Q4: Gram Nyaylaya and duties and conciliator

Answer

Introduction
The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram
Nyayalayas at the grassroots level for the purposes of providing access to justice to the
citizens at their doorsteps and to ensure that opportunities for securing justice are not
denied to any citizen due to social, economic or other disabilities
Historical Background
 Nyaya Panchayats (NPs) or village courts, where disputes are settled between
villagers, have been in existence in one form or the other since before independence. 
 In ancient India, the communities settled their disputes among themselves and this
settlement was done by village elders or respected persons known for their integrity
and honesty.
 The rising concern over mounting backlogs in courts leading to unreasonable delays
in justice dispensation gave way to various Alternative Dispute Resolution (ADR)
mechanisms that have been introduced into the judicial system, to facilitate speedy
justice. 
 Procedures under the Arbitration and Conciliation Act, 1996 are useful to avoid the
complex procedures of courts, but are still expensive and out of the reach of village
communities. 
 Lok Adalats, presided over by retired judges, were also not effective in reaching
speedy justice to village areas at appropriate times.
 It is for this reason that it is considered important to devolve some judicial functions
to a village-level body to ensure speedy justice and reduce expenses of the formal
judiciary, which spends time and money handling a large number of disputes of
lesser gravity.
 Hence, the Gram Nyayalayas Act, 2008 has been enacted to provide for the
establishment of Gram Nyayalayas at the block level in the country, as the lowest
tier of the judiciary for rural areas. 
The Need for Gram Nyayalayas
The Constitution of India under Article 39-A mandates for free legal aid to the poor and
weaker sections of society.
The Law Commission of India in its 114th report recommended the establishment of Gram
Nyayalayas for providing speedy, substantial and inexpensive justice to the common man.
Salient features of the Gram Nyayalayas Act
The Gram Nyayalayas Act defines its establishment, jurisdiction, and procedure in civil
and criminal cases.
Need for Gram Nyayalayas
 Access to justice for the poor and marginalized remains a perennial problem in
India.
 Various measures such as simplifying procedural laws, establishing alternate
dispute redressal mechanisms, setting up fast track courts and providing free legal
aid to the poor are undertaken in this regard.
 Despite these measures, access to justice and faster, inexpensive settlement of
disputes at the grass-roots level are yet to materialize.
  devolving justice delivery to the fourth tier
 ensuring equal access to justice
 reducing the burden of district courts
 delivering speedier justice
Establishment
 Each Gram Nyayalaya is a court of Judicial Magistrate of the first class.
 Its presiding officer (Nyayadhikari) is appointed by the State Government in
consultation with the High Court. reducing the costs associated with litigation for
the common man
 reducing dependency on extra-constitutional forums of justice

