Indian Law Society’s Centre for Arbitration and

Mediation (ILSCA)
ILS Law College campus,
Chiplunkar Road (Law College Road),
Pune – 411 004, INDIA

Tel. – (020) 25652072 E-mail [email protected]

Post Graduate Diploma in Alternative Dispute Resolution

Methods (ADRMs) (Through Distance Learning)

Course Structure :

Paper I : ADR Methods Paper II : Arbitration and Conciliation

Act, 1996

Paper III : International Commercial Paper IV : International and Domestic

Arbitration Centers for Institutional
Arbitration.

Paper V - Practical Application of

ADR Methods

Course Syllabus

Paper I – ADR Methods

I. Introduction to the Indian Legal System
 Introduction
 The Concept of ADR methods
 Conventional Methods of Dispute Settlement
 Civil Cases vs. Criminal Cases - Key Differences
 Court structure and Jurisdiction
 Stages of Dispute Settlement in Regular Courts
 Shortcomings of Adjudicatory System
 Introduction of ADRMs in the Indian Legal System
 What is Alternative Dispute Resolution Methods?
 Advantages of ADRMs over the Conventional Adjudicatory System

1
  International Scenario
 Implementation of ADR Methods in India
 Increased Awareness of ADR is the need of the Hour
 Final Observation
 Common Methods of ADR

II. Mediation
 What is Mediation?
 Characteristics of Mediation
 Essential Elements of Mediation
 Advantages/ Benefits of Mediation
 What Kinds of Cases Can Be Mediated?
 What kinds of Cases Cannot Be Mediated?
 Convening for Mediation
 Guidelines to the Parties and Mediator
 Training of the Mediator
III. Conciliation
 Introduction
 How is it done?
 When is it used?
 Advantages
 Difference between Arbitration and Conciliation
 Difference between Arbitration and Conciliation
 A Comparison of Different Methods of Alternative Dispute Resolution
Methods

IV. Negotiation
 Introduction
 Eight Pillars of Negotiational Wisdom
 Qualities of a Good Negotiator
 Various phases in Negotiation
 When a Negotiation can fall?
 Setting the Stage for Productive Negotiations
 Certain Specific Titles in the Negotiation Process
 Mixed Motive Exchange
 Winner’s Curse
 Interest based Bargaining
 Negotiation “Dance’
 BATNA & WATNA
 Integrative Negotiation
 Distributive Negotiation

2
 V. Essential Concepts - Negotiation/Mediation

 Introduction
 Alternative Paths
 What is BATNA?
 What is WATNA?
 What is MALATNA?
 Purpose of the Analysis
 Initial Presentation of Analysis within Mediation
 When to Suggest the Alternatives: Timing and Context of Analysis
 Quality of Analysis of the Alternatives
 Connection to Development of Settlement Proposals
 Conclusion

VI. Other Types of ADR Methods

 Arbitration
 Fast Track Arbitration
 Mini-Trial
 Med-Arb
 Medola
 International Commercial Arbitration
 Lok Adalat
 Permanent Lok Adalat for Public Utility Services
 Online Dispute Resolution

Paper II - The Arbitration and Conciliation Act, 1996

I. Origin and Development of Arbitration Law

 Introduction
 Arbitration as an important method of ADR Mechanisms
 Origin of Arbitration law in India: Pre Independence Era
 Short comings in the Arbitration Act, 1940
 Arbitration and Conciliation Act, 1996 - Essential features
 Scheme of the Arbitration and Conciliation Act, 1996
 Scope and extent of the Arbitration and Conciliation Act, 1996

II. What is Arbitration?

3
  Meaning and Definition of Arbitration
 Need, importance and benefits of Arbitration
 Other Related definitions under the Act of 1996
 Kinds of Arbitration
 Other modes of settlement of disputes

III. Arbitration Agreement

 Definition of Arbitration Agreement

 Essential elements of arbitration agreement
 Attributes of an Arbitration Agreement
 Who can enter into an Arbitration Agreement
 Power of Judicial Authority to refer parties to arbitration in case of
arbitration agreement
 Arbitration clauses in the contracts.

IV. Arbitral Tribunal

 What is an Arbitral Tribunal?

