Case BriefsSupreme Court

Supreme Court: In the case where a Notice Inviting Tender had a clause asking the parties invoking arbitration to furnish a “deposit-at-call” for 10% of the amount claimed, the bench of RF Nariman and Vineet Saran, JJ struck down the said clause on the premise that:

“Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.”

The Court was hearing the matter where the Punjab State Water Supply & Sewerage Board Bhatinda had issued notice inviting tender for extension and augmentation of water supply, sewerage scheme, pumping station and sewerage treatment plant for various towns mentioned therein on a turnkey basis. Clause 25(viii) of the Notice inviting Tender was challenged before the Court which read

“It shall be an essential term of this contract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a “deposit-at-call” for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award.”

Noticing that a 10% deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous, the Court said that such a clause would be unfair and unjust and which no reasonable man would agree to.

The Court said that since arbitration is an important alternative dispute resolution process which is to be encouraged because of high pendency of cases in courts and cost of litigation, any requirement as to deposit would certainly amount to a clog on this process. It also said:

“it is easy to visualize that often a deposit of 10% of a huge claim would be even greater than court fees that may be charged for filing a suit in a civil court.”

Striking down the said clause, the Court said that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary costs or punitive damages do not follow.

“Clearly, therefore, a “deposit-at-call” of 10% of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims (frivolous or otherwise) made at the very threshold.”

[ICOMM Tele Ltd. v. Punjab State Water Supply & Sewerage Board, 2019 SCC OnLine SC 361, decided on 11.03.2019]

Law School NewsMoot Court Achievements & Reports

The 4th SLCU National Alternative Dispute Resolution Competition 2018 was conducted by the Alternate Dispute Resolution Board of School of Law, CHRIST (Deemed to be University) from 13 – 15 December 2018. The event comprised of three competitions, Mediation, Negotiation and Client Counselling conducted over a period of three days having preliminary rounds, quarter final round, semifinal round and final round. The competition witnessed 48 teams from 16 law colleges across the nation take part in it.

Inauguration:
The inauguration of the 4th SLCU National ADR Competition conducted on 13 December 2018 was graced by Mr Satish Srinivasan, Partner, ALMT Legal, Bengaluru, Ms Rukmini Menon, Mediator, Bangalore Mediation Centre & Ms Rhea Mathew, Counsel at Arista Chambers. A conceptual understanding was provided to the audience by explaining the merits of client counselling, negotiation and mediation by the guests who illustrated the manner in which the proceedings occur and iterated the difference between the various facets of dispute resolution.
The guests also spoke of how dispute resolution is now growing, why it is preferred over litigation and the scope that we, as law students can seek if we pursue the same in future.

Final Rounds:
The Final Round of Client Counselling was judged by Hon’ble Mr Justice Veerna Angadi & Mr Prabhakaran PM, Partner, Lakshikumaran & Shridharan, Bengaluru. The Final Round of Mediation & Negotiation was judged by Hon’ble Mr Justice V Gopala Gowda, Former Judge, Supreme Court of India, Hon’ble Justice Chandrashekariah, Former Judge, High Court of Karnataka & Mr Prashanth Poppat, Senior Partner, ALMT Legal.

Valedictory Ceremony:
The valedictory ceremony of the competition was graced by Hon’ble Mr Justice V Gopala Gowda, Former Judge, Supreme Court of India, Hon’ble Justice Chandrashekariah, Former Judge, High Court of Karnataka, Mr Prashanth Poppat, Senior Partner, ALMT Legal Bengaluru & Ms Tara Ollappaly, Co-ordinator, Centre for Advanced Mediation Practice, Bengaluru.

Prize Winners:
Client Counselling

  • Winners – National Law University, Jodhpur
  • Runners Up – Symbiosis Law School, Pune
  • 2nd Runners Up – West Bengal National University of Juridical Sciences, Kolkata
    Mediation

Mediator

  • Winner – NMIMS
  • Runner Up – NALSAR, Hyderabad

Client Advocate Team

  • Winners – Tamil Nadu National Law University
  • Runners Up – Jindal Global Law School, Panipat

Mediator (Preliminary Rounds)

  • Best Mediator – Joseph Moses, Jindal Global Law School, Panipat
  • 2nd Best Mediator – Shantanu Awasti, WBNUJS, Kolkata

Negotiation

  • Winners – National Law University, Jodhpur
  • Runners Up – Dr Ram Manohar Lohia National Law University, Lucknow
  • National Law University, Jodhpur was declared as the overall champions of the 4th SLCU National ADR Competition, 2018.

