LAHORE    -   Punjab Assembly on Thursday passed a bill to provide for a system of alternate dispute resolution of civil and criminal disputes.

The government thinks that it is necessary to ensure delivery of “inexpensive and expeditious” justice by means of an alternate dispute resolution system for settlement of disputes through an arbitrator without resort to formal system of adjudication of disputes by the courts.

A case referred to ADR shall eventually return to the court on the completion of ADR proceedings, or, on the expiry of time provided under the law.

While one should not doubt the government’ intent to provide speedy justice to the people, the new legislation is less likely to achieve the desired results because of some inherent defects.

It is strange to see that entire edifice of the dispute resolution law hinges upon the assumption that the parties involved in a case would agree to refer the case to a court of arbitration, called the Alternate Dispute Resolution (ADR) Center.

According to clause- 3 of the law, a court (of primary jurisdiction) shall refer certain cases (specified in Schedule- 1) to ADR within 30 days of appearance of the defendants subject to consent of the parties involved in the cases. Similarly, in respect of cases mentioned in Schedule –II, a trial court may refer the case to ADR at any time or stage where it is of the view that the case is likely to be resolved through ADR. Here again, the case would not be referred to the ADR Center without consent of the parties to the case. If any of the parties is not willing, the case would not be referred under the law.

In most of the cases, the parties to a case are less likely to agree on resolution of their dispute through an arbiter(s) because the losing side will not have the right to appeal to a higher court for revision. Under section-15 of the said law, a case settled through an ADR and the subsequent judgment passed by the primary court cannot be challenged in any court of law.

Section-15 read: “No revision or appeal shall lie from the decree or order of the court except that a public prosecutor may challenge the judgment of the court”. Here, the reference made to a public prosecutor who may challenge the case has been kept vague. 

Also, under the law, it is not binding on the ADR person to settle the dispute in any case and the dispute may return to the court of original jurisdiction without resolution. Section-13 of the law deals with such a situation. 

“Where a matter has not been resolved or cannot be resolved through ADR on referral, the court shall proceed to adjudicate the dispute in accordance with law”.

In such an eventuality, no time frame has been given for the court to resolve the matter. The parties to the dispute would be back to square one after ADR’s failure to settle the issue. The claim of providing “expeditious” justice seems to have been compromised here. 

According to section-14: ”When the outcome of the ADR is returned to the court and the court finds that the matter has been partially or completely resolved, in accordance with law, the court shall pronounce judgment and in case of a civil dispute pass a decree in terms of the settlement.”.  Where the outcome of ADR is not clear, the court may ask the ADR person to provide the required clarification.

Who will appoint the ADR person?

The parties to the case may select the ADR person or persons on their own, according to the law. “Where the parties are unable to select one or more person to act as ADR, the court shall provide a list of accredited ADR service providers or ADR Centers to the parties for selection. If the two parties are unable to arrive at common decision at this level, the court shall make a reference to an accredited ADR service provider or ADR Centre in the prescribed manner”. 

In this case also, no time frame has been given for the two parties to arrive at a common decision.  

Who may perform as ADR?

The role of ADR under the said law may be undertaken by parties directly, counsel of the parties, one or more persons, selected by the parties, an accredited ADR service provider and an accredited ADR center. Here again, the law is silent about the time-frame.

Paradoxically, the claim of providing “inexpensive” justice also lays bare in section-22 of the bill. It reads: “Costs and fees of ADRs proceedings, if required, shall be borne by the parties in such proportion as may be mutually agreed upon by them; failing which, it shall be determined by the rules to be framed under this law”.  

The court shall also provide a timetable for completion of ADR proceedings not exceeding 60 days. But the court may extend the period on application of both the parties not exceeding six months.

The new legislation has also specified the kind of cases that could be settled through the Alternate Dispute Resolution (ADR) Centers to be set up under this law.

List of cases

Disputes mentioned in the first schedule include disputes between landlord and tenant, disputes involving pre-emption, disputes relating to possession of immovable property, family disputes including guardianship and custody of minor children, enforcement of commercial contracts, recovery of moveable property, separate possession of joint immoveable property, rendition of accounts of joint property, disputes involving recovery of money and cases relating to inheritance including declaration and succession.  

Cases mentioned in the second schedule include disputes relating to ownership of immovable property, professional negligence, suits under the Banking Companies Ordinance 1962, disputes involving copy rights, disputes involving trademarks, suits for redemption of mortgaged property and cases relating to Waqf and Trusts.  

Subject to the provisions of section 19 of the Act, section 89-A of the Code of Civil Procedure, 1908 and clause (iii), Rule 1A, Order X in the First Schedule to that Code, to the extent of Punjab would be repealed once the law comes into force. Also, Qanun-e-Shahadat Order, 1984 shall not apply to ADR proceedings.