 Composition of Arbitral Tribunal
 Appointment of Arbitrators
 Qualifications of an Arbitrator
 Procedure for appointment of an Arbitrator
 Appointment of arbitrators by Chief Justice
 Duties and responsibilities of Arbitrators
 Challenge of appointment of Arbitrator
 Termination of mandate of Arbitrators and substitution of Arbitrator
 Termination of the mandate of Arbitral Tribunal

V. Jurisdiction of an Arbitral Tribunal and Conduct of Arbitral

Tribunal Proceedings

 Jurisdiction of Arbitral Tribunal : Competence of Arbitral Tribunal to rule

on its own jurisdiction
 Interim measures by Arbitral Tribunal.
 Conduct of Arbitral Proceedings
 Rules of Procedure
 Place of Arbitration
 Commencement of Proceedings
 Language of the Arbitral Proceeding
 Statements of Claim and Defence
 Hearing and Written Proceedings
 Appointment of Experts by Arbitral Tribunal

4
VI. Interim measures
 Interim measures by Court
 Interim Measures by Arbitral Tribunal

VII. Arbitral Award

Making of Arbitral Award and Termination of Arbitral Proceedings

 Definition of Arbitral Award

 Types of Awards
 Rules applicable to Arbitral Proceedings
 Form and contents of Arbitral Award
 Termination of proceedings
 Correction and interpretation of Arbitral Award
 Additional Award

VIII. Recourse against Arbitral Award

 Grounds for setting aside Arbitral Award

 Additional Grounds
 What is Public Policy of India?
 Finality of Arbitral Awards
 Enforcement of Arbitral Awards
 Appealable orders
 Miscellaneous Provisions - Lien and Deposits as to Cost
 Effect of death of parties on arbitration agreement
 Effect of insolvency
 Jurisdiction
 Application of Law of Limitation to Arbitrations

IX. Conciliation under the Arbitration and Conciliation Act, 1996

 Meaning of Mediation and Conciliation as a method of settlement of

dispute
 Distinguishing features between Arbitration, Mediation and Conciliation
 Preference of Conciliation and Mediation over traditional litigation
 Conciliation under the Arbitration and Conciliation Act, 1996
 Definition of Conciliation
 Application and Scope
 Commencement of conciliation proceedings
 Number of Conciliators
 Appointment of Conciliators
 Assistance of Institutions for appointment of Conciliators

5
  Submission of statement to conciliators
 Conciliator not bound by certain enactments
 Role of Conciliators
 Administrative Assistance
 Communication between Conciliators and Parties
 Confidentiality and disclosure of information
 Confidentiality
 Co-operation of parties with conciliator
 Suggestions by parties for settlement of disputes
 Settlement agreement
 Status and Effect of Settlement Agreement
 Termination of conciliation proceeding
 Resort to arbitral or judicial proceedings
 Costs and deposits
 Role of conciliator in other proceedings
 Admissibility of evidence in other proceedings

X. Supplementary Provisions

Paper III : International Commercial Arbitration

I. General

 Introduction
 International Commercial Arbitration
 Position in India prior to 1996 Act
 International Conventions on Arbitration
 Geneva Convention and New York Convention
 International Commercial Arbitration: Position in India Post 1996 Act
 Meaning of international Commercial Arbitration
 Differences between Domestic Award, Foreign Award-made in Convention
and Non-Convention country
 Applicability of Part I of the A & C Act, 1996 to Foreign Awards

II. Types of International Commercial Arbitration

 Introduction
 Types of International Commercial Arbitration
 Ad-hoc Arbitration
 Merits of ad-hoc method of Arbitration
 Institutional Arbitration
 International Arbitral Institutions

6
  Indian Arbitral Institutions
 Merits and Demerits of International Commercial Arbitration

III. Choice of Law

 Introduction
 International Commercial Arbitration Subject to Different Laws
 Law governing Arbitration Agreement
 Choice of Law
 Levels of Law that has a bearing on International Commercial Arbitration
 Proper Law of Contract
 Proper Law of the Arbitration Agreement
 Law governing Arbitration proceedings / the Curial Law
 Rules Applicable to Substance of a Dispute in International Commercial
Arbitration where the place of arbitration is within India

IV. Governing Laws for Enforcing the Arbitration Agreement

 Introduction
 Applicable Laws in International commercial Arbitration
 Lex Loci Arbitri-- Lex Loci Contractus - Lex Loci Solutionis
 Technical aspect of law in dispute matters
 Curial law/Seat Theory- Governing Law of arbitration
 The sovereignty of the parties to the contract
 Synchronized Laws
 Combined Laws
 The Shariah - General principles of law applicable to international
commercial arbitration
 International development law - Lex Mercatoria - Codified terms, Trade
Usages and Customs - Conflict Rules
 International Conventions

V. Foreign Arbitral Award

 What is an Arbitral Tribunal?

