Impact of 2015 Amendments to Arbitration & Conciliation Act

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Impact of 2015 Amendments to Arbitration
Conciliation Act,1996 on the International
Arbitrations Enforcement of Foreign awards
2nd India International Arbitration Summit 23rd
March 2017

• Presented by
• S. Ravi Shankar, Arbitration lawyer Senior
  Partner
• Law Senate Law Firm New Delhi, Mumbai
• ravi_at_lawsenate.com

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Major changes of the Arbitration Conciliation
(Amendment) Act 2015

• Arbitration Conciliation (Amendment) Act, 2015
  (23rd October 2015)
• Deals with many major challenges faced by parties
  arbitrating in India and outside India.
• Courts should try to dispose applications seeking
  appointment of arbitrators within 60 days from
  the date of Notice (S.11)
• Power to Chief Justice to designate an
  Institution to appoint arbitrators
• After getting an interim order under S.9, Parties
  need to start the arbitration proceedings within
  60 days
• Fees fixed for the ad-hoc arbitrators on the
  basis of the value of the dispute (4th Schedule)
  (No sitting, reading writing fee)
• Arbitral Institutions are allowed to have a
  higher Fee scale

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Major changes of the Arbitration Conciliation
(Amendment) Act 2015

• An arbitration has to be completed within 12
  months S.29A
• Both parties can jointly extend the completion
  period by 6 months
• After that only court can extended the time for
  completion
• While extending the time for completion court can
  fix terms
• Fast Track Arbitration S.29B to be completed with
  in 6 months
• No need for oral hearing in Fast track
  arbitrations, matter will be decided on the basis
  of pleadings Documents
• If Arbitrator can not complete the arbitration
  within the time limit he looses the mandate to
  continue the arbitration
• Interim orders can be granted by Indian Courts in
  support of Foreign seated International
  Arbitrations

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4
Major changes of the Arbitration Conciliation
(Amendment) Act 2015

• No automatic stay on filing of an appeal
  challenging an Arbitral award S.36, while
  granting stay courts can impose terms
• Disclosure to be made by Arbitrators about their
  relationship with parties counsels (Fifth
  Schedule) to ensure impartiality in the lines of
  IBA Guidelines on Conflict of interest in
  International Arbitrations.
• Costs follow the event S.31.A
• Costs including counsel fees, expenses,
  arbitrator fees can be claimed
• Narrow scope for the Term Public Policy S.34 to
  avoid courts interference into the arbitral
  awards

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Enforcement of Foreign awards

• A Foreign award is binding if passed in a New
  York convention seat which is notified by India
  on reciprocity basis
• Party wishes to enforce a foreign award should
  produce
• Original or certified copy of the award
• Original or certified copy of the arbitration
  agreement
• Other evidences to prove it is foreign award, If
  court is satisfied it will be deemed to be a
  decree of the court S.58
• A Foreign seated arbitration award can not be
  challenged in India

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Refusal to Enforce a Foreign award

• A Court can refuse a Foreign award only when
  there is proof that there was
• In capacity of parties to enter into the contract
  
• Deficiency of notice to parties by the
  arbitrator/ Institution
• The issues decided in the arbitration are not
  arbitrable
• Tribunal was not formed as per the arbitration
  clause
• Award is set aside by the competent court in the
  seat of arbitration
• Award is Contrary to Public Policy of India
• Normally Courts do not interfere into the foreign
  seated arbitration awards

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Public Policy of India

• Intervention by courts on the issue of Public
  Policy of India is reduced
• Public Policy gets violated if Award was by fraud
  corruption
• Or Contravention to the fundamental policy of
  Indian Law
• Or Conflict with the most basic notions of
  morality of Justice
• But it is clarified that contravention with
  fundamental Policy of Indian law shall not entail
  a review on the merits of the dispute
• Hence Arbitration scene in India has become more
  effective Efficient after 2015 amendments.

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PROGRESSIVE APPROACH OF COURTS

• All disputes or Differences whatsoever arising
  between the parties out of, or relating to, the
  construction, meaning and operation or effect of
  the contract or the breach thereof shall be
  settled by arbitration in India through the
  arbitration panel of the Indian Council of
  Arbitration in accordance with the Rules of ICA.
• If either party is in disagreement with the
  arbitration result in India, either party will
  have the right to appeal to a second arbitration
  in London, UK in accordance with the Rules of
  Conciliation and arbitration of the International
  Chamber of Commerce in effect on the date hereof
  and the result of this second arbitration will be
  binding on both the parties. Judgment upon the
  award may be entered in any court in
  jurisdiction.
• (2016) SCC Online SC 1482 Centro trade Minerals
  Metals Inc Vs Hindustan Copper Ltd.,

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• THANKS

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