INTRODUCTION:
Some ADR commentators do not regard arbitration as a form of ADR because of its similarity to the litigation. However, due to the fact that arbitration was originally regarded as part of ADR, and because of its role in the other hybrid processes which have since developed, it is treated as a mode under ADR system in India. Arbitration, to some extent, has been proved as an additional option, particularly for the commercial disputes for amicable settlement of disputes. Arbitration appears to have greater effectiveness due to the number of International Conventions and laws which have been widely adopted such as the Convention on Recognition and Enforcement of Foreign Arbitral Awards, which has been adopted by a number of countries including India. An arbitrator always gives due importance to the evidences produced by both the disputants, though he is not bound to follow the technical procedural aspect as prescribed by the Evidence Act or other procedural Acts.
Understanding Arbitration through Roman Laws
Arbitration, called ―compromise (compromissum) was a mode of terminating controversies much favoured in the civil law. International Arbitration was fully recognised practice amongst the Greeks.[1] In Greece right from the fifth century B.C., disputes were settled by Arbitration and that too of various categories like: dispute related to boundary delimitation, ownership, assessment of damages caused due to invasion, recovery of money and religious matters.[2] There is no denying the fact that Arbitration existed in the western world, may be in different forms.
Common Law and Arbitration
Common Law developed a distinct taste towards Roman Law. In Common Law, there was said to be a policy against agreements ousting the Court‘s jurisdiction. In the beginning, it was necessary to establish the jurisdiction of the Courts of politically organised society to replace the institutions of kin-organised society, self-help and the help of one‘s kinsmen, self-redress and private war.[3]
In the middle ages, there was a contest for the jurisprudence between the Courts of the King and the Courts of the Church. In England, after the takeover, the King‘s Courts got hold of the jurisdiction at the cost of the old customary and feudal local tribunals. The Common Law grew up in the King‘s Courts particularly in 13th Century. No doubt, Common Law Courts looked resentfully towards agreements to submit private disputes to extra-judicial authorities instead of politically organised society.[4]
[1] International Encyclopedia of Social Sciences, Vol.l, p. 50, as quoted in Law Commission of India, 76th Report on Arbitration Act, 1940 (l 978).
[2] Wehringer, Arbitration: Precepts and Principles (1969), p. 5.
[3] Pound, Jurisprudence (1959), Vol.5, pp. 357-58
[4] Pound, Jurisprudence (1959), Vol.5, pp. 357-58