Arbitration, Tribunal Adjunction And Alternative Dispute Resolution

Adversarial And Inquisitorial Systems
Every legal system in this world can be broadly classified into two models: Adversarial and Inquisitorial. Both the systems aim at dispensing justice, but they differ in their techniques of adjudication and justice delivery mechanisms. Therefore, this classification becomes important.In an adversarial system, the parties in a legal proceeding develop their own theory of the case and gather evidence to support their claims. The parties are assisted by their lawyers who take a proactive role in delivering justice to the litigants. The lawyers gather evidence and even participate in cross-examination and scrutiny of evidence presented by the other disputing party. The role of the judge/decision maker is rather passive as the judge decides the claims based solely on the evidences and arguments presented by the parties and their lawyers.In an inquisitorial system, the judge/decision maker takes a centre-stage in dispensing justice. The role of the judge/ decision maker is active as he/she determines the facts and issues in dispute. The judge/decision maker also decides the manner in which the evidence must be presented before the court. 

For example, the judge may decide for presentation of a specific form of evidence, i.e., oral (witness statement) or documentary (correspondence between the parties through letters/emails) or a combination of both. The judge then evaluates the evidence presented before him/her and decides upon the legal claims. Therefore, this model of adjudication is also known as the interventionist/investigative model.

Furthermore, in such a system, less reliance is placed on cross-examination and other techniques often used by lawyers to evaluate evidences of their opposing counsel.
The adversarial system is generally adopted in common law countries. Major common law jurisdictions include the UK, US, Australia and India. On the other hand, continental
Europe which follows the civil law system (i.e., those deriving from Roman law or the Napoleonic Code) has adopted the inquisitorial system.
Having understood the basic framework of functioning of the two models of legal systems, let us analyse their advantages and disadvantages.

The main advantages of an adversarial system include:
- The use of cross-examination can be an effective way to test the credibility of witnesses presented;
- The parties may be more willing to accept the results when they are given effective control over the process.

The disadvantages of an adversarial system are the following:
- The cost of the justice system falls upon the parties.
This creates an in-built discrimination amongst the litigants. Parties with better resources are able to access justice by hiring competent lawyers and presenting sophisticated evidences which may not be immediately available for parties that lack these resources. Accessibility and affordability to justice are important challenges for the adversarial system of dispute resolution.

- The role of lawyers and the procedural formalities, e.g., cross examination may prolong the trial and lead to delays in several matters.
- Judges play less active role; a judge is not duty bound to ascertain the truth but only to evaluate the matter based on the evidences presented before him/her.

Peter Murphy in his book, Practical Guide to Evidence recounts an instructive example. A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, my lord, merely the evidence', replied counsel.

On the other hand, the advantages of an inquisitorial model include:
- The system offers procedural efficiency as the active role of judges prevents delays and prolonged trials.
- The system preserves equality between the parties as even the stronger party with more resources and expert lawyers may not be able to influence the judges.

The disadvantages of this model include:
- In an inquisitorial system, since the judge steps into the shoes of an investigator, he/she can no longer remain neutral to evaluate the case with an open mind.
- There may be a lack of an incentive structure for judges to involve themselves in proper fact finding.

Introduction To Alternative Dispute Resolution
Meaning and Scope
Alternative Dispute Resolution (ADR) system refers to the use of non-adversarial techniques of adjudication of legal disputes.
The history of ADR in India pre-dates the modern adversarial model of Indian judiciary. The modern Indian judiciary was introduced with the advent of the British colonial era, as the English courts and the English legal system influenced the practice of Indian courts, advocates and judges. Courts in India were established to have in place a uniform legal system on the lines of the English Courts.
However, even before the advent of such formalistic models of courts and judiciary, Indian legal system was characterised by several native ADR techniques.

The Vedic age in India, witnessed the flourishing of specialised tribunals such as Kula (for disputes of family, community, tribe, castes, races), Shreni (for internal disputes in business, corporation of artisans) and Puga (for association of traders/commerce branches). In these institutions, interestbased negotiations dominated with a neutral third party seeking to identify the underlying needs and concerns of the parties in dispute. Similarly, 'People's courts' or 'Panchayat' continued to be at the centre of dispute resolution in villages.
 