Law School NewsOthers

ILS Centre for Arbitration (ILSCA) in association with Peacekeeping and Conflict Resolution Team (PACT) is organizing a two day workshop on “ADR Methods with  Focus on Commercial Arbitration and Mediation”.

This Workshop will provide participants with core arbitration, mediation and negotiation skills and hands-on experience through a variety of simulations and practical role play sessions.

Highlights of the Workshop:

  1. Use of Arbitration-Mediation(Med-Arb) as an appropriate ADR tool in Indian and foreign jurisdictions.
  2. Setting and executing Arbitration and Mediation clauses in commercial contracts.
  3. Recent updates on mandatory Commercial Mediation in India and its impact on the courts of Law.
  4. Pre-Litigation Mediation and court-referred Mediation in India and abroad.
  5. Scope and practice of Investor-State Arbitration in India and Abroad.

Eligibility:

  • All the Law students studying in either 3 or 5 year Law course in India are eligible to attend this workshop.
  • Recent Law Graduates, Professionals, and Law Enthusiasts can also be a part of the coveted Workshop.

Location: ILS Law College, Pune.

 Registration procedure

The prospective participants can register by visiting the link given below:

Certificates shall be awarded to all the participants provided they are present for all the sessions conducted on both the days.

 Fees:

  • For ILS Students: ?2500 plus GST(18%)
  • For Non ILS Studens: ?3500 plus GST(18%)
  • For Professionals and Recent Graduates: ?5000 plus GST(18%)

Important Dates

  • Registration Starts from: 13th December, 2018    
  • Last Date to Register:  31st December , 2018

 For Correspondence:

Student Coordinators:

Faculty Coordinators:

  • Sathya Narayan, Ms. AnwitaDinkar; Ph: 020 25676866

Official Email ID (for communications, queries and requests): ilscapact@gmail.com

For the schedule of the workshop, click HERE

Case BriefsHigh Courts

Delhi High Court: While deciding the instant review petition wherein the issue was raised that whether the either parties during the trial can use the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case the process fails. The petitioner further raised a grievance against the decision of this Court dated 07.02.2017 holding that the reports furnished by the Counselor and Mediator were not confidential and will not fall within the bar of confidentiality. Allowing the petition it was observed by the Division Bench of S. Ravindra Bhat and Yogesh Khanna, JJ., that ‘confidentiality’ is the essence of mediation proceedings, thus constituting “a permanent ‘dark area’ and off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception”.

As per the facts, the parties to the instant petition are disputants before the Family Court claiming guardianship of the son born to them. In order to resolve the dispute amicably, the parties opted for Mediation which unfortunately failed. The Counselor appointed by the Mediator submitted its report to this Court thereby causing the decision of 07.02.2017. The counsel for the petitioner Prosenjeet Banerjee referring to the Delhi High Court Mediation and Conciliation Rules, 2004, Conciliation Rules of United Nations Commission on International Trade Law (UNCITRAL) and Mediation Training Manual issued by the Supreme Court, argued that mediation is purely a confidential process and anything said or any view expressed by the parties; or documents obtained etc in the course of the process, need not be a part of the mediation report especially when the mediation has failed. It was also argued that the Mediator was not authorised by the Court to refer the dispute to the Counselor. The respondents via Inderjeet Saroop put forth before the Court that the Counselor’s report is only to be referred for the purposes of appreciation of the parties’ stand vis-à-vis their child and urged the Court to exercise it’s parens patriae jurisdiction for the benefit of the child.

Perusing the contentions and facts and referring to the various Rules and Conventions namely UNCITRAL Rules, Arbitration and Conciliation Act, 1996 etc. all highlighting the confidentiality aspect of mediation, the Court observed that a Mediator is not an amicus curiae and therefore the process itself involves a neutral third party who in a non- judgmental fashion acts as a facilitator for the disputants to reach an agreement. Therefore mediation process depends upon maintaining confidentiality at all times till the end of the proceedings, thus a mediator cannot file reports to the Court especially when the process has failed. Mediators cannot involve experts or counselors in the process and if any need arises, the parties must approach the Court to explain requirement and the Court in such cases may use its discretion under Section 12 of the Family Courts Act, 1984. In case a counselor is appointed, a mediator shall not present when the parties are interacting with the counselor and interactions of the counselor and Court should be confidential as well. Based on the observations, the Court directed the Family Court to

disregard the reports of the Mediator and Counselor when it will determine the case upon its merits. It was also held that the said report will not be a subject of debate or argument. [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 12156, decided on 11.12.2017]