International standardization of arbitration as an alternate dispute resolution forum and its acceptance in India

• Author: Dr. Harsh Pathak
• Pages: 99-107

International standardization of arbitration as an alternate dispute

resolution forum and its acceptance in India

Dr. Harsh PATHAK1

Abstract

With trade and commerce increasing rapidly between nations, there has been a

significant rise in disputes, leading to an urgent need for an effective and unified dispute

resolution system which can sufficiently settle disagreements/issues among parties in

dispute and which has to be arrived at keeping in mind the differences in laws of every

nation, hence, immensely i ncreasing the scop e of private international law, or conflict of

laws as called by different nations. Such urgency led to many conventions, one of most

important being The New York Convention o f 1958 (Convention on the Recognition and

Enforcement of Foreign Arbitral Awards) and the UNCITRAL Model Law promulgated in

1985 and amended as recently as 2006 which has been the source for International

Arbitration, th e most widely used dispute resolution method for international commercial

trade and tran sactions and many countries like India have also based their legislations on

the rules of the UNCITRAL Model Law. Most European countries as well as India h ave

ratified the New York Convention of 1958 (Convention on the Recognition and Enforcement

of Foreign Arbitral Awa rds) for the purposes of International tra de and commercial

transactions therefore opening the gateway for international commercial transactions to

take place among such convention countries easier. Further, the judiciary of concern ed

countries h as also affi rmed s uch ratification a nd the app licability of the Model Law laid

down

Keywords: Arbitration, Dispute, Contracts, Legal Stra tegy, Agreement, Cross

Border Transactions, Award, Damages, International Commercial Arbitration, Dispute

Resolution, India.

JEL Classification: K22, K33

1. Introduction

There has been a significant rise International commercial transactions,

leading to an urgent need for an effective and unified dispute resolution system

which can sufficiently settle disagreements/issues among parties in dispute and

which has to be arrived at keeping in mind the differences in laws of every nation,

hence, immensely increasing the scope of private international law, or conflict of

laws as called by different nations. One of the challenges posed before adjudicators

is decision on award of damages – their quantum, period over which they are to be

assessed and requirement of mitigation by the claiming party with the qualification

that the requirement of mitigation has to be seen keeping in mind that it should be

reasonable to expect mitigation and not ‘undue’.

1 Harsh Pathak - MBA, LLB., PhD, Advocate Supreme Court of India, dr.harshpathak@gmail.com .