Application of Alternative Dispute Resolution in solving Environmental Problems
[Vol 4/Issue 1/ November 2018]
Amity Law School, Noida
Email id: firstname.lastname@example.org
Environmental problems are among the most complex and challenging areas of conflict in our modern world. They can include important elements such as science, sociology, economics, history and culture, property rights and legal or regulatory constraints. They can involve private individuals, the general public, multiple regulatory jurisdictions and special interests. ADR is being increasingly applied to resolve environmental disputes.
If we search it on International level we find that it is evident from various illustrative example like once in California, the Dispute Resolution Service of the Federal Energy Regulatory Commission (FERC) and the FERC Office of Litigation initiated an ADR process to re-license several hydroelectric facilities.
Author wants to discuss in this paper that settlement of dispute by applying ADR process is an effective method and is more fruitful rather than old adversarial system of justice dispensation
Keywords:- ADR, Disputes, Arbitration, Environment
The term “Alternative Dispute Resolution” is used to cover a number of non-adjudicatory approaches to conflicts.[ii] Accordingly, ADR mechanisms include various means for resolving disputes outside of conventional means, i.e. litigation. ADR tools are meant to enhance dispute settlement through the use of mediation, negotiation, conciliation, good offices and arbitration, to name only a few.As an alternative to litigation, ADR mechanisms may be more appropriate to deal with environmental disputes as environmental litigation is often complex, lengthy and expensive. Alternative processes for resolving environmental disputes offer some benefits as reduction of the judicial backlog, time and costs savings, flexibility, parties having more control on the procedure, avoidance of the national biases, etc.[iii]
PRINCIPLES OF DISPUTE RESOLUTION
Nearly all types of dispute resolution rely on common principles to protect the integrity of the process. The ADR procedure consists of four basic methods of dealing with disputes which are:
New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution of disputes takes place usually in private and is more viable, economic, and efficient.
It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by the Chief Justice of India. It said: “The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial”.In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation.[i] The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial system. It is a fast track system of dispensing justice. These techniques have been developed on scientific lines in USA, UK, France, Canada, China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant movement in these countries and has not only helped reduce cost and time taken for resolution of disputes, but also in providing a congenial atmosphere and a less formal and less complicated forum for various types of disputes.
The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do not develop strained relations, rather they maintain the continued relationship between themselves.
Arbitration and Conciliation Act, 1996 is the parent act which mostly deals with the ADR process.
Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.)
Moreover, “While Arbitration and Conciliation Act, 1996” is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach”. It roughly means “People’s court”.
India has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, where by mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they think fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences.
The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 because it is a judgement by consent.
All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.
ADR METHODS AND THEIR BENEFITS FOR ENVIRONMENTAL DISPUTES
As an alternative to litigation, ADR mechanisms may be more appropriate to deal with environmental disputes as environmental litigation is often complex, lengthy and expensive. Alternative processes for resolving environmental disputes offer some benefits as reduction of the judicial backlog, time and costs savings, flexibility, parties having more control on the procedure, avoidance of the national biases, etc
Indian approach to environmental disputes
Theveryseriousthreatsposedtoenvironmentinourcountryasaresultofrapidpopulationgrowth and urbanization, expanding infrastructure, industrial pollution, trans-boundaryair pollution, water pollution, trans-boundary transport of hazardous waste, unsustainabletourism, depletionofnaturalresourcesincludingover-fishing,desertificationandlossofbiodiversity, which under current circumstances are exceeding the carrying capacity of the environment,hasledtothevoluminouslitigationspendinginallcourtsofthecountry.MostofthelitigationispendingbeforetheSupremeCourtofIndiatogetridofpollutedenvironmentortomakethe bureaucracytopayheedtotheproblemsfacedbycitizensinthecountry.
- Urbanization in India[v]
- Municipal Management[vi]
- Conflict between development & conservation
- Solid Waste Management
- Sanitary conditions[vii]
- Industrial and other commercial activities carried out at residential places
- Air & noise pollution[viii]
Organizations/Institutions for DisputeResolution in India
- Administrativebodies like PublicGrievancesCell,CentralPollutionControlBoard etc.
