Global ODRM treaty: Need of the Hour
The existence of fair, just and reasonable procedure for determination and settlement of conficting issues between the litigating parties decides success rate of every justice delivery system and this includes the right of an individual to early disposal of cases known as the right to speedy justice. For this reason, there have been various efforts by both legislature and judiciary to ensure early disposal of cases to the litigants. The Indian judiciary has been considerate enough to include right to speedy trial as a part of fair, just and reasonable procedure enshrined under Article 21 of Constitution as the mental agony, expense and strain which a person suffers in his quest for justice while litigating in courts and which, coupled with delay results in impairing the capability or ability of the litigant to represent his case and sometimes even in the total denial of justice to him.
But, this right of speedy trial and easy access to justice should not be considered as one limited to criminal trial only and is equally available in civil suits. There are various legal provisions which provide alternative0 and less lengthy judicial mechanisms such as Arbitration and mediation.
But, this right of speedy trial and easy access to justice should not be considered as one limited to criminal trial only and is equally available in civil suits. There are various legal provisions which provide alternative0 and less lengthy judicial mechanisms such as Arbitration and mediation.
A unique example of this right as a part of Indian judicial system is the existence of "Village Panchayat System" which not only enjoys constitutional status under PART IX and schedule 11 and 12 of the Constitution of India but also has a great historical significance as it is an institution meant for local governance. Under this village panchayat system, various judicial powers have been given to them which, though limited, but are of great importance as they are based on the principle of "Conciliation and mediation".
Not only this, the major procedural law on civil proceeding, the Civil Procedure Code, 1908 also gives power to the court to refer matters for settlement through Arbitration, conciliation and mediation including panchayats inder Section 89 of it. Further, we also have the Arbitration and Conciliation Act, 1996 which specifically provides the procedure to be followed in any arbitration proceeding. As there is no special procedure to be followed in the arbitration proceedings and party are free to make arrangements for the same as per the provisions of the Arbitration and Conciliation Act, 1996; the benefits of information technology can be used for this purpose as well. Hence, the system of Online Dispute Resolution Mechanism (ODRM) can be a good idea for this. The provisions for incorporating ODRM as an ADRM, though by implication only; but are very much included in both CPC and Arbitration and Conciliation Act, 1996.
Now a big question arises as to the need of ADR/ODR in the contemporary society. It is beyond any doubt that the ADR/ODR mechanisms have an upper hand and strategic advantage as compared to traditional dispute resolution mechanism like "litigation". Thus, the parties all over the world prefer ADR/ODR as against litigation that usually takes a long time to culminate. Thus, the need of ADR/ODR is stemming out of "necessity". Now a successful ADR/ODR base cannot be visualized till we follow the "uniform standards" at the global level. Thus, first the laws must be "harmonised" and then those laws must be associated with ADR/ODR initiatives. (1)
Uniform standard is the requirement not only of the Global ODR system but of every Institution and system be they legal or not; and even for a simple arrangement between a group, we first need to decide in what direction we are going to work. what are our objectives and what means can be employed for the achievement of the same.
Though, it is not easy to gain consensus as every legal system is in some way or the other different from the rest of the world but the basic point on which there is consensus is the need to impart justice and over the recognition of certain justice delivery systems. Further, this requirement of Uniform standard is also there under our Arbitration and Conciliation Act, 1996, when it says that parties are free to draft their arbitration agreement but the same must be in conformity with the provisions laid down in the Act and can in no way go against the same.
Hence, when we talk in context of India, Arbitration and Conciliation Act, 1996 sets out those Uniform standards and at global level same can be found in UNCITRAL and other international documents. These provisions are either scattered or are not properly defined. The need is to develop consensus between both individuals as well as nations to draft these Uniform standards. Further, the need for the same has become more intense in recent times as business and migration activities have increased dramatically in recent times.
Thus, law on ADR/ODR is quite sound in India and the only need is to make good use of the same. The need of the hour in this respect is to draft a global treaty on ODRM keeping in mind the requirements of member nations particularly those of business community.
Regards,
Geeta Narula,
Advocate and Consultant,
Delhi High Court
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com
Mobile: +91 9873331152
http://www.blogger.com/profile/9620500
(1) Dalal, Praveen; http://www.frappr.com/phpBB2/viewtopic.php?p=99481#99481
Not only this, the major procedural law on civil proceeding, the Civil Procedure Code, 1908 also gives power to the court to refer matters for settlement through Arbitration, conciliation and mediation including panchayats inder Section 89 of it. Further, we also have the Arbitration and Conciliation Act, 1996 which specifically provides the procedure to be followed in any arbitration proceeding. As there is no special procedure to be followed in the arbitration proceedings and party are free to make arrangements for the same as per the provisions of the Arbitration and Conciliation Act, 1996; the benefits of information technology can be used for this purpose as well. Hence, the system of Online Dispute Resolution Mechanism (ODRM) can be a good idea for this. The provisions for incorporating ODRM as an ADRM, though by implication only; but are very much included in both CPC and Arbitration and Conciliation Act, 1996.
Now a big question arises as to the need of ADR/ODR in the contemporary society. It is beyond any doubt that the ADR/ODR mechanisms have an upper hand and strategic advantage as compared to traditional dispute resolution mechanism like "litigation". Thus, the parties all over the world prefer ADR/ODR as against litigation that usually takes a long time to culminate. Thus, the need of ADR/ODR is stemming out of "necessity". Now a successful ADR/ODR base cannot be visualized till we follow the "uniform standards" at the global level. Thus, first the laws must be "harmonised" and then those laws must be associated with ADR/ODR initiatives. (1)
Uniform standard is the requirement not only of the Global ODR system but of every Institution and system be they legal or not; and even for a simple arrangement between a group, we first need to decide in what direction we are going to work. what are our objectives and what means can be employed for the achievement of the same.
Though, it is not easy to gain consensus as every legal system is in some way or the other different from the rest of the world but the basic point on which there is consensus is the need to impart justice and over the recognition of certain justice delivery systems. Further, this requirement of Uniform standard is also there under our Arbitration and Conciliation Act, 1996, when it says that parties are free to draft their arbitration agreement but the same must be in conformity with the provisions laid down in the Act and can in no way go against the same.
Hence, when we talk in context of India, Arbitration and Conciliation Act, 1996 sets out those Uniform standards and at global level same can be found in UNCITRAL and other international documents. These provisions are either scattered or are not properly defined. The need is to develop consensus between both individuals as well as nations to draft these Uniform standards. Further, the need for the same has become more intense in recent times as business and migration activities have increased dramatically in recent times.
Thus, law on ADR/ODR is quite sound in India and the only need is to make good use of the same. The need of the hour in this respect is to draft a global treaty on ODRM keeping in mind the requirements of member nations particularly those of business community.
Regards,
Geeta Narula,
Advocate and Consultant,
Delhi High Court
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com
Mobile: +91 9873331152
http://www.blogger.com/profile/9620500
(1) Dalal, Praveen; http://www.frappr.com/phpBB2/viewtopic.php?p=99481#99481
posted by GEETA NARULA | 4:27 AM
