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An Insight into 2015 Amendment Act and 2018 Amendment Bill Arbitration and Conciliation Act, 1996

Introduction to Arbitration & Conciliation (Amendment) Bill,2015 & 2018
In an attempt to make arbitration a preferred mode of settlement of commercial disputes and making India a hub of international commercial arbitration, the President of India on 23rd October 2015 promulgated an Ordinance ("Arbitration and Conciliation (Amendment) Ordinance, 2015) amending the Arbitration and Conciliation Act, 1996.

The Arbitration and Conciliation (Amendment) Bill, 2018 to further amend the Arbitration and Conciliation Act, 1996 was approved on 7 March 2018 by Cabinet of Ministers for introduction in ongoing session of the Parliament. These amendments in the Act set to promote institutional arbitration in India and further streamline the arbitration process by removing practical difficulties in applicability of the first round of amendments made by the Arbitration and Conciliation (Amendment) Act, 2015.

v Need for The Arbitration and Conciliation (Amendment) Bill, 2015?
Arbitration in India has been riddled with issues including excessive cost, protracted proceedings leading to extensive delays. In order to remedy such issues and create greater confidence in parties to choose India as a seat for arbitration, the (Amendment) Act of 2015 was introduced, bringing into the realm several significant changes in the Arbitration & Conciliation Act, 1996. A noteworthy motive for it was to make arbitration a more preferred mode of settlement of disputes by making it cost effective and providing a fixed time period for disposal of disputes. Pitfalls of The Arbitration and Conciliation (Amendment) Bill, 2015

The Amendment Act, 2015, however, failed to address certain issues including importance of institutional arbitrations at a time when international institutions such as ICC, LIAC, SIAC, HKIAC are playing key role in resolution of disputes through arbitration.

Another drawback of the Amendment Act, 2015, which was creating legal hurdles, was the question posed on its applicability to court proceedings initiated pursuant to arbitrations invoked prior to 23.10.2015. Hence, a further amendment was absolutely imperative to clear the obscurities created by the amendments introduced in 2015.

In order to address above difficulties and issues, the cabinet has introduced, "The Arbitration & Conciliation (Amendment) Bill, 2018"and has approved the same. It is laudable that the laws of the Amendment Act, 2015 have been noticed early on and are now being proposed to be rectified.

V The Arbitration And Conciliation (Amendment) Bill, 2015[1]
The Arbitration and Conciliation (Amendment) Bill, 2015 was introduced in Lok Sabha on December 3, 2015.

The Government of India has under its consideration proposals for making Arbitration a preferred mode for settlement of commercial disputes by making it more user-friendly and cost effective. This will lead to expeditious disposal of cases. The Govt. of India is committed to improve its legal framework relating to Arbitration. The Law Commission of India in its 246th Report has recommended various amendments in the Arbitration and Conciliation Act, 1996, so that India may become a hub of International Commercial Arbitration. The Law Commission has also submitted a Supplementary to Report No. 246 on "Amendments to the Arbitration Act, 1996 on ‘Public Policy’- Developments post Report 246", wherein the Law Commission taking into account subsequent decisions of the Supreme Court has recommended reformulation of amendment in Section 34(2)(b) of the Act.

v Salient features of the Amendment Act, 2015[2]:
1.Applicability of certain provisions to international commercial arbitration:
Part I of the Act that included provisions related to interim orders by a court, order of the arbitral tribunal, appealable orders etc. only applied to matters where the place of arbitration was India. Under the Bill, these provisions would also apply to international commercial arbitrations even if the place of arbitration is outside India. This would apply unless the parties agreed otherwise.

The first and foremost welcome amendment introduced by the ordinance is with respect to definition of expression 'Court'. The amended law makes a clear distinction between an international commercial arbitration and domestic arbitration with regard to the definition of 'Court'. In so far as domestic arbitration is concerned, the definition of "Court" is the same as was in the 1996 Act, however, for the purpose of international commercial arbitration, 'Court' has been defined to mean only High Court of competent jurisdiction. Accordingly, in an international commercial arbitration, as per the new law, district court will have no jurisdiction and the parties can expect speedier and efficacious determination of any issue directly by the High court which is better equipped in terms of handling commercial disputes.

