USING ADR METHODS IN

DISPUTE RESOLUTION IN
PUBLIC PRIVATE
PARTNERSHIP IN INDIA

RESEARCH PAPER IN

ALTERNATIVE DISPUTE
RESOLUTION

SUBMITTED BY: Shubham

I.D. NO.: 2177
DATE OF SUBMISSION: 20th MAY 2017.
 Table of Contents
TABLE OF AUTHORITIES 2
CASES 2
STATUTES 2
POLICY DOCUMENTS 2
REPORTS 2

INTRODUCTION 4
WHAT IS PUBLIC PRIVATE PARTNERSHIP? 4
LEGAL ENVIRONMENT AIDING PUBLIC PRIVATE PARTNERSHIPS 5
CAUSES FOR DISPUTES IN PUBLIC PRIVATE PARTNERSHIPS 5
DRAWBACKS OF LITIGATION IN DISPUTE RESOLUTION IN PPP AND BENEFITS OF ADR METHODS 6

REGULATION OF PUBLIC PRIVATE PARTNERSHIPS IN INDIA 8

NATIONAL POLICY DOCUMENTS 8
DRAFT NATIONAL PUBLIC PRIVATE PARTNERSHIP POLICY, 2011 8
CONCESSIONAL AGREEMENTS 9
DRAFT PUBLIC PRIVATE PARTNERSHIP RULES, 2011 9
POLICY DOCUMENTS/LEGISLATIONS OD STATES 11
POLICY DOCUMENTS/LEGISLATIONS IN VARIOUS SECTORS 14
IN THE ROAD SECTOR 14
IN THE PORTS SECTOR 16
APPLICABILITY OF GENERAL LAW 16
OTHER RESORTS 16

CONCLUSION 17

BIBLIOGRAPHY 19
ARTICLES 19

1
 Table of authorities
Cases
1. Balco Employees Union v. Union of India, (2002) 2 SCC 333.
2. Centre for Public Interest Litigation v. UoI(2000) 8 SCC 606.
3. S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd., (2006) 11 SCC 548.
4. UPSEB v. Banaras Electric Light& Power Co. Ltd., (2001) 7 SCC 637.

Statutes
1. The Bihar Infrastructure Development Enabling Act, 2006.
2. The Andhra Pradesh Infrastructure Development Enabling Act, 2001.

Policy documents
1. Department of Economic Affairs, Government of India, Draft National Public Private
Partnership Policy (2011).
2. Department of Economic Affairs, Government of India, Draft PPP Rules, (2011).
3. Guidelines for Investment in the Road Sector, Ministry of Shipping Road Transport
and Highways, 2011.
4. Guidelines for Public Private Partnership in Haryana, 2011.
5. Karnataka Infrastructure Development and Regulation Bill, 2011.
6. Model Concession Agreement for Small Road Projects.
7. Orissa Public Private Partnership Policy, 2007.
8. Policy on Public Private Partnership, Assam (2008).
9. The Orissa Industrial Policy, 2011.
10. Twelfth Fifth Year Plan (2012-2017), Planning Commission, Government of India
(2013).

Reports
1. Department of Economic Affairs, Government of India, The Report of the Committee
on Revisiting and Revitalising Public Private Partnership Model of Infrastructure
(2015).
2. Ernst & Young, New innings for the Indian ports sector (2011).

2
3. Government of India and Asian Development Bank, Facilitating Public-Private
Partnership for Accelerated Infrastructure Development in India (2006).
4. KPMG, Investing in India (2010).
5. Pricewaterhouse Coopers, The road ahead: Highways PPP in India (2012).
6. The Economic Survey of India (200910), Government of India, 2010, 266 (2010).
7. The Punjab Infrastructure (Development & Regulation) Act, 2002.

3
 Introduction

What is Public Private Partnership?