 What is a foreign Arbitral Award?
 Difference between a Domestic Arbitral Award; a Foreign Arbitral Award
made in a Convention Country and a Foreign Arbitral Award made in Non-
Convention Country
 Meaning of a Foreign Arbitral Award – under the A & C Act, 1996 – with
reference to New York Convention and Geneva Convention
 Essential conditions of a Foreign Award
 What is commercial legal relationship?

7
  Arbitration Agreement

VI. Enforcement of foreign arbitral awards in India

 Introduction
 Indian Position
 Procedure for Enforcement of Foreign Arbitral Award under the two
Conventions
 Power of Judicial Authority to Refer Parties to Arbitration
 Binding Nature of the Foreign Awards
 Procedure for Enforcing the Foreign Award - No Time Limit for Enforcing
a Foreign Award
 Evidence to be Produced for Enforcement of Foreign Awards
 What is Court?
 Conditions for Enforcement of Foreign Award under the New York
Convention
 Incapacity of the Party, invalid agreement and other conditions
 Lack of proper notice and inability of the party to present his case
 Excess authority or Jurisdictional Issues
 Improper Composition of Arbitral Tribunal or Arbitral Procedure
 Non-binding or Suspended Award
 Inarbitrability or Non-Arbitrability of the Subject Matter
 Public policy:
 Ground for Enforcement of the Award
 Some Observations about the Enforcement of a Foreign Award under the A
& C Act, 1996
 Differences Between Grounds for Enforcement of Awards : Domestic
Award and Foreign Arbitral Award
 Foreign Award when is Deemed to be a Decree

VII. Appealable Orders

 Appealable Orders - Second Appeal - Revision

VIII. Conduct of Arbitral Proceedings as per the Provisions of

Arbitration and Conciliation Act, 1996

 Introduction
 A Brief overview-Commencement of Arbitral Proceedings
 Language of the Proceedings
 Statement of Claim and Defence

IX. Composition of Arbitral Tribunal

8
  What is Arbitral Tribunal?
 Composition of Arbitral Tribunal as per the provisions of A & C Act, 1996
 Composition of Arbitral Tribunal under UNCITRAL Rules
 Appointment of Arbitrators
 Appointment of Sole Arbitrator by the Appointing Authority
 Procedure when Three Arbitrators are Appointed
 Challenge of Appointment of Arbitrators
 Procedure for Challenging the Appointment of an Arbitrator
 When the Appointment of the Arbitrator is Not Challenged
 Replacement of an Arbitrator
 Repetition of Hearings in the Event of the Replacement of an Arbitrator

X. Arbitral Proceedings with Reference to Leading Institutional Rules

 A Brief Overview of Rules of Leading Institutional Arbitration

 UNCITRAL Model Law
 UNCITRAL Rules
 International Chamber of Commerce (ICC) Rules
 American Arbitration Association (AAA) ICDR Rules
 London Court of International Arbitration (LCIA) Rules
 World Intellectual Property Organisation (WIPO) Rules
 Indian Council of Arbitration (ICA) Rules – with reference to : Extent and
scope of application
 Commencement of Arbitration Proceedings
 Place of Arbitration
 Appropriate Law of Arbitration
 Procedure of Arbitration Proceedings
 Arbitration Award

Paper IV: International and Domestic Centers for

Institutional Arbitration

International Centres

1. The United Nations Commission of International Trade Law

(UNCITRAL) Model Law

 Introduction
 About the Institution
 Features of the Model Law
 Extent and scope of application

9
  Model Arbitration Clause
 Website for Detailed Rules

2. The International Chamber of Commerce (ICC) Rules

 Introduction
 Place/Location of the Institution
 Rules in force
 Features of the ICC Rules
 Extent and scope of application
 Model Arbitration Clause

3. London Court of International Arbitration (LCIA) Rules

 Introduction
 Place/Location of the Institution
 About the Institution
 Rules in force
 Features of the LCIA Arbitration Rules
 Place of arbitration
 Extent and scope of application
 Model Arbitration Clause

