FORUM (Spotlight Weekly)

Alternative Dispute Settlement

By KESHAV PRASAD UPADHYAYA

Court is a traditional organ of the state to settle disputes. In the modern era of globalization and industrialization, it is not scientifically right to settle all disputes through traditional process nand techniques. The state is unable to settle disputes quickly and efficiently. In this situation, it is more justifiable to end disputes through brief and informal procedures rather than through complex and formal procedures. Bearing the situation in mind, even modern world has followed the methods like Alternative Dispute Resolution (ADR) and Consensual Dispute Resolution (CDR). In developed countries more than 90 percent of disputes are settled through ADR and CDR and only 10 percent of disputes are settled by the decision of the court. This trend shows that the ADR and CDR are more popular in dispute settlement.

The history of dispute settlment in Nepal has two phases. Before the 2007 BS, the society followed informal process like discussions, talks and negotiations. In the history of last fifty years, court practices have been followed to settle the disputes. Indeed, the Development Committee Act 2013 BS introduced the arbitration system to settle the disputes. RNAC Act 2019, Banijya Bank Act, Financial Company Act, Foreign Investment and Technology Transfer Act and Labor Act endorsed the arbitration for dispute settlement. The first separate Arbitration Act was formulated in 1981 AD. Nepal developed the Arbitration Act 1999 following the model of Uncitral Model Law of International Trade. The UNCITRAL model was endoresed by the UN on 21 June 1985.

The courts of the Kingdom of Nepal are overcrowded with cases due to the traditional mentality of people to go to court to settle their disputes. In Nepal, there are 64,000 cases pending in the courts including 33,000 in District Courts, 14,000 in Appellate Courts and 16,000 in Supreme Court. More than 82 percent of the cases settled by the Appellate Court get entry into the Supreme court. Among them 35 percent of cases have penalty of Rs. 20,000 and 4 percent of the cases have less than Rs. 10,000 penalty. The cases related to the transfer and promotion of employees consist of 18 percent. Due to its preoccupation in settling a large number of such petty cases, the Supreme Court has not been effective at fulfilling its actual role of spending time on constitutional and legal questions. The existing acts are responsible for the present pressure of cases in the Supreme Court. In such a situation, it is necessary to look at the alternative dispute settlement methods.

The second conference of justices of Supreme Court and chief judges of Appellate Courts clearly endorsed the alternative methods to resolve disputes. The resolution says: "In the context of huge number of pending cases and delay in their settlement, it has been deemed proper that the court should opt for alternative dispute settlement for petty cases." I hope the participants will also discuss on the subjects highlighted by Court Management Committee's report on recommendations regarding the alternative method.

At the end, the dispute settlement in the courts have become tardy thanks to the work load, complex procedurals and complexities of subjects. In this context, I hope that this workshop will extensively discuss about the different methods of judicial redressal, identify the most beneficial and effective among them and come up with concrete conclusions.