 The Gram Nyayalaya shall be established for every Panchayat at the intermediate
level or a group of contiguous Panchayats at the intermediate level in a district.
 The seat of the Gram Nyayalaya will be located at the headquarters of the
intermediate Panchayat; they will go to villages, work there and dispose of the cases.
Jurisdiction
Gram Nyayalayas have jurisdiction over an area specified by a notification by the State
Government in consultation with the respective High Court.
Nyayadhikari can hold mobile courts and conduct proceedings in villages.
Gram Nyayalayas have both civil and criminal jurisdiction over the offences.
 They can try criminal offences specified in the First Schedule and civil suits
specified in Second Schedule to the Act.
 The Central as well as the State Governments have been given the power to amend
the First Schedule and the Second Schedule of the Act.
 The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.
High Courts can transfer eligible cases from the District court to the Gram
Gram Nyayalayas Act, 2008, Appointment of Conciliators(Section 27 of the act
 For the purposes of section 26, the District Court shall, in consultation with the
District Magistrate, prepare a panel consisting of the names of social workers at the
village level having integrity for appointment as Conciliators who possess such
qualifications and experience as may be prescribed by the High Court.
 The sitting fee and other allowances payable to, and the other terms and conditions
for engagement of, Conciliators shall be such as may be prescribed by the State
Government.
Section 26 of the act : Duty of Gram Nyayalaya to make efforts for conciliation and
settlement of civil disputes
1. In every suit or proceeding, endeavour shall be made by the Gram Nyayalaya in the
first instance, where it is possible to do so, consistent with the nature and
circumstances of the case, to assist, persuade and conciliate the parties in arriving at
a settlement in respect of the subject matter of the suit, claim or dispute and for this
purpose, a Gram Nyayalaya shall follow such procedure as may be prescribed by
the High Court.
2. Where in any suit or proceeding, it appears to the Gram Nyayalaya at any stage that
there is a reasonable possibility of a settlement between the parties, the Gram
Nyayalaya may adjourn the proceeding for such period as it thinks fit to enable
them to make attempts to effect such a settlement.
 3. Where any proceeding is adjourned under sub-section (2), the Gram Nyayalaya
may, in its discretion, refer the matter to one or more Conciliators for effecting a
settlement between the parties.
4. The power conferred by sub-section (2) shall be in addition to, and not in derogation
of, any other power of the Gram Nyayalaya to adjourn the proceeding.
Conclusion:  The gram nyayalayas, though are based in a manner that brings them a bit
closer to the adversarial setup of the formal judicial system, also have underlying
indigeneity and traditionalism in their very conceptual existence. It can be described as a
decisive resolve of the state to move on the ideals of Mahatma Gandhi and his support
for ‘swadeshi’ system of dispute resolution.

Q:5Arbitration Agreement and essentials

Answer
Introduction- Arbitration agreements are just like contingent contracts, wherein they can
be enforceable only when the dispute arises between the parties to the agreement. The
Parties enter into the arbitration agreement in order to solve the disputes which may arise
out of the contract in future without the intervention of the courts.
Meaning of Arbitration agreement- According to Sec.7(1) of arbitration & conciliation Act
1996 , "arbitration agreement” means an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.
Definition:
 The model law defines the Arbitration Agreement as follows: “An agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which
may arise between them in respect of a defined legal relationship, whether
contractual or not”
 With regard to the New York Convention the definition states that: “Each
Contracting State shall recognize an agreement in writing under
whichthepartiesundertake to submit to arbitration all or any differences which have
arisen or which may arise between them in respect of a defined legal relationship,
whether contractua1 or not, concerning a subject matter capable of settlement by
arbitration”
Enforcement of Arbitration Agreement under Arbitration and Conciliation Act, 1996
There are two types of enforcement the first is the right to waive the power to solve the
dispute or adjudicate with regard to the courts and secondly to provide jurisdiction to the
arbitrators that is in the hands of the private hands.The Enforcement of the agreement can
be done under the UNCITRAL Model Law and the New York Conventions
Essentials of valid "arbitration agreement"- The essentials of an arbitration agreement, as
defined by clause (b) of S.2(1) read with S. 7 are as follows
1) Valid & binding Agreement - There should be a valid and binding agreement between the
parties.
2) Such agreement may be - in the form of an arbitration clause in a contract or in the form
of a separate agreement.
3) Written Agreement - An arbitration agreement shall be in writing. An arbitration
agreement is in writing if it is contained in—
(a) a document signed by the parties;
 (b) an exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.
4) The reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and the reference is such as to make
that arbitration clause part of the contract
5) There must be a dispute that should take place, only then the agreement will be valid. The
presence of a dispute amongst the parties is an essential condition for the contract to take
place. When the parties have already settled the dispute, in no case, they can invoke the
arbitration clause to refute the settlement.
6) Intention of parties- The intention of the parties while forming the contract is of utmost
importance and it forms the basis of the agreement. There have been no prerequisite
citations of terms such as an “arbitrator” or “arbitration” to be made in the agreement.
Therefore, it is necessary to note that the intention of both parties plays a very important
role in such an agreement. However, one must keep in mind that even if the words have
not been mentioned, the intention must show that both the parties have agreed to come to
the terms with the Arbitration Agreement.