2.Amendment of Section 2(2):
A proviso to Section 2(2) has been added which envisages that subject to the agreement to the contrary, Section 9 (interim measures), Section 27(taking of evidence), and Section 37(1)(a), 37(3) shall also apply to international commercial arbitrations, even if the seat of arbitration is outside India, meaning thereby that the new law has tried to strike a kind of balance between the situations created by the judgments of Bhatia International and Balco v. Kaiser. Now Section 2(2) envisages that Part-I shall apply where the place of arbitration is in India and that provisions of Sections 9, 27, 37(1) (a) and 37 (3) shall also apply to international commercial arbitration even if the seat of arbitration is outside India unless parties to the arbitration agreement have agreed to the contrary.

3.Amendment to Section 8: (Reference of parties to the dispute to arbitration):
In Section 8, which mandates any judicial authority to refer the parties to arbitration in respect of an action brought before it, which is subject matter of arbitration agreement. The sub-section(1) has been amended envisaging that notwithstanding any judgment, decree or order of the Supreme Court or any court, the judicial authority shall refer the parties to the arbitration unless it finds thatprima facieno valid arbitration agreement exists. A provision has also been made enabling the party, who applies for reference of the matter to arbitration, to apply to the Court for a direction of production of the arbitration agreement or certified copy thereof in the event the parties applying for reference of the disputes to arbitration is not in the possession of the arbitration agreement and the opposite party has the same.

4.Amendment to Section 9 (Interim Measures):
The amended section envisages that if the Court passes an interim measure of protection under the section before commencement of arbitral proceedings, then the arbitral proceedings shall have to commence within a period of 90 days from the date of such order or within such time as the Court may determine. Also, that the Court shall not entertain any application under section 9 unless it finds that circumstances exist which may not render the remedy under Section 17 efficacious.

The above amendments to Section 9 are certainly aimed at ensuring that parties ultimately resort to arbitration process and get their disputes settled on merit through arbitration. The exercise of power under Section 9 after constitution of the tribunal has been made more onerous and the same can be exercised only in circumstances where remedy under Section 17, appears to be non-efficacious to the Court concerned.

5.Amendment to Section 11 (Appointment of Arbitrators):
In so far as section 11, "appointment of arbitrators" is concerned, the new law makes it incumbent upon the Supreme Court or the High Court or person designated by them to dispute of the application for appointment of arbitrators within 60 days from the date of service of notice on the opposite party.

As per the new Act, the expression 'Chief Justice of India' and 'Chief Justice of High Court' used in earlier provision have been replaced with Supreme Court or as the case may be, High Court, respectively. The decision made by the Supreme Court or the High Court or person designated by them have been made final and only an appeal to Supreme Court by way of Special Leave Petition can lie from such an order for appointment of arbitrator. The new law also attempts to fix limits on the fee payable to the arbitrator and empowers the high court to frame such rule as may be necessary considering the rates specified in Fourth Schedule.

6.Amendment to Section 12 (Grounds for Challenge):
Amendment to Section 12, as per the new law makes the declaration on the part of the arbitration about his independence and impartiality more onerous. A Schedule has been inserted (Fifth Schedule) which lists the grounds that would give rise to justifiable doubt to independence and impartiality of arbitrator and the circumstances given in Fifth Schedule are very exhaustive. Any person not falling under any of the grounds mentioned in the Fifth Schedule is likely to be independent and impartial in all respects. Also, another schedule (seventh schedule) is added and a provision has been inserted that notwithstanding any prior agreement of the parties, if the arbitrator's relationship with the parties or the counsel or the subject matter of dispute falls in any of the categories mentioned in the seventh schedule, it would act as an ineligibility to act as an arbitrator. However, subsequent to disputes having arisen, parties may by expressly entering into a written agreement waive the applicability of this provision. In view of this, it would not be possible for Government bodies to appoint their employees or consultants as arbitrators in arbitrations concerning the said Government bodies.

