PAPER-5 Arbitration, Mediation & Conciliation
CS Professional Mod 2 Electives
Taught by Faculties:
Syllabus
Objectives:
a To provide understanding, application and expert knowledge of Alternate Dispute Resolutions.
b To develop global experts in the area of Alternate Dispute Resolution systems. Level of Knowledge : Expert Knowledge Detailed Contents Part I : Arbitration & Conciliation (70 Marks)
1. Arbitration: An Introduction :
*History of Arbitration along with all amendments
*Structure of Arbitration & Conciliation Act (A&C Act) l How is arbitration different from other modes of dispute resolutions?
*Features and advantages of Arbitration
*Types of Arbitration (Institutional vs. Ad Hoc)
*General Principles of Arbitration (introduction to process of arbitration)
*Other pertinent statutes such as Limitation Act, Interest Act
2. Commercial Transactions :
*Introduction and Practical Aspects of Contract Law
*Types of Contracts and Concepts related to Negotiation and Conciliation l Modes of Discharging Contract
*Critical Clauses
*Breach of Contract: Related Provisions
*Damages under Contract Law
*Drafting of Commercial Contracts and Other Documents
3. Arbitration Agreement/Clauses and related concepts :
*Arbitration Agreement l Scope of Arbitration Clause
*Seat, Venue, Choice of Arbitrator, Language, applicable rules, fees, timelines, qualification of arbitrators, prior mechanisms,
*Choice of Law (Procedural, Substantive and governing law of arbitration agreement)
*Post Contract Arbitration agreement
*Arb-Med-Arb clauses
4. Arbitration Institution :
*National & International Institutions
*Bye laws of the Institutions
*Incorporation/ Establishment of Arbitration Centre
5. Arbitration Procedure :
*Invoking Arbitration and Notice to parties
*Finalisation on name of Arbitrators mutually
*Finalisation on name of Arbitrators by court
*Filling of Pleadings
*Fixation of Issues
*Witnesses and Evidence
*Interim reliefs
*Final Arguments
*Award
6. Appointment of Arbitrator and Other Aspects :
*Common methods to appoint a sole arbitrator/ arbitral tribunal: As per arbitration clause by mutual agreement of parties or by approaching the court under section 11 of A&C Act.
*What if parties don’t operate as per contract?
*Appointment in case of Institutional Arbitration
*Challenging the Arbitrator’s appointment
*Selection and Appointment of Arbitrators from the Point of View of the Parties
*Powers, Duties and Role of Arbitrators
*Grounds for conflict under Arbitration and Conciliation Act, 1996 l Where to file the petition - Pre and Post 2015-Amendment *Waiver of rights to object
*Arbitration Tribunal and Jurisdiction Issues
*Kompetenz Kompetenz principle
7. Pleadings :
*Statement of Claim
*Statement of Defense
*Counter Claim
8. Arbitral Proceedings and Evidence in Arbitration :
Part A: Statement of Claim, Defense and Rejoinders
*Oral hearings, Documentary Evidence and Written Proceedings
*Drafting of the above important submissions.
*Importance of leading evidence
*Affidavit of Admission/Denial by Parties
*Criteria for identification of witnesses - expertise, key personnel, credibility and credential, non-signatories
*Number of witnesses
*Exclusion of oral hearings and fasttrack arbitration Part B : Evidence by affidavit
*What facts need to be led through affidavit l Drafting of Affidavit
*Case Study on preparation of documents for Arbitral Proceedings
9. Preparation and Execution of Arbitral Award :
*Essential ingredients of an Award l Domestic v. Foreign Awards
*Drafting of Execution Petition
*Types of Award
*Award of Arbitration and Enforcement of Arbitral Awards
*Drafting of Arbitration Awards
*Case Study on Execution of Domestic Award/Foreign Award
10. Challenge to Award :
*Time period of challenge
*Grounds of challenge
*Power of court to modify the award
*Drafting of Petition for setting aside an arbitral award
*Case Study on challenging Awards
11. Appeals :
*Orders against which appeal can be filed
*Appeal against refusal to refer parties to arbitration
*Appeal against interim relief granted by the court
*Appeal against interim award of the tribunal
*Appeal against refusal to set aside an arbitral award
*Case Study on Appeal against Award
12. Fast Track and virtual Arbitration :
*What, Why and How - Fast Track Arbitration
*Required Documents and Drafting
*Steps and Procedure in Virtual Arbitration
*Case Studies Related to Fast Track Arbitration
13. Arbitration under Investors' Grievances Redressal Mechanism of Stock Exchanges :
*Introduction
*Investors' Grievances Redressal Mechanism
*Arbitration Proceedings under the mechanism
*Procedure
*Regulatory Actions
*Surveillance Actions
*Case Studies on Arbitration under Stock Exchange Grievance Redressal Mechanism
14. Conceptual Framework of International Commercial Arbitration :
