TABLE OF CONTENTS

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CHAPTER-1

Introduction

CHAPTER-2

Appeal and revision

CHAPTER-3

Analysis of appeal and revision in alternative dispute resolution

CONCLUSION

BIBLOIGRAPHY
 ABSTRACT

The submitted paper emphasizes upon the concept of the Appeal and Revision in the present
procession which is being carried out in the legal scenario of the jurisprudence of Alternative
Dispute Resolution. The mentioned system shall be analysed and further the ambiguity regarding
Appeal and Revision shall be covered and resolved.

Keywords: Appeal, Revision, Alternative Dispute Resolution

INTRODUCTION

Alternative dispute resolution (ADR; known in some countries, such as India, as outside of court
dispute resolution) includes dispute resolution processes and techniques that act as a means for
disagreeing parties to come to a win-win position to preventthe lengthy process of litigation. It is
a collective term used for the ways that parties can settle disputes, with the help of a neutral third
party.

The Civil Procedure Act of 1857 was amended in 1882 and later India solely for Arbitration
clauses was established in the Arbitration and Conciliation Act 1996.

At the international level, the UNICTRAL prepared the Model Law of Arbitration, Arbitration
Rules and Conciliation Rules. Based on these ground norms India adopted and enacted the
Arbitration and Conciliation Act,1996. The Government of India introduced the Arbitration and
Conciliation ( Amendment ) Bill, 2001 so that it becomes suitable to contemporary times.

The Arbitration and Conciliation act 1996 states that “it is an act to consolidate andamend the
law relating to domestic arbitration, international commercial arbitration and enforcement of
foreign arbitral awards as also to define the law relating to conciliation and for matters connected
therewith or incidental thereto”

The formation of a separate arbitration act had started long back with the Civil Procedure Code
1857. Later owing to the successful trials of alternative methods of dispute resolution the British
government drafted two separate acts – The British Arbitration Act 1889 and the Indian
arbitration act 1899.

As the number of cases in arbitration increased, the British government found it necessary for
increasing the scope of Arbitration through the Arbitration (Protocol and Convention) Act,
1937. By this time in the international community, the arbitration emerged as an important form
of resolving disputes which further led to the increase in awareness about Arbitration. The
Foreign Awards (Recognition and Enforcement) Act, 1961, mentioned the rules to be followed
with regards to the foreign awards in arbitration.The arbitration award is not subject to appeal in
the Civil court. The award is given the judge of the Civil court who passes it as an order of the
court. This act is applicable for both the domestic as well as international arbitration.
RESEARCH METHODOLOGY

For this project the research is doctrinal. The information and data for the project will be from
various books, articles and other online resources. The research will include publication research,
and other relevant sources. It will include present, further possibilities and historical information
related to topic.The tools of research adopted were a combination of Textbooks, Electronic
Library, Article and various Journals of International organizations and also data collection
through the various debates and commentary on the internet by international Jurist.

OBJECTIVES OF STUDY:

● To understand the Concept of Revision in Alternative Dispute Resolution.

● To analyse the Concept of Appeal in Alternative Dispute Resolution.

Mode of Citation: The Bluebook: A Uniform System of Citation (2015, 20th ed.)
 CHAPTER-2

Appeal

An appeal is asking a higher court to review and if needed, to reverse the decision of the lower
court and to turn it in the losing party’s favor after the final judgment has been given. The losing
party has to quote legal reasons as to why it feels the judgment of the lower court was wrong and
why it should be overturned by the higher court. The losing party and the appellant here must
show the errors or mistakes that were committed during the previous trial. The two grounds on
which an appeal can be filed are:

When a mistake was committed in the trial– Only grave errors are counted under this provision.
Harmless errors cannot be a ground for appeal. The appellant must also show that the error
caused his rights to be infringed.

When evidence does not support the verdict– It is much harder to prove an appeal that is based
on insufficient evidence. As the Court of Appeal did not hear the entire proceedings in the
previous trial and didn’t make a fully unbiased decision. Based on their belief in the judgement
of the trial court, most appeal courts weigh and then make their decision.