7.Amendment to Section 14 (Failure or Impossibility to Act):
Amendment of Section 14 aimed at filling a gap in the earlier provision, which only provided for termination of mandate of the arbitrator. If any of the eventualities mentioned in sub-section (1) arises. The new law also provides for termination of mandate of arbitration and substitution and his/her substitution by another one.

8.Amendment to Section 17 (Interim Measures by Arbitral tribunal):
The old Act had lacunae where the interim orders of the tribunal were not enforceable. The Amendment removes that lacunae and stipulates that an arbitral tribunal under Section 17 of the Act shall have the same powers that are available to a court under Section 9 and that the interim order passed by an arbitral tribunal would be enforceable as if it is an order of a court. The new amendment also clarifies that if an arbitral tribunal is constituted, the Courts should not entertain applications under Section 9 barring exceptional circumstances.

9.Amendment to Section 23 (Statement of claim & Defence):
The new law empowers the Respondent in the proceedings to submit counter claim or plead a set-off and hence falling within the scope of arbitration agreement.

10.Amendment to Section 24 (Hearings & Written Proceedings):
It requires the arbitral tribunal to hold the hearing for presentation of evidence or oral arguments on day to day basis, and mandates the tribunal not to grant any adjournments unless sufficient causes shown. It further empowers the tribunal the tribunal to impose exemplary cost where adjournment

11.Insertions of new Section 29A and 29B (Time limit for arbitral award and Fast Track Procedure):
To address the criticism that the arbitration regime in India is a long drawn process defying the very existence of the arbitration act, the Amended Act envisages to provide for time bound arbitrations. Under the amended act, an award shall be made by the arbitral tribunal within 12 months from the date it enters upon reference. This period can be extended to a further period of maximum 6 months by the consent of the parties, after which the mandate of the arbitrator shall terminate, unless the Court extends it for sufficient cause or on such other terms it may deem fit. Also, while extending the said period, the Court may order reduction of fees of arbitrator by upto 5% for each month such delay for reasons attributable to the arbitrator. Also, the application for extension of time shall be disposed of by Court within 60 days from the date of notice to the opposite party.

The Ordinance also provides that the parties at any stage of arbitral proceeding may opt for a fast track procedure for settlement of dispute, where the tribunal shall have to make an award within a period of 6 months. The tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by the parties without oral hearing, unless the parties request for or if the tribunal considers it necessary for clarifying certain issues. Where the tribunal decides the dispute within 6 months, provided additional fees can be paid to the arbitrator with the consent of the parties.

12.Amendment to Section 25 (Default of a Party):
The new Act empowers the tribunal to treat Respondent's failure to communicate his statement of defence as forfeiture of his right to file such statement of defense. However, the tribunal will continue the proceedings without treating such failure as admission of the allegations made by the Claimant.

13.Amendment to section 28 (Rules Applicable to Substance of dispute):
The new law requires the tribunal to take into account the terms of contract and trade usages applicable to the transaction. In the earlier law, the arbitral tribunal was mandated to decide disputes in accordance with the terms of the contract and to take into account the trade usages applicable to the transaction. To that extent, the new law seeks to relieve the arbitrators from strictly adhering to the terms of the contract while deciding the case. However, the arbitrator can still not ignore the terms of the contract. Therefore, the new amendment seems to bring in an element of discretion in favour of the arbitrators while making of an award.

14.Amendment to Section 31(Form & Contents of Arbitral Award):
This provides for levy of future interest in the absence of any decision of the arbitrator, on the awarded amount @2% higher than current rate of interest prevalent on the date of award. The current rate of interest has been assigned the same meaning as assigned to the expression under Clause (b) of Section 2of the Interest Act, 1978.

In addition, the new Act lays down detailed parameters for deciding cost, besides providing that an agreement between the parties, that the whole or part of the cost of arbitration is to be paid by the party shall be effective only if such an agreement is made after the dispute in question had arisen. Therefore, a generic clause in the agreement stating that cost shall be shared by the parties equally, will not inhibit the tribunal from passing the decision as to costs and making one of the parties to the proceedings to bear whole or as a part of such cost, as may be decided by the tribunal.

