Scope Of ADR In Disputes Relating To Intellectual Property

Intellectual Property (IP) is a highly valuable commodity for any corporate entity, especially in the era of increasing dependence on technology and the need to protect intellectual property rights. On most occasions, disputes relating to IP involve intricate issues, high stakes of the parties and hence, delays in the settlement of conflicts are highly undesirable. However, Intellectual property (IP) rights are only as strong as the means to enforce them. Alternative Dispute Resolution (ADR) proceedings present many advantages for the settlement of intellectual property matters. Mediation, notably, seems like an attractive option for parties that place a premium on the preservation … Continue reading Scope Of ADR In Disputes Relating To Intellectual Property

To Arbitrate Or Not To Arbitrate: An Unnecessary Dilemma Surrounding Arbitrability of Fraud

The question of arbitrability determines whether a particular dispute can be submitted to arbitration for its resolution, or whether it must mandatorily be judicially adjudicated by a court of law. This concern finds its legal force under Section 34(2)(b)(i) of the Arbitration and Conciliation Act, 1996 (“1996 Act”) which reads as follows: “(2) An arbitral award may be set aside by the Court only if— (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.” However, the Act itself does not provide a … Continue reading To Arbitrate Or Not To Arbitrate: An Unnecessary Dilemma Surrounding Arbitrability of Fraud

The Takeaway from the South china Sea Arbitration

The dispute regarding the indulgence of China in the South China Sea, as far as it interfered with the EEZ of the Philippines, became the bone of contention in this arbitration. The pivotal question to be adjudicated by the five-member arbitral tribunal at the Permanent Court of Arbitration was regarding the compatibility of the claim of sovereignty over major portions of the South China Sea by China with the UNCLOS. The jurisdiction of the tribunal stemmed from the provisions relating to compulsory dispute settlement procedures in UNCLOS. China had objected to the jurisdiction based on the fact that it had … Continue reading The Takeaway from the South china Sea Arbitration

An Overview of the Irish Mediation Act 2017

Owing to a variety of factors like the impact of economic crisis, fundamental change in dispute resolution culture and others, the mediation practice in the Irish jurisdiction had to grapple with the actual practice. In the Ryan v. Walls Construction Limited [2015] IECA 214, the Court of Appeal underscored the failure on the part of the government of Ireland in introducing alternative dispute resolution as a part of the justice system of the country and being a common law country, in the absence of any legislation, the regulatory role had to be played by the judges. But, a watershed moment … Continue reading An Overview of the Irish Mediation Act 2017

A Brief on the Thai Arbitration Institute Rules 2017

Designed to promote efficiency and to fill certain procedural loopholes, the Thai Arbitration Institute (‘TAI’) Rules 2017 have taken the place of TAI Rules 2003. In an attempt to check the rampant abuse of the loopholes by the parties and to usher in more fairness and objectivity in the proceedings, the first update since 2003 provides for some substantial changes. Firstly, the arbitral institution has been granted broad powers to consolidate the proceedings irrespective of the presence of identical arbitration agreements. Such a move would lead to increased efficiency as the related arbitrations arising out of multiple contracts can be … Continue reading A Brief on the Thai Arbitration Institute Rules 2017

Civil Liability of Arbitrators and Arbitration Institutions

Arbitration is a process by which the disputes between two parties regarding their mutual rights and liabilities are settled judicially by one or more persons other than the court. This person is called the arbitrator. There are two types of arbitration Ad-Hoc Arbitration: The process of arbitration is not regulated and determined by an institution. The parties to the agreement have to decide all the aspects of the arbitration like the appointment of arbitrator, procedures, rules applicable, etc. Institutional Arbitration: A specialised institution intervenes and assumes the function of aiding and administering the arbitration process in lieu of fees. The … Continue reading Civil Liability of Arbitrators and Arbitration Institutions

Compulsory Mediation or Conciliation in Family Disputes

Family disputes are different from other disputes. There exists a very special relation between the parties which needs to be preserved. The backlog of cases and lethargy of judicial system leads to prolonged strain in relationship making them irreparable. To overcome this there has been a need to adopt alternate means of dispute resolution. Alternate dispute resolution mechanism has been recognised in the Code of Civil Procedure, 1908. Section 89 of the Code of Civil Procedure, 1908 provides for an option to the parties to resolve their dispute outside the Court. This method of dispute resolution though alternative in other … Continue reading Compulsory Mediation or Conciliation in Family Disputes

Cross Culture Difference in Negotiation

There are different countries in the world, each having its own unique identity and characteristics. Every country realises that it is not self sufficient, thus it needs to depend on other countries for varied purposes. Globalisation has led to inevitable increase in trade and commerce beyond the territorial boundaries of a country. Foreign investment and multinational companies have become a household term. Such blurring of territorial boundaries has made it necessary for people to connect to people from other countries having different culture for business purposes. Whenever an individual or industry works with another individual or industry from another country … Continue reading Cross Culture Difference in Negotiation

Lok Adalat: India’s Innovation in Alternative Dispute Resolution Mechanism

Scholars and academicians throughout the world believe that there has been a spurt in the popularity of alternate dispute resolution. Commercial contracts, family disputes, sports dispute and even intellectual property right disputes are now being solved through arbitration, conciliation, mediation and/or negotiation. India has followed the path of the world leaders and has tried to make the country a seat of foreign arbitration. Though we have legalised the rules and regulations regarding alternative dispute resolution through Arbitration and Conciliation Act, 1996, the concept of alternative dispute resolution has prevailed throughout India for a long time. In villages, the dispute between … Continue reading Lok Adalat: India’s Innovation in Alternative Dispute Resolution Mechanism

Third Party Funding in India Arbitration

The process of arbitration got statutory sanction by the enactment of the Indian Arbitration and Conciliation Act, 1996. Since the enactment, there have been various developments in the field of alternate dispute resolution mechanism and the government has been trying to fill up the lacunae through amendments. One such lacuna which has been identified by scholars and academicians is the policy regarding Third Party Funding in India. Third Party Funding is an arrangement where someone who is not directly involved as a party in the process of arbitration agrees to provide funds to a party in exchange for a specific … Continue reading Third Party Funding in India Arbitration