Arbitration in Civil Procedure code
Alternative to litigation that allows parties to resolve their disputes in the presence of arbitrators (neutral parties).
Introduction
There are many unsolved cases,
clogged in Indian courts. Even though setup of fast track courts cases are
still piling up.
Budget allocation for Indian
judiciary is around 0.8 to 0.9% of the GDP. Also in reality court access to
vast majority of the poor in India. Legal procedures involves a lot of money
and paperwork as well as take up a lot of time
Alternative dispute resolution
(ADR) refers to any method of resolving disputes without litigation.
In situations using negotiation,
arbitration or mediation used.
Definition:
Black Law dictionary: Alternate
dispute resolution is a procedure for settling a dispute by means other than
litigation, such as arbitration, mediation or mini trial.
US Legal says, Settling a dispute
by impartial persons without proceeding to a court trial.
Arbitration in Mythology:
In Mythology Narada Muni finds in
Arbitration, Mediating, Negotiating, not being in any side, outcome of
goodness, justice and dharma as his goal
Krishna doing mediation,
negotiation for Pandavas infront of Kauravas.
Moses and Jesus becoming mediator
of God and God words. One gives the word of god through the slate, Jesus
imparted the knowledge and way to reach the god.
King Solomon ordered to kill the
child, original mother pleads to not to kill but the fake one accepting to kill
the child. This is the first Arbitration recorded in Bible.
Arbitration in history
Arbitration is not a new
experience for people of this country. It is prevailing in India from ancient
years.
Ancient system of dispute
resolution made a considerable contribution relating to a family, social groups
and also minor disputes relating to trade and property.
At home elder of a house usually
resolve the conflicts, to create the peace and harmony among the family
members.
Village council usually elders of
village through panchayat leading the role of resolving the disputes in very
informal way.
Krishna imparting knowledge to
Arjuna, were the knowledge of Dharma should be told for years, but in Warfield
he told what is right and which is
wrong. Certain way to make the warrior to accomplish the duty.
In Mahabharata, if you don’t
understand the rules just do your, Karma (duty) & Dharma (righteousness) is
a kind of arbitration.
In Quran, Abu Musa Al-Ash’ri was
guided by second caliph Umar bin Khattab, to resolving the disputes amicably,
“The believers are a single brotherhood, so make peace and reconciliation
between two brothers”, also says “If two parties fall into a quarrel, make ye
peace between them, with justice and be fair”
Panchayat: In Hindu law
there is a reference in “Brhadaranayaka Upanishad”, it mentions,
Puga – Local courts
Srenis – People engage with
similar business
Kula – Members worried about a
specific community
Cumulatively known as Panchayat.
Sali the impartial umpire holds the panchayat a mini court to resolve the small disputes during the Mughal period. Judges known as Kazee, used to follow Hedaya (guidance) to try and guide the two parties to resolve a matter.
Arbitration during the
British Era
The Bengal resolution of 1793 –
mentions the suit does not exceeds 200 Rs., primarily related to accounts,
partnership, debts, non-performance of contractual obligations can be addressed
through arbitration
Civil Procedure code 1859 –
Chapter VI Section 312-327 refers the disputes to arbitration
Indian Arbitration Act, 1899 –
was introduced as the first Indian legislation regarding the ADR, matters
settled by agreement between parties did not require court supervision, left to
purview of Schedule 2 of Code of Civil Procdeure, 1908
Arbitration Act, 1940 – Domestic
arbitration and international ADR proceedings.
Conventions shaped ADR
1927 - Geneva Convention on the
execution of Foreign Arbitral Awards
1958 – The New York Convention
(Authorities and procedures of ADR)
1961 – Geneva convention
(Jurisdictions)
1965 – Washington Convention
(Disputes between states and nations)
Harvard Professor Frank
E.A. Sander a special consultant to the ABA (American Bar Association)
assisting the minor disputes at Columbia school. He found the alternative paths
to justice. He co-author the book name Dispute Resolution. Through his books
and articles he developed ADR, hence become father of ADR.
Due to the popular idea of de-centralization from central powers, Gandhi called as father of Indian ADR.
Arbitration in India
-
Bengal Regulation Act, 1772, 1780 & 1781
designed to support Arbitration
-
Procedures in Civil courts, codified arbitration
act VIII of 1857
-
Indian Arbitration act 1899 passed.
-
1940 Arbitration act was enacted
-
1987 – Through Legal services authorities act,
Lok Adalats received statutory status.
-
1996 – Arbitration and Conciliation act
replacing 1940 arbitration act.
ADR in Civil procedure code
1859 – Code of Civil Procedure
from section 312 to 325 dealt with arbitration in suits while 326 and 327
provided for arbitration without court intervention.
1976 – Code of Civil Procedure
settlement of matters concerning the family.
1999 – Code of Civil Procedure
1999 obtained statutory recognition for ADR.
2002 – Code of Civil Procedure
(Amendment Act) Act No. 22, bring a change in the procedure in suits and civil
proceedings by way of reducing delays and compressing them into a years time
from institution of suit till disposal and delivery of judgment.
Section 80 – Serving notice
under section 80 is to give government sufficient warning of the case against government.,
if it so then issue can be settle the claim without litigation or afford
restitution.
Section 80(1) – No suit
against government or public officer unless a notice served.
Section 89 – Power to
refer the dispute for settlement or conciliation without the intervention of
court.
Case Laws
ONGC vs. Collector of Central
Excise.
Dispute between public sector company
against Government of India involving principles. Court held that, there should
be mutual consent or arbitration or avoiding litigation to resolve the
disputes.
Salem Advocate Bar association, Tamilnadu vs. Union of
India
All endeavors made by court at the earliest point of time to
settle the dispute under section 89 of the code. However the court cannot compel
a party to surrender to ADR.
Conclusion
Section 89 is important part of Code of Civil procedure resolving
disputes between parties. It reduces the burden of the court, ensures
compromise and speedier effective method of administering justice.
Reference
1. https://www.lawctopus.com/academike/alternate-dispute-resolution-code-civil-procedure/
3. https://en.wikipedia.org/wiki/Frank_Sander
6. Alternative Dispute Resolution in Islam:
An Analysis by Dr. Vandana Singh
7. ADR Dharma by Aalok Sikand
8. https://legalserviceindia.com/legal/article-7601-epistemology-of-adr.html
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