15.Amendment of Section 34 (Limiting the gamut of Public Policy of India):
As per the new amendment, an award passed in an international arbitration, can only be set aside on the ground that it is against the public policy of India if, and only if, – (i) the award is vitiated by fraud or corruption; (ii) it is in contravention with the fundamental policy of Indian law; (iii) it is in conflict with basic notions of morality and justice. The present amendment has clarified that the additional ground of "patently illegality" to challenge an award can only be taken for domestic arbitrations and not international arbitrations. Further, the amendment provides that the domestic awards can be challenged on the ground of patent illegality on the face of the award but the award shall not be set aside merely on the ground of an erroneous application of law or by re-appreciation of evidence. The new Act also provides that an application for setting aside of an award can be filed only after issuing prior notice to the other party. The party filing the application has to file an affidavit along with the application endorsing compliance with the requirement of service of prior notice on the other party. A time limit of one year from the date of service of the advance notice on the other parties has been fixed for disposal of the application under Section 34. Significantly, there is no provision in the new Act which empowers the court or the parties to extend the aforesaid limit of one year for disposal of the application under Section 34.

16.Amendment to Section 36 (Stay on enforcement of award):
The Ordinance provides that an award would not be stayed automatically by merely filing an application for setting aside the award under Section 34. There has to be a specific order from the Court staying the execution of award on an application made for the said purpose by one of the parties. The Ordinance aims to remove the lacunae that existed in the previous Act where pending an application under Section 34 for setting aside of arbitral award, there was an automatic stay on the operation of the award. The new law also empowers the Court to grant stay on operation of arbitral award for payment of money subject to condition of deposit of whole or a part of the awarded amount.

17.Amendment to Section 37 (Appealable Orders):
Under Section 37(1), the new law makes provision for filing of an appeal against an order of judicial authority refusing to refer the parties to arbitration under Section 8. As regards enforcement of certain foreign awards, the new law seeks to add explanation of Sections 48 and 57 thereby clarifying as to when an award shall be considered to be in conflict within public policy of India. The parameters are the same as are provided under Section 34. Similarly, the expression "Court" used in Sections 47 and 56 have been defined to mean only the High Court of competent jurisdiction.

v Conclusion
The amendment brought to the 1996 Act is certainly a positive step towards making arbitration expeditious, efficacious and a cost effective remedy. The new amendments seek to curb the practices leading to wastage of time and making the arbitration process prohibitively a costly affair. The new law also makes the declaration by the arbitrator about his independence and impartiality more realistic as compared to a bare formality under the previous regime. Making the arbitrator responsible for delay in the arbitration proceedings, for the reasons attributable to him, would ensure that the arbitrators do not take up arbitrations, which are beyond their capacities. Such a deterrent would imbibe self-discipline and control amongst the arbitrators. It can be said that the present amendments certainly travel an extra mile towards reducing the interference of the Court in arbitration proceedings that has been a consistent effort of the legislature since passing of the 1996 Act.

v Further Amendments submitted by (High Level Committee) to the Amendment Bill, 2015[3]
The Arbitration and Conciliation Act, 1996, was amended by the Arbitration and Conciliation (Amendment) Act, 2015 in order to make arbitration process user friendly, cost effective and ensure speedy disposal and neutrality of arbitrators. However, to give a boost to institutional, arbitration vis-a-visad hocarbitration and to remove some practical difficulties in applicability of the Arbitration and Conciliation (Amendment) Act, 2015, a High Level Committee (HLC) under the Chairmanship of Justice B. H. Srikrishna, Retired Judge, Supreme Court of India, was constituted by the Central Government, The HLC was given the mandate
# to examine the effectiveness of existing arbitration mechanism by studying the functioning and performance of Arbitral Institutions in India;
# to devise a road map to promote institutionalized arbitration mechanisms in India;
# to evolve an effective and efficient arbitration eco-system for commercial dispute resolution and submit a Report on suggested reforms in the statute.

The HLC submitted its Report on 30thJuly, 2017 and has recommended for amendments in the Arbitration and Conciliation Act, 1996. The proposed amendments are as per the recommendations of the High Level Committee.

