Functioning of Indian Mediation Act 2023

Year End Report 2023

Mediation

MEDIATION ACT, 2023

 The Indian Government has taken various steps and measures towards revitalizing and strengthening the contract enforcement and commercial dispute resolution regime including alternative dispute resolution, to enable ease of doing business and boost investor confidence. The legislative interventions and policy initiatives in the field have gone a long way in highlighting India as a rule of law prevailing jurisdiction. 

In furtherance of this and to have a consolidated law on mediation, the Mediation Act of 2023 has been passed. Mediation law will prove to be a pivotal reform towards providing comprehensive recognition of mediation and enabling the growth of a culture of out-of-court and amicable settlement of disputes. A successful settlement not only helps in preserving the relationship amongst the parties, offering ease of living but also contributing in the growth of the economy. 

The Mediation Act, of 2023, lays down the legislative framework for mediation to be adopted by disputing parties, especially institutional mediation where various stakeholders have been identified to establish a robust and efficacious mediation ecosystem in India. 

The key/main provisions of the Mediation Act, 2023, inter-alia, include provisions relating to voluntary pre-litigation mediation in matters of civil or commercial dispute before parties approach a court or Tribunal; matters or disputes not fit for mediation, process of mediation to be completed within a maximum period of 180 days; procedure for appointment of mediator and conduct of mediation; functions of Mediation Service Providers and Mediation Institutes.

Mediated Settlement Agreement resulting from mediation is final, binding and enforceable by the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a judgment or decree of a Court; a challenge to Mediated Settlement Agreement to lie on limited grounds of fraud, corruption, impersonation, etc.; community mediation for reference of disputes with the consent of parties which are likely to affect peace, harmony, and tranquillity amongst the residents or families of any area or locality; online mediation; establishment of the Mediation Council of India and power to make rules and regulations inter-alia for the conduct of the mediation.

 ARBITRATION AND CONCILIATION ACT, 1996, AND ARBITRATION COUNCIL OF INDIA

The Arbitration and Conciliation (Amendment) Act, 2019 provides for the establishment of the Arbitration Council of India (Council) for inter-alia framing policies governing the grading of arbitral institutions and recognizing professional institutes’ providing accreditation of arbitrators.

The establishment of the Council is aimed to minimize the roles of courts in arbitration matters, by providing that parties may approach arbitral institutions which are graded by the Council and designated by  the Supreme Court and High Courts, as the case may be, for appointment of arbitrators under section 11 of the Arbitration and Conciliation Act, 1996.

Section 10 of the Arbitration and Conciliation (Amendment) Act, 2019 which deals with various facets relating to the Council has been brought into force, vide Notification dated 12.10.2023. 

Presently, other steps for the establishment of the Arbitration Council of India are underway.

INDIA INTERNATIONAL ARBITRATION CENTRE ACT, 2019

The New Delhi International Arbitration Centre (Amendment) Act, 2022 which came into force w.e.f. 27.01.2023 amended the New Delhi International Arbitration Centre (NDIAC) Act, 2019. The salient features of the said amendment are as follows:

1. Changes the name of the Centre from New Delhi International Arbitration Centre (NDIAC) to India International Arbitration Centre (IIAC);
2. Confers explicit power on the Centre to specify the manner of conduct of arbitral proceedings by regulations; and
3. Other Minor amendments in certain sections of the Act.

The Centre, which has been established is equipped with the necessary infrastructure and professional management offering quality legal and administrative expertise and empaneling reputed arbitrators for the conduct of arbitration under its aegis. The Centre shall be providing world-class arbitration-related services at its facilities in a cost-effective manner for both domestic and international commercial disputes including requisite administrative support, in the smooth conduct of arbitral proceedings. The Chamber of Arbitration under the Centre, to empanel experienced arbitrators of repute, at the national and international level, has also been established.

The following Rules and Regulations as required under the India International Arbitration Centre Act, 2019 have also been notified by the Central Government and the Centre respectively:- 

1. The India International Arbitration Centre (Composition and Functions of the Committees) Rules, 2023.
2. India International Arbitration Centre (Criteria for Admission to the Panel of Arbitrators ) Regulations, 2023.
3. India International Arbitration Centre (Conduct of Arbitration) Regulations, 2023.
4. India International Arbitration Centre (Transaction of Business) Regulations, 2023.
5. India International Arbitration Centre (Manner of Appointment and Powers and Functions of the Chief Executive Officer) Regulations, 2023.  

