Implication of International Instruments in ADR Process; an Experience of Nepal
11 Pages Posted: 27 Jun 2019 Last revised: 26 Mar 2020
Date Written: June 25, 2019
Conciliation, mediation and arbitration are major approaches of Alternative Dispute Resolution (ADR) process. In comparison to arbitration, conciliation and mediation are less binding as the award of arbitration is final if there is no appellate clause. There are different types of arbitration which are domestic and foreign arbitration, Ad-hoc arbitration, institutional arbitration, bi-party and multiparty arbitration etc. UNCITRAL Model Law of Arbitration, 1985, UNCITRAL Arbitration Rules, 1976, International Chambers of Commerce Rules of Arbitration, 1998, International Center for Settlement of Investment Dispute Rules of Procedure for Arbitration Proceeding, 1984, Arbitration Rules of London Court of International Arbitration, 2014, and the Australian Center for International Center for Commercial Arbitration Rules, 2016 are major instruments of international arbitration. Arbitration Act, 1999 (2055 BS) and Arbitration (Court Procedure) Rules, 2002 (2059 BS) are the domestic instruments for arbitration for Nepal. Parties of the agreement can apply any foreign instruments of arbitration as well. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Geneva Protocol on Arbitration Clause, 1923, Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, Inter-Arab Convention on the Enforcement of Judgment and Awards, 1992 and UNCITRAL Model Law, 1985 clearly mentioned about the applicability of foreign arbitral award. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 was established as a result of dissatisfaction with the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. Under Nepalese legislation, a party should submit an application to the High Court along with the original or certified copy of the arbitrator's award, original or certified copy of the agreement, and official translation in Nepali language including any treaty if so within 90 days of award. If all conditions are fulfilled, High Court forwards the award to the District court for its enforcement if the domestic law permits. Although, there are the greater roles of ADR including arbitration, it is not a panacea to solve the disputes. If effectively applied, it is the best and participatory method of dispute resolution system.
Keywords: arbitration, award, foreign award enforcement, arbitration clause
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