They are a enduring, contractual partnerships connecting the public and private sector
organizations, purposely besieged towards financing, designing,implementing, and operating
infrastructure amenities and services that be conventionally provided by the public sector.
These joint undertaking are put together in the region of the expertise and capability of the
project associates and are pedestaled on a contractual agreement, which make sure
appropriate and mutually settled part of capital, hazard, and income. 1 The Department of
Economic Affairs, Government of India defines it as:
A partnership between a public sector entity and a private sector
entity for the creation and/ormanagement of infrastructure for public
purpose for a specified period of time (concession period)on
commercial terms and in which the private partner has been procured
through a transparent andopen procurement system.2

Up to now, a variety of Public Private Partnership form have been endeavored in India,
counting public contracting; unreceptive public venture (equity, debt, guarantee, grants); joint
ventures; and enduring contractual agreements (BOT, BOOT, BOLT). In spite of the model
pursued, however, the overpowering agreement is that Public Private Partnerships are the
most important way by which the GoI will look for to triumph over the infrastructure
deficit. In accumulation to overpass the fiscal deficit, participation of private sector convey
beside the greatly much loved compensation of procedural skill, cost efficiency and,
effectiveness in function and organization. Nevertheless, to complete their hope for the
exercise of Public Private Partnerships in infrastructure projects, both national and state
governments resolve require as long as for a great deal superior visibility Public Private
Partnerships programme and as well look for to distribute most excellent perform, in
together, industrial and bureaucratic norms.

1
Government of India and Asian Development Bank,Facilitating Public-Private Partnership for Accelerated
Infrastructure Development in India(2006).
2
Id.

4
Legal environment aiding public private
partnerships
A key precondition for drawing private joint venture is acknowledged as laying behind a
policy, and a legal and regulatory framework that assures fair return for investors and
protects the interests of the users, especially poor and assures quality at a reasonable cost.3
The GoI and a variety of state administrations have been constantly building hard work to
carry lucidity to strategy and system by inter alia adjust policy papers, as long as for mold
contract documents and instrument for financial arrangement. Additionally, the union
government has, in 2011 became visible with a sketch policy and rules concerning PPP. Lone
region frequently highlight by each and every one of the main policy frameworks and model
contract papers is the stipulation for an well-organized and plausible dispute resolution
apparatus.

Causes for disputes in public private

partnerships
The various stages in a PPP project implementation are as follows:4

1. Identification: It is the stage where potential projects are identified through a

strategic planning process and these potential projects are evaluated for their
suitability for development as PPP.
2. Full feasibility: A potential PPP identified in the first phase is considered in detail and
an application is made for in principle clearance to continue to the procurement phase.
3. Procurement: The procurement process takes place, an application is made for final
approval, the preferred bidder is selected and the project is taken to technical close.
4. Contract Management and Monitoring: Here, the Sponsoring Authority manages the
PPP throughout its life, including monitoring the private partners performance
against the requirements of the Concession Agreement. This phase begins at the pre-
operative stage, and spans the construction stage, the operations stage, and contract
closure and asset transfer.

3
The Economic Survey of India (200910), Government of India, 2010, 266 (2010).
4
As identified by the PPP tool kit of the Ministry of Finance, Government of India, available at
http://toolkit.pppinindia.com/ (Last visited on May 1, 2016)

5
The call for for dispute resolution happens frequently in contract management stage, but
likelihood of a dispute happening can not be lined elsewhere still preceding to that; say at the
stage of procurement wherever the reward of project might be disputed on grounds of
unpredictability and irregularity ahead of courts of law. In the contract management stage, it
is necessary that the agreement undoubtedly order the rights and tasks of in cooperation the
government sector and the PPP supplier. Any ambiguity or omission may lead todisputes.
The contract have got to speak to applicable problems for example risk allocation, requisite
service superiority, measures for the difference of services, and lastly, the resolution of
disputes.

