Snigdha Shandilya and Pritish Kumar Pattnaik, both 5th year law students from KIIT School of Law, Bhubaneswar discusses the development of dispute resolution through Arbitration in different countries.
With the recent development in the legal system, most of the disputes are resolved, more convenient than any formal trial. Most of the disputes relating to energy, financial services, aviation are settled through the Alternative Dispute Resolution mechanism. In different countries, development in ADR has been made through amendments in the Arbitration law. This is not only a better mechanism for settlement of the dispute, but also it offers better efficiency, flexibility, empowerment of parties, and justice. Today, there are more than 200 countries in the world to have negotiation treaties and prefer the International platform to resolve disputes that arise at any point in time. Arbitration offers a platform for resolving cross border commercial disputes between two countries through negotiation and mediation mechanisms.
The Arbitration Law of India underwent three amendments in the years 1940, 1935, and 1961. Recently, the bill has been passed in legislation to amend laws relating to domestic, international, and commercial arbitration. It aimed to encourage foreign trade and make New Delhi as the headquarters of International Arbitration. There has been a High-level committee set up by the central government. The committee had introduced the Arbitration and Conciliation (Amendment) Bill in the year 2019. The main objective was to deal with the dispute’s speedy resolution with minimum cost expenditure and less court interference.
The Arbitration in the Conciliation Act was introduced after the amendment in 1996. It stated powers to Supreme Court and High court to designate the Arbitral institution. It also gave powers to CJI of the High Court to appoint the arbitral panel and review arbitrators’ conduct.
The parties got privileges to choose arbitrators through the application to institution directed by the Supreme Court. In the cases of International Commercial Arbitration, the arbitrators’ appointment shall be made on the application. It sets the parties free to decide the procedure of arbitration. The legislation has also introduced the power of appeal in the new amendment. In contrast, Part 1A is included in the Act to establish the Arbitration Council of India. Lastly, section 26 has been repelled under the new amendment.
There has been a lot of development made in the International Arbitration Act 1974. The change in the Australian Arbitration laws mainly focuses on international trade and commerce. Most of the amendments are inspired by the amendments made in the year 2006 to the UNCITRAL Model. These developments are made to restrict foreign arbitral awards. Arbitral courts of Australia has the power to make interlocutory orders. The threshold test has been removed under the recent changes in the Arbitration Act of Australia. The new enactments also provide optional provisions to the parties to accept or exclude the jurisdiction made by the Federal Court of Australia. Under the UNCITRAL Model Law, the tribunals have the power to make interim orders that may be necessary for the subject matter of the institution. However, Article 17B of the UNCITRAL Model law has not been included in the Act’s recent amendments. The recent amendment also provides a regime of confidentiality, which enables the parties to seek permission to disclose such information.
The new developments in ADR from the past few years have bought immense relief to the parties. Earlier they tend to visit court, and even after spending considerable time and effort, most of them end up losing because of the time-consuming proceedings. This disadvantage by civil dispute resolution gave rise to other mechanisms. The new developments under the Chinese ADR mechanism aim to self, social, and public -relief by improving the quality of mass media and giving the best effects. The major development can be seen in the era of 2006 during the Shanghai Pudong Area People’s court. Here, it was mandated to consider mediation for the pre-trial stage during the civil and criminal cases. The next development was regarding mediation, which majorly focuses on personal rights. Earlier, the parties had to give up on their interest and compromise in traditional mediation.
Earlier, the focus was on the betterment of the group and not on the individual’s right, which was constructed in providing relief. One cause for such was also no professional training of mediators, which resulted in poor mediation committees. The sole reason for this job is part-time was due to low pay and funds. The change bought more resources to train and educate them. The professional mediation committees have expanded in the many other sectors, including insurance, securities, and intellectual properties. The third change was collaborating the non -judicial organizations with courts, which led the settlement confirmed by the court. The courts have also been seeking advice for mediation organizations and assistance. Now comes the fourth change, which talks about the amendments, enactment, and legalization of “People’s Mediation Law.” The law includes the selection and qualification of mediation and mediators.
In comparison, the fifth change is about having the usage of modern technology and online dispute resolutions. Parties can easily apply for mediation and choose their mediator over it through video. The parties need to sign in with their cell phone or computer. There was also an establishment of the first Internet court, which deals explicitly with online dispute cases.
There was also a new treaty imposed on cross-border mediation, which was signed by China. This treaty encourages cross-border mediation.
The Hong Kong International Arbitration Centre (HKIAC) has been granted a license for being the authorized committee. The laws undergo major amendment on March 29, 2019. These amendments focused majorly on the dispute arising out of the shareholder’s agreement of the contracts by state companies These began affecting arbitral and ad hoc arbitration. The amendment also provided relaxation in terms of compensation for the parties who incurred loss or those who claimed invalidation. These could only be referred to as the ones licensed by the Russian government. Later, the Russian institution also announced the grant of license to the sports arbitration in April 2019.
These amendments consisted of some requirements, which are as follows. The first was that the party to the arbitration should be administered under a permanent institution and seated in Russia. The parties were not needed to include the entity itself, and the arbitration procedure must be confidential. The amendments also expanded the scope of disputes to be referred to in international arbitration institutions. The ones arising out of the procurement of contract concluded by the state-owned under Law 223-FZ had gone under the restrictive approach adopted by Russian courts.
In light of the recent development in the Arbitration laws, it has provided a better platform for resolving the dispute through Arbitration. The impact of arbitration has been increasing throughout the world, as it is the modern way of delivering justice. It will bring efficiency, flexibility, and tailored outcome through arbitration by eliminating the lengthy court procedures. Legislations of different countries make more significant efforts for arbitration laws to resolve disputes with the minimum period effectively. The rising technology in Arbitration has also changed people’s perception, especially at the time of COVID 19. With the development in the arbitration laws, it has benefited both nationally and internationally.
Snigdha Shandilya and Pritish Kumar Pattnaik are final year law students from KIIT School of Law, Bhubaneswar.
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