LAB GROUP ASSIGNMENT

On
ARBITRATION

Submitted To-

Submitted By-

Dr. Amit Bagga

Mansi Choudhary
Nihit Sinha
Saurabh
Komal

Sharma
Bakshi

Nishikant Singh
Rahul Arora
Arbitration
A form of alternative dispute resolution (ADR) is a technique for the resolution of
disputes outside the courts. The parties to a dispute refer it to arbitration by one or
more persons arbitratorsand agree to be bound by the arbitration decision. A third
party reviews the evidence in the case and imposes a decision that is legally
binding on both sides and enforceable in the courts.
The arbitrator does not enjoy any judicial powers. The arbitrator listens to the view
points of the conflicting parties and then gives his decision which is binding on all
the parties. The judgment on the dispute is sent to the government. The
government publishes the judgment within 30 days of its submission and the same
becomes enforceable after 30 days of its publication. In India, there are two types
of arbitration: Voluntary and Compulsory.
Arbitration can be either voluntary or mandatory (although mandatory arbitration
can only come from a statute or from a contract that is voluntarily entered into,
where the parties agree to hold all existing or future disputes to arbitration, without
necessarily knowing, specifically, what disputes will ever occur) and can be either
binding or non-binding. Non-binding arbitration is similar to mediation in that a
decision cannot be imposed on the parties. However, the principal distinction is
that whereas a mediator will try to help the parties find a middle ground on which
to compromise, the (non-binding) arbitrator remains totally removed from the
settlement process and will only give a determination of liability and, if
appropriate, an indication of the quantum of damages payable. By one definition
arbitration is binding and so non-binding arbitration is technically not arbitration.

Compulsory Arbitration
Compulsory arbitration is an arbitration required or forced by law on parties
involved in a dispute. In such arbitration, the parties are compelled to submit their
case for arbitration even if they do not will to do so. It is a non-binding, adversarial
dispute resolution process in which one or more arbitrators hear arguments, weigh
evidence and issue a non-binding judgment on the merits after an expedited
hearing. In such arbitration, arbitrators address only the disputed legal issues and
apply legal standards. Either party can reject the ruling and request a trial de novo
in court.
a. Under compulsory arbitration the parties are forced to arbitration by the state
when:
b. The parties fail to arrive at a settlement by a voluntary method.
c. Public interest and the working conditions have to be safeguarded and regulated
by the state.
d. When there is a national emergency which requires that the wheels of production
should not be obstructed by frequent work-stoppages.The nation is facing a grave
economic crisis.
e. There is a grave public dissatisfaction with the existing industrial relations.
Compulsory arbitration eliminates the scope for strikes and lock-outs. It deprives
both the parties of their very important and fundamental rights.

Voluntary Arbitration
Voluntary Arbitration is arbitration by the agreement of parties. It is a binding
adversarial dispute resolution process in which the disputing parties choose one or
more arbitrators to hear their dispute and to render a final decision or award after
an expedited hearing.
Some of the important elements in voluntary arbitration are:
a. Voluntary submission of dispute to an arbitrator.
b. Subsequent attendance of witnesses and investigations.
Voluntary arbitration may be specifically needed for disputes arising under
agreements.

Appointment of Arbitrator
Arbitral tribunals are usually constituted (appointed) in two types of proceedings:

ad hoc arbitration proceedings are those in which the arbitrators are

appointed by the parties without a supervising institution, relying instead on the
procedural law and courts of the place of arbitration to resolve any differences
over the appointment, replacement, or authority of any or all of the arbitrators;
and

institutional arbitration proceedings are those in which the arbitrators are

appointed under the supervision of professional bodies providing arbitration
services, such as the American Arbitration Association (which conducts
international proceedings through its New York-based division, the ICDR),
the LCIA in London or the ICC in Paris. Although these institutions (and many
others) are headquartered in their respective cities, they are capable of
supervising the appointment of arbitral tribunals in nearly any country, avoiding
the need for the parties to involve local courts and procedures in the event of
disagreement over the appointment, replacement, or authority of any or all of
the arbitrators.

Permanent tribunals tend to have their own rules and procedures, and tend to be
much more formal. They also tend to be more expensive, and, for procedural
reasons, slower.

Examples
Example 1: A kid ends up breaking his neighbor's window with a baseball. The
neighbor wants compensation but doesn't want the kid to end up in criminal
trouble. They go to an arbiter it is decided that the kid will mow the neighbors
lawn once a week at a rate of $10 per week until the window is paid off.
Example 2: Workers of Bob's Marketplace feel like they don't get enough benefits.
The union gets in touch with the management of Bob's and the management agree
to arbitration instead of risking a long strike. In arbitration it is decided that if an
employee works more than 30 hours/week they are entitled to a better health care
package.

Case on Arbitration
A North-American software developer had registered a trademark
for communication software in the United States and Canada. A
manufacturer of computer hardware based elsewhere registered
an almost identical mark for computer hardware in a number of
Asian countries.

