Description
Table of contents
Biographical note
Excerpt
User Reviews
The aim of the book is to critically analyse the scope of enforceability of MDRC and to determine their true nature, as obligatory or merely optional, under the Indian Arbitration regime Arbitration law is procedural in nature, having an impact on the smooth functioning of the resolution of disputes which are substantive in nature. This book represents dispute resolution through ADR in its most composite/all-encompassing form by providing the most efficacious option in each jurisdiction.
The book discusses the:
• The nature of Multi Tier Dispute Resolution Clauses (MDRC), its functioning, benefits, and drawbacks.
• View of Indian courts on the nature of MDRC.
• Indian view of MDRC being a prerequisite to arbitration. It further establishes that both tribunal and courts are the competent fora to determine the enforceability of MDRC.
The book covers MDRC in different jurisdictions like UK, USA, France, Canada, Germany, Australia, Singapore, Hong Kong, China, Taiwan, Switzerland and India. It sheds light on the circumstances where MDRC fails to be enforced and provides recommendations and suggestions based on the best practice of international arbitration to draft an enforceable clause. This book is meant for lawyers, academicians, law students, courts and law colleges.
The aim of the book is to critically analyse the scope of enforceability of MDRC and to determine their true nature, as obligatory or merely optional, under the Indian Arbitration regime Arbitration law is procedural in nature, having an impact on the smooth functioning of the resolution of disputes which are substantive in nature. This book represents dispute resolution through ADR in its most composite/all-encompassing form by providing the most efficacious option in each jurisdiction.
The book discusses the:
• The nature of Multi Tier Dispute Resolution Clauses (MDRC), its functioning, benefits, and drawbacks.
• View of Indian courts on the nature of MDRC.
• Indian view of MDRC being a prerequisite to arbitration. It further establishes that both tribunal and courts are the competent fora to determine the enforceability of MDRC.
The book covers MDRC in different jurisdictions like UK, USA, France, Canada, Germany, Australia, Singapore, Hong Kong, China, Taiwan, Switzerland and India. It sheds light on the circumstances where MDRC fails to be enforced and provides recommendations and suggestions based on the best practice of international arbitration to draft an enforceable clause. This book is meant for lawyers, academicians, law students, courts and law colleges.
Anjali Chawla, Dispute Resolver, Assistant Professor & Assistant Dean (Student Affairs), Independent Practitioner/ Jindal Global Law School
Anjali is an Assistant Professor at Jindal Global Law School, O.P. Jindal Global University.
She is also a qualified lawyer at the Bar Council of India. She has also been advising domestic and international clients regarding commercial and civil disputes. Anjali is also acting as a Dispute Resolver (Mediator/Arbitrator/ Conciliator) for various ODR platforms.
Anjali sits on the Editorial Board of Legal Maxim and the Review Board of Syin & Sern. She has previously published articles and book chapter on Dispute Resolution, Commercial Law, Reproductive Rights, and Jurisprudence, etc.
Anjali is an advocate for child care and education. Her research interest is centered around International Dispute Resolution, Commercial Law, Contractual Law, and Domestic Arbitration.
In her free time, Anjali volunteers for mentoring students, judging competitions and mock arbitrations. She also hosts at “International Arbitration Juniors”, a networking group for young international lawyers.
First published in India 2022
© 2022, Author
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers.
No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Bloomsbury or the author.
The content of this book is the sole expression and opinion of its author, and not of the publisher. The publisher and author in no manner is liable for any opinion or views expressed by the author. While best efforts have been made in preparing this book, the publisher makes no representations or warranties of any kind and assumes no liabilities of any kind with respect to the accuracy or completeness of the content and specifically disclaims any implied warranties of merchantability or fitness of use for a particular purpose.
The publisher believes that the content of this book does not violate any existing copyright/intellectual property of others in any manner whatsoever. However, in case any source has not been duly attributed, the publisher may be notified in writing for necessary action.
BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc
ISBN 978-93-54353-00-0
Bloomsbury Publishing India Pvt. Ltd
DDA Complex, LSC Building No.4
Second Floor, Pocket C–6 & 7, Vasant Kunj
New Delhi 110070
Phone: +91-11-40574957, 40574954
CIN: U22130DL2012PTC232353
To provide feedback, please mail at professionalbooks@bloomsbury.com
To find out more about our authors and books
visit www.bloomsbury.com/in/academic/accounting-tax-law
Here you will find extracts, author interviews, details of forthcoming events and the option to sign up for our newsletters.