Drawbacks of litigation in dispute

resolution in PPP and benefits of ADR
methods
Investment of private capital in Public Private Partnerships, particularly overseas venture, is
distant from acceptable. Several issues have been identified as to why this is the case, which
include, lack of a robust legislative framework to aid dispute resolution in a time bound
manner.5Continuation of a convincing and competent dispute resolution instrument which be
capable of reconcile the disparity in an instant leap way is single of the vital feature for the
triumph of any PPP. In confidential funds, in particular in those concerning towering
investment, the supposed danger and expenses of holdup in declaration of disputes can be
deadly to the nation. Stipulation for an successful dispute resolution method - mutually in
conditions of pace and value - take for granted importance for PPPs captivating interested in
explanation the probable conflict of benefit, enduring and towering funds concerned, political
and societal understanding frequently close to the schemes etc. Thus it turn out to be very
important that the party get the help of an organization, with essential technological,
monetary and lawful know-how, to resolve their disputes in a point bound behavior.

The judiciary in India has been frank in upholding that it is in community attention to speed
up clearance of cases connecting confront to financial rules, as any holdup will be counter-
productive to community attention. The responsibility of the court, maintains the SC, is

5
KPMG, Investing in India (2010).

6
merely to impound itself to the query of misdemeanor, illogicality and practical immodesty.6
Hence, the courts have normally reserved themselves from intrusive in matters connecting to
request and prize of project if not the unpredictability and misdemeanor is clear on the
expression of it.7

At the stage of Contract Management, disputes fundamentally relates to the soundness,

enforceability, interpretation or non-performance of a contractual obligation, or looking for
injunctive break, reimbursement, specific performance, etc., may approach up and thus
agreeable to the original jurisdiction of a civil court of capable jurisdiction. However,
litigation is not favored as a form of dispute resolution most probably because of reasons
similar to probable holdup and the requirement for specialised information. The need for
specialist adjudication in problems arising not in of road and rail network projects have been
highlighted by the SC in UPSEB v. Banaras Electric Light& Power Co. Ltd.8

6
SeeBalco Employees Union v. Union of India, (2002) 2 SCC 333 and Centre for Public Interest Litigation v.
UoI(2000) 8 SCC 606.
7
S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd., (2006) 11 SCC 548.
8
(2001) 7 SCC 637.

7
 Regulation of Public Private
Partnerships in India
National Policy Documents

Draft National Public Private Partnership Policy, 2011

The Draft National Public Private Partnership Policy considers make sure intelligibility in
administration procedure the highest main concern of the administration. The rationale
behind this is that Public Private Partnership assignment procedures require to be see-through
to keep hold of the faith of the parties. The Draft National Public Private Partnership Policy
resolves to further instill transparency in the government processes by setting up a devoted
argument decision device to speak to subject connected to the request and prize of Public
Private Partnership projects.9

The Draft National Public Private Partnership Policy goes on to mention how in different
stages of the public private partnership, dispute resolution clauses could be incorporated to
further the objective of transparency:
1. Development Stage: The Development Stage in covers project preparation (including
technicalfeasibility and financial viability analysis), project structuring, preparation of
contractual documents and obtaining of project clearances and approval. During this
stage, it would have to be ensure that the contractual arrangements and documentation
accurately reflect dispute resolution mechanism and effective post award governance
mechanisms among other things such as the scope of the project, roles and obligations
of parties, performance standards, monitoring arrangements, termination
arrangements, etc.10
2. Procurement stage: Procurement stage would cover procurement and project award.
The Government has prescribed the bid process and the model bidding documents
(viz., model Request for Qualification and model Request for Proposal) for PPP
projects in infrastructure sector, through notifications issued from time to time. Draft
contract agreement, 11 containing provisions on the dispute resolution mechanism

9
Department of Economic Affairs, Government of India, Draft National Public Private Partnership Policy, 9
(2011).
10
Supra note 9, at 13.
11
Model Concession Agreements, if have been notified by the Government of India, are used as draft contract
agreements.