In civil suits, both the plaintiff and the defendant can file a suit for appeal. A defendant has the
right to file an appeal unless the judgment came from the court of the highest order. Not every
appeal is entitled to be entertained by the court as there can be an appellable error and thus on
those grounds the appeal can be rejected.

It must be kept in mind by the party when it decides to file an appeal that the appeal must be
made in the limited time frame which varies depending upon the jurisdiction. However, the
decision of the appellate court is not time-bound. The judges of the court of appeal take time to
consider the issues and then make the final decision. This process can take weeks or even
months.1

1
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%20Review%20and%20Revision&text=Review%20is%20given%20by%20the,the%20case%20has%20been
%20decided.
Appealable Orders

Section 37 of Arbitration and Conciliation Act,1996 deals with provision relating to appealable
orders. Section 37 deals with processes involved in PART I and Domestic arbitration.
Appealable orders relevant to procedures of PART II and foreign arbitration are dealt in Section
50 of the Act.

Provisions under section 37(1) which deals with appealable order of the Court, are briefly
mentioned hereon:

Refusing the parties to refer them to arbitration under section 8.

Granting or refusing to grant any measures under section 9.

Setting aside or refusing to set aside an arbitral award under section 34.

Who can Appeal?

In general, parties who are not satisfied with the result of court or tribunal can appeal. However,
a new precedent arising out of arbitration proceedings is that, can a third party appeal to the order
of an arbitrator?

On september 11, 2018, the BOMBAY HIGH COURT passed a gradual judgement. In the case
of Prabhat Steel Traders Pvt. Ltd. v. Excel Metal Processors Pvt. Ltd., the high court held that a
third party can appeal to the order u/s 37 of the Act, if they are affected by such order directly or
indirectly passed by the tribunal under section 17 of the Act.

So, according to this landmark judgement, a third party can also appeal under section 37, if
affected under section 17 of the Act.
Letters Patent Appeal

Letters Patent Appeal is an appeal from a single bench to a larger bench of the same court. Such
kind of appeal is dealt with, under Section 50(1) (b) of the Arbitration and Conciliation Act,
1996 and has to be judged within already laid down parameters. This remedy was first provided
after the establishment of High Courts in 1865. The decision given by the single judge bench can
go wrong due to wrong facts or can even be wrong according to the law. In these cases, the
appellant has the option to refer to a larger bench of the same court before going to the Supreme
Court. Thus, this would save the expenses of going and filing a case under the Supreme Court.
Such kind of an appeal is called an intra-court appeal when it is filed in the High Court and an
inter-court appeal when it is filed under the Supreme Court. The maximum period for filing an
inter court appeal is 30 days and filing an intra-court appeal is 90 days.

After paying the court fees the appellant who files for an LPA is required to carry the following
documents with him to the proceeding:

 Certified copy of judgment and decree appealed from.

However, it must also be noted that intra-court appeal is not maintainable in cases of criminal
nature.2

2
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section-37-of-arbitration-and-conciliation-act-1996
Revision

Revision is a new prospect for the resolution of law. It means re-examining the case involving
improper inference, non-exercise or inappropriate jurisdictional exercise. Where no appeal lies
for a case, which is decided by the subordinate court, Section 115 of the Code of Civil Procedure
gives the High Court the power to revise the matter. This jurisdiction is known as the High
Court’s revisional jurisdiction. Revision refers to reviewing or scrutinizing with a view to correct
or to improve.

In the exercise of revisional powers, it is not the responsibility of the High Court to take into
consideration the benefits of the evidence; it merely has to see if the provisions of the law have
been properly adhered to by the court whose order is the subject of the revision.

In Section 115 of the CPC, there are only three grounds for revision, which are:

When the lower court meditates on a matter on which it has no jurisdiction.

 There was authority, but it was not exercised.

