-An article by Lavanya Goinka
In India, the words ‘Ayodhya temple’ can elicit a wide range of feelings. Emotions are followed by glimpses of recollections. One of those memories is when the Supreme Court ordered the mediation in the Ayodhya dispute to be finished within eight months and the first report to be produced within four weeks in March of this year.
The “three-team mediation panel” included former Supreme Court judge FM Kalifulla, Sri Sri Ravi Shankar, and prominent counsel and mediator Sriram Panchu. Many people asked how “mediation” came into play, and why SC ordered it rather than just making a decision. They claim the world has become a village. The advent of air travel, boosted by digital revolution, is widely credited with uniting the world. However, the principle of Vasudhaiva Kutumbakam, which means “the universe is one family,” is stated in the Maha Upanishads, which are supposed to have been composed between 500 and 1000 CE.
Whether it’s today’s jet setters and space tourists or the ancient bow and arrow warriors of the past, the idea of the world as one big happy family has long been imprinted in the human mind.
And, come to think of it, we do share the same air, are held together by the same invisible gravity, and the gorgeous ball exists because of the same brilliant sun. So, in some ways, the statement that the globe is just one unit, community, or family is correct. It’s just a messed-up one. A family steeped in colonisation, cultural interchange, and class conflict.
A family still maturing and learning to negotiate the subtle traps of human faults such as greed, wrath, desire, and pride. A family whose members’ tempers flare, thoughts shift, and other factors contribute to a slew of problems.
This disagreement has resulted in 4.5 crore litigation pending in Indian courts alone. And India only accounts for around 17% of the global population, with the majority of the “non-litigation-loving” population. One can only image how many problems there are in our “global village” where people are used to suing each other. Add to that the rising cross-border trade that is constantly blurring international borders.
The need for ADR
This constant blurring of international borders, often known as globalisation, caused people and businesses to interconnect, resulting in excellent collaborations and successful corporations on the one hand, but also a recognition that people needed to go outside traditional courts on the other. The increasing number of conflicts and disputes needed to be addressed and managed not just within countries, but also beyond borders. And it had to happen fast, discreetly, and effectively. As a result of this concept, arbitration, also known as ADR, has grown in popularity (ADR).
What is ADR?
“Alternative dispute resolution (ADR) refers to a variety of processes and techniques aimed to help conflicting parties come to an agreement without resorting to litigation,” according to the Harvard Law School website.
These processes can range from assisted settlement discussion, in which disputing parties are urged to consult directly with one another prior to engaging in another legal process, to arbitration, which might resemble a traditional trial in appearance and feel.
Negotiation, mediation, collaborative law, and arbitration are the most often utilised ADR systems.
Lawyers frequently serve as adjudicators, arbitrators, conciliators, and/or mediators in ADR processes, either by advising and representing clients in hearings, or by participating as adjudicators, arbitrators, conciliators, and/or mediators.”
ADR across global village
While there was a clear need for a mechanism, there was a gap between states and countries in the global community in terms of the norms that govern the process and the standards that both sides could anticipate.
The UNCITRAL (United Nations Commission on International Trade Law) created and enacted the Model Law on International Commercial Arbitration in response to this. It was adopted on June 21, 1985.
Model law: UNCITRAL
The Model Law was adopted with the intention that, when developing their own domestic arbitration legislation, all members of the global village would take into account the Model Law in order to maintain uniformity in the law of arbitral proceedings and to keep in mind the unique requirements of international commercial arbitration.
Model Law was enacted with the goal of removing obstacles to international arbitration regulation by ensuring uniformity/standardization in the procedural and substantive rules/practices of arbitration.
Arbitration journey in India
After researching and considering the provisions pertaining to arbitration in various legal systems, this Model Law was drafted. The precision with which the above-mentioned process was carried out is what allowed the Model Law to be integrated into the legal systems of practically every country, including India.
Panchayats, the good old days when elders of the village (the Indian village) would sit together and arbitrate conflicts between quarrelling members, were an informal type of arbitration.
The Indian Arbitration Act, 1899, was formally codified by the British in 1899, along with the majority of other Indian laws. This law only applied to the municipalities that used to be part of the Presidency (Calcutta, Bombay, and Madras).
The law of arbitration was established after the CPC (Code of Civil Procedure, 1908) was promulgated. It was subsequently placed in the Second Schedule, and it was only then that it was eventually extended/implemented across the rest of India. The Arbitration Act of 1940 consolidated the domestic arbitration. The English Arbitration Act of 1934 was used as a basis for this.
India continued to evolve and made changes to its arbitration law in 1937, 1940, and 1961, but it was The Arbitration and Conciliation Act, 1996 that consolidated all of the aspects and created a law that addressed international commercial arbitration and domestic arbitration, as well as the enforcement of foreign arbitral awards and conciliation rules.