8
 among other particulars such as the roles and obligations of the parties, performance
standards and monitoring arrangements, termination arrangements, etc. shall be
provided to the prospective bidders as part of the bid documents.
3. PPP contract management and monitoring stage: This covers project implementation
and monitoring over the life of the PPP project. The project implementing agency
shall establish appropriate mechanisms for project monitoring such as Project
Monitoring Unit (PMU), along with inter-department committees that would oversee
project implementation, facilitate coordination between departments and render
assistance during events of dispute resolution or arbitration. The dispute resolution
mechanism would be in accordance with contract conditions and applicable
legislation. The implementing agency shall endeavor to speedily resolve and dispose
disputes during the contract period through appropriate mechanisms including
mediation processes.12

Concessional agreements
Draft contract agreements are important in the procurement stage so that the parties can enter
into a contract modeled in the same way as the draft, and be bound by it. The Government of
India has notified a slew of Model Concession Agreements and these are second-hand by the
executing organization. Model Concession Agreement(s) are papers accepted by the
Minister-in-Charge of the apprehensive Ministry/Department, subsequent to achieve
agreement of each and every one of such Ministries/Departments, as are necessary to be ask
in conditions of regulation 4 of the GoI (Transaction of Business) regulations. Such
agreement should be get hold of at the stage of the Minister-in-charge of the ask over.13

Draft Public Private Partnership Rules, 2011

The Draft Public Private Partnership Rules, firstly, mandate that draft Concession
Agreements shall rule the contractual relationships among the Concessionaire and
Contracting ability. Further, they also state that the requirements of the draft Concession
Agreement shall inevitably cover dispute resolution.14

Secondly, the Draft Public Private Partnership Rules introduce a body called the Contract

12
Supra note 9, at 18.
13
Supra note 9, at 19.
14
Rule 79, Draft PPP Rules, Department of Economic Affairs, Government of India (2011).

9
Management Team, which the Contracting Authority shall make up. The Contract
Management Team is to be headed by a contract management manager and help by a squad
by means of monetary, technological and officially permitted capabilities. The CMT shall
exist comprise taking place or previous to the appointment of matter of the Letter of Award
to the chosen bidder. The CMT shall prepare a Contract Management Plan, which has to
include the following particulars, the last three of which help in reconciling differences
between the parties in the PPP:15
a. define the processes that enable both parties to meet their obligations;
b. monitor performance by the Parties of their respective obligations under the
c. Concession Agreement;
d. manage differences through proactive relationship management;
e. manage unanticipated developments and mitigating risks through efficient risk
management; and
f. resolve disputes in an expeditious manner, with minimal impact on service delivery.

CMT is not just responsible for the formulation of the Contract Management Plan, it is in
charge of monitoring of the implementation of the same, including monitoring the
development of continuing argument and adjudication procedures, if some.16 The Rules state
that it is significant to every so often appraisal the affiliation amid constricting parties, the
foundation at the back such an work out being, to recognize any problem that happen
throughout the route of scheme implementation and the decree of the similar since commence
ladder to conquer some problem before time determination assist keep away from some rise
of such problems into bigger clash.17 The CMT also had to behavior episodic discussion plus
collection communications amid the agreement organization side of the constricting parties to
help in organization their connection and statement.

The Rules mandate that the CMT should engage in the following to allow for dispute
resolution:
(a) Effective measure should be put in place through the contract to
settle disputes between the contracting parties.
(b) Mutual discussions, wherein the parties to the agreement can
come together to discuss a mutually agreeable settlement, is one of
the most effective tools for dispute resolution in terms of management
15
Rule 102, Draft PPP Rules, Department of Economic Affairs, Government of India (2011).
16
Rule 98, Draft PPP Rules, Department of Economic Affairs, Government of India (2011).
17
Appendix 12, Draft PPP Rules, Department of Economic Affairs, Government of India (2011).

10
 time, cost, range of possible solution and relationship management.
Thus it shall be the preferred method to resolve disputes through
mutual discussions at the level of the Contract Director and the chief
executive officer of the private party.
(c) Thereafter, Contracting Authority shall follow the procedures
specified in the
Concession Agreement to resolve disputes between parties.