Section 115 shall thus prevent subordinate courts or lower courts from acting arbitrarily,
illegally, irregularly or capriciously.
 CHAPTER-3

Analysis of Appeal and Revision in Alternative Dispute Resolution

In light of the decision of the Supreme Court in the case of Bharat Aluminium Company v

Kaiser Aluminium Technical Service Inc 2012 (8) SCALE 333 (the BALCO judgment),

parties to a foreign-seated arbitration no longer had recourse to any Indian courts for
relief.Courts in India had also granted a wide meaning to public policy and had interpreted that
even an illegality under Indian law would be against public policy. The recourse to setting aside
an award under section 34 is also no longer available to any party to a foreign-seated arbitration,
which was earlier extended by the courts through judicial interpretation. All parties to any such
foreign arbitration upon receipt of an award of a foreign tribunal, if required to be enforced in
India,

would need to present such an award for enforcement under section 48 of the Arbitration Act. An
Indian court can review the foreign award to the limited extent provided under section 48 to
examine whether it should be enforced. BALCO applies to all agreements that have been
executed after 6 September 2012 for foreign-seated arbitrations.

The 2015 Amendment Act has clarified the reversal of position in the BALCO judgment, by way
of insertion of a proviso to section 2(2). The proviso states that sections 9 (interim relief by
courts), 27 (court assistance in taking evidence), 37(1)(a) (appeals in respect of interim relief by
courts) and 37(3) (appeals to the Supreme Court) will also be made applicable to international
commercial arbitrations, even where the seat of arbitration is outside India, and an award of the
said arbitration will be enforceable and recognised under Part II of the Arbitration Act.

In another significant ruling in the case of Shri Lal Mahal v Progetto Grano Spa Civil Appeal
No. 5085 of 2013, decided on 3 July 2013, the Supreme Court not only restricted the 5
interpretation of ‘public policy’ in the context of enforcement proceedings, but also held that the
scope of public policy is narrower under section 48 than under section 34. The court held that
enforcement under section 48 can only be opposed on grounds of public policy where it
iscontrary to fundamental policy of Indian law, the interest of India or justice and morality.
 In the case of ONGC v Western Geco International Ltd Civil Appeal No. 3415 of 2007, the
scope of public policy under section 34(2)(b)(ii) of the Arbitration Act was once again under
consideration. The Supreme Court reduced the amount awarded to Western Geco by one-
third,stating that the tribunal had committed a ‘palpable error’. Further, the court, while
examining if the award was in conflict with ‘public policy of India’, elaborated the scope of
‘fundamental policy of Indian law’ to include three principles to be followed by the tribunal: a
judicial approach, principles of natural justice and the Wednesbury principle of reasonableness .

The Supreme Court in the case of Associate Builders v Delhi Development Authority Civil
Appeal No. 10531 of 2014, stated that section 34 of the Arbitration Act does not ordinarily
permit the courts to review findings of facts made by arbitrators, and subsequently restored the
award. The court merely clarified and has not restricted the law concerning public policy and
stated that an award can be set aside if it is contrary to fundamental policy of Indian law, interest
of India, justice or morality, or if it is patently illegal.34

3
Bharat Aluminium Company v Kaiser Aluminium Technical Service Inc 2012 (8) SCALE 33
4
ONGC v Western Geco International Ltd Civil Appeal No. 3415 of 2007
 CONCLUSION

The maintenance of justice which is important for every society in a democracy is possible due
to the presence of the Constitution. The principles of democracy have been preserved by the
provisions ofappeal and revision.Revision on the other hand clothes the High Court with the
powers to ensure that the subordinate courts ‘ proceedings are conducted within the boundaries
of their jurisdiction and in the furtherance of justice in accordance with the law. It allows the
High Court to rectify, errors of jurisdiction committed by subordinate courts and provides the
means to obtain rectification of a non-appealable order to an aggrieved party. In other words,
revisional jurisdiction is conferred on the High Court for the effective exercise of its supervisory
and visitorial powers. Appeal whereas ensures the litigants that they will be granted justice under
the law while the resolution of a particular dispute and appeal also helps in enacting the rules of
decision that will be binding on all lower courts within the judicial system, thus ensuring uniform
treatment and some measure of certainty and guidance for those whose actions bring them within
the scope of the rule.
 BIBLIOGRAPHY

Alternative Dispute Resolution and Mediation Rules, 2003

● Arbitration (Protocol and Convention) Act, 1937

● Arbitration (Protocol and Convention) Act, 1937 (Repealed)

● Arbitration Act, 1940 (Repealed)

● Arbitration and Conciliation Act, 1996

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it/#:~:text=Distinction%20between%20Review%20and%20Revision&text=Review%20is
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