Guide on Alternative Dispute Resolution:

On the occasion of Constitution Day on 26.11.2023, a handbook titled ‘A Guide to Alternative Dispute Resolution’ was released by the Hon’ble Vice President of India. The Guide provides an overview and insights on the brief history of different Alternative Dispute Resolution (ADR) mechanisms, the broad contours of these mechanisms including statutory provisions, the advantages of these mechanisms, and the various steps and legislative interventions carried out by the Government relating thereto. 

The Advocates (Amendment) Act, 2023 (33 of 2023)  

Repeal of ‘The Legal Practitioners Act, 1879 (18 of 1879), amendment of the Advocates Act, 1961 (25 of 1961) by incorporating provisions of Section 36 of the Legal Practitioners Act of 1879 in the Advocates Act. 

The proposal for repeal is in tune with the policy of the Central Government to repeal all obsolete laws which have lost their utility. It helps in reducing the number of laws in the statute book.  The Legal Practitioner Act of 1879 is an Act to deal with legal practitioners in the country. It was a British Era Act. After independence, Parliament enacted a new law, namely, the Advocates Act, 1961 (25 of 1961) to deal with legal practitioners. All the aspects which are dealt with in the Legal Practitioner Act of 1879 are already covered under the Advocates Act, 1961 except the matter relating to ‘touts’. 

Given section 50 of the Advocates Act, 1961, all sections of the Legal Practitioners Act, 1879, except sections 1, 3, and 36 have been repealed. The proposal for the repeal of the remaining three sections i.e. 1, 3, and 36 would help in reducing the number of superfluous enactments in the statute book.  

The Department of Legal Affairs had taken up the matter to repeal the applicable provisions of the Legal Practitioners Act, 1879 with the Legislative Department, the Law Commission of India and the Bar Council of India. The Department of Legal Affairs had also constituted a committee to review the Acts and rules administered by the Department. The Committee had recommended repealing ‘The Legal Practitioners Act, 1879’ (18 of 1879), a British-era legislation, with consequential amendments in the Advocates Act, 1961.  

The repealing of the Legal Practitioners Act, of 1879 from the statutes book, will be a contribution to achieve the goal of repealing the obsolete laws specifically that pertain to the British era. It will also be a step towards ease of doing business and ease of living for citizens. It would also help in regulating the legal profession by a single Act i.e., the Advocates Act, 1961.  

Currently, the Legal Practitioners Act, 1879 has been repealed and the Advocates (Amendment) Act, 2023 has been passed by the Parliament and the assent of the Hon’ble President of India has also been received on 8th December, 2023.

Foreign Law Firms

The Bar Council of India has informed that the entry of foreign lawyers/law firms would be on reciprocal basis. The BCI rules have provided for cancellation of the registration of any foreign lawyers or law firm, if it comes to the notice of the BCI through any source that the Indian lawyers or Indian law firms are being discriminated by the concerned counterpart foreign country in any manner.  

Foreign Lawyers and Law firms shall be allowed to advice their clients about foreign laws and international laws only. They would render advisory work about such Laws for their foreign clients only. Foreign lawyers and foreign law firms shall not be allowed to appear in any Court, Tribunal, Board, before any statutory or regulatory authority or any forum legally entitled to take evidence on Oath and/or having trappings of a Court. Entry of Foreign Lawyers would be on a reciprocal basis only i.e. Lawyers of only those countries would be permitted in India but within the sphere of the rules and regulations, where Indian Lawyers are also permitted to practice. Foreign Lawyers would be allowed to appear for their clients in International Commercial Arbitration. 

 Experience and facts show that MNCs and foreign commercial entities, in case of international commercial arbitration don’t prefer India as a venue of arbitration proceedings because they are not allowed to bring lawyers and law firms from their own countries to advise them in international commercial arbitrations proceedings, thus, making them to prefer London, Singapore, Paris etc. as the Venue for arbitration proceedings. Bar Council of India Rules will, now, encourage India being preferred as a venue for such international arbitration proceedings, thus, helping India become a hub of international commercial arbitration.

 MEETINGS 

1.         Meeting with the delegation of Law Society of England & Wales led by Ms. Lubna Shuja, President, the Law Society of England and Wales and the delegation of Ministry of Justice, UK led by Ms. Jo Farrar, the Second Permanent Secretary with an Indian delegation led by Law Secretary held on 2nd March, 2023 in chamber of Law Secretary.