Thirdly, the Rules even provide for an Independent Engineer, whose role and functions shall
include assisting the Parties in resolution of disputes, in a fair, impartial and efficient
manner.18

Policy Documents/legislationsod states

Various states such as Orissa,19 Haryana,20Gujarat21and Assam,22 for example insist on the
use of ADR methods for dispute resolution. The extent to which each state advocates for
ADR and infrastructural development to aid the same, varies across state to state and their
policy documents or legislations reflect the same. In this section, the dispute resolution
provision in various states of India have been discussed. The Draft Karnataka Infrastructure
Development and Regulation Bill, 2011 holds, Disputes that may arise during the execution
of the Project shall be settled through arbitration and the Concession Agreement shall contain
an arbitration clause to this effect.23

The Government of Karnataka in its Draft Industrial Policy of 2013 recognizes that for any
ADR mechanism to be effective and efficient, it has to be carried out by a knowledgeable,
qualified, impartial and neutral third party. Hence, the National Law School of India
University is one of the neutral third parties that this policy recognises to aid this initiative.

The Punjab Infrastructure (Development & Regulation) Act, 2002 has established an
authority called the Punjab Infrastructure Regulatory Authority solely for the purposes of this

18
Appendix 11, Draft PPP Rules, Department of Economic Affairs, Government of India (2011).
19
Orissa Public Private Partnership Policy, 2007, available at
http://www.pppinindia.com/pdf/reviseddraft_ppprules.pdf (Last visited on May 2, 2016).
20
PPP Policy of Haryana, available at http://pppinharyana.gov.in/ppp/PPP%20Policy-%20Haryana.pdf (Last
visited on April 30, 2016).
21
Available at http://www.pppinindia.com/state-policy-gujarat.php(Last visited on May 3, 2016).
22
Policy on Public Private Partnership, 2008, available at
http://www.pppinindia.com/pdf/assam_govt_ppp_policy.pdf(Last visited on April 29, 2016).
23
Provision 20(3), Draft Karnataka Infrastructure Development and Regulation Bill, 2011.

11
legislation.24 Among other functions, this Authority has the authority of a civil court to give a
ruling upon disputes inter-se two or more Concessionaires, operative of transportation
scheme, the State Government and the Board. 25 The Bihar Infrastructure Development
Enabling Act, 2006 provides for a Conciliation Board to be put up which shall help the
Government Agency, or Local Authority and some Developer in an self-governing and
neutral way to arrive at a friendly resolution of their disputes happen beneath the Act or the
Concession Agreement.26 Each arrangement previous to the Board shall be believed to be a
judicial happening and it shall be believe to be a Civil Court. Jurisdiction of subordinate
courts are disqualified by on condition that that disagreement resolution or disagreement
decree in high opinion of one matter under the Act shall be pay attention to just in the HC and
by refusal of supplementary court or courts secondary to the HC. The Orissa Industrial Policy
mandates that the State Government shall comprise a Shilpa Adalat constituting of the
Secretary of Industries and other officials, which shall get together all the month and listen to
the moans/criticism of shareholder and make its advice to the suitable power for thought and
even out of the complaint. 27 This is by means of a sight to given that a opportune and
effectual disagreement/ complaint decree device for manufacturing.

The Andhra Pradesh Infrastructure Development Enabling Act, 2001 has set up a
Conciliation Board, which has the authority of a civil court.28 The resolution reward shall
contain the identical result as that of an arbitral prize under the Arbitration and Conciliation
Act and there is a slab on the parties to way out to arbitral or legal procedures throughout the

24
Section 4, The Punjab Infrastructure (Development & Regulation) Act, 2002.
25
Section 14(1)(v), The Punjab Infrastructure (Development & Regulation) Act, 2002.
26
Available at http://industries.bih.nic.in/Acts/AD-01-19-12-2006.pdf (Last visited on May 5, 2016).
27
Provision 26, The Orissa Industrial Policy.
28
Section 37, The Andhra Pradesh Infrastructure Development Enabling Act, 2001 states as follows:
The functions of the Board shall be as follows:
(a) To assist the Government Agency, or Local Authority and any Developer in an
independent and impartial manner to reach an amicable settlement of their disputes
arising under the Act or the Concession Agreement;
(b) The Board shall be guided by principles of objectivity, fairness, obligations of
the parties, the usages of the trade and the circumstances governing the disputes
including the good business practice prevalent in the national and international
field covered by the dispute between the parties;
(c) The Board may conduct the conciliation proceedings in such a manner as it may
consider appropriate, taking into account the circumstances of the case, the wishes
of the parties that may be expressed and for reaching a speedy settlement of the
dispute;
(d) The Board may, at any stage of the conciliation proceeding, make proposals for
settlement of dispute. Such proposal need not be in writing and need not be
accompanied by any statement of reasons therefor.

