Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY
Lucknow
Faculty of Law

LAND LAW AND OTHER LOCAL LAW

PROJECT ON

For

COURSE ON “LAND MANAGEMENT COMMITEE”

SUBMITTED BY- SUBMITTED TO-

Roopamsingh Dr. GULAB RAI
B.Com. LL.B/15-16/44 FACULTY OF LAW

Roll No.– 154140041

 ACKNOWLEDGEMENTS

I would like to express my special thanks of gratitude to my teacherDr. GULAB

RAI who gave me the golden opportunity to do this wonderful project on the
topic land management committee ,which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to
them.

Secondly, I would also like to thank my friends & Parents who helped me a lot in
finalizing this project within the limited time frame.
Table Of Contents
 Introduction
 Definition of ADR
 Feature
 Advantages to Arbitration:
 Disadvantages of ADR:
 Conclusion:
 Bibliography:

Introduction
Other than court system there are other ways in which disputes can be solved.
Disputes often happen every now and then so it is very important that it should
be handled carefully. Judgment is very important in this world and proper
judgment is very effective. One judgment can change the whole situation around.
Similarly judgment can change the life of a person completely. It can take away
someone’s respect and then again can give a person the deserved respect. The
word “dispute” means “disagreement” and the word “resolution” means “the
action of solving something.” Alternative dispute resolution is a form of
agreement. Alternative dispute resolution consists of a variety of ways to dispute
resolution. In many of these approaches there is a neutral individual who assists
disputing parties in resolving their disagreements. ADR increases the parties’
opportunities to resolve disputes prior to or during the use of formal
administrative procedures and litigation. It is not intended to replace the
traditional approaches and it can provide a long term solutions to employee-
employer conflicts through stakeholder’s participation and buy-in. It is at times
very helpful when it comes to making judgment. At times it is very helpful then
again it does have some flaw backs

Definition of ADR

Alternative Dispute Resolution includes alternative methods of helping people

resolve legal problems before going to court. There is an involvement in of an
independent third person, called a “neutral” who tries to help resolve or narrow
the areas of conflict in ADR. involves the resolution of a matter by a method
other than traditional litigation. There are three main types of ADR: negotiation,
mediation (including conciliation), and arbitration. ADR is often preferred over
traditional litigation because it involves a less formal atmosphere than the court
room and is less expensive and time consuming than litigation. Moreover, matters
can be resolved in private and kept confidential, and the parties can often select
the decision maker, who will often have commercial and/or industrial experience.
ADR also helps to reduce the caseloads for courts.
SALIENT FEATURES OF ADR ACT

A study of the ADR Act of 2004 adopting the UNCITRAL Model. Law can shed
some light in understanding its salient features. At this point, this article will focus
on Chapter 4 of the ADR Act which deals with International Commercial
Arbitration, particularly, the Act’s provisions with regard to jurisdiction, venue,
specific cases of court involvement and recognition and enforcement of awards.

Jurisdiction

An arbitral body once constituted has the power to examine the question of its
own competence. The UNCITRAL Model Law under Article 16, paragraph 1
adopts the principle of “kompetenz-kompetenz,” which means that the arbitral
tribunal has the power to rule on its own jurisdiction, that is, on the very
foundation of its mandate and power.23 As a rule, the arbitral tribunal can take
cognizance only of those disputes submitted to it. Parties may not always intend
arbitration to be the sole means of settling disputes. They may agree to refer to
the courts those disputes arising from other aspects of the contract. In this case,
the arbitral tribunal will have no jurisdiction since the same were not submitted
to it for resolution. Furthermore, the terms of the award rendered by the tribunal
should be confined to such disputes submitted to them. In International
Commercial Arbitration, parties are free to agree as to what issues shall be
submitted to arbitration. The Act merely defined the term “commercial” but does
not specifically provide for exceptions where international commercial arbitration
shall not apply. As to matters not particularly pertaining to commercial
transactions, the Act expressly provides for several exceptions which cannot be
the proper subjects of ADR methods Article 16, paragraph 1 of the UNCITRAL
Model Law adopted in the ADR Act,25 also enunciates the independent character
of the arbitration clause, also known as the doctrine of separability or
severability,– an arbitration agreement is independent of the main contract. The
arbitration agreement is to be treated as separate from the main contract and it
does not automatically terminate when the contract of which it is a part of comes
to an end.26 The separability doctrine was dwelt upon in the recent case of
Gonzales and Panel of Arbitrators v. Climax Mining Ltd.27 where the Supreme
Court held that petitioner’s argument that the Addendum contract was null and
void and, therefore, the arbitration clause therein was void as well, was not
tenable. The validity of the contract containing the agreement to submit to
arbitration does not affect the applicability of the arbitration clause itself. A
contrary ruling would suggest that a party’s mere repudiation of the main
contract is sufficient to avoid arbitration. That is exactly the situation that the
separability doctrine, as well as jurisprudence applying it, seeks to avoid. The
doctrine was also applied by the Singapore High Court in the case of Government
of the Philippines v. PIATCO.28 The dispute between the parties arose from a
project involving the construction of a third terminal building at the Ninoy Aquino
International Airport in Manila. There had been a long history of dealings
between the parties which resulted in the conclusion of various concession
agreements including the 1997 concession contract, an Amended and Restated
Concession Agreement (ARCA) dated November 26, 1998 and various
amendments and supplements.The situation that existed in this case was that
there had been several petitioners in the Philippine Supreme Court challenging
the validity of the ARCA and that the Philippine Supreme Court had come to a
decision that the ARCA was null and void. One of the Government of the
Philippines’ grounds for challenging the jurisdiction of the Singapore Arbitral
tribunal was that the ARCA being void, nothing remained and no arbitration
tribunal could be constituted to consider disputes of parties arising from a non-
existent contract. Yet at the same time, the Arbitration tribunal was being asked
to consider what law governed the arbitration agreement and what law governed
the procedure of the tribunal.29 The High Court of Singapore upheld the
contention of PIATCO that consideration of the principle of severability was a
necessary ingredient in the tribunal’s reasoning. It held that the arbitration
agreement survived despite the Philippine Supreme Court’s nullification of the
main contract.

