Corporate Legal Services team of Oil and Natural Gas Corporation (‘ONGC’) organised a legal workshop on “Mediation & Conciliation as ADR: PSUs Perspective” on 02-06-2023. The speakers in the event were Mr. PK Malhotra, Former Law Secretary, GOI & Head of Committee constituted by GOI; Mr. Abhishek Gupta, Advocate, Supreme Court of India; Dr. Rajiv Mani Additional Secretary Ministry of Law and Justice GOI; and Mr. Sudhir Nandrajog, Senior Advocate, Delhi High Court.
The event commenced with the welcome address by Ms. Sandhya Yadav, General Manager – Chief Legal Services, ONGC and address by Executive Director – Chief Corporate Strategy, ONGC.
On the topic ‘Introduction of Mediation in India’, Former Law Secretary Mr. PK Malhotra said that “we have been mediating right from the days of Ramayana and Mahabharata, so mediation is not a new concept in India. Mediation is already in place. Even in Mahatma Gandhi’s autobiography he preached for mediation”.
Mr. PK Malhotra remarked that arbitration and conciliation gained legal backing when the Code of Civil Procedure, 1908 was amended in 1993, wherein Section 89 (Settlement of disputes outside the Court) was added. As per him, Mediator is a facilitator, he only provides a platform to the parties to settle their disputes, but the ultimate decision is on the parties.
Mr. Malhotra further stated that the difference between mediation and conciliation is going to be reduced in the coming days as conciliation will be subsumed in mediation, and it will be only arbitration and mediation.
He further said that Pre institution mediation is an important aspect, as disputes can be settled, and a lot of money can be saved by this. He also praised the 2015 amendments and said that, “by these changes we have somewhat achieved the objective of out of court settlements”.
Mr. Malhotra concluded by stating that Mediation is the future of this country and is a step in the right direction.
Supreme Court Advocate Mr. Abhishek Gupta, while speaking on the topic ‘Alternative Dispute Resolution in PSUs: Practical challenges in Arbitration,’ talked about the history of Arbitration and discussed the aspects of arbitration fees while citing the famous case of ONGC v. Afcons Gunanusa JV, 2022 SCC OnLine SC 1122, wherein the Court settled the conundrum around fees and said that the Arbitrator doesn’t have the power to fix fees unilaterally. While it is open to arbitrators to negotiate on fees, it’s only upon consensus of parties.
Mr. Gupta remarked that there are delays in Section 34 and Section 37 petitions, thus, to deal with this, specialised Tribunals must be there. Further, the Courts must be armed to interfere with unjust and illegal arbitral awards.
He also advocated for publication of Arbitral awards to increase transparency in the arbitration process and to restore public faith in the process.
Ms. Sapna Khitoliya, Domain expert ONGC talked about the success story of conciliation in Public Sector Undertakings.
Additional Secretary Ministry of Law and Justice Dr. Rajiv Mani while talking about the ‘Internal Dispute Resolution Mechanism in PSUs: Enhancing Ease of doing business’, said that conciliation mechanisms in various PSUs are working successfully. As per him, “effort has been to maintain balance between the existing dispute resolution mechanisms and the ones yet to come.”
He further stated that to minimise the Court’s intervention, there must be a full review of the Arbitration Act, and to deal with all aspects, inputs from major stakeholders will be needed.
While concluding he said that ‘Ease of doing Business’ environment has to be improved and ADR needs to work in tandem. Wherever reforms are required, they must be done. These ADR need to be alternative mechanisms in letter and spirit.
On the topic ‘Experiments with Arbitration & Mediation’, Senior Advocate Sudhir Nandrajog remarked that “we are in age old general and special conditions of contract which need revision, based on developments in technology”. Further, he said that liquidated damages clause in contracts mandates loss suffered, which needs updation.
Mr. Nandrajog suggested that the PSUs should disclose technical details to their lawyers to argue the matter efficiently.
After the insightful sessions, there was an interactive session amongst the speakers and the audience. Thereafter, the Executive Director-Chief MM gave the closing remarks.