Important provisions in the arbitration agreement

There are a few important provisions under an arbitration agreement, and these are
mentioned below:
1. Written Agreement- As stated as an essential condition, there must be a written
agreement. Section 7(4) of the Act, states that every agreement made must be in the
form of a written document or even in the form of any kind of communication
whether or not those communications take place through telegrams, telex or even
other telecommunication devices provided that there must be a record of the
communication. 
2. Appointment of the Arbitrators- Section 11 states that the arbitrator can be
appointed at the liberty of the parties to the contract. In case, where the parties fail
to decide the appointment of the arbitrator, the Chief Justice of the High Court, in
case of the domestic arbitration and the Chief Justice of the Supreme Court, in case
of International Commercial Arbitration is approached. 
3. Interim Relief- Section 9 and Section 17 of the Act provide for the Interim relief
orders with respect to the arbitration. The relief petition is maintainable under
section 9 if there is prima facie evidence that there is an agreement for the
arbitration proceeding. The parties, if they want, can move to the Court before the
arbitration proceeding actually
4. Finality of an Award by Arbitration- Section 34 states that the award given by the
arbitrator is final and is binding upon the parties who have signed the contract.
Once the decree is granted by the court, it starts or even after making the arbitral
award but before its enforcement as per section 36 of the Act. Section 17 states that,
at the parties’ request, the tribunal may order the party to take interim measures,
the way it deems fit and necessary in respect to the subject matter of the
dispute. shall be enforceable with respect to section 34 of the Act. 
 5. Appeal- Section 37 states that if the parties are not satisfied with the decision of the
arbitrators, an appeal lies against the order granting or refusing to grant any
measure under section 9 and also against refusing to set aside or setting aside an
award. An appeal can also lie against the order of the tribunal accepting the plea
referred to in section 16 or granting or refusing to grant an interim measure under
section 17. However, there is no provision for an appeal against the appointment of
an arbitrator as given under section 11. 
Case Law- In the landmark case of K.K. Modi v. K.N. Modi and Ors. (1998), it was held by
the
Hon’ble Supreme Court that the following attributes must be present in an arbitration
agreement:
 The agreement must state that the decision of the tribunal will be binding upon by
both the parties.
 That the jurisdiction of the tribunal on the rights of the parties should be decided by
both the parties consensually or from an order obtained by the Court which states that
the proceeding shall be made through arbitration.
 The tribunal has the right to determine the rights of the parties by being fair and just.
 The agreement that the parties will refer to the tribunal must be enforceable by law.
 The agreement must state that any decision made by the tribunal on the dispute must
be formulated prior to the time when the reference is made.