 2.         Meeting between the British High Commission’s delegation led by the British High Commissioner and an Indian delegation led by the Law Secretary held on 29th March, 2023 in the chamber of Law Secretary.

 3.         A bilateral meeting between Shri Arjun Ram Meghwal, Hon’ble Minister of State for Law & Justice (Independent Charge) and His Excellency Mr. Le Thanh Long, Hon’ble Minister of Justice of the Socialist Republic of Vietnam held on 2nd July, 2023 at Hotel Ashok, Chanakyapuri, New Delhi, to discuss matters related to the area of Judicial Cooperation.

 4.         Meeting between the Law Secretary and Permanent Secretary for Law and Second Permanent Secretary for Foreign Affairs of Singapore was held on 18th September, 2023.

 5.         Meeting between the Indian delegation led by Hon’ble Minister of State for Law and Justice with British delegation led by RT Hon Alex Chalk KC MP, Lord Chancellor and Secretary of State for Justice was held on 22nd September, 2023.

 6.         Meeting between the Indian delegation led by Law Secretary with British delegation led by Ms. Amanda Brooks, Director General for Trade Negotiations, Department of Business and Trade was held on 27th September, 2023.

 7.         A meeting between Dr. Rajiv Mani, Additional Secretary and the delegation of the Law Society of England and Wales led by Mr Mickael Laurans, Head of International, The Law Society of England and Wales held on 28th November, 2023.

LAW COMMISSION OF INDIA 

The Cabinet has approved the extension of term of the 22nd Law Commission of India up to 31st August 2023. Thereafter, the Department of Legal Affairs has notified the order dated 22.02.2023 for the extension of terms of the 22nd Law Commission of India up to 31st August 2024.

 The Law Commission of India has submitted many reports, significant among these are as under:- 

(i)   Twenty-Second Law Commission(279) – Usage of the Law of Sedition

(ii)  Twenty-Second Law Commission (280)- The Law on Adverse Possession

(iii) Twenty-Second Law Commission (282) – Amendment in the Code of Criminal Procedure for enabling online registration of FIR.

(iv) Twenty-Second Law Commission (283) – Age of consent under the POSCO Act, 2012.

INCOME TAX APPELLATE TRIBUNAL (ITAT) 

The Income Tax Appellate Tribunal (ITAT) is the oldest Tribunal in the country and during the year 2023, as on 01.12.2023, the Tribunal disposed off a total of 30943 appeals and 33314 appeals are pending for adjudication. The website of ITAT has been updated and made fully functional.

JudiSIS App, ITAT e-Filing Portal, and e-Library Portal have been launched. The concept of paperless courts has been introduced with the online publication of daily orders and online communication of hearing notices. The ITAT API has also been linked with the LIMBS portal. Digital Display Boards have been installed in the Tribunal premises akin to the High Courts.  

2.         The Government has appointed Shri Chandrakant Vasant Bhadang, Retd. High Court Judge, as regular President of the Income Tax Appellate Tribunal (ITAT). He has joined as President ITAT on 23rd October, 2023. 

3.         The Government has also appointed 04 (four) Members of the Income Tax Appellate Tribunal (ITAT) as Vice-President in ITAT. 

4.         The process of filling up 22 posts of the Accountant Members and 18 posts of the Judicial Members in ITAT is at an advance stage. 

5.         Extension of tenure of Ms. Madhumita Roy, Judicial Member, Income Tax Appellate Tribunal, till the age of 62 years. 

6.         The Department Promotion Committee for the post of Assistant Registrar in Income Tax Appellate Tribunal was held on 26.09.2023 and orders of promotion for 3 persons for being promoted from Superintendent to Assistant Registrar was issued on 03.10.2023. However, 2 out of 3 Superintendent have taken the charge of Assistant Registrar. 

COMMERCIAL COURTS 

Commercial Courts Act, 2015: 

The Commercial Courts Act, 2015 provides for the constitution of Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division in the High Courts for adjudicating commercial disputes of specified value and matters connected therewith or incidental thereto. The Act has aided the efforts to create an environment for quick enforcement of contracts and facilitated in improving of India’s ranking in the World Bank’s Doing Business Report. 

