CAM Final Examination

ADR (Alternative Dispute Resolution) is characterized by resolving disputes outside traditional court proceedings, offering alternatives like arbitration, mediation, and negotiation.

Arbitration results in a binding award imposed by the arbitrator(s). Mediation and conciliation facilitate agreement but the neutral does not impose a decision.

The New York Convention 1958 provides for recognition and enforcement of foreign arbitral awards across 170+ signatory countries, making international arbitration effective.

Party Autonomy is the foundational principle allowing parties to determine procedural aspects including rules, language, seat, and even applicable substantive law.

In Med-Arb, if mediation is unsuccessful, the same neutral transitions to arbitrator role and renders a binding award. This provides certainty of resolution.

Established precedent is a characteristic of litigation, not ADR. Arbitration awards typically do not create binding precedent for future cases.

The doctrine of separability treats the arbitration clause as independent from the main contract. Even if the main contract is void or voidable, the arbitration clause remains valid.

In expert determination, the expert applies their specialized knowledge directly rather than following adversarial arbitration procedure. The expert investigates and decides based on expertise.

UNCITRAL (United Nations Commission on International Trade Law) developed the Model Law in 1985 (amended 2006), which has been adopted by 85+ jurisdictions including India.

Early Neutral Evaluation provides parties with a non-binding assessment of their case's merits early in the dispute, helping them make informed decisions about settlement or continued litigation.

Section 7 requires the arbitration agreement to be in writing. This includes agreements in documents signed by parties, exchange of communications, or reference in a contract.

After tribunal constitution, parties should approach the tribunal first. Courts can be approached under Section 9 only if the tribunal remedy would be inefficacious (2015 amendment).

Kompetenz-Kompetenz (competence-competence) empowers the tribunal to rule on its own jurisdiction, including challenges to the existence or validity of the arbitration agreement (Section 16).

Section 34 grounds include public policy conflict (narrowly construed after 2015 amendment to mean fraud, corruption, contravention of fundamental policy, or basic notions of justice). Errors of fact/law are not grounds.

Section 34(3) provides 3 months from receipt of the award, with court discretion to extend by maximum 30 days if sufficient cause is shown.

Part II deals with enforcement of certain foreign awards - Chapter I for New York Convention awards and Chapter II for Geneva Convention awards.

The 2019 Amendment established the Arbitration Council of India (ACI) under Part IA to promote arbitration, accredit institutions, and maintain arbitrator panels.

Section 11 provides for appointment by the Supreme Court (international commercial) or High Court (other arbitrations) if parties fail to appoint within 30 days.

Section 29A requires award within 12 months from completion of pleadings, extendable by 6 months by consent. Further extensions require court approval with fee reduction for arbitrators.

Section 2(1)(f) defines international commercial arbitration by reference to party nationality - at least one party must be foreign (by nationality, residence, or incorporation).

Arbitration commences with Notice of Arbitration (or Statement of Claim) from claimant, identifying the dispute, parties, and relief sought.

Procedural Order No. 1 establishes the procedural framework including timetable, document production rules, hearing logistics, confidentiality, and communication protocols.

The IBA Rules on Taking of Evidence provide a balanced framework for document production (Redfern Schedule), witness statements, expert evidence, and examination procedures.

A Redfern Schedule is a table organizing document requests, showing: (1) documents requested, (2) relevance, (3) objections, and (4) tribunal decision.

Chess clock allocation gives each party equal time (e.g., 20 hours each) to use as they choose for examination, cross-examination, and argument. Their clock runs when they speak.

Witness conferencing (hot-tubbing) has multiple experts testify together, responding to the same questions and engaging in dialogue. This efficiently highlights agreements and disagreements.

An interim award is binding and enforceable but decides only certain issues (e.g., jurisdiction, liability) while proceedings continue on remaining issues (e.g., quantum).

Post-hearing briefs analyze evidence and arguments based on hearing testimony, address points raised, and provide final submissions on issues. New evidence is generally not permitted.