Both parties had been engaged in legal

proceedings in various jurisdictions concerning the registration

and use of their marks. Each party had effectively prevented the
other from registering or using its mark in the jurisdictions in
which it holds prior rights. In order to facilitate the use and
registration of their respective marks worldwide, the parties
entered into a coexistence agreement which contains a WIPO
arbitration clause. When the North-American company tried to
register

its

trademark

in

particular

Asian

country,

the

application was refused because of a risk of confusion with the

prior mark held by the other party. The North-American company
requested that the other party undertake any efforts to enable it
to register its mark in that Asian country and, when the other
party refused, initiated arbitration proceedings.
Following proposals made by the Center, the parties appointed a
leading IP lawyer as sole arbitrator. In an interim award the sole

arbitrator gave effect to the consensual solution suggested by the

parties, which provided for the granting by the hardware
manufacturer of a license on appropriate terms to the NorthAmerican company, including an obligation to provide periodic
reports to the other party.

Conciliation
The terms conciliation and mediation are interchangeable in the Indian context.
Conciliation is a voluntary process whereby the conciliator, a trained and qualified
neutral, facilitates negotiations between disputing parties and assists them in
understanding their conflicts at issue and their interests in order to arrive at a
mutually acceptable agreement. Conciliation involves discussions among the
parties and the conciliator with an aim to explore sustainable and equitable
resolutions by targeting the existent issues involved in the dispute and creating
options for a settlement that are acceptable to all parties. The conciliator does not
decide for the parties, but strives to support them in generating options in order to
find a solution that is compatible to both parties. The process is risk free and not
binding on the parties till they arrive at and sign the agreement. Once a solution is
reached between the disputing parties before a conciliator, the agreement had the
effect of an arbitration award and is legally tenable in any court in the country.
Most commercial disputes, in which it is not essential that there should be a
binding and enforceable decision, are amenable to conciliation. Conciliation may

be particularly suitable where the parties in dispute wish to safeguard and maintain
their commercial relationships.
The following types of disputes are usually conducive for mediation: commercial,
financial, family, real estate, employment, intellectual property, insolvency,
insurance, service, partnerships, environmental and product liability. Apart from
commercial transactions, the mechanism of Conciliation is also adopted for settling
various types of disputes such as labour disputes, service matters, antitrust matters,
consumer protection, taxation, excise etc

Appointment of conciliators
Section 64 deals with the appointment of the conciliators. When the invitation to
the conciliation is accepted by the other party, the parties have to agree on the
composition of the conciliation tribunal. In the absence of any agreement to the
contrary, there shall be only one conciliator. The conciliation proceeding may be
conducted by a sole conciliator to be appointed with the concent of both the
parties, failing to which the same may be conducted by two conciliators (maximum
limit is three), then each party appoints own conciliator ,and the third conciliator is
appointed unanimously by both the parties. The third conciliator so appointed shall
be the presiding conciliator. The parties to the arbitration agreement instead of
appointing the conciliator themselves may enlist the assistance of an institution or
person of their choice for appointment of conciliators. But the institution or the
person should keep in view during appointment that, the conciliator is independent
and impartial.

Procedure of conciliation
1) Commencement of the conciliation proceedings
The conciliation proceeding are initiated by one party sending a written invitation
to the other party to conciliate. The invitation should identify the subject of the
dispute. Conciliation proceedings are commenced when the other party accepts the
invitation to conciliate in writing. If the other party rejects the invitation, there will
be no conciliation proceedings. If the party inviting conciliation does not receive a
reply within thirty days of the date he sends the invitation or within such period of
time as is specified in the invitation, he may elect to treat this as rejection of the
invitation to conciliate. If he so elects he should inform the other party in writing
accordingly.
2) Submission of Statement to Conciliator [Section 65]
The conciliator may request each party to submit to him a brief written statement.
The statement should describe the general nature of the dispute and the points at
issue. Each party should send a copy of such statement to the other party. The
conciliator may require each party to submit to hima further written statement of
his position and the facts and grounds in its support. It may be supplemented by
appropriate documents and evidence. The party should send the copy of such
statements, documents and evidence to the other party. At any stage of the
conciliation proceedings, the conciliator may request a party to submit to him any
additional information which he may deem appropriate.
3) Conduct of Conciliation Proceedings [Section 69(1), 67(3)]The conciliator may invite the parties to meet him. He may communicate with the
parties orally or in writing. He may meet or communicate with the parties together

or separately. In the conduct of the conciliation proceedings, the conciliator has

some freedom. He may conduct them in such manner as he may consider
appropriate. But he should take in account the circumstances of the case, the
express wishes of the parties, a partys request to beheard orally and the need of
speedy settlement of the dispute.
4) Administrative assistance [S. 68]Section 68 facilitates administrative assistance for the conduct of conciliation
proceedings. Accordingly, the parties and the conciliator may seek administrative
assistance by a suitable institution or the person with the consent of the parties.

