ONE YEAR ADVANCED DIPLOMA IN ALTERNATIVE DISPUTE RESOLUTION

1.1. Alternative Dispute Resolution Systems

Module I: Introduction to Basic Concepts

Substantive Law, Procedural Law, Rule of Law, Principles of Natural Justice, Court Structure, Jurisdiction, Civil Suit, Decree, Appeals, Writs, Adversarial System, Inquisitorial System,

Module II: ADR Methods

Disputes and the approaches to dispute resolution - philosophy underlying alternative dispute resolution methods - status of ADR - ethics of ADR - fairness, neutrality, confidentiality and personal values

Overview of ADR methods - negotiation - mediation - conciliation - arbitration - expert determination - dispute resolution board - hybrid methods - online dispute resolution (ODR), Court annexed ADR processes, Advantages and Disadvantages of ADR, selection of a method

Module III: Negotiation

Meaning and theories of negotiation - problem solving approach - competitive theory, Structure, strategy, style and skills of negotiation - applying a strategy

Module IV: Mediation

What is mediation? - models of mediation - rights based - interest based - facilitative - evaluative - settlement oriented - therapeutic - transformative and other models

The role of the mediator and the party’s attorney - practical skills of client interviewing/legal counseling

Confidentiality in mediation and enforceability of mediation agreement - drafting the mediation agreement and confidentiality agreement

Stages of mediation - preliminary communication and preparation - commencement establishing the issue and setting the agenda - information gathering - conducting substantive negotiations - dealing with impasse and concluding the process and recording the outcome

Civil and commercial mediation - employment mediation - mediation checklist

Suggested Readings:

• 1. Charles Chatterjee and Anna Lefkovitch, Alternative Dispute Resolution: A Practical Guide, Routledge (2008)
• 2. Henery Brown and Arthur Marriot, ADR Principles and Practice, Sweet and Maxwell (2013)
• 3. Madabhushi Sridhar, Alternative Dispute Resolution Negotiation and Mediation, Lexis Nexis and Butterworths (2006)
• 4. Peter T Coleman, Morton Deustsch and Eric C Marcus, The Handbook of Conflict Resolution: Theory and Practice, Jossey Bass, (2014)
• 5. Roberts Simon and Michael Palmer, Dispute Processes: ADR and the Primary forms of Decision Making, Cambridge University Press (2005)
• 6. Roy Lwicki, Bruce Barry and David Saunders, Essentials of Negotiation, MacGraw-Hill Education, (2010)
• 7. Sriram Panchu, Mediation Practice and Law, Lexis Nexis and Butterworths (2015)

1.2. Law of Contracts

Module I: General Introduction and Formation of an Agreement

History and nature of contractual obligations

Definition of agreement and contract - definition - communication and revocation - offer and acceptance - postal rule of communication - offer and invitation to treat

Place of formation of contract and jurisdiction of courts - formation of e-contracts

Module II: Consideration

Meaning - basis and the nature of consideration - kinds (past, executed and executory) - doctrine of privity of contract - doctrine of consideration - exceptions to doctrine of consideration - adequacy of consideration - unlawful consideration and its effects

Performance of existing obligations - forbearance to sue - composition and promissory estoppel

Capacity to contract

Natural Person, Corporations and Unincorporated Bodies, Public Authorities

Module III: Free Consent

Definition of free consent - vitiating factors and their effect - coercion - definition, techniques of causing coercion

Undue influence - definition - between which parties can it exist? - Burden of proof - presumption of undue influence - rescission

Misrepresentation - definition - unwarranted statements - breach of duty - inducing mistake about subject matter - suppression of vital facts - means of discovering truth

Fraud - definition - essential elements – suggestion - falsisuppressioveri - when does silence amount to fraud? - active concealment of truth - importance of intention

Mistake - definition - kinds - fundamental error - mistake of law and of fact - their effects - when does a mistake vitiate free consent and when does it not vitiate free consent

Module IV: Limitations on Freedom of Contract

Void and valid agreements - lawful and unlawful consideration - lawful and unlawful object - distinction between void and voidable agreement - illegal and unlawful agreements - effect of illegal and unlawful agreements

Unlawful consideration and object - forbidden by law - defeating the provision of any law - fraudulent - injurious to person or property - immoral - against public policy

Void agreements - agreements without consideration - agreements in restraint of trade - exceptions - sale of goodwill - restrictions under the partnership Act - trade combinations - exclusive dealing agreements - restraints on employees under agreements of service

Agreements in restraint of legal proceedings - its exceptions - uncertain and ambiguous agreements

Module V: Discharge of a contract and its various modes

By performance - conditions of valid tender of performance - how? by whom? Where? when? in what manner? - Performance of reciprocal promises - time as the essence of a contract - assignment of contract - death and bankruptcy

By breach - anticipatory breach and present breach

Supervening impossibility of performance - specific grounds of frustration - application to leases theories of frustration - effect of frustration - frustration and restitution

By expiry of period of limitation

By agreement and novation - rescission and alteration - the effect of - remission and waiver of performance - extension of time - accord and satisfaction

Remedies for Breach of Contract

Damages - concept - remoteness of damages - ascertainment of damages - mitigation of damages - penalty and liquidated damages - injunction - when granted and when refused - why? - refund and restitution - specific performance - when? why?