*Domestic v. International Arbitration – from the A&C Act’s purview
*Role of Private International Law in Indian Council of Arbitration l International Commercial Arbitration
*The role of national courts in the international arbitration process
*The evaluation of international arbitral institutions and their rules
*The drafting of an international arbitration clause and submission agreement
*Consideration of arbitration as a dispute resolution process in the domain of international trade
*International Experience in Online Dispute Resolution: Government Run Online Dispute Resolution (ODR) Platform, Court Run ODR Platform, Private Run ODR *Platform l Procedure adopted by ODR in Brazil, South Korea, Hongkong, China, UK, USA
*Singapore International Arbitration Centre l International Centre for Settlement of Investment Disputes (ICSID) arbitrations and current issues in international *commercial arbitration (e.g. confidentiality and consolidation)
*London Court of International Arbitration
15. International Law of Arbitration :
*Law and practice of international commercial arbitration l UNCITRAL Arbitration Act/ Rules l CIArb- UK Model rules on International Arbitration
*Model Laws on International Commercial Arbitration
*Asia Pacific Centre for Arbitration & mediation (APCAM) Rules and accreditation system and International Arbitration
*The International Bar Association (IBA) Rules on conflict of Interest l International Chamber of Commerce (ICC) Rules on International Commercial Arbitration
*New York Convention
*Geneva Convention
*UN Convention on Recognition and Enforcement of Foreign Arbitral Awards
*Case Study on International Commercial Arbitration
16. Emerging Aspects :
*Role of Company Secretaries and Related Provisions
*Arbitration Vs. Insolvency and Bankruptcy Code: A Comparative Study l Future of Indian Arbitration: Prospects and Challenges l Online Dispute Resolution
*Important Case Laws and Recent Amendments
17. Introduction of Conciliation :
*Introduction l Important Definitions
*Nature and Modes of Conciliation
*Law Relating to Conciliation
18. Conciliation Proceedings :
*Process of conciliation
*Procedural Aspects
*Appointment, Roles and Responsibilities
*Drafting terms of settlement under Conciliation
*Settlement Agreement l Status and effect thereof
*Drafting of Conciliation Clause/Agreement
*Sections 61 to 81 A&C Act l Case Study on Domestic Conciliation
19. Conciliation for Micro Small and Medium Enterprises :
*Importance of conciliation for MSME
*Conciliation procedure
*Case Study on Conciliation under MSME
20. International Perspective :
*Comparative Study of Conciliation
*International Rules on Conciliation
*Case Study on International Conciliation Part II : Mediation (30 Marks)
21. Mediation : An Introduction :
*Basics of Mediation
*Socio-Philosophical Roots of Mediation
*Pre litigation Mediation
*Adhoc and Institutional Mediation
*Private and Court Referred Mediation
*Understanding of Conflicts and their resolutions
22. Negotiation Skills and Communication :
*Specific Negotiations
*Importance of Dialogue
*Negotiation Techniques
*Communication in Mediation and Negotiation
*Interest v Position (Iceberg Concept)
23. Process of Mediation:
*Legal Status of Mediation
*Models of mediation - rights based - interest based - facilitative - evaluative - settlement oriented - therapeutic - transformative and other models
*Theory of mediation
*Process of mediation
*Role Play and assimilation
*Drafting Mediation clause / Agreement
24. Various Modes and scope of Mediation :
*Types of Mediation including Civil and Commercial Mediation
*Court Annexed and Private Mediation
*Employment mediation
*Online Mediation and use of Artificial Intelligence
*Observational and Reflective Practice
*Stages of Mediation
*Role of a Mediator
*Mediation Clauses in Commercial Agreement
*Overview of Corporate & Commercial Negotiations
*Stages of Mediation l Mediation checklist
*Initiation
*Mediation Confidentiality and Neutrality
*Mediated settlement agreement
25. Role of Mediation in other ADR domains :
*Arbitration l Commercial Courts Act
*Conciliation proceedings
26. Emerging aspects :
*Mediation Bill and upcoming Law
*Mediation under various statutes
27. Rules relating to mediation :
*Rules made by High Courts and Supreme Courts
*Practices and Rules of Institutional Mediation
*Case Study on Domestic Mediation
28. International aspects :
*United Nations Convention on International Settlement Agreements Resulting from Mediation
*Singapore Convention on Mediation
*International Negotiations and Diplomacy
*Influence and Importance of Culture
*World Culture vis a vis Organizational Culture
*International Rules
*Singapore Mediation settlement agreement
*Case Studies on International Mediation
