Arbitration and Conciliation: A Commentary by Saurabh Bindal and RV Prabhat is a sectionwise analysis of the 1996 Act and the amendments made thereto. The Arbitration and Conciliation Act, 1996, is divided into five parts: Part I is headed “Arbitration”; Part I-A, “Arbitration Council of India”; Part II is headed “Enforcement of Certain Foreign Awards”; Part III as “Conciliation” and Part IV is “Supplementary Provisions”. The fundamental aim of this book is to provide its readers with a snapshot of how, when and where arbitrations are conducted in India. This book provides its readers with useful nuggets to provoke their thoughts on each section of the Arbitration and Conciliation Act, 1996. Supported by case law, the book provides an overall insight into the world of arbitration in India. This book will be of assistance to lawyers, Judges, professionals, teachers and researchers for building an understanding of law related to arbitration in India.
Review
“All in all, the book will underline and emphasise the basic fact that it is the change of mindset of all stakeholders– judges, lawyers, litigants, assistants et alalone will bring back the virtuous ABCD cycle of the arbitration bypass to litigation, where A stands for Access, B for (elimination of) Backlog, C for (minimisation of) Cost and D for (elimination of) Delay. Without an ecosystem and a conscious culture of minimal review and interference in awards, appointment of competent and upright arbitrators, stable and longer rosters of experienced ‘arbitration’ judges and a (sadly lacking) uniformity of approach to most sections of the Act by diverse courts in a federal judicial set up, India’s hopes of becoming an attractive, much less a highly desirable destination for international arbitration, cannot fructify merely by building infrastructure or giving sermons.”
–Dr Abhishek Singhvi, MP (Rajya Sabha), Senior Advocate
“The book also contains a critical analysis of important judgments that sometimes appear contradictory and difficult to reconcile. The concise manner in which controversial issues have been explained in the section-wise commentary will be of great assistance to busy practitioners and arbitrators.”
–Arvind P. Datar, Senior Advocate
“Saurabh Bindal and R.V. Prabhat’s thoughtful commentary on arbitration in India is particularly timely. This well-researched and clearly-presented book should serve as a one-stop shop for academics, practitioners and students interested in arbitration. This book is certainly a welcome addition to my library, as I am sure it will be for many others.”
—Gary B. Born, Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP
“Well-researched and trusted academic commentaries are an equally important component of the arbitration ecosystem. Through a methodical and comprehensive analysis of the provisions of the Indian Arbitration Act and concise summaries of the relevant case law, this book lends admirable clarity to the topic. The authors can be proud of this accomplishment, which stands to be a valuable resource for practitioners, students and proponents of arbitration in India for years to come.”
—Nish Shetty, Clifford Chance, Head, Litigation & Dispute Resolution (Asia-Pacific)
“I commend the authors for their verve in taking on the task of tracing and elucidating the Indian experience with the Model Law. This book will serve international arbitration practitioners outside of India just as well as it does Indian readers. It will explain concepts to international readers, which though apparently familiar from Model Law roots, have taken on distinctly Indian flavours and nuances. International readers who want to understand how the Model Law is applied in India will do well to turn to this book.”
—Steven Y.H. Lim, Arbitrator and Barrister
“The commentary is written in an easy to read manner and shall be useful for practitioners as well as students of law as a primer and compendium.”
—Vivek K. Tankha, MP (Rajya Sabha), Senior Advocate
Extract from the Foreword
“The authors use simple language and lucidly explain principles laid down in judgments. This is a work which has come at an appropriate time, with an increasing number of people choosing to settle their disputes outside of court. I am certain that it will be useful for all practitioners of arbitration law, whether before arbitrators or the courts.”
—Justice R.F. Nariman, Judge, Supreme Court of 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
Introduction
The Arbitration and Conciliation Act, 1996
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 I-A
1. ARBITRATION COUNCIL OF INDIA
Part II
ENFORCEMENT OF CERTAIN FOREIGN AWARDS
1. New York Convention Awards
2. Geneva Convention Awards
Part III
1. CONCILIATION
Part IV
1. SUPPLEMENTARY PROVISIONS
2. Schedules
Exclusive Extract
History of arbitration in India
The first direct law on the subject of arbitration was the Indian Arbitration Act, 1899, but its application was limited to the Presidency towns of Calcutta, Bombay and Madras. This was followed by the Code of Civil Procedure, 1908, where the Second Schedule was completely devoted to arbitration.