Venue and Place of Arbitration

As a rule, parties are free to agree on the place or venue of arbitration. In

international commercial arbitration, parties can even agree to conduct the
arbitration proceedings in a third state or a neutral state to ensure impartiality. In
case the parties fail to agree, the ADR Act provides that the arbitral tribunal,
having regard to the circumstances of the case as well as the convenience of the
parties shall determine the place of arbitration. Aside from this, the Act also
provides that in the absence of any agreement between the parties and the
decision of the tribunal as to the venue, the place or locale of arbitration shall be
in Metro Manila.30 In contrast, as previously stated, disputes between parties
having their places of business in different countries may file a case only in the
jurisdiction where either party has a place of business. In this jurisdiction, venue
of litigation is governed by the Rules of Court.31 When the parties involved are
from different states, both prefer to submit the dispute to international
commercial arbitration in a neutral state as they want to avoid the adverse
influence of each other’s national law. Venue is therefore important in this kind of
arbitration due to the fact that the courts of the place where the arbitration
proceedings are conducted always have a role in such proceedings.

Specific Cases of Court Involvement

Section 4.1.5.1 of the Implementing Rules and Regulation of the ADR Act of 2004
clearly states that “In matters governed by this chapter, no court shall intervene
except where so provided in the ADR Act.” This not only emphasizes the limited
role of the court in arbitration proceedings but also affirms the promotion of
arbitration as a means to achieve speedy and impartial justice. The said rule
admits of several exceptions that recognize the support role of the courts in
arbitration:

Advantages to Arbitration:

1. More flexibility. In the case of arbitration, the parties have far more flexibility

to select what procedural and discovery rules will apply to their dispute (they can
choose to apply relevant industry standards, domestic law, the law of a foreign
country, etc.).

2. Select your own Arbitrator or Mediator. The parties can often select the

arbitrator or mediator that will hear their case, typically selecting someone with
expertise in the substantive field involved in the dispute. The arbitrator (or panel
members) need not even be an attorney. In this way the focus can be on the
substantive issues involved rather than on technical procedural rules. In normal
litigation, the parties cannot select the judge, and the judge and/or jury may often
need expert witnesses to explain extremely complex issues. The greater the
expertise of the arbitrator, the less time that needs to be spent bringing him up to
speed.

3. A jury is not involved. Juries are unpredictable and often damage awards are
based solely on whether they like the parties or are upset at one party because of
some piece of evidence such as a photo that inflames the passion of the jury.
Juries have awarded claimants damages that are well above what they would
have received through alternative dispute resolution; and they have also done the
opposite.

4. Expenses are reduced. Attorneys and expert witnesses are very expensive.
Litigating a case can easily run into the tens of thousands of dollars. Alternative
dispute resolution offers the benefit of getting the issue resolved quicker than
would occur at trial – and that means less fees incurred by all parties.

5. ADR is speedy. Trials are lengthy, and in many states and counties it could take
years to have a case heard by a judge or jury. Appeals can then last months or
years after that. In a matter of hours, an arbitrator often can often hear a case
that otherwise may take a week in court to try with live witnesses. With
arbitration, the evidence can be submitted by documents rather than by
testimony presented through witnesses. ADR can be scheduled by the parties and
the panelist as soon as they are all able to meet together.

6. The results can be kept confidential. The parties can agree that information
disclosed during negotiations or arbitration hearings cannot be used later even if
litigation ensues. The final outcome can also be made private if the parties so
stipulate and agree. On the other hand, most trials and related proceedings are
open to the public and the press.

7. Party participation. ADR permits more participation by the litigants. ADR allows
the parties the opportunity to tell their side of the story and have more control
over the outcome than normal trials overseen by a judge. Many parties desire the
opportunity to speak their piece and tell their side of the story in their own words
rather than just through counsel.

8. Fosters cooperation. ADR allows the parties to work together with the neutral
arbitrator or mediator to resolve the dispute and come to a mutually acceptable
remedy.

