Comparative Analysis of Institutional Arbitration with Special reference to India

Content

1. Introduction
2. Research objective
3. Research questions
4. Hypothesis
5. Research methodology & literature review
6. Tentative chapter division

INTRODUCTION
The Indian legal system is burdened with ample amount of cases that needs to be
resolved expeditiously. With the advent of ADR in the Indian legal system, there
seems a positive hope where the burden can be now transferred from the courts to the
arbitration. The concept of Alternate Dispute Resolution has been available in India
since times ages the British Colonial raj system also gave India with the opportunity
of solving disputes through arbitration. Assisted negotiation (Mediation) was always a
part of the dispute resolving procedure. Though ADR has been developed, but the
formal application of just arbitration has been available in the courts as like today.
Conciliation has been well adopted in resolving labor issue under the auspices of
Industrial disputes Act of 1947 and its implementation has been adhered to. Mediation
still needs to be developed. The Constitution provides us with Article 21which
provides for Right to Life. In the celebrated case of Maneka Gandhi v UoI, it was
adjudicated that Fast and speedy justice is a part and parcel of any sort of human life;
the achievement of which would provide the highest level of Human freedom and
consonance with the Fundamental rights. The noteworthy rise in the role of
international trade in the economic growth of states over the last few decades has been
accompanied by a substantial increase in the number of commercial disputes as well.
In India as well, increasing globalization of the Indian economy and the rapid growth
in competition has led to a substantive change in commercial disputes. However, the
rate of industrial growth, modernization, and development of socio-economic
circumstances has, in many instances, outpaced the rate of growth of ADR.
Development has meant increased cases for already overburdened courts, further
leading to notoriously slow settlement of commercial disputes. Hence, alternative
dispute resolution mechanisms, including arbitration, have become more crucial for
businesses operating in India as well as those doing businesses with Indian firms.
Arbitration law in India was made by the Bengal Regulations in 1772, amid the
British standard. The Bengal Regulations given to reference by a court to arbitration,
with the parties' assent, in claims for records, organization deeds, and rupture of
agreement.

Until 1996, the laws relating to arbitration in India had mostly of three statutes:

i. the 1937 Arbitration (Protocol and Convention) Act,

ii. the 194o Indian Arbitration Act, and
iii. the 1961 Foreign Awards (Recognition and Enforcement) Act.

THE ARBITRATION ACT, 1940

The Arbitration Act, 1940, managed just Domestic arbitration. Under the 1940 Act,
arbitration of the court was a requirement in all the three phases of arbitration, i.e.
preceding the dispute reference to the arbitral tribunal, in the procedures' span before
the arbitral tribunal, and after the award was given by the arbitral tribunal. Before an
arbitral tribunal to parties notice of a dispute, court mediation was required to set the
arbitration procedures in movement. The presence of dispute was required to be
demonstrated. Over the width of the procedures, the court's arbitration was necessary
for the expanding time for making an arbitral award. At long last, before the dispute
could be authorized, it was required to be made the court's belief.

The government enacted the Arbitration and Conciliation Act, 1996 with an aim to
transform the outdated 194o Act. The 1996 Act is a broad piece of legislation bases on
UNCITRAL Model Law. This Act led to repeal of all the three previous statutes (the
1937 Act, the 1961 Act and the 194o Act). Its basic purpose was to construct Indian
arbitration as cheaper i.e. cost-effective and speedy and fast mechanism for settling
commercial disputes.

OBJECTIVE OF THE STUDY

1. To understand the concept of speedy justice in arbitration proceedings.

2. To understand the concept of Judicial Intervention in arbitration proceedings.
 3. To examine the advantages and disadvantages in respect of judicial
intervention in the arbitration proceedings.
4. To critically analysis the functioning of judicial intervention in arbitration
proceedings and the areas for its improvement so as to reach the objectivities of
the Arbitration Legislation.

RESEARCH QUESTIONS

1. Should there be a regulatory body for accrediting arbitral institutions?

2. What measures need to be taken to: (a) encourage the creation of an arbitration
bar in India; (b) strengthen teaching of arbitration in law schools and colleges;
and (c) encourage the creation of specialist arbitration judges?
3. How can the government and the legislature give impetus to the growth of
institutional arbitration in India?
4. What measures can be considered to reform the arbitration and ADR culture in
India to ensure timely and efficient private dispute resolution?

METHODOLOGY & LITERATURE REVIEW

The methodology that I propose to follow in my dissertation would be that of non-

empirical.
This Dissertation shall include both Primary as well as Secondary source of
information. Primary sources shall be used to the extent of the legislation as well as
rules and regulations passed/made by the centre and the state.
Secondary sources of information would include Books, Articles as well as websites.

Elaborate review of literature has been made in the process of this research work. A
passing reference may be useful to summarize some of the useful literature which was
a boon for to have a deep study to pursue this research work.
The Association for International Arbitration (AIA) during the year 2001 has
developed into a group concerned in the area of private international law to keep in
pace to resolve the dispute mounting up within the global sector.
Faye Fangfei Wang, 2009 - Chandos Publishing (Oxford) Ltd., First Published in
Great Britain. This work of the author is slightest amendment of her Doctoral thesis
titled as Electronic Commercial Transaction a comparative study of International
European Union, US and Chinese Law.
Aswini K.Bansal - Arbitration and Procedure and Practice - Advocate, Supreme Court
of India and Punjab & Harayana, High Court and Arbitration Consultant, Published by
Lexis Nexis, Butterworths Wadwa. The author happens to be the executive director for
Indian Counsel for Arbitration (ICA) and also Assistant Secretary General to the
FICCI. The rich practical experience which he has acquired by virtue of afore stated
office is highly reflected in this book. He focuses on many technical issues including
the enforcement of Award, Award based on New York Convention, Award which is not
based on New York convention, enforcement of Award under International
Commercial Arbitration, Domestic Award, enforcement of Award under other
procedural laws in Indian system.

HYPOTHESIS:

The hypothesis of this present research work is that Arbitration law is effective mode
of dispute resolution compare to traditional and length court proceedings in India.

Tentative Chapterization

Chapter i: Introduction
Chapter ii: Evaluation of Arbitration Dispute Resolution
Chapter iii: Types of arbitration
Chapter iv: Arbitral institutions and comparisons
Chapter v: Conclusion and suggestions