Benefits of ADR
The ADR methods are speedier, informal and cheaper modes of dispensing justice when compared to the conventional judicial procedure. ADR provides a more convenient forum to the parties who can choose the time, place and procedure, for conducting the preferred dispute redressal process.
Furthermore, if the dispute is technical in nature, parties have an opportunity to select the expert who possesses the relevant legal and technical expertise. It is interesting to note that ADR provides the flexibility to even refer disputes to non-lawyers. For example, several disputes of technical character e.g., disputes pertaining to the regulation of the construction industry are usually referred to engineers rather than lawyers.
ADR is also encouraged amongst the disputants to reduce delays and high pendency of court cases. The rise of ADR is further supported, as the law courts are confronted with following problems, such as:<br>1. The lack of number of courts and judges which creates an inadequacy within the justice delivery system;<br>2. The increasing litigation in India due to increasing population, complexity of laws and obsolete continuation of some pre-existing legal statutes;<br>3. The increasing cost of litigation in prosecuting or defending a case, increasing court fees, lawyer's fees and incidental expenses;<br>4. Delay in disposal of cases resulting in huge pendency in all the courts.In the light of the apparent need and benefits provided by ADR, it has emerged as a successful alternative to court trials. Further, the rise of the ADR movement in India indicates that it is contributing tremendously towards reviving the litigant's faith in justice delivery mechanisms. In the modern era, several new and sophisticated forms of ADR techniques have developed. The different forms of ADR models/techniques are discussed below.

TYPES OF ADR

Arbitration
Arbitration is a term derived from the nomenclature of Roman law. Arbitration is a private arrangement of taking disputes to a less adversarial, less formal and more flexible forum and abiding by judgment of a selected person instead of carrying it to the established courts of justice.

Process of Arbitration
Arbitration can be chosen by the parties either by way of an agreement (Arbitration Agreement) or through the reference of the Court. The parties in an arbitration have the freedom to select a qualified expert known as an arbitrator. The process of dispute resolution through arbitration is confidential, unlike the court proceedings which are open to the public.
This feature of arbitration makes it popular especially for commercial disputes where business secrets revealed during the process of dispute resolution are protected and preserved.

Similarly companies can maintain their commercial reputation, as they can prevent the general public or their customers from discovering the details of their on-going legal disputes.
The decision rendered by an arbitrator is known as an arbitral award. Similar to a judgment given by a judge, the arbitral award is binding on the disputing parties. Once an arbitral award is rendered, it is recognised and enforced (given effect to) akin to a court pronounced judgment or order. In addition to an arbitral award, the arbitrator also holds power and authority to grant interim measures, like a judge in the court. These interim measures are in the nature of a temporary relief and may be granted while the legal proceedings are on-going in order to preserve and protect certain rights of the parties, till the final award is rendered.
Therefore, an arbitral award holds several similarities with a court order or judgment. However, unlike a judgment rendered by a judge in the court, the award does not hold precedential value (the doctrine of stare decisis which means 'stand by the decision') for future arbitrations. Arbitrators are free to base their decisions on their own conception of what is fair and just. Thus unlike judges, they are not strictly required to follow the law or the reasoning of earlier case decisions.

Types of Arbitration
- Domestic Arbitration: An arbitration with Indian parties, where the place of arbitration is in India and rules applicable are Indian.
- Foreign Arbitration: An arbitration where proceedings are conducted in a place outside India and the award is required to be enforced in India.
- Ad-hoc Arbitration: An arbitration which is governed by parties themselves, without recourse to a formal arbitral institution. It may be domestic or international in character.
- Institutional Arbitration: An arbitration where parties select a particular institution, which in turn takes the arbitration forward by selecting an arbitrator and laying out the rules applicable within an arbitration, e.g., mode of obtaining evidence, etc. 

There are several institutions to govern arbitration. Examples of prominent institutions of arbitration include, The London Chamber of International Arbitration (LCIA) which has its offices across the world, including New-Delhi, India.
- Statutory Arbitration: An arbitration which is mandatorily imposed on the parties by operation of a particular law or statute, applicable to them. For example, the Defence of India Act, 1971 is one such legislation that mandates a recourse to arbitration in case of any dispute arising within the Act.
- International Commercial Arbitration: An arbitration in which atleast one of the disputing parties is a resident/body corporate of a country other than India.
Arbitration with the government of a foreign country is also considered to be an international commercial arbitration. This form of arbitration has been defined specifically under section 2(1)(f) of the Arbitration and Conciliation Act, 1996. A. Overview of the Laws on Arbitration

The Arbitration and Conciliation Act of 1996 is the relevant legislation that governs the process of arbitration in India.
The statute provides for an elaborate codified recognition of the concept of arbitration, which has largely been influenced by significant movements of judicial reforms and conflict management across the world. In this regard, a special reference must be made to an international convention entitled, United Nations Commission on International Trade Law (UNCITRAL), Model Law on International Commercial Arbitration, 1985. After the birth of this international treaty, the United Nations General Assembly, recommended that all countries must give due consideration to the said model law, in-order to bring uniformity in the law and practice of international arbitration. The Indian Arbitration and Conciliation Act of 1996 is similarly modelled on the UNCITRAL model law.