The Arbitration Act, 1940, which was based on the (English) Arbitration Act, 1934 was the first major legislation which consolidated the law on arbitration in India. The 1940 Act repealed the Arbitration Act, 1899 and the relevant provisions in the CPC, 1908. Foreign arbitrations were dealt as per the Arbitration (Protocol and Convention) Act, 1937 which dealt with Geneva Convention Awards and the Foreign Awards (Recognition and Enforcement) Act, 1961 which dealt with New York Convention Awards.
However, conducting arbitrations under the 1940 Act became cumbersome because of loopholes in the 1940 Act.[1] This led to the growth of mistrust on the institution of arbitration in India.[2] Application of the Act was seen to be fraught with delays and expenses. The working of the 1940 Act was the subject of the 210th Report of the Public Accounts Committee of the Fifth Lok Sabha. The Law Commission of India also examined the working of the 1940 Act in its 76th Report.
As India became global in the 1990s, it was felt that to attract foreign investors, it was necessary to align its laws in the right direction. The earlier regime, therefore, was sought to be replaced by the Arbitration and Conciliation Bill, 1995, which was introduced in Parliament. Since the requisite legislative sanction could not be accorded to the 1995 Bill, the President of India promulgated the Arbitration and Conciliation Ordinance, 1996 on the same lines as the 1995 Bill.
Subsequently, Parliament passed the 1995 Bill which received the assent of the President of India on 16 August 1996 and came into force on 22 August 1996. The Act came to be known as the Arbitration and Conciliation Act, 1996. The 1996 Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980.
The 1996 Act repealed the 1940 Act, the Arbitration (Protocol and Convention) Act, 1937 which dealt with Geneva Convention Awards and the Foreign Awards (Recognition and Enforcement) Act, 1961 which dealt with New York Convention Awards. The provisions of the repealed laws were brought in the 1996 Act itself.
In the year 2001, the government made a reference to the Law Commission to undertake a comprehensive review of the Arbitration and Conciliation Act, 1996. This was undertaken so as to make sure that the provisions of the 1996 Act could be made more effective in achieving the goals of the 1996 Act. After an in-depth study of the law on the subject, the Law Commission made its recommendations for bringing amendments in the Arbitration and Conciliation Act, 1996 in the form of its 176th Report. The government considered the recommendations of the 176th Report and after consulting the State Governments and various institutions, decided to accept almost all the recommendations. Accordingly, the Arbitration and Conciliation (Amendment) Bill, 2003 was introduced in Rajya Sabha on 22 December 2003.
Subsequently, on 22 July 2004, the government constituted a Committee known as the “Justice Saraf Committee on Arbitration” under the Chairmanship of Dr Justice B.P. Saraf to make an in-depth study of the analysis of the recommendations of the 176th Report of the Law Commission and all aspects of the Arbitration and Conciliation (Amendment) Bill, 2003. The Justice Saraf Committee thereafter gave a detailed report on 29 January 2005.
In light of the Justice Saraf Committee Report, the Arbitration and Conciliation (Amendment) Bill, 2003 was then referred to the Departmental Related Standing Committee on Personnel, Public Grievances, Law and Justice for study and analysis. The Committee thereafter submitted its report to Parliament on 4 August 2005. The Committee expressed the view that many provisions of the Arbitration and Conciliation (Amendment) Bill, 2003 were not only insufficient, but also contentious. Therefore, the said Bill ought to be withdrawn and a fresh Bill be brought after considering the recommendations of the Committee. In view of the various amendments recommended by the Committee, the above Bill was withdrawn from Rajya Sabha.
Later, the government referred the 1996 Act to the Law Commission for a comprehensive review. The review undertaken by the Law Commission formed the basis of the Arbitration and Conciliation (Amendment) Act, 2015.
[1] . Guru Nanak Foundation v. Rattan Singh and Sons, (1981) 4 SCC 634; Food Corporation of India v. Joginderpal Mohinderpal, (1989) 2 SCC 347.
[2] . Saha & Co. v. Ishar Singh Kripal Singh and Co., 1955 SCC OnLine Cal 262: AIR 1956 Cal 321.
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