This book is dedicated to my
parents Mrs. Pushpa Chawla and
Mr. Parveen Chawla, my brother
Aman Chawla, the everlasting
memories of Nishant Chawla, and
all the beautiful souls, who are
making this world a better place.
I would like to express my heartfelt gratitude to Hon’ble Mr. Justice G.S. Sistani (Former Judge of Delhi High Court, India) for writing the foreword and recognizing my work. For giving me an opportunity to assist your lordship and for introducing me to this interesting world of ADR in the early years of my legal career. Med-Arb was one of the very insightful topics that your lordship introduced to me, back in 2018.
I sincerely thank Hon’ble Mr. Justice G.P. Mittal (Former Judge of Delhi High Court, India) for advancing my understanding of the dispute resolution and regulatory framework of Arbitration.
A big thankyou to Hon’ble Mr. Justice M.L. Mehta (Former Judge of Delhi High Court, India) for your lordship’s timely encouragement and valuable insight on the ADR mechanism.
I would like to express sincere thanks to my professors at Jindal Global Law School: Vice-Chancellor Prof (Dr.) C. Raj Kumar, Prof. (Dr.) S. G. Sreejith, Prof. (Dr.) Manveen Singh, and Prof. Sushant Chandra for always pushing me to grow. I am forever thankful for their support and encouragement at each point of my career.
Special thanks to Prof. (Dr.) Sanjiv P. Sahni for mentoring, supporting and guiding me through the crucial years of my legal and professional career.
I want to thank Professor Patricia Shaughnessy for being my thesis supervisor at Stockholm University. Thank you for discussing the subject matter of this book, giving your thoughtful insights.
My deepest gratitude to Mr. Toby Thomas, Business Head of Bloomsbury India for his unconditional support in helping me with the contract, and extension. Despite his busy schedule, Mr. Thomas always took my calls and provided me with solutions. I am very thankful for his support.
I would also like to thank everyone on the Bloomsbury publishing team, thank you for making my dream come true.
A huge thank you to my mentor Ms. Sherlin Tung, for patiently listening to my professional roadblocks, giving me suggestions, and for always encouraging me to continue believing in myself. Thank you!
I am forever thankful to my brother, Advocate Deepak Wadhwa for encouraging me to write this book and supporting me throughout this process.
I would like to thank my very dear friend Daniela Bartsch for taking time out of her busy schedule and reviewing some parts of my work. Thank you for helping me procure some of the readings for my work.
A special thank you to Mr. Dharmil Doshi, Ms. Esha Kumar, Mr. Sarva Easwaran, and Ms. Vidyotma Malik (Advocate) for sparing their valuable time, after work hours, including on weekends. I sincerely thank and acknowledge their assistance. Thank you all for your useful suggestions and relevant edits on some chapters.
I am also very thankful to the JGU library staff for keeping up with all my emails and effortlessly helping me in procuring all the material for my research.
I would also like to thank my amazing friends: Karan, Akanksha, Digantika (Advocates), Mehak, Tanya, Shruti and Siddharth for their support and encouragement throughout this process. Special thanks to Karan for making efforts and running from one library to another in Sydney to help me find the relevant readings.
Thank you to my friends and colleagues: Chetan, Mukund, Sujay, Utkarsh, Kaberi and Aayushi (Advocates) for keeping my spirits high and keeping me motivated throughout the process. Special thanks to Adv Karan Deswal for his unconditional support, for trusting and believing in my potential.
My sincere and deepest gratitude to Gohonzon, SGI, and my Sokka Sisters for keeping me afloat throughout my project.
Lastly, I would like to thank my beautiful parents and my awesome brother, Aman for keeping up with me throughout this process of writing the book. Also, a big thank you for your unconditional support.
Anjali Chawla, Dispute Resolver, Assistant Professor & Assistant Dean (Student Affairs), Independent Practitioner/Jindal Global Law School
Anjali is an Assistant Professor at Jindal Global Law School, O.P. Jindal Global University.