The Arbitration and Conciliation Act, 1996 repealed several pre-existing Arbitration statutes such as The Arbitration Act, 1940; The Arbitration (Protocol and Convention) Act, 1937 and The Foreign Awards (Recognition and Enforcement) Act, 1961. Thus, arbitration has for long been a part of the Indian legal system.
The Arbitration and Conciliation Act, 1996 has ushered a new era of dispute resolution for domestic and commercial legal issues. On these lines, the Supreme Court of India has also affirmed that the Arbitration and Conciliation Act, 1996 was introduced in order to attract the 'international mercantile community'. The Supreme Court has thus emphasised that the Act should be interpreted and applied, keeping the commercial sense of the dispute in mind (Konkan Railways Corp. Ltd. vs Mehul Construction Co. (2000) 7 SCC 201).

Glossary of Terms
Arbitration agreement: An agreement whereby parties agree to submit their present or future disputes/differences to arbitration. This may be in writing or via other means of communication.
Court referral to arbitration: If a party to the dispute approaches the Court despite the presence of an arbitration agreement, the other party may raise a claim before the Court. The Court then must refer the dispute back to arbitration, if it has been previously agreed by the parties.
This method of initiating arbitration is known as court referral to arbitration.
Statement of claim: The initial documents filed by the claimants enlisting the issues raised to be resolved in an arbitration.
Counter-claim/defense: Respondent's reply to the claim presented by the claimant.
Setting aside of an arbitral award: An arbitral award rendered in an arbitration may be struck down or invalidated by the courts. The grounds of such invalidation are limited to: incapacity of a party to enter into arbitration agreement in the first place, improper appointment of arbitrator, dispute falling outside the terms of the arbitration agreement, bias on the part of arbitrator, award violating public policy at large.

Administrative Tribunals
The 42nd Amendment Act, 1976 added Articles 323-A and 323-B to the Constitution of India. These articles empower the Parliament to set up tribunals for adjudication of specialised disputes. The range of disputes mentioned in the Constitution refers to:
- disputes pertaining to service conditions of the government officers,
- collection and enforcement of tax,
- industrial and labour disputes,
- matters concerning land reforms,
- elections disputes,
- ceiling on urban property, and
- production, procurement, supply and distribution of food-stuffs or other essential goods.

Thus the 42nd Amendment Act ushered the era of 'tribunalisation of Indian judiciary'. Further, the enactment of Administrative Tribunals Act, 1985 took the constitutional objective further and set-up the Central Administrative Tribunal (CAT) and State Administrative Tribunals.
The CAT was set up pursuant to the Act of the Legislature in 1985. The tribunals exercise jurisdiction of service matters of employees covered by it. The appeals against the orders of the administrative tribunals lie before the Division bench of the concerned High Court.

The tribunals are procedurally flexible and this flexibility increases their efficiency. For example, The Administrative Tribunals Act, 1985 allows the aggrieved persons to appear directly before the tribunals. The overall objectives of the tribunals are to provide speedy and inexpensive justice to the litigants. Since government is a major litigant in the courts and government related litigation has increased in the delay and pendency of litigation, such tribunals over the past three decades have significantly contributed in supplementing the role of the courts in adjudication of service disputes.

The tribunals however are not meant to replace the Courts.
This has been explained by the seven judge bench of the Supreme Court in L Chandra Kumar case [JT 1997 (3) SC 589] where it was held that tribunals would not take away the exclusive jurisdiction of the courts, and their decisions could be scrutinised by the Division bench of the High Courts.

One may also note that these administrative and state tribunals are not an original invention of the Indian political and legal system. Such tribunals are now well established in the member countries of the European Union and the United States.
- Today, CAT has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. It also consists of 21 circuit benches.
- The tribunal consists of a Chairman, Vice-Chairman and Members.
- The members of the tribunal are drawn both from judicial as well as administrative streams so as to give the tribunal the benefit of expertise both in legal and administrative spheres.