This article has been written by Aastha Agrawal & Shubham Raghuvanshi, 4th year Students pursuing B.A. LL.B (Hons) from Institute of Law Nirma University, Ahmedabad.
The COVID-19 Pandemic has been one of the most unexpected and disastrous events in the history of mankind. The pandemic has forced the reevaluation of everyday life as people have to maintain an appropriate social distance. The state of normal in the past is now redefined in the present age where distance is the new norm.
Arbitration has been one of the major modes of the judiciary that has not become affected by the COVID-19 pandemic. It offers a form of flexibility offered by the method of arbitration through the use of online platforms. It is something that has made it one of the most important forms of dispute resolution. It has braced through the pandemic into the redefined boundaries of normalcy. The main authority within the country with relation to arbitration is the Arbitration & Conciliation Act, 1996 . It has laid down the rules on how arbitration processes must happen within the judicial system of India. Arbitration is a mode of alternate dispute resolution (ADR) wherein matters are dealt with outside the purview of the Courts. The end of such arbitration results in the formation of an arbitration award, which can be defined as the outcome of the arbitration. Arbitration awards are enforceable within a court of law and are binding on the parties involved within the process.
THE CONUNDRUM OF ARBITRATION
Arbitrations are one of the most preferred means of dispute resolution. Flexibility in these difficult times is one of the most aspects why such a process exists. The arbitration procedure can change according to the problem that is presented. The agreement reached by the parties is also an important factor. A form of arbitration which only requires the submission of documents that are to be examined exists. Arbitration via an arbiter and a video conference mode of arbitration also exists.
The procedure in which the arbitration happens is mainly determined by the procedural officer. Here, it is dependent on the preferences and the situations of the parties. The modes are set to the preference of the parties making it a flexible means of dispute resolution. Printing and storing large physical copies of files and documents is a huge issue. It gets resolved through the method of electronic online filing which was introduced in the system. Thus, such a method of dispute resolution was easy to adapt into the current scenario. The video conferencing mode of arbitration was one of the most major aspects of the Covid situation. Section 9 of the Arbitration and Conciliation Act allows for interim relief in special cases.
Here it has to get proven that without such a relief, huge losses would be incurred by the person claiming such relief. Such provisions exist which help in making the process of arbitration simpler. But the execution of the arbitration process has proven to be a challenge within the country. The lack of technological knowledge among the majority of the populace is another problem. It has resulted in the method of video conferencing being unpopular among the populace. Alternate dispute resolutions have usually led to disagreements among the parties. Thus, the parties to approach the court under section 11 of the Arbitration and Conciliation Act. Securing the confidentiality and the integrity of arbitration becomes important.
The highest measures of security must be enforced upon the online medium. The mode in which the procedure is taking must also take precautions to ensure that no single party gains an undue advantage over the other.
THE FUTURE OF LITIGATION
The pandemic is rumored to be part of the lives of the normal citizen for quite some time. Scenarios wherein a lock down may get enforced at any moment is the real scenario today. The option of online alternate dispute resolutions is important. This can exist until society goes back to its state of former normalcy. But regardless, online sessions held by courts and the general practice of arbitration have been cost effective. It is helpful in ensuring quick and speedy justice. The tediousness of court procedures has been reduced. The online platform provides for much less hassle as most documents are uploaded in its digital form.
The rules and guidelines laid down by the ICC in arbitration makes the online method much easier. The amendments to the act offer much more protection in terms of security of the entire process. Sections 42A and 43K of the Act provide for mandatory data protection. Methods to be taken by the parties involved in the process of arbitration are also included. The Arbitration Council of India stores all documents which come under the purview of arbitration within its repository. The replacement of the Ad-hoc form of arbitration with the Institutional form of arbitration is one of the most important changes that has to be made within the system.
The Ad-hoc form gives the parties involved within the arbitration process a lot of power. Here, the cooperation between the parties is key for the process to work. The process requires compromises from both sides. This has not been a likely scenario so far. Hence, an institutional mode of arbitration wherein a specific agency suited to deal with the cases involving arbitration is needed. It would resemble already existing agencies such as the ICC, LCIA and DIAC. Here, rules which have been pre-established before the commencement of the process would be key factors in determining the course of the proceedings. Arbitrators presiding over the process would be efficient and qualified. in engaging hostile parties into meaningful conciliation through the process of arbitration, thereby giving it a well-defined purpose and direction.
The pandemic has affected. all lives drastically irrespective of any differences between the individuals. Even if society comes to a halt, the judiciary must still continue its duty to protect the rights of the citizens. India is a highly populous country. Here, Arbitration would prove to be highly efficient in ensuring justice.