9. Less stress. ADR is often less stressful than expensive and lengthy litigation.
Most people have reported a high degree of satisfaction with ADR.
10. Conclusion. Because of these advantages, many parties choose ADR (either
mediation or arbitration) to resolve disputes instead of filing or even proceeding
with a lawsuit after it has been filed. It is not uncommon after a lawsuit has been
filed for the court to refer the dispute to a neutral before the lawsuit becomes too
costly. ADR has also been used to resolve disputes even after trial, while an
appeal is pending.

Disadvantages of ADR:

1. There is no guaranteed resolution. With the exception of arbitration, alternative

dispute resolution processes do not always lead to a resolution. That means it is
possible that you could invest the time and money in trying to resolve the dispute
out-of-court and still end up having to proceed with litigation and trial before a
judge or jury. However, you will certainly better understand the other side’s
position!

2. Arbitration decisions are final. With very few exceptions, the decision of a
neutral arbitrator cannot be appealed, with fraud being an obvious exception.
Additionally, some states will not enforce decisions of arbitrators that are
patently unfair, a high standard to meet. Another ground for setting aside an
award is if the arbitrator’s decision exceeded the scope of the arbitration clause
or agreement. Some arbitration clauses are broad, others are narrowly limited to
specific disputes. Decisions of a court, on the other hand, usually can be appealed
to an appellate court for a variety of legal grounds and for numerous alleged
procedural errors.

3. Limits on Arbitration Awards. Arbitrators can only resolve disputes that involve
money. They cannot issue orders compelling one party to do something, or
refrain from doing something (also known as injunctions). For example,
Arbitrators generally cannot change title to real property. Of course this is subject
to the specific language of the arbitration clause.

4. Discovery limitations. Some of the procedural safeguards designed to protect

parties in court may not be present in ADR, such as the liberal discovery rules
used in U.S. courts, which make it relatively easy to obtain evidence from the
other party in a lawsuit.

5. Fee for the Neutral. The neutral mediator or arbitrator charges a fee for his or
her services. Depending on the arbitrator or mediator selected, the fees can be
substantial (of course the parties typically agree to divide the fees between
themselves). Depending on the contract language and state law, a prevailing party
can be awarded fees and costs. A judge on the other hand, charges no fees for his
services.

6. May have no choice. Often the contract in dispute contains a broadly worded
mandatory arbitration clause. Many lease agreements and employment
contracts, for example, contain mandatory arbitration provisions, as do operating
agreements and other types of business contracts. Unless both parties waive
arbitration, most states will compel arbitration at the request of any party.

7. Non-binding arbitration. Sometimes the court may order nonbinding or Judicial

Arbitration. This means that if a party is not satisfied with the decision of the
arbitrator, they can file a request for trial with the court within a specified time
period after the arbitration award. Depending on the process ordered, if that
party does not receive a more favorable result at trial, they may have to pay a
penalty or fees to the other side.

8. Warning. The parties pursing ADR must be careful not to let a Statute of
Limitation run while a dispute is in any ADR process. Once the statute expires,
judicial remedies may no longer be available.

Conclusion:
There is no single answer as to whether to pursue litigation or ADR. Instead, the
circumstances of each case need to be weighed and carefully analyzed by all
concerned parties. Knowing all the options is an important first step. This can be
done by considering the advantages and disadvantages of each proposed ADR
method and discussing it with trusted and experienced legal counsel. Through this
topic I got to learn a new term called alternative dispute resolution (ADR). I have
tried to provide as much details as possible regarding my topic. I found out what
alternative dispute resolution means, how many types of ADR are there, what are
the advantages and disadvantages of ADR. I have also provided some examples
and tried to relate Alternative Dispute Resolution with respect to Bangladesh.
Litigation should be the last resort and utilized only if the ADR procedures fail. It is
essential, however, that all of the parties involved in the claim or dispute
approach ADR with an open mind and a willingness to compromise if it is to have
any chance of success. Mediation is mostly used. Arbitration is very useful when it
comes to handling family matters.

Bibliography:
 http://www.lorman.com/newsletter/article.php?article_id=1155&newslett
er_id=248&category_id=8&topic=LIT
 http://www.duhaime.org/LegalResources/CivilLitigation/LawArticle-
18/Alternative-Dispute-Resolution-ADR-An-Introduction.aspx
 http://www.law.cornell.edu/wex/alternative_dispute_resolution
 http://www.mncourts.gov/?page=303
 http://www.wipo.int/amc/en/center/advantages.html
 http://www.justice.govt.nz/publications/global-publications/a/alternative-
dispute-resolution-general-civil-cases/4-advantages-and-disadvantages-of-
adr
 http://www.life123.com/career-money/business-
law/contracts/disadvantages-of-alternative-dispute-resolution.shtml
 http://suite101.com/article/advantages-and-disadvantages-of-adr-a58925
 http://www.vakilno1.com/saarclaw/bangladesh/arbitrationlaw/arbitration
_law_in_bangladesh.htm
 http://www.lawteacher.net/arbitration-law/essays/alternative-disputes-
resolution.php