The Hindu Editorial Analysis
08 December 2021

1. A robust friendship: India and Russia have to navigate a complex geopolitical landscape while deepening ties

  • Page 6/Editorial

  • GS 2: IR


Context: Russian President Vladimir Putin has concluded a short summit meeting with Prime Minister Narendra Modi in New Delhi, highlighting the “all-weather” partnership between the two countries despite trying global circumstances.

 

The importance of the visit:

    • The US Factor: It follows years of growing proximity between New Delhi and Washington, a potential irritant to Moscow. The Countering America’s Adversaries Through Sanctions Act(CAATSA) of the US prevents deepening of ties with Russia.

    • The China factor has been steadily pulling the India-Russia bilateral tango in all the wrong directions. While Russia relies on cordial ties with China to stabilise its interests in an unstable Afghanistan post the U.S.’s exit, New Delhi and Beijing have scarcely seen eye-to-eye on border tensions and geo-political rivalry across the Asia region.

    • Reaffirming strategic Importance: Notwithstanding these reasons for possible strategic dissonance, India and Russia reaffirmed the strength of their abiding deep, multi-decade ties, building further confidence in each other through substantive defence agreements.

 

The Agreements:

    • 10-year military-technical plan that includes technology transfer to India.

    • Trade received a fillip through an agreement for India to produce more than 600,000 Kalashnikov assault rifles.

    • S-400: For India’s part, despite resistance from Washington through its Countering America’s Adversaries Through Sanctions Act, New Delhi will proceed with purchasing the S-400 missile defence system from Moscow.

 

The Multi-dimensional challenges:

    1. Economic rout due to the pandemic: The pandemic has periodically crippled the growth of both economies and the threats to public health remain despite considerable progress with vaccinations.

    2. Russia-U.S. ties are showing signs of fraying yet again, this time over U.S. President Joe Biden’s intention, reportedly, to warn Mr. Putin that Russia will face “economy-jarring sanctions” if it seeks to occupy Ukraine, a fear that has grown in the U.S. as Russian troops massed near the Ukraine border.

    3. India and China have forged an uneasy truce across their Himalayan border in the aftermath of the Galwan valley exchange in 2020, yet there are numerous potential flashpoints that could send ties into a spiral again, including China’s historically provocative actions in the South China Sea and its thinly veiled insecurity about India joining the Quad for Indo-Pacific security.

 

Conclusion: :

    • India has so far held firm to its mantra of ‘strategic autonomy’ in a multipolar world, but South Block will have to work hard to manage the tightrope act between Moscow and Washington.

    • Moscow has adroitly managed to remain friends with both its mega-neighbours, but it will require a robust focus on confidence-boosting cooperative initiatives if India and Russia are to safely navigate the complex geopolitical landscape that they occupy.

 

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2. Mediation Bill: Not getting the Act together; While it contains many pluses, the Bill needs improvement in some crucial places

  • Page 7/OPED

  • GS 2: Health


Expected Question: What do you mean by Mediation? Does the draft mediation bill, 2021 adequately address the need of regulation of the practice?

 

Context: The Draft Mediation Bill 2021, slated for presentation now to Parliament.

 

About Mediation:

    • It is a kind of Alternative dispute resolution mechanism.

    • Mediation is an attempt to help parties in a disagreement to hear one another, to minimise the harm that can come from disagreement and is a completely informal type of ADR mechanism.

    • Role of a Mediator:

      • A Mediator’s role is both facilitative and evaluative.

      • A mediator facilitates an agreement when it manages the interaction between the parties, encourages and promotes communication between them and manages interruptions and outbursts by them and motivates them to arrive at an amicable settlement.

 

Mediation landscape in India:

    • Over the last 15 years, the dispute resolution landscape in India has undergone significant change with the advent of mediation.

    • Since adversarial litigation and arbitration were the norm, establishing mediation was a challenge. It was even more challenging to ensure that they got on reasonably well with inventive ways like arbitration-cum-mediation and vice versa.

    • Requirement of a legislative regulation:

      • There was no comprehensive statute providing for all dimensions of the mediation process and its practice.

