The Arbitration and Conciliation Act was enacted in 1996 for the very first time with the objective to promote arbitration, particularly International Commercial Arbitration as a to resolve the disputes. On 25th January 2016, the Act completed its 20 years. The annunciation of Arbitration and Conciliation Ordinance 2015, amending certain provisions of the previous act was a step forward towards providing ease of dispute resolution in India. Some of the landmark judgments that have to shape the arbitration landscape in India are Gurunanak Foundation Case (1981) 4 SCC 634, ONGC V. Saw Pipes (2003) 5 SCC 703, Bhatia International v. Bulk Trading (2002) 4 SCC 105, National Insurance Company v. Boghara Polyfab (2009) 1 SCC 267, Chloro Controls P. Ltd v. Water Purification Inc.(2013) 1 SCC 641 ZA, Associate Builders v. Delhi Development Authority (2015) 3 SCC 49, State of West Bengal V. Associated Contractors (2015) 1 SCC 32. Thus the Act of 2015 will help in revamping the dispute resolution mechanism in India and making India a preferred seat of arbitration. Some of the Key amendment of the act are :
- The word “Court” was redefined for the purpose of international commercial arbitration to mean only the High Court however for the purpose of domestic arbitration it shall remain the same.
- Section 12 was amended to the affect that the person shall disclose about the existence of any relationship when he is approached in connection with the appointment of the arbitrator which is likely to give rise to justifiable rights .
- Section 14 states that the court may substitute the arbitrator on termination of the mandate of the arbitrator.
- A proviso to Section 2(2) has also been added which envisages that subject to the agreement to the contrary, Section 9, 27 and 37(1)(a), 37(3) shall also apply to international commercial arbitrations, even if the seat of arbitration is outside India.
- Interim measures by Arbitral Tribunal: Under section 17 of the amended Act an arbitral tribunal shall have powers that are available to court under Section 9.
- Apart from the above mentioned, amendments in Sections 2(1)(e) , 2(1)(f)(iii), 7(4)(b), 8(1) and (2), 9, 11, 14(1), 17, 23, 24, 25, 28(3),29A,29B, 31(7)(b), 34 (2A) 37, 48, 56 and in Section 57 are also proposed for making the arbitration process more effective.
However the amended Act has missed out on some points. The arbitration process should be simple and less technical. The proceedings of arbitration must adhere to the principles of natural justice and must be in consonance with procedure and practice which may lead to proper dispute resolution. A pool of experienced professionals must be created who can be trained and certified as arbitrators instead of just appointed retired SC and HC judges as arbitrators. The Indian Arbitration Amendment Act 2015 has also missed out on incorporating the concept of emergency relief and joinder of parties as present under the Hong Kong International Arbitration Centre (HKIAC) Rules 2013. Further use of teleconferencing and video- conferencing should be encouraged to replace formal sittings of the arbitral proceedings as it would save time and aid in a more efficient conduct of the arbitration proceedings .
Geared in the same spirit, a three day conference on ‘National Initiative towards Strengthening Arbitration and Enforcement in India’ was organized by NITI Aayog in which critical and pertinent issues, experience of international arbitration and the future roadmap of strengthening arbitration in India were discussed. It was inaugurated by President Pranab Mukherjee and was supported by six international arbitration institutions, industry associations and legal fraternity of India. Several lacunae of arbitration in India and creative criticisms came through during the discussions. Thus, just as the amendment brought to 1996 Act has proved to be a step forward towards making arbitration expeditious, efficacious and a cost effective remedy, the suggestions and creative criticism received through the conference would also certainly travel an extra mile towards achieving the objectives of the Act and would thus help the country achieve the perfect solution or elixir imagined for arbitration in India.