Q7.Geneva convention awards and enforcement

Answer
Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains
provisions relating to foreign awards passed under the Geneva Convention.
As per the Geneva Convention, "foreign award" means an arbitral award on differences
relating to matters considered as commercial under the law in force in India made after the
28th day of July, 1924,-
a. in pursuance of an agreement for arbitration to which the Protocol set forth in the
Second Schedule applies, and
b. between persons of whom one is subject to the jurisdiction of some one of such
Powers as the Central Government, being satisfied that reciprocal provisions have
been made, may, by notification in the Official Gazette, declare to be parties to the
Convention set forth in the Third Schedule, and of whom the other is subject to the
jurisdiction of some other of the Powers aforesaid, and
c. in one of such territories as the Central Government, being satisfied that reciprocal
provisions have been made, by like notification, declare to be territories to which the
said Convention applies, and for the purposes of this Chapter, an award shall not be
deemed to be final if any
d. proceedings for the purpose of contesting the validity of the award are pending in
any country in which it was made.[2]
Section 56 provides that the party applying for the enforcement of a foreign award shall, at
the time of the application, produce before the court (a) original award or a duly
authenticated copy thereof; (b) evidence proving that the award has become final and (c)
evidence to prove that the award has been made in pursuance of a submission to
arbitration which is valid under the law applicable thereto and that the award has been
made by the arbitral tribunal provided for in the submission to arbitration or constituted
in the manner agreed upon by the parties and in conformity with the law governing the
arbitration procedure. As per the new Act, the application for enforcement of a foreign
award will now only lie to High Court.
The conditions for enforcement of foreign awards under the Geneva Convention are
provided under Section 57 of the Arbitration and Conciliation Act, 1996. These are as
follows:
a. the award has been made in pursuance of a submission to arbitration which is valid
under the law applicable thereto;
b. the subject-matter of the award is capable of settlement by arbitration under the
law of India;
c. the award has been made by the arbitral tribunal provided for in the submission to
arbitration or constituted in the manner agreed upon by the parties and in
conformity with the law governing the arbitration procedure;
d. the award has become final in the country in which it has been made, in the sense
that it will not be considered as such if it is open to opposition or appeal or if it is
proved that any proceedings for the purpose of contesting the validity of the award
are pending;
e. the enforcement of the award is not contrary to the public policy or the law of India.
The Amendment Act has restricted the ambit of violation of public policy for international
commercial arbitration to only include those awards that are: (i) affected by fraud or
corruption, (ii) in contravention with the fundamental policy of Indian law, or (iii) conflict
with the notions of morality or justice.
However, the said section lays down that even if the aforesaid conditions are fulfilled,
enforcement of the award shall be refused if the Court is satisfied that-
a. the award has been annulled in the country in which it was made;
b. the party against whom it is sought to use the award was not given notice of the
arbitration proceedings in sufficient time to enable him to present his case; or that,
being under a legal incapacity, he was not properly represented;
c. the award does not deal with the differences contemplated by or falling within the
terms of the submission to arbitration or that it contains decisions on matters
beyond the scope of the submission to arbitration: Provided that if the award has
not covered all the differences submitted to the arbitral tribunal, the Court may, if it
thinks fit, postpone such enforcement or grant it subject to such guarantee as the
Court may decide.
