.png "India's role Towards International Mediation")
India's role Towards International Mediation-Singapore Convention-WIPO-UNICITRAL
Author: Nishtha Tiwari
What is Mediation?
Mediation is a form of alternative dispute resolution (ADR) that involves a neutral third party (the mediator) helping the parties in a dispute to reach a mutually acceptable resolution. Mediation is typically used in civil disputes, such as those involving family law, employment, personal injury, contract disputes, and real estate.
The process of mediation is typically informal, flexible, and voluntary. The parties to the dispute meet with the mediator, who helps them to identify the issues in dispute and to explore potential solutions. The mediator does not make a decision on the dispute, but rather facilitates communication between the parties, helps them to understand each other's perspectives, and encourages them to find a mutually acceptable solution.
Mediation can be used in various stages of dispute resolution, it can be used before a case is filed in a court, it can be used during the litigation process and it can be used after the final judgment to resolve ongoing disputes.
India's role Towards International Mediation
India plays a significant role in the participation and encouragement of Mediation at the International level. India has always, from time to time, supported the Mediation mechanism to resolve disputes. To show upliftment towards Mediation in domestic laws and at International Level, India is a part of various related conventions, agreements, etc.
a. UN Convention on International Settlement Agreement (Singapore Convention on Mediation)-India's role Towards International Mediation
India plays an active role in international mediation, including the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation. The Convention was adopted on December 20, 2018, and it came into force on September 12, 2020, with India being one of the first countries to sign the Convention on August 7, 2019, and ratifying it on September 2, 2019.
The Convention aims to promote the use of mediation in resolving international commercial disputes by providing a framework for the enforcement of settlement agreements resulting from mediation.
India's active participation in the Singapore Mediation Convention demonstrates its commitment to promoting the use of mediation in resolving international commercial disputes. It also recognizes the value of the Convention which provides a framework for the enforcement of settlement agreements resulting from mediation, which will help to increase the effectiveness and efficiency of the resolution of international commercial disputes.
India's participation in the Convention will enhance its reputation as a hub for international commercial mediation, which will attract more foreign investment and business opportunities to the country
b. UN Commission on International Trade Law-India's role Towards International Mediation
i. UNCITRAL Mediation Rules, 2021-India's role Towards International Mediation
India has been actively involved in the United Nations Commission on International Trade Law (UNCITRAL) for several decades. India has served as a member of the commission and has actively participated in the drafting of several key UNCITRAL instruments, including the UNCITRAL Model Law on International Commercial Arbitration, the UNCITRAL Model Law on Electronic Commerce, and the UNCITRAL Model Law on Cross-Border Insolvency.
In 2021, India played an active role in the development of the UNCITRAL Mediation Rules, which were adopted by the commission in July 2021. The rules provide a framework for the conduct of international commercial mediation and aim to increase the efficiency and effectiveness of mediation as a method of resolving disputes.
India's participation in the drafting of these rules reflects its commitment to promoting alternative dispute resolution mechanisms and to strengthening its position as a global leader in the field of mediation.
The rules are expected to provide a more predictable and efficient framework for the conduct of international commercial mediation and to enhance the effectiveness and reliability of mediation as a dispute resolution method. They are also expected to increase the use of mediation as a more viable alternative to litigation and arbitration.
ii. UNCITRAL Conciliation Rules, 1980-India's role Towards International Mediation
India has played an active role in the development and promotion of international mediation, particularly through the United Nations Commission on International Trade Law (UNCITRAL) Conciliation Rules.
In 1980, UNCITRAL adopted the UNCITRAL Conciliation Rules, which provide a framework for the conciliation of international commercial disputes. India advocated for their use in international commercial disputes.
The Indian Government has also taken several steps to promote the use of mediation in international trade and commerce. This was done by the establishment of the Indian Council of Arbitration and the Indian Institute of Arbitration and Mediation.
Additionally, India has ratified and signed the 1958 New York Convention of the United Nations on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which governs the recognition and enforcement of arbitral awards rendered on the soil of nations other than the one in which such recognition and enforcement is sought.
Additionally, India has also been actively participating in various International Mediation Summits, International Mediation Institute (IMI), UN Commission on International Trade Law (UNCITRAL) and other International Mediation Forums to promote the use of Mediation as an alternate dispute resolution mechanism in international trade.
c. UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation-India's role Towards International Mediation
India has a specific active role in encouraging international mediation, particularly through the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Mediation and the UNCITRAL Model Law on International Settlement Agreements Resulting from Mediation.
The UNCITRAL Model Law on International Commercial Mediation, adopted in 2018, aims to provide a uniform and efficient framework for the facilitation of international commercial mediation. It provides a framework for the recognition and enforcement of settlement agreements resulting from mediation and addresses issues such as
-the qualifications and impartiality of mediators;
-the confidentiality of mediation proceedings; and
-the enforceability of settlement agreements.
