Commercial disputes between shareholders, joint venture partners, suppliers and customers are usually resolvable long before a court is involved. What prevents resolution is not the disagreement itself but the absence of a forum where both sides can be made to sit down under a timetable.
This practice group offers two routes to that outcome — arbitration, which produces a binding award enforceable as a decree, and mediation and conciliation, which produces a negotiated settlement that the parties own. We advise on which of the two fits a given dispute, and we draft the clauses that determine, years in advance, how well or badly a dispute will be handled when it arises.
Arbitration Services
Arbitration decides a dispute privately, before a tribunal the parties themselves help constitute, and produces an award that is enforceable in the same manner as a decree of a court. It suits disputes where the relationship is already over and a binding determination is what is needed.
Most of the difficulty in an arbitration is created years earlier, in the clause. A clause that does not fix the seat, does not say how the tribunal is to be appointed, or names an institution that does not exist, turns a private process into a court application before it even begins.
- Drafting arbitration clauses that work — seat and venue, governing law, number of arbitrators, the appointment mechanism, language and the scope of disputes referred
- Advice on the strength of a claim or a defence and on whether arbitration is the right forum for it
- Invocation of arbitration and service of the notice that commences the proceedings
- Applications for the appointment of an arbitrator where the other side will not cooperate with the agreed mechanism
- Conduct of the reference — statement of claim, statement of defence and counterclaim, documents, evidence, witness statements and written submissions
- Applications for interim measures, both before the court and before the tribunal
- Advice on the statutory timetable for making an award and on extensions of it
- Challenges to an award, defence of a challenge brought by the other side, and enforcement of the award
We give a commercial assessment before a procedural one. What the reference will cost to run, how long it will realistically take, and what a settlement is worth today against an award two years from now — these are the questions a board actually has to answer.
Because the same firm holds the company’s corporate record, the documents that decide a shareholder or joint venture dispute — minutes, notices, resolutions, share transfer records — are assembled from a file we already understand.
Where you are drafting rather than fighting, an hour spent on the arbitration clause at the contract stage is the single cheapest protection available. We would rather be engaged then.
Arbitration in India is governed by the Arbitration and Conciliation Act, 1996. The arbitration agreement is governed by Section 7; reference of parties to arbitration by Section 8; interim measures by the court under Section 9 and by the tribunal under Section 17; and appointment of arbitrators by Section 11.
Commencement is governed by Section 21, the conduct of proceedings by Sections 18 to 27, and the timetable for making an award by Section 29A. An award may be challenged under Section 34 and is enforceable under Section 36 in the same manner as a decree of a court.
A Company Secretary in Practice may act as an arbitrator and may advise and assist in arbitration proceedings under the Company Secretaries Act, 1980. Appearance before a court in connection with an arbitration is by an Advocate enrolled under the Advocates Act, 1961 — in our case our Associate Partner – Legal, acting together with Prehit Legal, our legal partner firm.
Mediation & Conciliation Services
Mediation resolves a dispute by agreement rather than by determination. A neutral third party runs a structured negotiation, and if the parties settle, the mediated settlement agreement is enforceable in the same manner as a judgment or decree of a court.
It is the right route where the commercial relationship is worth preserving, where the amount in dispute does not justify a contested proceeding, or where the parties want an outcome that a tribunal could not have given them. For specified commercial suits, pre-institution mediation is in any event a statutory step before a suit can be filed.
- Advice on whether a dispute is suited to mediation, and on what a realistic settlement range looks like
- Drafting mediation and multi-tier dispute resolution clauses that step from negotiation to mediation to arbitration
- Pre-institution mediation in commercial disputes before a suit is instituted
- Preparation for the mediation — the brief, the documents, the opening position and the authority the attending representative must carry
- Representation of a party through the mediation sessions and the private caucuses
- Drafting the mediated settlement agreement so that it is complete, capable of performance and enforceable
- Conciliation of commercial and contractual disputes, and settlement of shareholder and joint venture disagreements
- Mediation of corporate disputes referred by the Central Government, the Tribunal or the Appellate Tribunal under the Companies Act
Where the relationship is worth preserving, we say so and push for mediation. A supplier, a customer or a joint venture partner who is still doing business with you in three years is usually worth considerably more than the amount in dispute.
Mediations fail most often because the person in the room cannot actually agree to anything. We settle in advance who attends, what authority they carry and what the walk-away position is.
A settlement is only as good as the document that records it. We draft the settlement agreement with the payment mechanics, the releases, the confidentiality and the consequences of breach written in, so that you are not back in dispute about the settlement itself.
Mediation is governed by the Mediation Act, 2023, under which a mediated settlement agreement is final, binding and enforceable in the same manner as a judgment or decree of a court, and may be challenged only on the limited grounds the Act specifies.
Section 12A of the Commercial Courts Act, 2015 requires pre-institution mediation in specified commercial disputes where no urgent interim relief is contemplated. Conciliation was formerly governed by Part III of the Arbitration and Conciliation Act, 1996.
In corporate matters, Section 442 of the Companies Act, 2013, read with the Companies (Mediation and Conciliation) Rules, 2016, provides for a Mediation and Conciliation Panel maintained by the Central Government, to which the Central Government, the Tribunal or the Appellate Tribunal may refer a matter. A Company Secretary in Practice is among the professionals eligible for empanelment.
Advisory and representation in mediation is carried out by Company Secretaries in Practice under the Company Secretaries Act, 1980, and, where court proceedings are involved, by an Advocate enrolled under the Advocates Act, 1961.
Working with us
The most valuable work in this area happens before there is a dispute. A properly drafted arbitration or multi-tier clause, an exit mechanism in the shareholders’ agreement, and a documented record of what was agreed will do more to protect a company than any amount of litigation afterwards.
Where a dispute is already live, we will tell you candidly which of the two routes fits it, what it is worth pursuing and what it is not, and we will not run a proceeding whose costs exceed what is realistically recoverable.
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Describe the matter in a line or two and we will tell you what it takes — the route, the papers, the authority it goes to and a realistic timeline — before you commit to anything.
This page describes the services offered by MPS & Associates, Company Secretaries, and the statutory provisions under which that work is carried out. It is general information about our practice and is not legal advice, an opinion or a solicitation. Statutory thresholds and procedures change; the position applicable to a particular company should be confirmed before it is acted upon.