V The Arbitration And Conciliation (Amendment) Bill, 2018[4]
The Arbitration and Conciliation (Amendment) Bill, 2018 amendments which, when passed will apply to the Arbitration and Conciliation Act, 1996 are pursuant to the Srikrishna Committee Report released in July, 2017, recommending further amendments on the back of the 2015 amendments, primarily to improve on or clarify various provisions.

At the very outset, the proposed Bill clarifies that the objective of the amendments is to promote institutional arbitration by creating an independent, statutory body to govern the entire process of Arbitration in India right from the stage of appointment of arbitrator. It further proposes to create a robust eco system for commercial arbitration to flourish and thrive in India.

Primarily, following are the amendments proposed by the aforesaid Bill[5]:
1.Establishment of a statutory body called Arbitration Council of India "ACI",for promoting institutional arbitrations;
2.Amendment in Section 29A of the Act;
3.Introduction of Section 42A & 42B;
4.Introduction of Section 87;
5.Amendment in Section 11 of the Act

# Arbitration Council of India
The above amendments are quite significant as the same cater to the practical difficulties being faced by the parties as well as the arbitrators.

"Most significantly, the Bill suggests the creation of a separate, independent, statutory body called the Arbitration Council of India ("ACI") to be presided over by a Judge of the Supreme Court or Chief Justice or Judge of any High Court or any other eminent person, which would include an eminent academician etc. and other government nominees as well".This Council will frame norms for alternate dispute resolution and evolve professional guidelines. This is a positive step to ensure the quality of arbitral institutions. The Council will also maintain an electronic depository of arbitral awards that can be used to analyse how the jurisprudence has evolved.

Role of Act:-
It includes grading arbitral institution and accrediting arbitrators by laying down certain rules and norms and to promote and encourage arbitration and other ADR Mechanisms. For the aforesaid purpose, ACI is to formulate appropriate policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration and ADR mechanism. In this regard, the ACI’s role may further expand to facilitate the speedy appointment of arbitrators through designated arbitral institutions by the Supreme Court or the High Court.

v Length of the Arbitral Proceeding
For instance, the Amendment Act, 2015 introduces a time limit of 12 months for conclusion of arbitral proceedings including making the award, from the date when an arbitrator enters into reference. The aforesaid period is found to be too less as subsequent to an arbitrator entering into reference, completion of pleadings consumes substantial period. This makes it practically impossible for an arbitrator to record evidence, wherever necessary, hear arguments and make the award within 12 months only. In majority of the cases especially those involving complex issues and where number of claims are high, parties are required to approach the Court for extending the time for making the award.

To overcome these obstacles,
"The Amendment Bill, 2018, introduces anamendment in Section 29A, thereby suggesting that 12 month period shall begin to run from the date when pleadings are complete. The Bill further suggests to exclude International Arbitration from the restricted timeline of making the arbitral award".

Statutory recognition of confidentiality in arbitration has been suggested (the Act mandates confidentiality only for conciliation proceedings). However, the Amendment Bill, 2018 proposes to introduce a new section 42A, requiring arbitrators and arbitral institution to keep proceedings confidential (except the award). This provision will have to be carefully drafted to exclude any order or award that may be challenged in a court including Section 17 orders.

Importantly, the Act did not contain any express provision regarding confidentiality of the proceedings and the Amendment Act, 2015was also silent on the issue.

Arbitrator Immunity
The Amendment Bill, 2018 also provides for a new Section 42Bwhich aims to protect the Arbitrator or arbitral tribunal from being dragged into unnecessary legal proceedings by the parties for any action or omission done in good faith. This will afford comfort to the arbitrators & ensure that the arbitrator is able to exercise her function without any fear of proceedings ensuing therefrom. Arbitrator immunity provisions are present in many foreign statutes and international institutional rules, and MCIA Rules.

# Section 87
One of the major legal hurdles faced while implementing theAmendment Act, 2015was regarding the applicability of the same to court proceedings arising out of arbitrations, invoked prior to the amended Act coming into force.

In other words,
One of the most contentious issues in recent times has been the correct interpretation of Section 26 of the Amendment Act and whether the amendments apply to court proceedings:

(i) filed after the amendments came into force in 2015, but in respect of arbitrations commenced before the amendments;
(ii) court proceedings which were pending at the time the amendments came into effect but were decided thereafter. In this context there were conflicting decisions of various courts.

