This Article is written by A. Mahalakshmi, a Fourth- Year law student of Sathyabama Institute Of Science And Technology

1. INTRODUCTION:

In a fast-changing society, people must focus on their interests and needs, which may lead to conflict. People are becoming more aware of their rights and due to the increasing number of conflicts between them, discussions have become a part of their lives. This problem is exacerbated by the lack of legal education and the difficulty of the legal system in handling many cases. Especially in modern society in the technological and economic world, war is the most important way to resolve disputes. When people's needs are not met, the need to find new methods of conflict resolution is understandable. In this context, alternative dispute resolution (ADR) procedures have become a priority currently.

2. KEY WORDS: ADR- Commercial Dispute – Resolving disputes - Reconciliation – Mediation – Negotiation.

3. ALTERNATIVE DISPUTE RESOLUTION:

Alternative Dispute Resolution (ADR) is a technique for resolving disputes and disputes between parties by reaching an acceptable solution through negotiation and discussion. This is an attempt to create an alternative mechanism outside of traditional dispute resolution methods. The ADR mechanism proposes to facilitate the resolution of commercial and other problems where it has not been possible to start a negotiation process or reach a mutually acceptable solution. In India, ADR is established under Article 14 (equality before law) and Article 21 (right to life and personal liberty) of the Constitution of India. The Directive Principles of State Policy (DPSP) on equal justice and free legal aid as enshrined in Article 39-A of the Constitution of India can also be supported by AADR.

4. COMMERCIAL DISPUTE:

A commercial dispute can be defined as “disputes arising from trade or commercial transactions” and disputes arising from the normal commercial practices of merchants, banks, and traders, such as those related to work with the translation of commercial documents, and exports. Or import. From goods, charters, sales, franchise agreements, distribution and licenses, commercial enterprise and commercial use agreements, partnership agreements, technical development, protection and information, software, equipment, networks, Internet, websites and intellectual property rights and trademarks, copyrights of inventions, designs, and models, domain names and logos and other commercial disputes which may be notified by the Supreme Court.

5. THE ROLE OF ALTERNATIVE DISPUTE RESOLUTION IN RESOLVING COMMERCIAL DISPUTE:

5.1. CONCILIATION:

Part III of the Act contains conciliation and is used as the most effective means of resolving disputes. It was based on the UNCITRAL Model Arbitration Rules and the UNCITRAL Convention Rules, and it was the first time that the decision-making process was recognized through the creation of detailed rules of engagement. This is an informal process in which a neutral mediator helps the dispute reach an agreed solution. According to Article 61 of the Law, the compromise is used in claims arising from the legal relationship, whether contractual or non-contractual and all related claims. The choice of dispute resolution method is determined by the parties’ cultural and legal practices. The default is preferred because it is faster, cheaper, and more informal. In this case, the win-win situation created by the settlement for both parties encourages the continuation of a good business relationship, which may be problematic if legal dispute resolution methods are used.

Part III of the Arbitration and Conciliation Act 1996 (the Act) sets out the legal framework for conciliation. Under Section 66 of the Act, the conciliator is not bound by the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872. Under Section 67 of the Act, the role of the conciliator is to help impartially the parties reach an amicable settlement of the dispute. The conciliator must be aware of the principles of equity and justice, and business practices, considering the rights and obligations of the parties, the circumstances surrounding the dispute, etc. Conciliation is simple and is therefore commonly used by companies to resolve commercial disputes.

5.2. Mediation:

Compared to traditional legal processes that resolve the same dispute Between the parties, mediation generally provides an immediate and effective framework for dispute resolution That time. Mediation is generally accepted by businesses because it allows for solving faster than commercial disputes. For the same reason, she Encourages international investors to rely on the Indian legal system to provide them with a simple, effective, and timely dispute-resolution mechanism. The Commercial Courts Amendment Act 2018 has given mediation a significant boost. The amendment of the law added a new chapter IIIA. This means that if a legal action is not necessary or an urgent provisional measure, the complainant must go through a mediation before the institution.

“Commercial Courts (Mediation and Pre-institutional Settlement) Rules, 2018” are Introduced by the Commercial Courts Amendment Act 2018. These rules describe the mediation procedure to be followed. Following the rules and the law, the central government May authorize authorities established under the Legal Services Authority Act 1987. This authority will supervise the mediation process by starting the procedure after a party has submitted a request A question the regulations also appoint an arbitrator and determine the venue of the proceedings.

The mediation procedure must be completed within three months from the date of receipt of the request for Preliminary mediation. With the agreement of the parties, this period can be extended by Two more months. In addition, the regulations stipulate that the parties must act in good faith and must maintain the confidentiality of the proceedings with the mediator. It also specifies. Ethical obligations of the intermediary. This also means that the agreement reached through such mediation has the status and effect of an arbitral award under section 30(4) of the Arbitration Act. And the Conciliation Act, 1996 (“the Act”). Experience with such brokerage arrangements pre-institutional has been positive throughout the world. Therefore, the establishment of this provision is commendable.

5.3. Negotiation:

Alternative dispute resolution techniques are widely used in commerce because where there is commerce, there is negotiation. Negotiation is the most basic form of alternative dispute resolution in which both parties, with or without the assistance of lawyers, negotiate the terms of any agreement, contract, settlement, or dispute to obtain a benefit for their party. Negotiations are a common technique in the business world since many transactions or contracts involving large amounts of money must be negotiated between two parties. These days, it is an essential skill.

6. CONCLUSION:

The objectives of trade today are no longer the same as when the legal and judicial systems were introduced. The flaws in the Indian justice system call for a better, faster, and more transparent system. Because of these defects, the objective of business performance is hindered. When we look at commercial disputes and the mechanisms in place to resolve them, it becomes difficult in practice because the ordinary and customary dispute resolution process does not contribute to the promotion or facilitation of trade. The legislature has also identified problems related to the justice system and through legislation, legislative efforts to speed up court processes are increasingly failing, as we have seen above. They are left with only one option: promote the use of ADR in dispute resolution. In contractual relations involving brand license agreements, name license agreements, or technology transfer cases, the parties usually include an ADR clause as part of the main agreement, so that when a dispute is submitted to ADR. However, in cases where the parties do not have a contractual relationship, the resolution of disputes through ADR mechanisms is not possible, since the alleged infringer usually denies involvement in the trademark authorship or infringement of copyright and prefers to contest the complaint in court. It is also important to recognize that the long legal process benefits no one. Ultimately, it puts a burden on all parties involved in the process. ADR mechanisms are much easier to approach and understand, especially about the parties to the dispute, who participate in legal proceedings It is done through their lawyer, and the complex judicial mechanism makes it difficult to find fast solutions, while in ZAK, where the parties participate in the resolution of disputes, fast solutions are more justified.

REFERENCE:

1. https://www.legalserviceindia.com/legal/article-2899-commercial-dispute-resolution-commercial-courts-and-adr.html

2. https://byjus.com/free-ias-prep/alternative-dispute-resolution/

3. https://blog.ipleaders.in/adr-alternative-dispute-resolution/

4. https://blog.ipleaders.in/suitability-adrs-particular-types-disputes/#Commercial_Disputes

5. https://thelawbrigade.com/wp-content/uploads/2022/03/Subah-Angra-JLSR.pdf