Furthermore, if the party against whom the award has been made proves that under the
law governing the arbitration procedure there is any other ground, entitling him to contest
the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the
award or adjourn the consideration thereof, giving such party a reasonable time within
which to have the award annulled by the competent tribunal.
Section 58 provides that where the Court is satisfied that the foreign award is enforceable
under this Chapter, the award shall be deemed to be a decree of the Court.

Q1: Advanced Method of ADR

ADR in india
Answer
Introduction: The modern legal system has become very complex and due to these
complexities, the poor and neglected segment of society suffers a lot. In order to cope up
with this disadvantage a new segment namely alternative dispute resolution emerged.
Under ADR parties resolve their issues without appearing before the court. Alternate
dispute resolution or ADR refers to the varied methods by which disputes are resolved
between the parties without the use of litigation.
In India, ADR is established on the basis of Article 14 (Equality before law) and Article 21
(Right to life and personal liberty) under the Constitution of India. The Directive
Principles of State Policy (DPSP) of Equal justice and free legal aid as engraved in Article
39-A of the Indian Constitution can also be achieved by the ADR.
Meaning:
 Alternative Dispute Resolution (ADR) refers to any means of setting disputes
outside of the Court Room.
 Alternative Dispute Resolution (ADR) refers to a variety of processes that help
parties to resolve disputes without a trial.
Definition
The process by which disputes between the parties are settled or brought to an amicable
result without the intervention of Judicial Institution and without any trail is known
as Alternative Dispute Resolution (ADR.
 ADR offers to resolve all type of matters including civil, commercial, industrial and
family etc., where people are not being able to start any type of negotiation and
reach the settlement.
 Generally, ADR uses neutral third party who helps the parties to communicate,
discuss the differences and resolve the dispute.
 It is a method which enables individuals and group to maintain co-operation, social
order and provides opportunity to reduce hostility.
Alternative Dispute Resolution (ADR) Mechanisms
 ADR is a mechanism of dispute resolution that is non adversarial, i.e. working
together co-operatively to reach the best resolution for everyone.
 ADR can be instrumental in reducing the burden of litigation on courts, while
delivering a well-rounded and satisfying experience for the parties involved.
 It provides the opportunity to "expand the pie" through creative, collaborative
bargaining, and fulfill the interests driving their demands.
Advantages of ADR
 1) Flexible: The proceedings taken in the court possess a certain level of
rigidity. However, Alternative Dispute Resolution mechanisms are
flexible in nature.
 2) Fast-track Procedure: As the mechanisms of alternative dispute
resolution involves less or no formalities as well as technicalities, the
decisions are resolved at a faster pace. Furthermore, decisions are taken
in the best interest of both parties.
 3) Confidential: A level of confidentiality is maintained as the
proceedings does not take place in an open court in front of various
spectators.
 4) Finality of awards: The award given under alternative dispute
resolution (Arbitration) is final and binding and if one needs to file an
appeal against awards so given, it can only be sought by opting for litigation.
 5) Cost: When compared to litigation, alternative dispute resolution is
considered to be cost-effective.
 6) Choice of mediator or arbitrator: Alternative dispute resolutiongives
parties the choice of selecting the mediator or arbitrators of their own
choice.
 7) No fear of court: Some people usually have a fear of court in
expressing their issues freely. ADR stands out to be quite advantageous
in such a case.
Thus, these mechanisms totally condemn the statement “Justice Delayed is
Justice Denied”. This is so because ADR is denoted as a fast-track system
where parties can seek justice at a faster pace.

