Arbitration / Judicial dispute resolution

With a considerable experience in resolving the disputes through Arbitration, Rashmi & Prasad Legal Consultancy attorneys have obtained the requisite legal knowledge to represent clients in complex and intricate disputes which have to be addressed in Arbitration,

In the best interest of the client, depending on the jurisdiction of the arbitration case the R & P Legal consultancy attorneys take a judicious decision to either engage an external attorney outside the legal consultancy or an in house attorney, for our clients understanding and information a brief write up has been provided hereunder.

Considering the complex legal disputes, the legal system provides resolutions for many different kinds of disputes. However, some disputants may not reach agreement through a collaborative process. Some disputes need the coercive power of the state to enforce a resolution. Perhaps more importantly, many individuals/clients want a professional advocate when they get involved in a dispute, particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against them.

The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favourable to their position.

Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of ADR.

International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract.

The predominant system of rules is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention"). The International Centre for the Settlement of Investment Disputes (ICSID) also handles arbitration, but it is particularly focused on investor-state dispute settlement and hears relatively few cases.

The New York Convention was drafted under the auspices of the United Nations and has been ratified by more than 140 countries, including most major countries involved in significant international trade and economic transactions. The New York Convention requires the states that have ratified it to recognize and enforce international arbitration agreements and foreign arbitral awards issued in other contracting states, subject to certain limited exceptions. These provisions of the New York Convention, together with the large number of contracting states, have created an international legal regime that significantly favours the enforcement of international arbitration agreements and awards. It was preceded by the 1927 Convention on the Execution of Foreign Arbitral Awards in Geneva.

International arbitration allows the parties to avoid local court procedures. International arbitration has different rules than domestic arbitration] and has its own non-country-specific standards of ethical conduct.

The process may be more limited than typical litigation and forms a hybrid between the common law and civil law legal systems. For example, the International Bar Association (IBA)'s Rules on the Taking of Evidence in International Commercial Arbitration, revised in 2010, do not adopt common law broad disclosure procedures (discovery) or follow the civil law in eliminating entirely the ability of engaging in some disclosure-related practices. The IBA Rules blend common and civil systems so that parties may narrowly tailor disclosure to the agreement's particular subject matter.

Global enforcement

Most countries, especially in the developed world, are the signatories of the New York Convention. Consequently, judgements can be enforced across the world.

In contrast, there is no equivalent treaty for the international recognition of court decisions with a large membership although a the Hague Convention of 30 June 2005 on Choice of Court Agreements entered into force in 2015 for the European Union and Mexico. Similarly, no equivalent treaty exists so far for the international recognition of settlements achieved in mediation or conciliation: so far, a meeting of the UNCITRAL Working Group II in New York has taken place in February 2015 subsequent to a US proposal for that working group to develop a convention on the enforcement of conciliated settlement agreements for international commercial disputes Within the EU, the enforceability of mediation agreements is ruled by Directive 2008/52/EC.

Arbitration organizations

Several major international institutions and rule making bodies set out rules and appoint arbitrators. The most significant are the International Chamber of Commerce (ICC), Dubai International arbitration centre(DIAC), the International Centre for Dispute Resolution (ICDR), the international branch of the American Arbitration Association, the London Court of International Arbitration (LCIA) and LCIA – India, the Hong Kong International Arbitration Centre, and the Singapore International Arbitration Centre (SIAC). Specialist ADR bodies also exist, such as the World Intellectual Property Organisation (WIPO), which has an arbitration and mediation centre and a panel of international neutrals specialising in intellectual property and technology related disputes.

A number of arbitral institutions have adopted the UNCITRAL Rules for use in international cases.

The most salient feature of the rules of the ICC is its use of the "terms of reference." The "terms of reference" is a summary of the claims and issues in dispute and the particulars of the procedure and is prepared by the tribunal and signed by the parties near the beginning of the proceedings.