      • Such a need was articulated in several quarters, notwithstanding doubters and dissenters who insist that regulation will kill the free spirit that mediation embodies. A group of senior mediators was set up by the Supreme Court Committee in charge of court-annexed mediation process, and over a period of several months.

 

The Draft Mediation Bill 2021:

    • The good:

      • It recognises that mediation has come of age and needs to be treated as a profession, which is a huge improvement over the part-time honorarium basis it has in the court-annexed mediation schemes.

      • It acknowledges the importance of institutes to train mediators, and service providers to provide structured mediation under their rules.

      • Provides for pre-litigation mediation: This is quite a remarkable step, but is designed to be easy to implement. Parties are required to have at least one substantive session with the mediator where the process is explained to them. Thereafter they are free to continue or terminate the mediation and follow the litigation path if they so decide.

      • Addresses interim relief issue: Further, if any urgent interim order is needed, they can bypass mediation at the first stage and return to it after resolving the interim relief issue.

      • Standardization of terminology: It does away with the confusion emanating from using both expressions “mediation” and “conciliation” in different statutes by opting for the former in accordance with international practice, and defining it widely to include the latter.

      • Recognises online dispute resolution: a process that is going to move mediation from the wings to centre stage in a world that COVID-19 has changed.

      • Provides for enforcement of commercial settlements reached in international mediation viz between parties from different countries as per the Singapore Convention on Mediation to which India was a notable signatory.

        • The Convention assures disputants that their mediation settlements will be enforced without much difficulty across the world, unlike the fresh headaches that the litigative decree or arbitration award present at the time of enforcement.

      • India a hub for international mediation: It is expected that this Bill would make India a hub for international mediation in the commercial disputes field, and indeed institutions are being opened for this purpose.

    • The bad:

      • Distinguishes between Indian and International settlements: It unwisely treats international mediation when conducted in India as a domestic mediation. The settlement under the latter is given the status of a judgment or decree of a court.

        • This distinction is disastrous for foreign parties: Now, that is excellent for cases between Indian parties, but disastrous when one party is foreign. The reason is that the Singapore Convention does not apply to settlements which already have the status of a judgment or decree. Ergo, if you conduct your cross-border mediation in India, you lose out on the tremendous benefits of worldwide enforceability. In sum, go to Singapore or Sri Lanka or anywhere else other than India to conduct your mediation.

      • The governing mechanism - the Council:

        • It has three members:

          • a retired senior judge,

          • a person with experience of Alternative Dispute Resolution (ADR) law and

          • an academic who has taught ADR.

        • Functions: This is an all-powerful body which regulates, certifies, accredits, plans, governs, etc..

        • None of the members will be active practitioners. Certainly this Bill will be unique where a profession is being regulated without a single professional on the regulator. Try doing that to lawyers, doctors and accountants.

      • No role for CJI in appointment process: This is the field of dispute resolution, the judiciary’s domain, so how come the Chief Justice of India is not in the picture for making appointments?

      • Negative list for mediation: There is a long list of disputes which should not be mediated.

        • Some of them look understandable at first sight but unnecessary at second.

          • Fraud, for example. It is standard practice in litigation to make as many and as serious charges as possible; that doesn’t prevent parties from settling, and these accusations are disposed of by retraction or apology or simply ignored.

          • In cases involving minors or persons of unsound mind, the law provides for the court to pass orders to protect them.

        • What is necessary in such cases: is to provide that any settlement of disputes involving them needs the court’s approval, not to deny the possibility of a beneficial mediated settlement.

        • However some types of cases in the list not understandable:

          • Patents and copyright cases settle on commercial terms leaving untouched the validity of the grant, so why deny this possibility and consign the parties to litigative longevity.

          • In the case of telecom, why can’t manufacturers and service providers and consumers be allowed to talk and resolve issues.

      • Stakeholder consultation: The  did call for comments on the draft Bill. But, what is missing is the element of focused and engaged discussion after comments are sent. It is as though a wall has been erected and no one knows what is going to emerge.

Conclusion: In order to place India prominently in the world’s mediation landscape, a wider level of discussion and consideration amongst all stakeholders, should be done.