Application of the 2015 Amendments post 2018 Amendment Bill
In order to address this issue, a new Section 87 has been proposed in the Amendment Bill, 2018 to clarify that unless parties agree otherwise theAmendment Act, 2015shall not apply to the following:

# arbitral proceedings that have commenced prior to the Amendment Act, 2015 coming into force i.e. prior to 23.10.2015.

# court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Amendment Act, 2015

# The Supreme Court recently passed a judgment in the matter of:
BCCI v. Kochi Cricket Pvt. Ltd. And Etc.[6]
It ruled that the 2015 amendments would apply to all court proceedings filed after the amendments came into effect (October 23, 2015), regardless of when the arbitration was commenced.
"Crucially, it was also held that the 2015 amendments would apply to pending proceedings that may have been filed prior to the amendments but were pending at the time amendments came into force."
The 2018 amendments however provide that the 2015 amendments will apply only to proceedings actually filed after October 23, 2015.

Being so, the Supreme Court has directed that its aforesaid judgment be transmitted to the Law Ministry and the Attorney General to take note of its interpretation.

# Analysis of the Judgement
The judgment itself raises questions. Assuming a petition were filed to challenge an award prior to the 2015 amendments but was pending on the date of the amendments, by virtue of the judgment, an automatic stay that was earlier effective would no longer apply. It would then be open to the award-creditor to apply for enforcement and the award-debtor would have to file a separate application for a stay (in which case a deposit of the award amount would be probable), thus taking away a benefit that a party had prior to the 2015 amendments.

It remains to be seen whether the Government takes note of the Supreme Court’s interpretation and effects amendments in consonance.

The amendments are a welcome development in the field of arbitration and when implemented will assist further in India being seen as an arbitration friendly jurisdiction.

Appointment of Arbitrators
Section 11will be amended so that instead of having to go through court for appointment of an arbitrator, the Supreme / High Court may designate specific arbitral institutions that will make the relevant appointments. This obviates the need to file a formal application for appointment in court, thus speeding up the process by taking away some part of the burden from the court.

The Report had recommended that such appointments should be made without the requirement of the Supreme Court or High Courts determining the existence of an arbitration agreement. This is in line with the kompetence-kompetence principle of an arbitral tribunal itself determining its own jurisdiction.

On a related note, the present Section 11 (6A) of the 2015 Act mandates that the Court in a Section 11 proceeding should confine its examination to the existence of the arbitration agreement. Prior to its amendment, the power under Section 11 was held to be wider in scope and included an examination of whether claims could be referred to arbitration etc. The Cabinet’s press release does not deal with this aspect in its recommendation.

While the proposed bill appears to fill in some lacunae created by the recent amendment, the extent of it successfully plugging all the loopholes is still debatable. It is germane to point out the practical difficulties and challenges that are faced by parties and lawyers with regard to the law governing arbitration in India. Some of these seem to be overlooked by lawmakers and require consideration by them, which more often than not, is a protracted process. The following are some of the loopholes, still left for debate in Courts:

1.With respect to the introduction of the ACI, it would be crucial for the Amendment to clearly define the scope of the ACI’s role and its powers.

2.Pertinently, the question arises whether in view of establishment of an institution like ACI, for securing speedy appointment of the arbitrators, Section 11 of the Act becomes redundant. Further, where a party is objecting to the validity of the arbitration agreement itself, what is the course of action to be adopted in such circumstances.

3.Further, the Amendment Bill, 2018 could have provided clarification on the issue, whether two Indian parties can agree for a foreign seated arbitration, despite being bound by the Indian Law.

4.Similarly, with regards to the section containing confidentiality, it is not clear whether the confidentiality remains even when the proceedings have progressed to the Court under Section 34 of the Act and the Court requisitions the arbitral record.

Thus, while the Amendment Bill, 2018 proposes many welcome changes, there are still certain grey areas, which are required to be addressed by the legislature before the Act can be said to be complete and all-encompassing legislation. It is quite possible that some of the issues highlighted by us have been addressed in the text of the Bill, which is presently not available.

[6]AIR 2018 SC 1549

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