenience to parties.
3. Tribunals go by facts & violate procedure.
4. Many case go in appeal & burden of court not reduced.

Q6. What is conciliation & appointment of conciliation officer & procedure of conciliation proceeding.

Ans. In arbitration & conciliation act 1996 there is details about arbitration as well as conciliation to settle the dispute. Conciliation is popular among business people, in partnership deed a clause is added that in case of dispute it shall be referred for conciliation. If such clause is included in partnership deed then they have to refer dispute to conciliation officer & directly cannot go to court. If conciliation is failure to settle dispute then it can be file in the court.

Appointment of conciliation:-

1. If they want to appoint one conciliation officer then mutual consent of both parties is necessary such officer is called as SOLE CONSILIATOR.
2. If they appoint 3conciliation officer then each party appoint 1concilition officer & appointed officer take one more.
3. If they want to appoint 5conciliation officer then each party appoint 2conciliation officer & appointed officer take one more officer.

Conciliation officer should be impartial & having experience in particular type of business. Conciliation officer settle the dispute in conciliation with parties.

Conciliation proceeding:-

1. When there are more no of conciliation officer then one of them is chairperson to conduct conciliation proceeding.
2. Conciliation officer direct the parties to file relevant documents & examine it.
3. Witnesses can be produced by both sides parties & they are examined & cross examined.
4. Conciliation officer can accept the proposal given by both sides parties.
5. They have right to make adjournment whenever it necessary.
6. After completion of hearing conciliation officer give proposal for settlement of dispute.
7. If both side parties agree proposal then they execute settlement deed & it is signed by both side parties & conciliation officers, settlement deed contents following points.  There is a detail of both parties.  There is a detail of conciliation officers.  Brief facts relating to dispute.  Adminicbility of relevant documents.  Statements of witnesses.  Observations, findings & conclusion (or) decision of dispute.  No appeal is allow against settlement because it is signed volunatrly by parties.  When one (or) both side may not agree to proposal then they prepare the report about steps taken & reasons of failure of conciliation proceeding & it is given to parties. These are the details relating to appointment of conciliation officer & settlement of dispute.