Alternate Dispute Resolution

ALTERNATE DISPUTE RESOLUTION <!--[if gte mso 10]> ALTERNATE DISPUTE RESOLUTION By M. Mahmood Anees Qureshi, Advocate, High Court, Lahore 1. What is Alternate Dispute Resolution? It means out of court settlement of disputes through compromise such as mediation, conciliation, arbitration, neutral evaluation, expert determination. 2. Development of Alternate Dispute Resolution. After the advancement of national and international business, litigation in the court increased causing delayed justice in all cases. In 70's developed countries resolved to find out ways and means to settle the disputes between citizens and government and other disputes out side the court which were given the name vis-a-vis Alternate Dispute Resolution. Dispute resolution is now inserted in every statute dealing with the civil disputes. 3. Advantages of Alternate Dispute Resolution. The advantages of the ADR are as under:-‑ (i) In ADR the persons appointed in complex disputes are well versed with all the necessary knowledge of the subject and the law involved, whereas in litigation Judge(s) despite being independent may have limited knowledge of the dispute and therefore need advice from expensive counsel. (ii) In ADR, venue and time for the commencement of the proceedings can be fixed where possible and convenient to both parties whereas in litigation there are strict rules as to time and venue of the proceedings. (iii) There are flexible rules of procedure in ADR which can be changed with mutual consent of the parties and neutrals whereas in litigation, there are strict rules of procedure which both parties have to follow. (iv) In ADR, time tables are specified according to the agreed rules made by parties which can be made more flexible with the agreement of the parties and the neutrals but in litigation time tables may be made to suit the needs of the court not' the parties. (v) In courts parties may use delaying tactics to linger on the matter for years. Moreover, the court can strike out the case too early without any regard to the personal circumstances of the parties but in ADR, procedures are made as to take into account the personal circumstances of the parties. Therefore, neutrals have powers agreed upon by the parties to deal with delays in the appropriate manner. (vi) In ADR hearing date is set by the neutrals ensuring that everyone is available but in litigation cases may be put off to some other day, several weeks or months later as the Judge cannot cope with all the cases that day. (vii) In ADR, procedure costs are substantially lower than for litigation. In many countries such expenses are shared by both the parties but in litigation the loser generally pays the winner. (viii) ADR provides with an opportunity to the parties to have a dispute resolved quickly, cost effectively and privately which we don't see in the case of litigation as the same is very expensive and representation in the court involved public mauling. (ix) ADR reduces litigation costs and saves valuable management time. Under ADR, parties can avoid the expense, delay, stress and divergence of time in bringing case to the Court. 4. Realistic Examination of Benefits of ADR for CBR and Tax Payer: 5. Whether the Procedure Provided for Referring Disputes for ADR is Adequate: 6. Examination of Provisions in Various Tax Laws Pertaining to ADR: ALTERNATE DISPUTE RESOLUTION IN PAKISTAN The concept of resolving the disputes outside the court is not a new one in Pakistan. Arbitration, mediation, reconciliation, resolution of disputes through Punchayat, Jirga etc. are the ways to resolve disputes between parties are existing in Pakistan since long. But increase in litigation between government agencies and the citizens in Pakistan is not only time consuming but causing loss to both government and citizens also. It is one of the causes of delayed justice and the people thereby losing faith in the courts of law. Such disputes are also hurdle in the growth of economy of the country. The Law and Justice Commission of Pakistan recommended for implementation of alternate mode of dispute resolution. The Government of Pakistan in the year 2002, amended Civil Procedure Code, 1908. Section 89 gives powers to the civil court to adopt, subject to the consent of the parties, to settle disputes by ADR. Complementary addition was also made in Order X of C.P.C. whereby the court is empowered to pass necessary orders for expediting the trial proceedings. However, as no effort is made by the Bar and concerned departments of the judiciary to know the benefits of such amendments by way of holding seminars and using other media, the amendment in Civil Procedure Code, 1908 remains only in the statute books and fails to serve the purpose for which ADR was inserted in Civil Procedure Code, 1908. Reportedly on the recommendation of the Honourable Federal Tax Ombudsman, amendment in Central Excise, Custom, Income Tax and Sales Tax Laws and made through Finance Act, 2004 whereby provision regarding ADR is introduced in the tax laws.