She is also a qualified lawyer at the Bar Council of India. She has also been advising domestic and international clients regarding commercial and civil disputes. Anjali is also acting as a Dispute Resolver (Mediator/Arbitrator/Conciliator) for various ODR platforms.
Anjali sits on the Editorial Board of Legal Maxim and the Review Board of Syin & Sern. She has previously published articles and book chapter on Dispute Resolution, Commercial Law, Reproductive Rights, and Jurisprudence, etc.
Anjali is an advocate for child care and education. Her research interest is centered around International Dispute Resolution, Commercial Law, Contractual Law, and Domestic Arbitration.
In her free time, Anjali volunteers for mentoring students, judging competitions and mock arbitrations. She also hosts at “International Arbitration Juniors”, a networking group for young international lawyers.
Justice Gurindar Singh Sistani
Former Judge Delhi High Court
+91 9871300034
Not all disputes are one-dimensional. Circumstantially, there are several factors that individually concern the parties to a disagreement such as the relationship between them and the paucity of time to arrive at a settlement. This makes every dispute unique, requiring them to be treated in a manner that is most appropriate to the individuals and entities involved. Multi-tier dispute resolution presents the answer to these questions. Arbitration as a dispute resolution mechanism is predominantly dictated by party autonomy. Multi-Tier Dispute Resolution involving pre-arbitral attempts to resolve the dispute just acts as an extension to this principle.
Amicably resolving such a dispute is an option that most dispute parties do not fathom, owing to the age-old practice of dragging each other to court. Such procedures tend to get dismissed at the first instance as being too simple and ineffective in contemplating the complexities of disputes. While reading the book, I could not help but recount the experiences I had during my time at the bench in Delhi High Court, they have taught me to the contrary. A simple attempt at amicably resolving the dispute, keeping aside the personal and professional differences can take the parties a long way by helping them preserye their relationship in the long run for future associations.
‘Multi-Tier Dispute Resolution,’ as the phrase suggests allows the parties to a dispute to visualize the myriad possibilities of resolving their issues be it negotiation, mediation, or conciliation. It is indeed not a process without limitations such as, the cooperation and intension of the parties, the mandate under the lex arbtri, its futility in irreconcilable differences etc. Yet, the application of such processes in several nations over the years has displayed that these limitations are easily curable. The immediate resolve to several of these limitations is having a global outlook and identifying the embracement or the general hesitation towards such mechanisms.
Since, business, trade, commerce and contracting in pursuance of such commerce is not restricted to the boundaries of one nation, where the multi-party contracts are bound by the law of a third country in several instances, it is apropos to investigate the positions taken by various nations towards facilitating pre-arbitral procedures to resolve disputes.
Anjali in this endeavor, has left no stone unturned in giving a holistic academic insight on everything that is entailed in such dispute resolution processes. Multi-Tier Dispute Resolution being an evolving concept in arbitration traAsnationally, leads to a lack of uniformity between several jurisdictions. She has critically examined the laws of such eminent jurisdictions such as India, United Kingdom, United States of America, Switzerland, Hong Kong, Taiwan, Canada, Singapore in the sphere of arbitration to arrive a comprehensive piece of scholarly work.
Residence cum office : M-23, Jangpura Extension, New Delhi-110014
Several jurisdictions are yet to take a conclusive stance on the treatment of Multi-Tier Dispute Resolution clauses in arbitration agreements, their impact on the jurisdiction and competence of the arbitral tribunal and on the mandate, imposed on the parties. Their conflicting stances place the parties in a difficult position of being unaware of the ramifications of their decision to participate in a multi-tier dispute resolution process. In this context, with the jurisprudence on MTDR being limited, the book has effectively scrutinized judicial precedents to harmoniously read them with the works of commentators to give an insight into the endless possibilities in resolving a dispute by presenting the most effective options in each jurisdiction. This book is not limited to being an analysis of pre-arbitral procedures in the various jurisdictions, it rather very efficiently acts as a practitioners’ guide by presenting suggestions for the incorporation and interpretation of such clauses in line with the applicable laws.
The author’s approach towards this subject has been very thorough and consistent throughout the book, which I believe will cater to the interests of academicians, people in the legal practice and students globally.
Facebook
Twitter
Linkedin
Whatsapp