- Tribunals (NGT)[ix]
- Nationalenvironmentappellateauthority (1997)[x]
- Mediation–conciliation:TheCouncilofState Governments(CSG)oftheUS,incollaborationwiththe US-AEP(USAsiaEnvironmentPartnership),apublic-privateinitiative,haslaunchedacourt-annexedmediation-conciliationprogrammeinChennai(TamilNadu),undertheaegisoftheMadrasHighCourt,tohelpresolvependingenvironmentcases.Besidesabovearrangement,theEnvironmentBoardisconstitutedbytheChiefJusticeoftheMadrasHighCourtcomprisingofonejudge,counselfortheTamilNaduPollutionControlBoard,acityNGO, aHighCourtlawyerandRegistrar oftheHighCourt,NationalInstituteofConciliation Machinery(NICM),Industrial ConsultancyofTamil Nadu(ITCOT)
NGOsandotherinstitutionsIntheearly1960’sonly ahandfulNGOsexisted.By1983about250environmentalNGO’shadregisteredwiththegovernment.Theirnumbersandinfluencecontinuetogrowintothe1990’s.[xi] Besides,NGOs,thereareinstitutionsaffiliatedtoWWF-India21whoarevery activeinthearea ofenvironment.[xii]
Statutory basesof environmental laws in India
Few are as follows:
• The PublicLiabilityInsuranceAct,1991,
International treaties providing for ADR methods for environmental conflicts
The following section provides a non-exhaustive list of different international treaties which provide for dispute resolution of international environmental disputes and which rendered famous environmental cases or have been annexed rules establishing ADR means to specifically settle environmental disputes. The Permanent Court of Arbitration (PCA) is the oldest institution for international dispute resolution. Taking into account the growing importance of environmental affairs in the modern world, the PCA has established a very elaborate Environmental Dispute Resolution mechanism, by adopting several Optional Rules to this effect. Those Rules are optional and emphasize flexibility and party autonomy.
The main activity of the PCA in the field of international environmental law is the promotion of international arbitration as dispute settlement mechanism for international environmental matters. In this field, the PCA is acting, or has acted, as registry in: Ireland v. United Kingdom (“MOX Plant Case”); Malaysia v. Singapore; Barbados v. Trinidad and Tobago; and Guyana v. Suriname.
• The International Court of Justice Statute (ICJ)
Few cases involving environmental issues have been brought to the ICJ since it was established in 1945. The most well-known include the Nuclear Test Cases (1974 and 1995), the Nuclear Weapons Advisory Opinion (1996), the Gabcikovo-Nagymaros Case (1997) and the Pulp Mills Case. It should be noted that the decisions of the Court have often been criticized for being too conservative, failing to adopt progressive legal interpretations which might have led to important developments for International Environmental Law.
Despite the importance of some of these decisions, overall environmental cases have never dominated the ICJ’s docket. In 1993 a Chamber for Environmental Disputes was established under Article 26, paragraph 1, of the Statute, within the Court but has never been used. Thus, in 2006 the Court decided to cease the usual practice of holding annual elections for the Chamber’s membership.
• United Nations Convention for the Law of the Sea (UNCLOS)
The International Tribunal for the Law of the Sea (ITLOS), established under the UNCLOS, proposes a fast and flexible dispute resolution process. It has compulsory jurisdiction over cases brought under the provisions of the UNCLOS. The tribunal has already heard several cases concerning environmental issues, for instance the case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union).
• Investment Treaties and the Investor-State Dispute Settlement (ISDS)
In this sub-section, we will have a look to the investment treaties that provide for the resolution of environmental conflicts. They often refer to the arbitration rules established under UNCITRAL or ICSID (as for instance, the article 26 of the Energy Charter Treaty).
• Energy Charter Treaty
The Energy Charter Treaty contains a comprehensive system for settling disputes for matters covered by the Treaty. The starting point for all these mechanisms is the desirability of an amicable agreement between the parties to any dispute. However, in the event that this does not prove possible, the Treaty provides a number of additional ways to promote and reach a settlement. Environmental issues are regulated by the Article 19 of the Energy Charter Treaty.
• The North-American Free Trade Agreement (NAFTA) A commission on environmental co-operation (the Commission) has been established under the NAFTA. The Commission may receive and consider submissions from any NGO or individual asserting that a NAFTA party is failing to effectively enforce its environmental law, and may request a response from it. It can also produce factual records of a party’s misbehavior and render it publicly available.
An example of an ad hoc arbitration established under the NAFTA is the case of S.D. Myers Inc. v. Canada. We can also cite the Glamis Gold, Ltd. v. United States (where the arbitration rules of the UNCITRAL were used). We will certainly not forget to mention the Methanex Corp. v. United States Case. Those cases involved important environmental issues such as respectively, the transboundary movement of waste, impact on underground resources, and pollution of water.
As illustrated throughout this article, there is an increasing trend to use Alternative Dispute Resolution methods for the settlement of environmental issues.
Many treaties provide for different mechanisms of resolution, including not only arbitration but also conciliation, consultation, and negotiation. It is clear that these mechanisms will further develop in the forthcoming years as environmental problems are of growing concerns nowadays and ADR offer some great benefits in comparison of judicial determination.
[i] http://www.mediate.com/articles/sweckerD1.cfm?nl=108 Last visited on 11/10/2016
[ii]F. P. Grad, “Alternative Dispute Resolution in Environmental Law”, Columbia Journal of Environmental Law, 1989, p. 157.
[iii]. ibid 3
[iv] http://pib.nic.in/feature/feyr2002/fjan2002/f140120021.html …last visited on 04/10/2016
[ix] Year 2010
[xiv] https://www.linkedin.com/pulse/use-adr-methods-international-environmental-disputes-johan-billiet ,last visited on 10/10/2016
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