Mukti Rijal

Dispute resolution through court adjudication is fraught with several problems, including hassling procedures, deliberate adjournments, and inordinate delays, exorbitant expenses and so on in almost all jurisdictions, especially in Nepal and other countries in South Asia. This has made court administered dispute resolution process inaccessible, and beyond the reach and comprehension of users and other stakeholders. As a result, Alternative Dispute Resolution Mechanisms (ADRMs) are being promoted, adopted and institutionalised across the different jurisdictions as the appropriate recourse to democratise, humanise and quicken the process of dispute resolution. Experiences and practices have shown that ADRMs can be used flexibly and they can be appropriately optimised and tailored to the needs and interests of the users and stakeholders.

Popularity
The popularity of alternative dispute resolution tools like mediation and arbitration has been exponentially on the increase in the nations in South Asia. This was clearly pronounced in a webinar held on the theme titled 'ADR landscape in South Asia: Suggested Reforms’ last fortnight which was organised jointly by Indian Institute of Arbitration and Mediation (IIAM) and Bangladesh International Arbitration Centre (BIAC).
Legal luminaries and ADR votaries from the region joined the webinar and spoke on the current situations in respect of ADR landscape in South Asia and suggested reforms in the field. An eminent panel of speakers from seven South Asian nations including Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka representing justices of apex courts, heads of ADR institutions and lawyers spoke at the event and stressed on the need for legislative reforms in the ADR for overall economic, social development of the concerned countries.

Highlighting the scenario of ADR in Nepal, senior advocate Matrika Niraula, who is also the NIAC managing director, talked at length about the evolving phases of legal framework, practices and challenges related with development and institutionalisation of arbitration and mediation in Nepal. Referring to the ADR legal framework, he dwelt on the separate and important statutory enactments relating to mediation and arbitration enacted and implemented in Nepal. Nepal is among the key South Asian countries having an organic umbrella law governing the mechanism and process of mediation.

Nepal’s mediation law has set forth important provisions in promotion and regulation of mediation services in Nepal. Niraula emphasised that Nepal should ratify the Singapore Convention on Mediation to resolve and enforce transnational commercial disputes which can help the country ease doing business index. This can help to make Nepal a preferred destination for cross-border dispute resolution.

In the webinar, India's perspectives and practices were articulated by Justice Madan Bhimrao Lokhur who characterised the country’s scenario of ADR as being neither dismal nor outstanding. Taking note of the practices of mediation in India, justice Lokhur spoke about the mediation used and practised at different levels and streams in India. He presented the details of the practices of mediation at different layers and spaces from court to community and took note of the fact that the on line dispute resolution (ODR) needs to be promoted and expanded to tackle the challenges posed, among others, by the coronavirus pandemic.

Shehara Varia, representing a national alternate dispute resolution centre from Sri Lanka, viewed that the pandemic had taught that were in an interconnected era where no boundaries could create barriers in the way of cooperation and communication. We should, therefore, use all avenues and opportunities to make the South Asian a coveted region for alternative dispute resolution.
Bhutan was represented in the webinar by Ms. Tashi, Senior Legal Officer at Bhutan Alternative Dispute Resolution Centre, which is a government-funded entity established to promote ADR in the country. She gave an account of the activities of the Centre and also the challenges faced in terms of promoting ADR in Bhutan. She also talked about the need for an enhanced cooperation among the countries to promote and exchange knowledge and experiences in the field of ADR.

Ms. Juna Ahmed, attorney at law from the Maldives, shared insights about the Maldivian ADR landscape which is fairly new and still in the evolving stage. Relevant stakeholders and actors, including the government and the judiciary, are taking steps in strengthening the Maldivian legal framework and introducing new laws and systems on ADR. Likewise, Rana Sajjad, President, Centre for International Investment and Commercial Arbitration of Pakistan, in his deliberation articulated that some reforms governing ADR in the country were underway in light of the enactment of the ADR Act, 2017 and the Punjab ADR Act, 2019.

Chairman of the BIAC Board Mahbubur Rahman and President of International Chamber of Commerce Bangladesh had given the valedictory remarks in the webinar. He summed up the prevailing scenario in the region saying that huge stockpile of cases plagues the courts, especially in Bangladesh, India and Pakistan. Governments in the South Asian countries need to take cognizance of the situation and come up with reforms in their judicial systems to promote ADR to help develop their economies by attracting more FDIs to their States.

Need for reform in laws
He also said that it high time the South Asian governments recognised the need for reform in the laws to provide a unified legal framework for the fair and efficient settlement of disputes arising in the regional commercial relations which will definitely result in the prosperous economic growth in the region. While Anil Xavier, president of IIAM and Rumee Ali of BIAAC, extended note of welcome to the panelists and participants, Iram Majid IIAM director had moderated the discussion.

The webinar deliberations show that South Asian countries, including Nepal, have taken cognizance of the need to promote and institutionalise ADR to resolve disputes related to commercial and non-commercial sectors. However, the way ahead for these countries in the region has been to go for the adoption and ratification of the Singapore Convention and formulation of supportive legal framework for its implementation and enforcement.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)