SPOTLIGHT ON EMERGING TRENDS IN COMMERCIAL DISPUTES

INTRODUCTION

Disputes can be regarded as an integral component of participants’ business interactions in today’s world which is marked by a tendency towards faster tempo. A conventional legal dispute is most of the time time-consuming, expensive as well as combative thus making the warring factions walk away with high levels of dissatisfaction and a damaged relationship. However, the advanced ADR techniques’ such as arbitration or mediation present a positive change from the typical traditional legal approaches. Besides simplifying the ways to resolve conflict and disputes, these techniques also enhance good relations between the conflicting individuals or groups. Therefore, analyzing the profiles of the arbitration and mediation activities, it will be possible to establish how these forms contribute to the transformation of the commercial disputes, improve the efficiency of the procedures and increase the access to justice.

COMMERCIAL COURTS ACT, 2015

The objective of establishment of specialized commercial to accelerate dispute resolution, with resolution being time-bound and judges with expertise in commercial dispute and parties are required to undergo mediation before filing a case, unless it's an urgent case.

?ALTERNATIVE DISPUTE RESOLUTION

There is a growing emphasis on Arbitration and Mediation, to avoid lengthy court proceedings.

ARBITRATION: Arbitration, a prominent form of Alternative Dispute Resolution (ADR), facilitates the resolution of disputes between parties outside the formalities and complexities of court proceedings. In Collins vs. Collins (1858), the court provided a comprehensive definition of arbitration, describing it as the referral of a specific matter in contention between parties to one or more individuals, with or without an umpire, for decision-making.

The arbitration process is initiated through the mutual agreement of the involved parties. Upon encountering a dispute, the aggrieved parties convene to appoint arbitrator(s) to adjudicate the matter, with the resultant decision being binding upon the parties involved. Section 8 of the Arbitration and Conciliation Act, 1996, stipulates that if one party disregards the arbitral agreement and resorts to filing a suit in civil court instead of arbitration, the other party has the right to petition the court to refer the matter to arbitration tribunal.

In the case of Afcons Infrastructure Limited v. Cherian Varkey Construction Company Private Limited (2010), the court emphasized the necessity of consent from all parties for invoking Section 89 of the Civil Procedure Code. It clarified that a civil court, exercising its authority under Section 89, cannot refer a suit to arbitration unless all parties unanimously agree to such a course of action. Furthermore, any settlement reached through an ADR process is legally binding on both parties involved.

MEDIATION: Mediation serves as a dispute resolution method wherein a neutral third party collaborates with two or more aggrieved parties to facilitate the mutual agreement on a solution. This third party, known as the mediator, employs communication and negotiation techniques to assist the parties in reaching a resolution. However, the mediator's role is strictly limited to guiding and aiding the parties in their pursuit of a solution, without imposing any decisions upon them.

The mediation process typically unfolds through four distinct stages: an opening statement, a joint session where parties discuss the issues collectively, separate sessions for private discussions with each party, and a closing statement to finalize the agreement.

In the case of Vikram Bakshi v. Sonia Khosla (2014), it was affirmed that mediation transforms the dynamic between parties, shifting them from adversaries in conflict to partners in seeking resolution. It heralded mediation as a novel avenue for accessing justice, diverging from the confrontational nature of litigation.

HIGH PROFILE COMMERCIAL DISPUTE CASES IN INDIA

In Vodafone international holdings Vs. Union of India case, the Supreme Court ruled in 2012 that Vodafone was not liable for capital gains tax on a $11 billion acquisition of shares in a Cayman Islands company, which indirectly controlled an Indian telecom firm. The Court determined that the transaction involved two non-resident entities outside India, thus exempting it from Indian tax obligations under Section 9 of the Income Tax Act. The ruling overturned a previous Bombay High Court decision, leading to significant implications for retrospective taxation in India.

In the BCCI vs Lodha Committee case, the Supreme Court of India delivered a landmark judgment on July 18, 2016, upholding the Lodha Committee's recommendations aimed at reforming the Board of Control for Cricket in India (BCCI). The court mandated significant changes, including a cap on the age of office bearers at 70, a "one state, one vote" policy, and a two-term limit for officials. Following non-compliance from BCCI, the court appointed a Committee of Administrators to oversee BCCI's functioning, further emphasizing transparency and accountability in cricket administration in India

CONCLUSION

Emerging trends in commercial disputes had an positive impact by enhancing the efficiency of courts by establishing specialized commercial courts and tribunals, reducing case backlogs and accelerating process. ADR (alternative dispute resolution) and ODR (online dispute resolution) helped the parties by resolving disputes at low costs and they are comparatively faster in dispute resolution. They are more accessible and convenient for the parties.