The seat determines the procedural law (lex arbitri) governing the arbitration and which courts have supervisory jurisdiction over challenges and enforcement.

ICC award scrutiny reviews draft awards for form, clarity, and potential enforceability issues. The Court may suggest modifications but cannot change substantive decisions.

Section 18 provides 120 days from first appearance, extendable by 60 days with consent, making maximum 180 days total.

Section 27 provides mediated settlement agreements are enforceable as if they were a judgment or decree - no fresh suit needed for enforcement.

The MCI registers mediators, recognizes mediation service providers, sets professional standards, and promotes mediation in India (Sections 31-34).

The Information Gathering stage explores beyond stated positions to understand underlying interests, needs, and concerns through questioning and active listening.

Reframing transforms adversarial statements into neutral problem statements. "They cheated us" becomes "You're concerned about fairness in how this was handled."

Caucus information is confidential to that party. The mediator must always ask permission before sharing: "May I share this with the other party?"

BATNA (Best Alternative to Negotiated Agreement) analysis helps parties realistically evaluate their positions by considering outcomes if mediation fails (litigation costs, time, uncertainty).

Section 29 allows challenge within 90 days on limited grounds: fraud, corruption, impersonation, or if dispute was not mediable.

Neutrality = no stake in the outcome. Impartiality = treating both parties fairly and equally. Both are required of mediators.

Section 6 excludes criminal proceedings, fraud/forgery allegations, tax disputes, compulsory acquisition, and certain other matters from mediation.

ICC Terms of Reference summarize parties, claims, relief sought, issues to be determined, seat, language, and applicable rules - signed by parties and tribunal.

FIDIC DAB must issue decisions within 84 days of referral. The decision is binding immediately but can be challenged through arbitration.

Exceptionally adverse weather is typically excusable non-compensable - contractor gets time extension but no additional costs, as neither party is at fault.

UDRP requires three elements: (1) domain identical/confusingly similar to trademark, (2) registrant has no legitimate interest, (3) bad faith registration and use.

WIPO Expert Determination provides expedited decisions, typically within 1-2 months, ideal for technical disputes requiring specialized expertise.

The best interests of the child is the paramount consideration in all custody matters under the Guardians and Wards Act and Supreme Court jurisprudence.

Conduct separate safety screening with each party to assess power imbalances and safety concerns, allowing the vulnerable party to speak freely.

SIAC Expedited Procedure applies automatically to claims under SGD 6 million, requiring single arbitrator and award within 6 months.

Algorithmic bias and transparency are primary concerns - AI may perpetuate biases and parties have right to understand how decisions are made.

E-Daakhil is an online portal for filing consumer complaints, enabling ODR-style resolution with mediation options and targeted 21-day resolution.

ICC appoints based on case requirements through National Committees or directly by the ICC Court, rather than maintaining a traditional panel.

UNCITRAL Rules (2013 revision) are the standard framework for ad-hoc international arbitration, providing complete procedural framework without institutional administration.

LCIA uniquely uses hourly rates for both administrative and arbitrator fees, which can be advantageous for high-value but straightforward cases.

Contingent fees are prohibited for arbitrators and mediators as they create bias toward particular outcomes, compromising neutrality.

Non-Waivable Red List situations require the arbitrator to decline - party consent cannot cure these conflicts (e.g., arbitrator being a party or having significant financial interest).

Orange List situations may give rise to justifiable doubts and should be disclosed. Parties then decide whether to continue with the arbitrator.

All arbitrators, including party-appointed, must be independent and impartial. Being appointed by a party does not make the arbitrator that party's advocate.

The duty to disclose is continuing - arbitrators must disclose potential conflicts before accepting, at commencement, and whenever new circumstances arise during proceedings.

First appointments typically come as co-arbitrator nominations by parties or their counsel. Building relationships with arbitration counsel is essential.

A searchable database of parties, counsel, and co-arbitrators is essential for checking conflicts before accepting each appointment.