Alternative Dispute Resolution – #AMA by Vinayak Srivastava
Welcome to AMA session powered by Lawyered. I am Vinayak Srivastava, Advocate Delhi high court, I have been into, litigation, arbitration and, dispute resolution, uh, for more than 11 years of experience. Now coming down to the questions, the first question is, What is the scope of a private mediator to resolve disputes between disputants? The role of a private mediator is rather limited when we compare it with the other, uh, dispute resolution mechanisms. One is, of course, a regular court, and the second is an arbitrator. Uh, in case of a mediator, the mediator requires, uh, in order to give any decision regarding the dispute he requires, uh, the consent of both parties to the dispute, even if one of the party, uh, you know, objects to the decision given by a mediator, the mediation will fail.
The role of a mediator is to give a sustainable solution, which can be, uh, acceptable to both the parties. And, uh, if, if any solution is acceptable to both the parties then, that can become has of the decree of a court.
The second question is Mediation and other ADR methods for settling trade disputes with pharmaceutical products? Now the dispute in Arbitration and a dispute resolution have been used by Private Sector for more than 20-30 years and its compulsions to all sectors. In the case of pharmaceutical products, pharmaceutical companies the major arbitration dispute comes in the the era of IPR disputes because in pharmaceutical companies is has invest a lot of money in Research and Development for their pharmaceutical products and the disputes can come with their vendors in case of breach of their confidentiality, the dispute can come even from their employees who can breach the confidentiality clause if their employment agrees. So, in these cases pharmaceutical product being seen the trend, the pharmaceutical companies are using arbitration much more rather than a regular court mechanism to quickly solve their disputes because arbitration in a way has an advantage of being there is a time limit to resolve a dispute as an arbitrator has a reason to give an award in a relevant month and if there is any delay or increase in time limit beyond that then he needs to give reason for the increase of time limit. So, it’s a quick mechanism and it gives a good reason and I believe its most effective way of resolving a dispute between the companies.
The third question is, Is an arbitral tribunal really entitled to rule on its own jurisdiction? Yes, arbitral tribunal is mandatorily has to give a reason to judgement on its own jurisdiction. U/s 16 of arbitration and conciliation Act any party to dispute can raise a plea of jurisdiction on the first instance that means on the first date of hearing itself and the arbitrator or the arbitral tribunal has to give a reason judgement on its jurisdiction and then it can proceed with a matter i.e. the option no.1 with the arbitration. The second option with the arbitration is that it can wait till infidelity of the case and along with the award it can give the judgement on its own jurisdiction, ofcourse that the judgement on its own jurisdiction if any party have any objection on it he can file the objection u/s 24 before the court.
The last question is that Is there a real decline in the idea of arbitration in the area of administrative dispute resolution? I don’t see that, because there is no decline infact we say about Indian context infact there is the Indian Government is infact using ADR mechanism much more now, then they used to before when we say 5-6 years before because they have seen the experience of private sector how effectively they have been able to resolve their disputes, and the litigation cost for these companies have come down so, the Government authorities want to really reduce their litigation cost also and to resolve impeccably these disputes and administrative disputes so the Indian Companies especially the Indian Government Companies Navratana and everyone and Indian Government authorities including arbitration clause in their tender documents for any procurement they do with the vendors or anything. So, in case of any disputes it goes to arbitration. So, infact in Indian Context there is upheld trend to use Arbitration for resolving the government related disputes.
Thank you very much. Uh, thank you for giving us an opportunity, in case of any query feel free to contact Lawyered and connect with me, also give us your feedback. Thank you very much.