About the book
Dr Avtar Singh’s Law of Arbitration and Conciliation in India has been thoroughly revised in its latest edition by Saurabh Bindal.
The amendments of 2015, 2019, and 2021 have been covered at length in this book. The intent of the 2015 Amendment to the Act was limited to providing speedy justice to the people. Amongst the provisions inserted in the Act, seminal provisions were those related to fixation of timeline for conclusion of arbitration proceedings, provision of interim relief for arbitrations leading to a foreign award, omission of the automatic stay in case of domestic awards, etc.
As the Act was about to complete 25 years, with an aim to make India a commercial arbitration hub and reduce the intervention of courts, the government introduced amendments to the Act in the year 2019. The 2019 Amendment to the Act brings a lot of reliance on the arbitral institutions. It also focuses on the establishment of the Arbitration Council of India, which has been vested with powers and duties under the Act. Thereafter, came the 2021 Amendment to the Act, which focused on the deletion of Schedule 8 [inserted by the 2019 Amendment Act] and provisioning of grounds for seeking stay under Section 36 of the Act.
Since the publication of the last edition, the courts in India have interpreted the law relating to arbitration in a far-reaching manner. All these developments have been succinctly incorporated into the book.
This book will be useful for students of law who want to develop a skill set in arbitration in India. Practitioners, judges, and even general readers will benefit from reading this thoroughly updated book on arbitration in India.
Book Launch and Panel Discussion
A book launch and panel discussion for this book is planned on 24th May, 2022 at 2 pm. The Chief Guest for the event will be Justice AK Sikri, Former Judge, Supreme Court of India and presently judge, SICC, Singapore.
The book release will be followed by a panel discussion on the topic “ Amendments in the Arbitration Act which transformed India”
Panellists:
• Justice AK Sikri, Former Judge, Supreme Court of India & International Judge, SICC, Singapore.
• Steven Finizio, Partner, WilmerHale, London.
• Steven YH Lim, Arbitrator & Barrister, Singapore.
• RV Prabhat, Co-Author (Arbitration and Conciliation: A Commentary) and Advocate.
Moderated by
• Saurabh Bindal, Author and Advocate.
Register for the webinar here: https://bit.ly/3FPSzF2
Table Of Contents
Part I – ARBITRATION
1. General Provisions
2. Arbitration Agreement
3. Composition of Arbitral Tribunal
4. Jurisdiction of Arbitral Tribunals
5. Conduct of Arbitral Proceedings
6. Making of Arbitral Award and Termination of Proceedings
7. Recourse Against Arbitral Award
8. Finality and Enforcement of Arbitral Awards
9. Appeals
10. Miscellaneous
Part II – ENFORCEMENT OF CERTAIN FOREIGN AWARDS
1. New York Convention Awards
2. Geneva Convention Awards
Part III – CONCILIATION
1. Conciliation
Part IV – SUPPLEMENTARY PROVISIONS
1. Supplementary Provisions
• First Schedule
• Second Schedule
• Third Schedule
• Fourth Schedule
• Fifth Schedule
• Sixth Schedule
• Seventh Schedule
Part V – ALTERNATIVE DISPUTES REDRESSAL
1. Alternative Disputes Redressal
Extract
An extract from the book has been reproduced with permission from Eastern Book Company below:
Effect of the Supreme Court decision in BALCO
The Supreme Court in Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc[1] (BALCO) decided that Parts I and II of the 1996 Act are mutually exclusive of each other. The intention of Parliament is that the 1996 Act is territorial in nature and Sections 9 and 34 will apply only when the seat of arbitration is in India. The seat is the “centre of gravity” of arbitration, and even where two foreign parties arbitrate in India, Part I would apply and, by virtue of Section 2(7), the award would be a “domestic award”. The Supreme Court recognised the “seat” of arbitration to be the juridical seat; however, in line with international practice, it was observed that the arbitral hearings may take place at a location other than the seat of arbitration. The distinction between “seat” and “venue” was, therefore, recognised. In such a scenario, only if the seat is determined to be in India, Part I would be applicable. If the seat is in foreign, Part I would be inapplicable. Even if Part I was expressly included “it would only mean that the parties have contractually imported from the 1996 Act those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the [foreign] Procedural Law/Curial Law”. The same cannot be used to confer jurisdiction on an Indian court. However, the decision in BALCO was expressly given prospective effect and applied to arbitration agreements executed after the date of the judgment.
While the decision in BALCO is a step in the right direction and would drastically reduce judicial intervention in foreign arbitrations, the Law Commission felt that there were still a few areas that are likely to be problematic. Where the assets of a party are located in India, and there is a likelihood that that party will dissipate its assets in the near future, the other party will lack an efficacious remedy if the seat of the arbitration is abroad. The latter party will have two possible remedies, but neither will be efficacious. Firstly, the latter party can obtain an interim order from a foreign court or the Arbitral Tribunal itself and file a civil suit to enforce the right created by the interim order. The interim order would not be enforceable directly by filing an execution petition as it would not qualify as a “judgment” or “decree” for the purposes of Sections 13 and 44-A CPC 1908 (which provide a mechanism for enforcing foreign judgments). Secondly, in the event that the former party does not adhere to the terms of the foreign order, the latter party can initiate proceedings for contempt in the foreign court and enforce the judgment of the foreign court under Sections 13 and 44-A CPC. Neither of these remedies is likely to provide a practical remedy to the party seeking to enforce the interim relief obtained by it. That being the case, it is a distinct possibility that a foreign party would obtain an arbitral award in its favour only to realise that the entity against which it has to enforce the award has been stripped of its assets and has been converted into a shell company.
While the decision in BALCO was made prospective to ensure that hotly negotiated bargains are not overturned overnight, it results in a situation where courts, despite knowing that the decision in Bhatia International v Bulk Trading S.A.[2] is no longer good law, are forced to apply it whenever they are faced with a case arising from an arbitration agreement executed pre-BALCO. These issues have now been addressed by way of amendments to Sections 2(2) in the Arbitration and Conciliation Act, 1996 [Act No. 26 of 1996]. [As amended by the Arbitration and Conciliation (Amendment) Act, 2015.]
In the matter under the “Scope” after the first line to the effect that “This part shall apply where the place of arbitration is in India”, the amendment adds a proviso to the following effect:
Provided that subject to an agreement to the contrary, the provisions of Sections 9, 27, 37(1)(b) and (3) are to apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.
[1] . (2012) 9 SCC 552.
[2] . (2002) 4 SCC 105.
Link for Purchase
The book can be pre-ordered on this link: https://bit.ly/39ts0JY