12
reconciliation process.29Section 41 of the Act goes on to state:

Any dispute, claim or difference arising out of or in connection with

or in relation to any Concession Agreement or contract between the
Government Agency or Local Authority on the one hand and the
Developer on the other hand, shall as far as possible, be amicably
settled between the parties. In the event of any dispute, claim or
difference not being amicably resolved, such dispute, claim or
difference shall be referred to the Conciliation Board.

Post the above proceedings, whilst it comes into view to the floorboard that present subsist a
likelihood of a resolution, the conditions and circumstances of which might be satisfactory to
the party, the Board shall devise the stipulations and setting of the probable resolution and
present the identical to the gathering for their comments. After in receipt of the comments of
the parties, if any, the Board might formulate the stipulations and situation of the probable
resolution.30 The completion concord shall include the identical standing and outcome seeing
that condition it is an arbitral reward on arranged stipulations on the material of the
disagreement provide by an arbitral trial under Section 30 of The Arbitration and Conciliation
Act, 1996.31

The Haryana state government has constituted the Committee of Secretaries on Infrastructure
(CoSI), comprising of a cluster of Secretaries beneath the Chairmanship of the Chief
Secretary, Government of Haryana to smooth the progress of infrastructure development in
the State in PPP. 32 One of the functions of the CoSI is to approve and supervise dispute
resolution apparatus and to decide concerns connecting to development support procedure.

29
Section 49 (1) states, The parties shall not initiate during the conciliation proceedings any arbitral or
judicial proceedings in respect of any dispute, claim or difference i.e. the subject matter of the conciliation
proceedings. See also Section 50 of the Act.
30
Section 46, The Andhra Pradesh Infrastructure Development Enabling Act, 2001.
31
Section 47, The Andhra Pradesh Infrastructure Development Enabling Act, 2001.
32
See provision 8.2.2, Guidelines for Public Private Partnership in Haryana, available
athttp://pppinharyana.gov.in/ppp/PPP%20Policy-%20Haryana.pdf (Last visited on May 5, 2016).

13
Policy documents/legislations in various
sectors

In the road sector

A. Government of Indias Guidelines for Investment in the Road Sector
The Government of Indias Guidelines for Investment in the Road Sector33 has laid down an
elaborate process for dispute resolution between the parties in a PPP involving roads. It has
been described as follows:

1. Mediation by the Independent Engineer: If anydispute arises between the parties, it is

in the firstplace resolved by the mediation of the Independent Engineer. Any dispute,
which is notresolved by mediation of the Independent Engineer, is resolved by
amicable resolution.
2. Amicable Resolution: Any dispute, difference orcontroversy of whatever nature
between theparties, arising under, out of or in relation to the project concession
agreement (PCA) is attemptedto be resolved amicably in accordance with
theprocedure set forth in the dispute resolution mechanism. Either party may require
such disputeto be referred to the Chairman, NHAI and the Chief Executive Officer of
the concessionaire in the interim, for amicable settlement.
3. Arbitration: Any dispute, which is not resolvedamicably, shall be finally settled by
bindingarbitration under The Arbitration Act. Thearbitration shall be carried out by a
panel of threearbitrators, one to be appointed by each party andthe third to be
appointed by the two arbitratorsappointed by the parties.
4. Dispute Review Board: The Board shall compriseof three members, experienced with
the type ofconstruction involved in road works, and with theinterpretation of
contractual documents.
5. Dispute involving foreign contractors: In thecase of a dispute with a foreign
contractor, the dispute shall be settled in accordance with theprovisions of the
UNCITRAL Arbitration Rules. Thearbitral tribunal shall consist of three
arbitrators,one each to be appointed by the employer and the contractor and the third
arbitrator chosen by thetwo arbitrators so appointed by the parties, who shall further

33
Guidelines for Investment in the Road Sector, Ministry of Shipping Road Transport and Highways, available
at http://www.nhai.org/doc/28Oct09/NHAI-Final.pdf(Last visited on May 07, 2016).

