Introduction
The act contains provisions to deal with domestic and international arbitration, and defines the law for conducting conciliation proceedings. The Table given below deals with differences between the 2015, Amendment Act and the 2018, bill. Further the note also discusses about:
- Initiation of 12 month period in an arbitration trial
- Evolution of the Concept of Interim Relief (lacunae in the application of interim reliefs)
- Flow charts wrt procedure of trial of civil court proceedings and Arbitration proceedings
|
| 2015 AMENDMENT ACT | 2018 AMENDMENT BILL |
| Section 29A- Increase in Time period of arbitration proceedings | Time limit of 12 months for conclusion of arbitral proceedings- includes making the award, from the date when an arbitrator enters into ref | Section 29A– 12 month period shall begin from the date of completion of pleadings, also excludes international arbitration from restricted time period |
| PART IA, Sections 43 A to 43J- Arbitration Council of India |
| Presided by- Judge of HC/SC includes Chief Justices or, eminent person/ government nominees- promotes institutional arbitration; 43D (Duties and functions of the Council) – measures to promote ADR mechanisms, guidelines for uniformity. |
| Section 42A- Confidentiality of proceedings | No express provision wrt confidentiality of proceedings | Section 42A– provide for confidentiality of proceedings except for awards |
| Section 42B- Unnecessary legal proceedings |
| 42B- avoids unnecessary legal proceedings;applies to both arbitral tribunal & arbitrator(actions done in good faith will be immune) |
| Section 87- Retrospective effect | Not clear on when 2015 amendment will be applicable | Inclusion of Section 87- applies to court proceedings arising out arb. Prior amendment act of 2015, the section essentially states that unless otherwise the parties agree 2015 amendment act will not apply to- Arb. proceedings Commenced before amendment act,2015 |
| 8th Schedule- new schedule inserted wrt Qualifications & Experience of Arbitrator |
| Qualifications of an arbitrator General norms applicable to arbitrator |
- Interpretation of section 29A
Section 29A of the 2015 amendment act provides that an arbitral award must be passed within a time limit of 12 months from the date of entering upon the reference (which is effective from the day on which the tribunal is constituted).1
- Wrt to competency of Courts to deal with arbitration matters
In the case of State of MH v. Atlanta Ltd. (2014) 11 SCC 619- Supreme Court decided that the competent court for the purpose of arbitration act would be the High Court and Supreme Court and not the District Court. Section 2(1)(e) of the Arbitration Act has made the choice in favour of the High Court. This in fact impliedly discloses a legislative intent. To our mind therefore, it makes no difference, if the principal Civil Court of original Jurisdiction, is in the same district over which the High Court exercises original jurisdiction, or some other district. In case an option is to be exercised between a High Court on the one hand, and a District Court as Principal Civil Court of Original Jurisdiction on the other, the choice under the Arbitration Act has to be exercised in favour of the High Court.
– Evolution of the Concept of Interim relief
The power of an arbitral tribunal to grant interim measures is dealt with in Section 17. Prior to amendment, the Section was quite “open-ended” in the scope of reliefs that could be provided; it permitted the tribunal to issue any interim measure of protection. However, courts and arbitral tribunals took the view that the scope of the interim measures that may be granted under Section 17 was more limited than that under Section 9. Consequently, various arbitral tribunals arrived at the incorrect conclusion that they could not pass orders such as a grant of security.
The 2015 Amendment Act has introduced much needed changes with respect to grant of interim reliefs by an arbitral tribunal and has brought clarity on the kind of reliefs that may be granted, bringing them at par with the interim reliefs that may be granted by courts under Section 9 of the Act. The Kerala High Court, in one of its judgments held that, the arbitral tribunal cannot pass an award to enforce its own award. The made the process of enforcement cumbersome. The 2015 Amendment Act states that the arbitral tribunal has the power to order interim measures even after the making of arbitral award. This is inconsistent with Section 32 which mandates that the arbitral tribunal is terminated after the making of the final award.
Therefore, the 2018 Amendment Bill has reconciled the inconsistency between Sections 17 (which bestows tribunals with the same powers as that of a civil court in the matter of granting interim relief) and 32(3) of the Principal Act (which states that an arbitral tribunal ceases to exercise jurisdiction once the proceedings before it stand terminated) by restricting the jurisdiction of a tribunal to grant interim measures only during the course of the proceedings. In Section 29A, the 2018 Amendment Bill has recommended that the time limit of 12 Months imposed on arbitrators to draft the award start from the date of completion of pleadings instead of the date of reference to arbitration, as introduced in 2015. This will ensure that arbitrators are not pressurized by strict deadlines and that they are able to hear a case at different lengths depending upon its complexities. The 2018 Amendment Bill however has suggested the exclusion of international commercial arbitration from the purview of Section 29A. While this move can be construed as providing an incentive for foreign parties to have their disputes resolved in India without any time constraints, introducing a different set of timelines for international arbitration suggests discrimination against a purely domestic arbitration. It also presumes that cases are always more complex in the former category than the latter, which may not be the case.
1 As per sub section (2) of section 29A, an arbitral tribunal is deemed to have entered upon reference on the date on which all the arbitrators have received notice in writing, of their appointment.
The flowchart gives a bird eye’s view of Process of Trial of Civil Court cases.
The flowchart gives a bird eye’s view of Process of Trial of Civil Court cases.
The flowchart gives a bird eye’s view of the Stages of Arbitration proceedings