4. World Intellectual Property Organization (WIPO) Rules

 Introduction
 Place/Location of the Institution
 Features of the WIPO Rules
 Extent and scope of application
 Model Arbitration Clause

5. Singapore International Arbitration Centre (SIAC) Rules

 Introduction
 Location/Place of the Institution
 Rules in force
 Scope and Application
 Features of the Rules
 Model Arbitration Clause

6. The Asian International Arbitration Centre (AIAC) Rules

 Introduction

10
  Place/Location
 Rules in force
 Features of the Rules
 Scope and Extent of Application
 Model Arbitration Clause

7. SAARC Arbitration Council Rules

 Introduction
 Place/Location of the Institution
 Rules in Force
 Features of the Rules
 Model Arbitration Clause

8. The Chartered Institute of Arbitrators (CI Arb) Rules

 Introduction
 Place/Location of the Institution
 Rules in force
 Scope and application
 Model Arbitration Clause
 Website for Detailed Rules

Domestic Centres
1. IMC International ADR Centre, Mumbai

 Introduction
 Place/Location of the Institution
 Rules in Force
 Features of the Rules
 Scope and Application
 Model Arbitration Clause

2. Delhi International Arbitration Centre (DAC)

 Introduction
 Place/Location of the Institution
 Rules in force
 Features of the Rules
 Scope and Application
 Model Arbitration Clause

11
 3. Indian Council of Arbitration (ICA)

 Introduction
 Place/Location of the Institution
 Rules in force
 Features of the Rules
 Scope and Application
 Model Arbitration Clause

4. Mumbai Centre for International Arbitration (MCIA) Rules

 Introduction
 Place/Location of the centre
 Rules in Force
 Features of the Rules
 Scope and Application
 Model Arbitration Clause

5. Indian Institute of Arbitration & Mediation (IIAM), Rules

 Introduction
 Location/Place of the Institution
 Rules in Force
 Features of the IIAM Rules
 Scope and Application
 Model Arbitration Clause

6. Nani Palkhivala Arbitration Centre, Chennai

 Introduction
 Place/Location of the Institution
 Features of the Rules
 Scope and Application
 Model Arbitration Clause

7. ILS Centre for Arbitration (ILSCA)

 Introduction
 Place /Location of the Centre
 Model Arbitration Clause:

Establishment of Arbitration Council

12
Paper V - Practical Application of ADR Methods

Introduction
Alternative dispute resolution as an aid in family practice matters
Application of alternative dispute resolution to business transactions

A. Transport

 The Railways (Amendment) Act, 2008

 The Multimodal Transportation of Goods Act, 1993
 National High Ways Act, 1956

B. Judiciary

 The Gram Nyayalayas Act, 2008

C. Entertainment

 The Cine-Workers and Cinema Theatre Workers (Regulation of

Employment) Act, 1981

D. Domestic Disputes

 Family Courts Act, 1984

 The Hidu Marriage Act, 1955
 The Special Marriage Act, 1954

E. Education

 Institute of Technology Act, 1961

 University of Hyderabad Act, 1974

F. Financial Disputes

 The Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002
 The Credit Information Companies (Regulation) Act, 2005

13
  The Micro, Small and Medium Enterprises Development Act, 2006
 The Interest on Delayed Payments to Small Scale and Ancillary Industrial
Undertakings Act, 1993
 The Interest on Delayed Payments to Small Scale and Ancillary Industrial
Undertakings (Amendment) Act, 1993

G. Corporate Issues

 Companies Act 1956

H. Services

 The Indian Telegraph Act, 1885

 The Indian Electricity Act, 1910
 Electricity Act, 2003
 Electricity Supply Act, 1948

I. Others

 Atomic Energy Act, 1962

 The Special Economic Zones Act, 2005
 Multi Co-operative Societies Act, 2002

J. Statues which make a reference to settlement of Disputes by

Arbitration does not mandate application of the Arbitration Act

 Antiquities and ART Treasures Act, 1972

 Chit Fund Act, 1982
 Major Port Trusts Act, 1963
 Merchant Shipping Act, 1958
 Specific Relief Act, 1963
 Visva-Bharati University Act, 1951
 Trusts Act, 1882

Note: The syllabus may be amended or enlarged, as and when found necessary.

14