14
 act as the Presiding Arbitrator.

B. Model Concession Agreement for Small Road Projects

The Model Concession Agreement for Small Road Projects allows for amicable resolution in
which either party to the contract may refer the dispute to the DG (Road Development) GoI
and the Chairman of the Board of Directors of the Concessionaire, for the occasion being for
friendly resolution.34 Several Disputes, which are not determined cordially, shall be lastly
established by obligatory arbitration in the Arbitration and Conciliation Act, 1996. There will
be three arbitrators, each individual will be chosen by every Party and the third one will be
selected by the two arbitrators chosen by the Parties. The process to be pursued inside the
arbitration, as well as selection of arbitrator / arbitral hearing, the set of laws of proof which
are to be valid shall be in agreement with the Arbitration and Conciliation Act, 1996. Any
verdict or decision resultant from arbitration will be last and compulsory on the Parties. The
Parties hereto surrender, to the degree permitted by rules, any privileges to plea or to appraise
of such reward by every court or tribunal. The agreement between the parties is that the
arbitral grant might not be in favour of the Parties to the arbitration taking place or their
resources where they might be established and that a ruling ahead of the arbitral gift might be
entered in any trial having authority thereof.

C. Recommendations of the Chaturvedi Committee Report

A committee under the chairmanship of Mr. B.K. Chaturvedi was formed to give suggestions
on development of the dispute decree process with regard to PPP in roads.The committee
developed its suggestions to categorize the cases stood on the quantity engaged in these
disagreements. Accordingly,
a. Category A disputes Where amount involved is less than Rs.10 crore or 5% of
contract value (whichever is lower) to be referredto a committee consisting of a
retired High Court judge, former CAG, vigilance commissioner and technical expert.
b. Category B disputes Where amount involved is between Rs. 10 crore and Rs. 100
crore. In such cases, the recommendations of the arbitration tribunal may be
accepted.35

The commission has suggested appraisal of the decisions by the dispute resolution board by
an independent technical expert to enhance the reliability in the procedure of dispute decree.

34
Article 19, Model Concession Agreement for Small Road Projects, available at
http://www.nhai.org/concessionagreement.htm(Last visited on May 7, 2016).
35
See Pricewaterhouse Coopers, The road ahead: Highways PPP in India (2012).

15
In the ports sector
The Ministry of Shipping has proposed the implementation of the Ports Regulatory Authority
Bill, 2011. The Bill gives for the institution of an appellate tribunal, which is to be called as
the Port Regulatory Authority Appellate Tribunal, to arbitrate disputes when contracts for
PPP for development of ports are awarded. Its decision can barely be disputed in the SC.36

Applicability of general law

Rules prevailing over usual business transactions like the Indian Contract Act, 1872, Sale of
Goods Act, 1930, Negotiable Instruments Act, 1881, etc., will also have a comportment on
Public Private Partnership planning. In count, a variety of laws prevailing over dispute reso-
lution like the Code of Civil Procedure, 1908, Specific Relief Act, 1963 and Arbitration and
Conciliation Act, 1996 are additionally relevant. In accumulation there is also the technique
of arbitration wherein the party can get its differences corrected through an intermediary
chosen by the HC envisaged in that HCs mediation laws. However, since the achievement of
reconciliation and mediation being legally non-binding, determined on the elasticity and
acceptance of the resolution by the two sides.