Role of conciliator
(1) The conciliator shall assist the parties in an independent and impartial manner
in their attempt to reach an amicable settlement of their dispute.
(2) The conciliator shall be guided by principles of objectivity, fairness and justice,
giving consideration to, among other things, the rights and obligations of the
parties, the usages of the trade concerned and the circumstances surrounding the
dispute, including any previous business practices between the parties.
(3) The conciliator may conduct the conciliation proceedings in such a manner as
he considers appropriate, taking into account the circumstances of the case, the
wishes the parties may express, including any request by a party that the

conciliator hear oral statements, and the need for a speedy settlement of the
dispute.
(4) The conciliator may, at any stage of the conciliation proceedings, make
proposals for a settlement of the dispute. Such proposals need not be in writing and
need not be accompanied by a statement of the masons therefore.

Case on Consillation
Improved and integrated care for aged patients
The complainants elderly mother, a resident of North West Tasmania, was
admitted to hospital suffering from confusion and a urinary infection. The
complainant contended that her mother was inappropriately prescribed the antipsychotic drugs Haloperidol and Risperidone whilst in hospital, and that this
caused her condition to worsen and her behaviour to deteriorate to the extent that
she was subjected to physical as well as chemical restraint. She complained that
hospital staff failed to listen to her concerns about the effects of the medication on
her

mother.

The patient was eventually transferred to a specialist psycho-geriatric unit in the

south of the State, where her debilitating symptoms were attributed to neurolepticinduced Parkinsonianism. Psychotropic medication was ceased at this stage, and
she

was

eventually

discharged

home.

The hospital acknowledged the agitation and suffering of the patient and the fact
that delirium is invariably more severe in a hospital environment than at home. It
was noted that there was no alternative placement available, and that the hospital
had provided a high standard of care in difficult circumstances. The hospital
asserted that it had consulted regularly with the complainant about the care of her
mother.
In conciliation, a report was obtained from a senior specialist in aged care. The
specialist advised that the patients condition was probably contributed to by some
of the medications used to try to manage the patients behaviour, and that her
outcome would have been better, and her hospitalisation probably shorter, had she
been treated in a specialist unit from the outset, rather than in a general hospital
environment. The specialist commented that the best management of delirium is in
a specialised delirium ward, which no acute Tasmanian hospital possesses. A
higher staff-to-patient ratio could provide an environment in which patients are
safe to roam without chemical or physical restraint. It was noted that the hospital in
this complaint lacks backup from specialised geriatric or psycho-geriatric services.
As a result of the complaint, it was recommended that the systemic problems
identified in the expert report, particularly the lack of a specialist unit or ward in
the north west of the State be addressed, and that education programs for
practitioners involved in the management of dementia patients be introduced.
The hospital responded by holding a planning day involving all stakeholders, to
address the issues raised in the report with a view to providing improved and
integrated care for aged patients. The key initiatives from the planning

day have now been published, and introduced into the hospitals strategic plan. A
major outcome has been the identification of a hospital precinct specifically suited
to the needs of patients with dementia or delirium.

Conciliation vs Arbitration
Conciliation and arbitration are both carried out with the purpose of peacefully and
agreeably resolving the conflict between parties. They are both processes that have
been adopted to avoid the hassle and cost involved in going to courts to resolve a
dispute. Despite their similarities in the outcome that they try to achieve, a number
of major differences between the two are there. In conciliation, most if not all
communication goes through the conciliator who is trusted by both parties. In
arbitration, a panel of arbitrators hears the cases of both parties and examines
evidence to come at a resolution. While the decision given by the conciliator is not
binding, with room for negotiation, the decision put forth by arbitrators are final
and legally binding thereby leaving little room for appeal.

Difference between Conciliation and Arbitration

Alternative dispute resolution (ADR) is a dispute resolution technique used to
resolve disagreements and disputes between parties by coming to an agreeable
settlement through discussion and negotiation. Conciliation and arbitration are two
such forms of ADR that are used as an alternative to going to courts to resolve
conflicts.
The conciliation process is handled by an impartial individual known as a
conciliator, who meets with the parties involved and works with the parties
involved to arrive at a settlement or resolution.
Arbitration is much like a mini court in which the parties need to present their
case to a panel of arbitrators, along with supporting evidence.

Adjudication
Adjudication is the legal process by which an arbiter or judge reviews evidence
and argumentation including legal reasoning set forth by opposing parties or

litigants to come to a decision which determines rights and obligations between the
parties involved. Three types of disputes are resolved through adjudication:
1. Disputes between private parties, such as individuals or corporations.
2. Disputes between private parties and public officials.
3. Disputes between public officials or public bodies.
The ultimate legal remedy for the settlement of an unresolved dispute is its
reference to adjudication by the government. The government can refer the dispute
to adjudication with or without the consent of the disputing parties.
When the dispute is referred to adjudication with the consent of the disputing
parties, it is called voluntary adjudication. When the government herself refers
the dispute to adjudication without consulting the concerned parties, it is known as
compulsory adjudication.