Test: Arbitration, Tribunal Adjudication and ADR - 1 - CUET Humanities MCQ

Arbitration is a procedure in which a dispute is submitted to one or more arbitrators who makes a decision on the dispute. The decision rendered by an arbitrator is known as an arbitral award. 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. Unlike a judgment rendered by a judge in the court, the award does not hold precedential value.

The Legal Services Authorities Act was enacted by the Parliament, which came into force on 5 November, 1995 to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society. The passing of this act gave free legal service to a citizen of India when he or she is unable to bear the expenditure of legal fees.

Article 39A was added by the 42^nd amendment in 1976 and reads as follows: 'The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.'

The term 'ombudsman' is an indigenous Swedish, Danish and Norwegian term meaning 'representative'. Whether appointed by a legislature, the executive, or an organisation, the typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsman sometimes also aims to identify systemic issues leading to poor service or breaches of people's rights.

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. It is one of the modes of alternative dispute resolution.

International commercial arbitration is an arbitration in which at least 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.

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. The Indian Arbitration and Conciliation Act of 1996 is similarly modelled on the UNCITRAL model law.

The Supreme Court of India in its judicial decision has expressly clarified the ambit of mediation. According to Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., representative suits, election disputes, criminal offenses, case against specific classes of persons (minors, mentally challenged) have been excluded from the scope of mediation.

Alternative Dispute Resolution (ADR) refers to any method of resolving disputes without litigation. ADR regroups all processes and techniques of conflict resolution that occur outside of any governmental authority. The most famous ADR methods are mediation, arbitration and conciliation. All ADR methods have common characteristics – enabling the parties to find admissible solutions to their conflicts outside of traditional legal/court proceedings, but are governed by different rules. For instance, in mediation and conciliation, the purpose of the third party is to promote an amicable agreement between the parties. In arbitration, the third party (an arbitrator or several arbitrators) plays an important role as it renders an arbitration award that is binding on the parties. In comparison, in conciliation and mediation, the third party does not impose any binding decision.

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 system offers procedural efficiency as the active role of judges prevents delays and prolonged trials. On the other hand, 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. Thus, option 2 is the answer.