Thursday, February 6, 2014

IMPORTANCE OF ADRS / ARBITRATION GLOBALLY & SPIRITUALLY- The most influential person till date the Lord Jesus Christ has set forth the system

(1)   Thiruvalluvar: 
உள்ளம் இலாதவர் எய்தார் உலகத்து  
வள்ளியம் என்னும் செருக்கு
                               [வள்ளியம் = Arbitration]
                                                                Thirukkural: 598 
     “LACKING CHARACTER MAKES NONE
      ACCLAIMED INTERNATIONAL ARBITRATOR”  ©
                        [உள்ளம்= WILL / WILL-POWER/CHARACTER]
                -Dr. RSL's "4+3 Word- 2 Couplet English Thirukkural" 

(2) In the 1982 Report on the State of the Judiciary, Chief Justice Warren Burger accurately observed:
“One reason our courts have become overburdened is that Americans are 
increasingly turning to the courts for relief from a range of personal distresses 
and anxieties.  Remedies for personal wrongs that once were considered 
the responsibility of institutions other than the courts are now boldly asserted as
 legal "entitlements."  The courts have been expected to fill the void created 
by the decline of church, family and neighborhood unity”

     

     (3) JESUS CHRIST on ADRS/ARBITRATION

   “Therefore, if you are offering your gift at the altar and there remember that your brother has something against you, [Remember it is not  you having something against him, instead he, having something against you] leave your gift there in front of the altar. [ie be concerned with the legal problem if anybody is having against you before coming to Church] First go and be reconciled to your brother; then come and offer your gift. Settle matters quickly [get it settled by using one of the following methods] with your adversary who is taking you to court. Do it while you are still with him on the way ,otherwise you will be handed over to the Officers and then put in jail till you pay off the money that you owe to him (in full)[ money matter is meant though you owe him]. ” (Matt. 5:23‑26).


     Jesus Christ sets forth a process that involves private discussions , mediation, Conciliation and authority to make a binding decision, which is Arbitration: This is possible only via knowledge of Arbitration Laws, without knowledge people would get perished as per Hosea 4:6


     “If your brother shall trespass against you, go and show him his fault
      just between the two of you only[NEGOTIATION]  . If he listens to you,
     you have won your  brother over. But if he will not listen, take one or 
     two others along, so that "every matter may be established by the testimony 
      of two or three witnesses.[MEDIATION]  If he refuses to listen to them, tell 
      it to the church.[CONCILIATION]  ; and if he refuses to listen to the church, 
      treat him as you would a pagan or a tax collector, which is to make a binding 
     decision by way of award[ARBITRATION]  I tell you the truth, whatever you 
     bind on earth will be bound in heaven, and whatever you loose on earth will 
      be loosed in heaven again [AUTHORITY TO ARBITRATORS]  .”                  
                                                                                                                 -Matthew 18:15‑20


         Jesus Christ has set forth the Process even before 2000 years back. He has shown the authority of an Arbitrator. This is well explained in the Bible. Being an Arbitrator is the method of the Hunting Ministry,as said in Jer.16:16. The character and will is vital requisite for an Arbitrator,which can be assessed as follows:

          Let us measure our  CQ using the revised definition as given below. 
                                            In a scale of 100,
    To measure CQ use the below split IQ (10) + EQ (10)+ SQ (15) + AQ (50 )+ PQ (15) in a scale of 100.
                                                    CQ  =     Character Quotient
               CQ can be defined as CQ = IQ + EQ+SQ + AQ + PQ , where
  v IQ is Intelligence Quotient and is determined by mental efficiency and mental shaping.
  v EQ is Emotional Quotient and is determined by emotional shaping and balance.
  v SQ is Social Quotient and is determined by social intelligence and social compassion.
  v AQ is Analytical Quotient and is determined by revelatory intelligence which provides you wisdom, understanding, discernment and discretion and equips you to wrestle with principalities, power and spiritual wickedness in the high places. It depends on your spiritual shaping which happens till death.
  v PQ is Passion Quotient and is determined by passion for GOD, compassion for the mankind, and dispassion towards worldliness as understood by the world.

     (4) Associate U.S. Supreme Court Justice Antonin Scalia said about this passage in 1987:

      "I think this passage has something to say about the proper Christian attitude toward civil litigation. Paul says that the mediation of a mutual friend, such as the parish priest, should be sought before parties run off to the law courts.... I think we are too ready today to seek vindication or vengeance through adversary proceedings rather than peace through mediation.... Good Christians, just as they are slow to anger, should be slow to sue."

(5)As the Supreme Court of India once noted:

 Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act of 1940. However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every step providing a legal trap to the unwary. Informal forums chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with “legalese” of unforeseeable complexity. (The Gurunanak Foundation case, (AIR 1981 SC 2075), per Justice D.A. Desai.)

(5) The Hon'ble Chief Justice of India Mr. Justice R.C. Lahoti, observed that :-

    “The philosophy of Alternate Dispute Resolution systems is well-stated by Abraham Lincoln: “discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.” Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money. A case won or lost in court of law does not change the mindset of the litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternate Dispute Resolution systems enable the change in mental approach of the parties ............ A Conference on ADR systems is being held in Mumbai on 20th November this year where, leading experts in the world on ADR system would be available for launching the movement on a large scale”.




THE NEED OF ADRS- Alternative Dispute Resolution System


ALTERNATIVE DISPUTE RESOLUTIONS

Alternative being “A choice limited to one of two or more possibilities, as of things, propositions, or courses of action, the selection of which  precludes any other possibility: You have the alternative of riding or walking.”  as Dictionary.reference.com, puts it.   ADRS , representing Alternative Dispute Resolution System implies that it is another choice for solution like the traditional Courts.
As we know in the normal course of business, disputes are often inevitable. Parties may disagree regarding their obligations no matter how carefully a contract is written. The resolution of such disputes, however, need not be costly and acrimonious. Alternative means of dispute resolution can save time and money, and can help resolve the dispute while preserving valuable business relationships.

The Applicable Arbitration Law

The Indian Arbitration and Conciliation Act, 1996 the governing arbitration statute in India. It is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985.

Previous statutory provisions on arbitration were contained in three different enactments, namely, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. The Arbitration and Conciliation Act, 1996 has repealed the Arbitration Act, 1940 and also the Acts of 1937 and 1961.

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