The UNCITRAL Model Law on International Settlement Agreements Resulting from Mediation, adopted in 2019, provides a framework for Mediation agreements that are outcomes of international commercial disputes.
It aims to provide a uniform and efficient framework for the recognition and enforcement of such agreements and to promote the use of mediation as an alternative dispute resolution mechanism in international trade.
India has been actively participating in the UNCITRAL working groups on these model laws and has also adopted the UNCITRAL Model Law on International Commercial Conciliation, 2002. India has also enacted the Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2015, which incorporates the UNCITRAL Model Law on International Commercial Arbitration, 1985.
d. WIPO Mediation Rules- India's role Towards International Mediation
WIPO is a United Nations agency that provides services and advice on intellectual property (IP) protection and management to countries around the world. One of the services provided by WIPO is Mediation for the resolution of disputes related to IP rights, such as patent, trademark and copyright disputes.
India has been actively participating in WIPO's Alternative Dispute Resolution (ADR) program, which includes mediation as one of its dispute resolution mechanisms. India has also been an active participant in WIPO's Mediation and Expedited Arbitration Rules for resolving disputes relating to domain names and has appointed a panel of mediators for the same.
India has also been actively participating in WIPO's Technical Cooperation program, which aims to assist developing countries in building capacity in IP protection and management. India has been providing training and technical assistance to other countries in the areas of IP mediation and ADR.
Cases resolved through Mediation-India's role Towards International Mediation
India-Pakistan disputes: India has been involved in several mediation processes with Pakistan. These include the Kashmir conflict (UN Mediation of the Kashmir Dispute), the Indus Water Treaty (mediated by the World Bank), etc. India has always played a key role in promoting dialogue through mediation and negotiations.
Sri Lankan Civil War: India played a key role in mediating the civil war in Sri Lanka. India provided support to the Sri Lankan government and helped to broker a peace agreement between the government and the Tamil Tigers.
Maldives Political Crisis: India has been involved in mediating the political crisis in the Maldives. India has played a role in promoting dialogue and negotiations between the Maldivian government and opposition parties.
India-Bangladesh border dispute: India has been involved in mediating the border dispute between India and Bangladesh. India has been involved in negotiations with Bangladesh to resolve the issue and has also provided assistance to Bangladesh to help with the process. there is Bangladesh India Mediators Forum (BIMF) set up on October 2020 to promote dispute resolution through mediation between both nations.
Challenges faced at the international level-India's role Towards International Mediation
There are several challenges that can be faced at the international level when it comes to mediation, including:
Cultural differences: Mediation can be challenging when parties from different cultural backgrounds are involved, as there may be differences in communication styles, and expectations about the role of the mediator. It makes it difficult for mediators to build a rapport with cultural differences.
Language barriers: Mediation can be difficult when parties do not speak the same language and communication is hindered by the use of interpreters.
Legal differences: Mediation can be complicated when the parties are from different legal systems and there are different rules and procedures that apply. Therefore, a common international mediation platform is required. Different International Mediation Centres are doing a great job to cover this challenge gap.
Lack of trust: Mediation can be difficult when parties do not trust each other or the mediator and are unwilling to compromise or negotiate.
Enforceability: International Mediation agreements are difficult to make binding or enforceable in all jurisdictions, which can make it difficult to enforce a settlement reached through mediation.
Confidentiality: Mediation is based on confidentiality, but it is not always possible to ensure that the process will remain confidential in all matters or with all parties of different jurisdictions.
Time and Distance: Mediation will consume time and it will be difficult to schedule meetings and negotiate when parties are in different International locations.
Despite these challenges, international mediation is becoming increasingly popular as an effective and efficient way to resolve disputes. The adoption of the UN Convention on International Settlement Agreements Resulting from Mediation and the UNCITRAL Mediation Rules, 2021, is expected to increase the reliability and effectiveness of mediation as a method of resolving disputes.
Conclusion-India's role Towards International Mediation
India has played an active role in the development and promotion of international mediation. India has been actively participating in various international organizations such as the United Nations Commission on International Trade Law (UNCITRAL), World Intellectual Property Organization (WIPO) and other International Mediation Forums to promote the use of Mediation as an alternative dispute resolution mechanism in international trade.
India has also adopted and incorporated the UNCITRAL Model Law on International Commercial Mediation, International Settlement Agreements Resulting from Mediation and other model laws in its domestic legal framework.
India has also been providing training and technical assistance to other countries in the area of IP mediation and has appointed a panel of mediators for resolving disputes related to IP rights.
In summary, India's role in international mediation has been significant and continues to grow, with a strong focus on promoting and encouraging the use of mediation as an effective method of resolving disputes.
.png&description=India's role Towards International Mediation-Singapore Convention-WIPO-UNICITRAL){kind=link}