adr Flashcards
why is classification imp?
Both inquisitive and adversarial aim at delivering justice and solving disputes. But there are difference in their techniques of adjudication and justice delivery mechanisms. Thus their classification becomes important.
give features and merits/demerits of adversarial
MERITS-
in an adv system, parties are assisted with their lawyers who play an active role in delivering justice. Lawyers participate in cross examination, give arguments and test the scrutiny of evidence presented by the other parties. The parties develop their own theories and collect evidence to support their claims. The judge on the hand plays a neutral role. He gives his claims solely based on evidence presented before him.
parties are more willing to accept the decision as they have an effective control over the process.
the use of cross-examination is an effective way to check the credibility of witnesses.
there is an inbuilt discrinimation among litigants. Parties with better resources are able to hire more competent lawyers and present sophisticated evidence. This is not easily available for parties who lack resources. Affordability and Accessibility are the major issues faced by litigants litigants in this system.
Lawyers active role may prolong the process and lead to several delays.
judges less active role is also an issue. He gives claims based solely on the evidence presented before him.
Inquisitorial - merits/demerits.
MERITS
in an inquisitorial system, judge plays a centre stage role.
He determines the facts of the case.
He can also decide in what type of the way the evidence needs to be presented-oral, documentary or a combination of both.
He then evaluates the evidence presented before him and decide upon legal claims.
less reliance is placed on cross examination and other methods used by lawyers.
the active role of judges prevents delays.
helps persevere quality among litigants. Stronger parties with more resources and expert lawyers are not able to influence the jugde.
- no natural judge
- lack of incentive structure
wdym by adr/ history
AC 1996, LSA 1987
native adr techniques
ADR is an attempt to devise a machinery which is capable of providing alternative to the conventional methods of resolving disputes in courts. ADR also refers to non adversarial methods of adjucatication of legal disputes.
History of adr dates to the modern Indian judiciary. Modern IJ was introduced with the advent of British conolism era. English legal system began to influence courts, advocates, judges in India. However even before the advent of such formalities, the tribal adr techniques of India stayed strong. -KULA, SHRENI, PUGA.
panchayat continued to be centre of dispute resolution of villages.
Adr which was considered to be a voluntary action on part of parties, obtained recognition with the enactment of AC act of 1996, LA 1987.
KULA
SHRENI
PUGA
family, castes, races disputes
business
traders, commerces branches
problems faced by courts
1) There is an inadequacy in court delivery system due to lack of judges, courts.
2) There is an increase in litigation due to the increasing population of India.
3) Increase in court fees, lawyers fees.
4) Increasing litigants have prolonged the disposal of trials resulting in huge pendency in all courts.
ADR benefits
less time consuming
convenient forum to parties
less costly
can be used any times
technicalities of court prevents
ARBITRATION ANC CON ACT 19996
UNICITRAL MODEL LAW CONNECCTION WITH ARB
pROCESS OF ARBI
Types of choosing a arbitrator
why is arb popular among businesses
award vs decision
can award be struck down?
types
domestic
foreign
ad hoc
institutional- lcic
statutory arb
foreign commerial