2. There are presently 758 Commercial Courts, constituted below District Judge level, 494 Commercial Courts at the District Judge level, 379 Commercial Appellate Division Courts at District Judge Level. 25 Commercial Divisions and 38 Commercial Appellate Division constituted in the High Courts.  The details are mentioned below:- 
 

COMMERCIAL COURT SET UP IN STATES (as of 31.05.2023)

Further, in the UT of Jammu & Kashmir, the Courts of Additional District Judge at Jammu and Srinagar are designated as Commercial Courts for Jammu and Srinagar respectively. The Principal District Courts in the remaining districts of the UT of Jammu and Kashmir have been designated as Commercial Courts. 

NOTARY SERVICES

 (I) Streamlining the process of appointment of notaries: To bring greater transparency and ease of access, the process of appointment through physical interviews has been discontinued.  Interviews for appointment of notaries are now being held in online mode.  

(ii)   Digitization of the processes related to appointment and renewal of notarial licence: The Notary Online Portal having facilities like application for appointment, renewal of Certificate of Practice, submission of annual returns, lodging of complaints against Central notaries would be functional by the year-end. 

(iii)    Appointment of notaries: The Department has prepared an Action Plan to fill up the unfilled positions of Central Notaries in various States and UTs and towards this direction conducted online interviews of 35851 applicants.   Further, 185 persons have been appointed as Central Notaries during the year.

(iv)   Renewal of Certificate of Practice:  During the year, the Certificate of Practice of 1595 Central Notaries were renewed.

JUDICIAL SECTION 

(1).        Conduct of Central Govt. litigation before various courts of law through Law Officers/Panel Counsel:

(a)        During the period Solicitor General of India, Shri Tushar Meheta was reappointed. Addl. SGI for two High Courts have been appointed afresh. Besides, ten Addl. SGIs for Supreme Cout/ High Courts have been reappointed. (b)        During the said period, term of the Fifteen Deputy Solicitor General of India for different High Courts have been extended. Besides, a new Deputy Solicitor General has been engaged for the High Court of Madras, Madurai Bench. 

(c).        During the said period, a total of 1010 Advocates empaneled or their terms as panel counsel have been extended for the various courts/tribunals.  

(2)        Clarification on various issues viz. terms of engagement of panel counsel, issues related to fee schedule etc   

Various issues are received from time to time regarding the terms & conditions of engagement of panel counsel, their fee schedule etc. During the said period, about 207 such clarifications have been issued. 

(3)        Nomination of Arbitration panel counsel in domestic as well International commercial disputes, involving Government/PSE on the one hand and PSE/private party on the other: 

Requests are received regarding engagement of Arbitration Panel Counsel to represent various Ministries / Departments in Arbitration cases. During the said period, in response to such requests, Arbitration panel counsel have been engaged in about 210 Arbitration cases.

 (4)        Examination and processing of requests arising out of bilateral treaties in respect of service of summons etc. (Mutual Legal Assistance Treaties/reciprocal arrangements) and multilateral treaties (the Hague convention of 1965/1971):    

 Law & Justice, Department of Legal Affairs is the Central Authority under the Hague Convention, 1965 for service abroad of judicial & extra judicial documents in civil and commercial matters. Under this obligation, during the said period, about 3000 requests have been processed.

 (5)        RTI / Public Grievance-related work: 

During the period about 297 RTI applications have been disposed of and as on date no public grievance is pending on part of Judicial Section on PG Portal / CPGRAMS. 

ADMINISTRATION -1

 Admin-I Section is administratively concerned with Indian Legal Service (ILS) and General Central Service(GCS) Cadre in the Department of Legal Affairs.  In the ILS Cadre, the following promotions (including adhoc promotions) have been made in 2023:- 

In the GCS Cadre, the following promotions (including adhoc promotions) have been made in 2023:- 

ORGANISATION OF HINDI DAY/HINDI FORTNIGHT 

 To accelerate the use of the Official Language and to increase awareness among the employees as regards to the Official Language policy and the various incentive schemes for using Hindi in official work, Hindi Day was celebrated in the Department on 14-09-2023. Hon’ble Minister of state for Law and Justice Independent Charge and Law Secretary in their messages appealed to the officers and employees of the Department to adopt Hindi in their day-to-day official work.

Message received from Hon’ble Home Minister on the eve of ‘Hindi Day’ was also circulated in the Department and its offices. In order to make the various programmes organised in this connection effective, ‘Hindi Fortnight’ was organised in the Department from 14.09.2023 to 29.09.2023. This was done to give wider publicity to the various schemes and generate maximum output in terms of work done in Hindi.