Other resorts
The FIDIC structure of agreement is present for self-governing engineer who shall be an
authority of balancing the interests of the two parties by shaping, verifying and endorsing the
way in which the bond is overseen.37It is also pertinent to remind that the subsequent Report
of the Chaturvedi Committee on the quicker execution of NHDP also highlights the
acceptance of FIDIC form in every type of agreement, where the engineer embraces an
important position in the adjudication of disagreements at the initial stage.38

36
Ernst & Young, New innings for the Indian ports sector (2011).
37
Federation Internationale Des Ingenieurs-Conseils is an organisation of consulting engineers. The FIDIC is a
well known in the construction engineering industry for its work in defining conditions of Contract for the
Construction Industry worldwide. See D. Spasveski, The Role of the Engineer in the FIDIC conditions of
contract, 6(1), IUSTINIANUS PRIMUS LAW REVIEW, 1, 2 (2010).
38
Supra note 35.

16
 Conclusion
Arbitration awards are almost invariably appealed against, resulting in long drawn out
disputes that often last 3 to 10 years. As per available data, over Rs. 21,000 crore worth
disputes involving 870 cases are pending for resolution in the Road sector alone, involving
PPPs. 39 There is an escalating propensity to appeal on reason of misconduct from the
arbitrators because of lack of quality control of arbitrators credentials and proficiency, no
help is obtainable in supervision of arbitrators fees and there is deficiency in regulation of
arbitrators improvement.40 Absence of a stipulation for an impartial organization to manage
and oversee the adjudication. While the government advocates ADR methods, in many cases
it fails to elaborate how this procedure is to be used. The non existence of a comprehensible
and swift dispute resolution apparatus is mounting expenditure of developmental plans and
discouraging financiers attitude.

The Report of the Committee on Revisiting and Revitalising Public Private Partnership
Model of Infrastructure 41 suggests the following recommendations to make the dispute
resolution process more effective:

a. Sector specific monitoring and regulatory committees set up as a platform to

periodically revisit contractual and commercial relationships between parties.
b. The monitoring and regulatory committee and the dispute resolution mechanism must
be independent of involvement in the public sector.
c. For effective and speedy dispute resolution independent sector regulators are
essential.42

The researchers suggestions are that the Government must mull over creation of a lone
quasi-judicial authority for each and every one of infrastructure divisions. This authority will
have statutory authority to decide disagreements involving the establishments and private
authorities. This power will create the dispute resolution course further efficient and may

39
Twelfth Fifth Year Plan (2012-2017), Planning Commission, Government of India, Vol. 2, 367 (2013).
The number of disputes in the PPP projects has shown a significant increase from 56 cases (involving Rs.803
crore) in 2013 to 116 cases (involving Rs. 11,580 crore) in 2015.
40
Id
41
Department of Economic Affairs, Government of India, The Report of the Committee on Revisiting and
Revitalising Public Private Partnership Model of Infrastructure (2015).
42 Id.

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speed up project implementation and decrease expenses. Another solution may be to use the
Institutional Arbitration system according to which appointment of arbitrators is done from
international, national or regional division. Other aspects of this structure are having a system
of principles that attach the arbitrators and a prearranged plane of cost. This system can
develop the value of arbitrators and uphold secure regulation and scrutiny of arbitrators
improvement.

Hence, this project stressed on the importance of Public Private Partnerships to the
development of the infrastructure sector in India, while dealing with legal issues pertaining to
PPPs, specifically that of dispute resolution. This project analysed the a variety of
performances of dispute resolution authorized in central and state legislations, policy
credentials and industry practices. ADR methods curtail the costs and time delay that
litigation ensues and it has experts in the infrastructural sectors aiding in reaching decisions
and it possesses procedural flexibility, which are features litigation cannot provide.
Nonetheless, the system of dispute resolution in PPPs in India via ADR suffers defects as
listed above and recommendations to aid the same have also been mentioned in this project.

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 Bibliography

Articles
1. D. Spasveski, The Role of the Engineer in the FIDIC conditions of contract, 6(1),
IUSTINIANUS PRIMUS LAW REVIEW (2010).

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