The IUP Journal of Law Review
Mandatory Mediation of Commercial Disputes: A Misnomer in India

Article Details
Pub. Date : Oct, 2019
Product Name : The IUP Law Review
Product Type : Article
Product Code : IUPLR11910
Author Name : Kiruthika D and Vinesha A M
Availability : YES
Subject/Domain : Law
Download Format : PDF Format
No. of Pages : 11

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Abstract

India is known for the inordinate delays in the disposal of cases. Inordinate delays in the legal process are viewed as breach of investment treaty obligation by India. To overcome this and to ensure speedy adjudication of commercial disputes in India, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was enacted. Alternative Dispute Resolution (ADR) mechanism plays a major role in commercial disputes. Among all the ADR mechanisms, mediation has attracted the parties around the globe and proved to play an effective role in commercial dispute resolution. Of late, mediation has found an attractive position under Section 12A of the Commercial Courts Act, 2015 by way of 2018 amendment in the form of Pre-Institution Mediation and Settlement. The legislature intended mediation to be a remedy of first instance which has to be exhausted before moving the court of law. Against this background, this paper analyzes the introduction of this new concept into the Commercial Courts Act and takes a critical view on the implementation of mandatory mediation in commercial disputes. The paper further gives suggestions to overcome the shortcomings in the implementation of Section 12A of the Commercial Courts Act, 2015.


Description

India is known for the inordinate delays in the legal process. These delays are viewed as breach of investment treaty obligation by India.1 This lacuna in the Indian judicial system makes it difficult for the investors to protect their investments in India. To overcome this and to ensure speedy adjudication of commercial disputes in India, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 was promulgated on October 23, 2015. Later, the Commercial Courts Act, 2015 was enacted on December 31, 2015 and was deemed to have come into force on October 23, 2015.2

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