Ica-synopsis.docx

DENNY ALEXANDER BA0150011 INTERNATIONAL COMMERCIAL ARBITRATION (SYNOPSIS)

RETROSPECTIVE APPLICABILITY OF THE 2015 AMENDMENT ACT

I.

Introduction

The Amendment act , 2015 which was welcome change in the Indian Law of Arbitration due to its compliance with the International Standards. The 246th Law Commission of India report which had reviewed in detailed the provisions of the Arbitration and Conciliation Act , 1996 presented or opined over several inadequacies observed in the function of the 1996 Act. prior to the 246th Report , the Commission had recommended various amendments to the Act in its 176th Report – Arbitration and Conciliation ( Amendment ) Bill , 2001.1 The government introduced the Arbitration and Conciliation ( Amendment ) Bill 2003.2 The justice Saraf Committee report referred the

bill to the standing committee on Public Grievances , Law and Justice for further considerations. The provisions were considered to be insufficient and the bill being withdrawn stated that it has to be reintroduced after considering the recommendations. Amendment act which has now come into force on October 23 , 2015 3 with good intentions , the practicality of the act will be clear over a period of time. There exist certain hurdles considering its effect on ongoing arbitration proceedings.

4

The

predecessor of the Amendment Act , the Arbitration and Conciliation Ordinance 2015 shared the same anomaly which merely stated that it shall come in force at once, and lacked clarity with regard to applicability to pending arbitrations and court related proceedings. The Law Commission recommended Section 85 – A which intended to clarify the scope of operations of the amendments with respect to pending arbitration was orphaned by the ordinance.5 To recognize the challenge section 26 was imposed , this Law Commission of India , Report No. 176 – The Arbitration and Conciliation ( Amendment) Bill , 2001 (2001) , available at http://lawcommissionofindia.nic.in/arb.pdf. 2 The Arbitration and Conciliation ( Amendment) Bill , 2001 ( India). 3 Arbitration and Conciliation ( Amendment ) Act , No.37 of 2015 4 See Electrosteel Castings Ltd. v. Reacon Engineers (India) Pvt. Ltd., A.P. No. 1710 of 2015, Jan. 14, 2016 (Calcutta High Court) (India); New Tirupur Area Development Corporation Limited v. Hindustan Construction Co. Ltd., A. No. 7674 of 2015, O.P. No. 931 of 2015, Jan 27, 2016 (Madras High Court) (India); 5 ministry of law and justice, legislative department, arbitration and conciliation (amendment) ordinance, 2015 (October 23, 2015), available at http://lawmin.nic.in/la/Arbitration.pdf. See also, LAW COMMISSION OF INDIA, REPORT NO. 246 – AMENDMENTS TO THE ARBITRATION AND CONCILIATION ACT, 1996 58 (2014), available at http://lawcommissionofindia.nic.in/reports/Report246.pdf [hereinafter ―246th LAW COMMISSION REPORT‖]; Arbitration and Conciliation Act, No. 26 of 1996 § 85(2)(a) (India). 1

DENNY ALEXANDER BA0150011 INTERNATIONAL COMMERCIAL ARBITRATION (SYNOPSIS)

research will examine the interpretation and anamolies of Section 26 with help of relevant case law as the the fundamental in this research would be whether the Amendment Act applies to arbitration related court proceeding before October 23 ,2015 and whether it applies to court proceedings commenced before October 23 , 2015.

II. Research Questions 1) Whether the Amendment Act(2015) applies to arbitration related court proceeding before October 23 ,2015 ? 2)

Whether it applies to court proceedings commenced before October 23 , 2015?

III. Research Objectives 1)

To study the scope of the amendment act of 2015 and its applicability to court proceedings.

2)

To understand the tautology behind section 26 of the act.

IV. Hypothesis There is a disparity in the implementation of section 26 and its retrospectivity and to analyse its applicability with respect to arbitration related court proceeding.

V. Research methodology The research is doctrinal in nature, with authority stated from Primary sources like conventions and statutes.

DENNY ALEXANDER BA0150011 INTERNATIONAL COMMERCIAL ARBITRATION (SYNOPSIS)