Module VI: Special Categories of Contracts

Contracts with Government

Government Contract a category in itself - Article 299 of the Constitution - the grund norm for government contracts, ratification and government contract, modification of government contract, no implied contract with government

Tenders

Notice inviting tenders - requirements of a valid tender - strict compliance with stipulations of notice - effect of minor deviations

Indemnity and Guarantee

Indemnity - definition of indemnity - nature and extent of indemnifier’s liability - commencement of liability of the indemnifier

Guarantee - definition of guarantee - essentials for a valid guarantee contract - continuing guarantee, nature of surety's liability - duration and termination of such liability, rights of surety, extent of surety's liability, discharge of surety's liability

Bank guarantee

Suggested Readings

• 1. Atiyah’s Introduction to the Law of Contract, Stepehen A Smith ed. OUP, 2006
• 2. Avatar Singh, Contract and Specific Relief, Eastern Book Company, Lucknow, 11th ed. 2017
• 3. Chitty on Contracts, 33rd ed. Sweet and Maxwell
• 4. Pollack and Mulla, The Indian Contract and Specific Relief Act, R Yashod Vardhan and Chitra Naarayan (ed.) Lexis Nexis, 2018
• 5. T R Desai, Law Relating to Tenders and Government contracts, Justice J D Kapoor 4th ed. Universal Law Publishing Co.

1.3. The Law of Arbitration and Conciliation in India

Module I: Arbitration and Arbitration Agreement

Dispute settlement mechanisms - arbitration as a dispute settlement mechanism - definition of arbitration - types of arbitration - their advantages and disadvantages - international commercial arbitration defined under Indian law

Role of courts in arbitration

Arbitration agreement - definition - form of the arbitration agreement - positive and negative effects of arbitration agreement - separability of arbitration agreement

Module II: Composition of Arbitral Tribunal

Number of arbitrators and appointment of arbitrators - grounds for challenge and challenge procedure - failure to act - termination of mandate and substitution of arbitrator - jurisdiction of arbitral tribunals - the doctrine of competence - competence

Interim measures ordered by arbitral tribunal - enforcement

Module III: Conduct of Arbitral Proceedings

Equal treatment of the parties and determining the rules of procedures - seat of arbitration - commencement of proceedings and language - pleadings - hearings, default of a party - expert appointment and court assistance in taking evidence - fast track arbitration - rules applicable to substance

Module IV: Arbitral Award

What is an award - form and content of award - correction and interpretation of award - additional award - recourse against award - recognition and enforcement of award

Deposit of monetary sums - deposits as to costs - effect of death of a party - application of law of limitation to arbitration

Recognition and enforcement of certain foreign awards

Module V : Conciliation

Definition of scope of conciliation - advantages of conciliation over arbitration and judicial settlement

Conciliation under the Arbitration and Conciliation Act of 1996 - application and scope

Appointment of conciliators - commencement of conciliation proceedings - conduct of conciliation proceedings - submission of statements - communication between conciliator and par ties - suggestions for settlement - confidentiality of information - admissibility of evidence in other proceedings

Role of conciliator in conciliation proceedings - settlement agreement - status and effect - termination of conciliation proceedings, costs and deposits

Suggested Readings

• 1. Justice RS Bachawat, Law of Arbitration and Conciliation Anirudh Wadhva and Anirudh Krishanan ed. (Lexis Nexis 2018)
• 2. Avtar Singh, Law of Arbitration and Conciliation, EBC, (2018)
• 3. Indu Malhotra,O.P. Malhotra on The Law and Practice of Arbitration and Conciliation, Thomson Reuters, (2014)

 

1.4. INTERNATIONAL COMMERCIAL ARBITRATION

Module I: Concept and Ethos of International Commercial Arbitration

Evolution of International Commercial Arbitration (ICA) in modern times - the journey from the Geneva Protocol to the New York Convention of 1958

Legislative and scholarly definitions of arbitration - ICA defined - meaning of international - meaning of commercial

The monopoly of international commercial arbitration - distinguishing international arbitration from arbitration - overview of the legal regime governing international commercial arbitration

Module II : Theoretical foundations of International Commercial Arbitration:

National order approach

The denationalized autonomous approach

Transnational Arbitration

Module III : Applicable Law

Distinction between Public International Law and Private International Law

Law determining the Capacity of parties - Article V (I) (a) New York convention - the law governing the agreement to arbitrate - the law applicable to the substance of the dispute - the law governing arbitration (lex arbitri) - conflict rules and the search for the applicable law - recognition and enforcement

Conduct of institutional arbitration - the rules of prominent arbitration institutes (SIAC, LCIA and ICC)

Module IV : The Role of National Courts

Interim measures - emergency arbitrator

Definition of award - a comparative study - distinction between award and order

Challenge - recognition and enforcement of foreign arbitral awards - application of the New York Convention by national courts

Suggested Readings

• 1. Gary B Born, International Commercial Arbitration, Kluwer Law International, (2015)
• 2. Giallard and Savage ed. Fouchard, Giallard and Goldman, on International Commercial Arbitration, Kluwer, (1999)
• 3. Julian D M Lew, Loukas A Mistelis and Stephen Kroll, Comparative International Commercial Arbitration, Kluwer Law International, 2003
• 4. Nigel Blackaby and Constantine Partisides, Redfern and Hunter on International Arbitration, Oxford, (2015)
• 5. Poudret and Besson, Comparative Law of international Arbitration (2007)