Types of Alternate Dispute Resolution mechanisms

Various Alternative Dispute Resolution mechanisms can be classified as:
1. Arbitration
2. Conciliation
3. Mediation
4. Judicial Settlements inclusive of Lok Adalats
5. Negotiations
Alternative Dispute Resolution often referred to as ADR, is a set of methods or
techniques that allow parties to a dispute to reach an amicable settlement. It consists of
ways in which parties can settle their differences without recourse to litigation.
Alternative Dispute Resolution (ADR) methods are now widely accepted and have been
gaining recognition at the national as well as international level. Modes of ADR have
been in existence from a long time and were used long before the sophistication of
civilization.
ADR involves continuous efforts made by a third party, who is neutral and assists the
disputing parties to come to a settlement. The qualification and the skill of the neutral
third party vary, concerning the modes of dispute resolution.  
ADR is a vast topic and includes a broad range of activities. Legal luminaries Nancy
Atlas, Stephen Huber, and Wendy Trachte in their 'Alternative Dispute Resolution:
The Litigator's Handbook,' has defined ADR as being:
"Anything except a bench or jury trial under the auspices of some judicial body."
In simple words, ADR, as the name suggests, is nothing but an alternative method to
litigation to resolve disputes that exist between individuals or organizations.
Nowadays, due to the vast resources required for litigation, people prefer alternative
dispute resolution methods to settle matters which do not require the intervention of
judicial authority.
Methods of Alternative Dispute Resolution System
The techniques or modes of ADR, though widely accepted all over the world, may vary
from region to region. This fluctuation depends on the legal framework of a country.
The following are the methods of settlement that are widely accepted:
 Arbitration
 Mediation
 Conciliation
 Negotiation
Arbitration
Arbitration is a mode of ADR wherein the dispute between the parties goes through a
process to achieve an amicable resolution by an impartial third party known as an
'arbitrator,' without recourse to litigation.  In the case of arbitration, the arbitrator,
after reviewing the dispute between the parties comes to a settlement. Such a decision
taken by an arbitrator shall be binding on both parties. Unlike other methods of dispute
resolution, once the parties have submitted a matter to arbitration, neither can
withdraw from the procedure.
Arbitration can either be voluntary or mandatory. In the case of compulsory
arbitration, the parties to the dispute enter into Arbitration either under a statute, an
order of the court, or through a specific clause included in the contractual agreement
between the parties. Whereas on the other hand, in the case of voluntary arbitration, it
is up to the discretion of parties to enter into arbitration. The decision that results from
the proceeding is known as an 'arbitral award.'
Advantages of arbitration:
 Flexibility- Arbitration proceedings are flexible and more economically feasible
compared to litigation.
 Time-Consuming- Arbitration proceedings occur at an expeditious rate as compared
to Litigation; therefore, it saves time for both parties.
 Confidentiality- The disputes which are subject to arbitration are treated with
privacy, and are not released to the public.
 Arbitrator- The parties have the liberty to choose an arbitrator to handle their
dispute.
 Enforceability- Arbitration awards are generally easier to enforce as compared to
court verdicts.
Disadvantages of arbitration:
 If arbitration is mandatory as per the contract between the parties, then their right
to approach the court is waived.
 There is a very limited avenue for appeals.
 Arbitration does not provide for the grant of interlocutory applications.
 Arbitration awards are not directly enforceable; they are executable subject to
judicial sanction.
Mediation
Mediation is a mode of dispute resolution, where an amicable decision arises with the
help of a third party known as a 'mediator,' without recourse to the court of law. It is a
voluntary process, and unlike arbitration, it is more flexible; therefore, the parties to
the dispute are under no obligation to agree to the settlement. Thus, an agreement
taken via mediation shall be binding upon the parties, only as long as they agree to it.
There may be instances where parties are advised to adhere to Mediation, however,
under such circumstances, the result is up to the parties. Therefore, Mediation is a
process where the parties are in total control over their final settlement. Here, the
mediator only acts as a facilitator and does not interfere in the decision of the dispute.
Therefore, it is a win-win pact.
Advantages of mediation:
 Parties have complete control over the settlement.
 Less stress as compared to litigation and arbitration.
 The relationship between the parties isn't overly damaged.
 Mediation proceedings are confidential.
 The process resolves the dispute quickly.
Disadvantages of mediation:
 Since the decision is at the discretion of the parties, there is the possibility that a
settlement between the parties may not arise.
 It lacks the support of any judicial authority in its conduct.
 The absence of formality- Mediation proceedings are lacking in any procedural
formality since they are not based on any legal principle.
 The truth of an issue may not be revealed.
Conciliation
Conciliation is a method of dispute resolution wherein the parties to a dispute come to a
settlement with the help of a conciliator. The conciliator meets with the parties both
together and separately to enter into an amicable agreement. Here, the final decision
may be taken by reducing tensions, improving communications, and adopting other
methods. It is a flexible process, therefore allowing the parties to define the content and
purpose of the proceeding. It is risk-free and is not binding upon the parties unless they
sign it.
Advantages of conciliation:
 Flexibility: Since the conciliation process is informal, it is flexible.
 The conciliator is often an expert in the disputed field.
 Conciliation proceedings, like any other form of ADR, is economical as compared to
litigation.
 The parties to the dispute have the liberty to approach the court of law, if
unsatisfied with the proceeding.
Disadvantages of conciliation:
 The process is not binding upon the parties to the dispute.
 There is no avenue for appeal.
 The parties may not achieve a settlement to their conflict.
Negotiation
Negotiation is a method of dispute resolution whereby a dispute between two
individuals or groups is settled amicably by an impartial third person called as a
negotiator, using different techniques. The negotiator, in this form of resolution, uses
various communication methods to bring the parties of the dispute to a settlement. The
primary aim of this type of dispute resolution is to reach an agreement that is fair and
acceptable by the parties. The parties engage in the dispute with each other until they
reach a desirable outcome for all involved.
Advantages of Negotiation:
 Flexibility: since negotiation is an informal process, it is relatively flexible.
 Quick resolutions as compared to litigation.
 It facilitates in maintaining a healthy relationship between the disputing parties.
 Takes place in a private environment
Disadvantages of Negotiation:
 The parties to the dispute may not come to a settlement.
 Lack of legal protection of the parties to the conflict.
 Imbalance of power between the parties is possible in negotiation.