[The following guest post is authored by Paavni Anand, a 4th Year B.A., LL.B. student at the
National University of Juridical Sciences, Kolkata]
National University of Juridical Sciences, Kolkata]
President Pranab Mukherjee has
promulgated the Arbitration and Conciliation Amendment Ordinance, 2015 to amend
the Arbitration and Conciliation Act 1996. The Ordinance is largely aimed at
encouraging the ease of doing business in India in a bid to promote foreign
investment. The following major amendments that have been proposed:
promulgated the Arbitration and Conciliation Amendment Ordinance, 2015 to amend
the Arbitration and Conciliation Act 1996. The Ordinance is largely aimed at
encouraging the ease of doing business in India in a bid to promote foreign
investment. The following major amendments that have been proposed:
1. A distinction has been made as regards jurisdiction for
international commercial arbitration, and for all other matters. For the
former, the appropriate High Court shall have jurisdiction, whereas for the
latter, the principal Civil Court of original jurisdiction or the High Court
shall have jurisdiction.
international commercial arbitration, and for all other matters. For the
former, the appropriate High Court shall have jurisdiction, whereas for the
latter, the principal Civil Court of original jurisdiction or the High Court
shall have jurisdiction.
2. The following sections shall apply to international commercial
arbitration even when the place of arbitration is not in India:
arbitration even when the place of arbitration is not in India:
– Section 9 which deals with interim measures by the Court;
– Section 27 that deals with Court assistance in taking evidence;
– Section 37(1)(a) which states than an appeal shall lie on orders
granting or refusing to grant measures under Section 9; and
granting or refusing to grant measures under Section 9; and
– Section 37(3) which states that no second appeal shall apply in
such cases.
such cases.
3. In case the arbitration agreement or certified copy thereof is
not available to the party applying for reference for arbitration, such party
can file an application requesting the Court to call upon the other party to
produce the same.
not available to the party applying for reference for arbitration, such party
can file an application requesting the Court to call upon the other party to
produce the same.
4. If the court passes any interim measure under Section 9, the
arbitral proceedings must commence within 90 days of the court doing so.
arbitral proceedings must commence within 90 days of the court doing so.
5. No application for interim measure under Section 9 shall be
entertained after the arbitral tribunal has been constituted unless the
remedies under Section 17 have been rendered inefficacious.
entertained after the arbitral tribunal has been constituted unless the
remedies under Section 17 have been rendered inefficacious.
6. The High Court may frame rules for the purpose of determination
of fees of the arbitral tribunal and the manner of its payment to the arbitral
tribunal. However, such rules shall not apply to international commercial
arbitration and in arbitrations where parties have agreed for determination of
fees as per the rules of an arbitral institution.
of fees of the arbitral tribunal and the manner of its payment to the arbitral
tribunal. However, such rules shall not apply to international commercial
arbitration and in arbitrations where parties have agreed for determination of
fees as per the rules of an arbitral institution.
7. The provisions to ensure independence of arbitrators have been
elaborated upon under Section 12. A Fifth Schedule has also been inserted
enumerating certain grounds for the same. A potential arbitrator must disclose
in writing circumstances such as the existence of direct or indirect, past or
present relationship with any of the parties or in relation to the subject
matter of the dispute which is likely to give doubts as to independence.
Further disclosures shall be made in writing with respect to circumstances
which are likely to affect the ability of arbitrators to devote time towards
the arbitration. The applicability of this sub-section can be waived by the
parties in writing, subsequent to the dispute having arisen.
elaborated upon under Section 12. A Fifth Schedule has also been inserted
enumerating certain grounds for the same. A potential arbitrator must disclose
in writing circumstances such as the existence of direct or indirect, past or
present relationship with any of the parties or in relation to the subject
matter of the dispute which is likely to give doubts as to independence.
Further disclosures shall be made in writing with respect to circumstances
which are likely to affect the ability of arbitrators to devote time towards
the arbitration. The applicability of this sub-section can be waived by the
parties in writing, subsequent to the dispute having arisen.
8. Interim measures ordered by the arbitral tribunal have been
delineated as follows:
delineated as follows:
– Appointment of a guardian for a minor or person of unsound mind;
– Measures protecting goods, or amount of money, or property which
is subject matter of the dispute;
is subject matter of the dispute;
– Interim injunction or appointment of receiver;
– Such other measures for protection.
9. A time limit of twelve months from the date of entry of the
tribunal upon reference has been provided under Section 29A before which the
award shall be made by the tribunal. Additional fees shall be provided to the
tribunal if an award is made between six months. If the parties give consent to
an extension, it shall be made for a further period up to six months.
tribunal upon reference has been provided under Section 29A before which the
award shall be made by the tribunal. Additional fees shall be provided to the
tribunal if an award is made between six months. If the parties give consent to
an extension, it shall be made for a further period up to six months.
10. Fast track procedures have been instituted under Section 29B wherein
parties may agree in writing to have their dispute resolved by such procedures.
The award shall be made within six months. There shall be no oral hearing, and
decisions shall be made on the basis of written pleadings, documents, and
submissions filed by the parties, along with any further information called for
from the tribunal. Oral hearings shall be made if all the parties agree and the
tribunal finds it necessary. A new Section 31A has been added giving specific
provisions for costs regime.
parties may agree in writing to have their dispute resolved by such procedures.
The award shall be made within six months. There shall be no oral hearing, and
decisions shall be made on the basis of written pleadings, documents, and
submissions filed by the parties, along with any further information called for
from the tribunal. Oral hearings shall be made if all the parties agree and the
tribunal finds it necessary. A new Section 31A has been added giving specific
provisions for costs regime.
11. The ambit of setting aside an award for being in conflict with
public policy under Section 34 has been broadened to include not only
contravention with Section 75 or Section 81, but also if it is in contravention
with the “fundamental policy of Indian law” or if it in conflict with the “most
basic notions of morality or justice”.
public policy under Section 34 has been broadened to include not only
contravention with Section 75 or Section 81, but also if it is in contravention
with the “fundamental policy of Indian law” or if it in conflict with the “most
basic notions of morality or justice”.
The proposed amendments would be a step
forward in making arbitration an easier, faster and more cost effective method
of dispute resolution, especially to attract foreign investors to invest in
India.
forward in making arbitration an easier, faster and more cost effective method
of dispute resolution, especially to attract foreign investors to invest in
India.
The full text of the ordinance can be
accessed here.
accessed here.
– Paavni Anand
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