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2019 Amendment on International Commercial Arbitration (ICA)
INTRODUCTION
It is important to note that the Act was completely rewritten with the 2019 Amendment. Although there are elements of the notification that have been provided, some essential elements, such as the setting up of the Arbitration Council of India, are yet forthcoming. Much attention has been focused on the critical changes made to the 2019 Amendment for ICA.
SOME MORE PROMINENT AMENDMENTS ARE:
The revised timeline for the submission of pleadings included section 23 of the Act, which dealt with the submission of pleadings by the parties to arbitration (including an ICA), along with a specific timeline: The claimant has six months from the date on which the arbitral tribunal is appointed to file its statement of claim, and the respondent has six months from the date on which the arbitral tribunal is appointed to file its statement of defence.
The 2019 Amendment revises the timescale for delivering an arbitral award: Before the amendment, arbitral tribunals were obligated to deliver the award within 12 months of the day on which the tribunal was constituted. This schedule has been extended so that the clock begins running on the day on which the parties' pleadings are finished, with the possibility of a 6-month extension. It is not necessary to comply with this timeframe if there is an ICA. In such instances, the arbitral tribunal needs to "endeavour" to stick to the same timeframe. As a result, the 2019 Amendment has loosened this procedural requirement for ICAs, which is most likely due to the growing complexity of the problems and pleadings present and, therefore, an increase in the difficulty of a tribunal's mandate.
Section 42A of the Act ensures that all arbitration proceedings are confidential and preserves the authority of arbitrators to immunise themselves from civil and criminal suits and actions that they may have committed during arbitration proceedings. Section 42B of the Act empowers arbitrators to self-immunize suits and legal actions arising from their acts and omissions while presiding over arbitration proceedings.
Concerns over these problems have long plagued the global arbitration community. India's definition of these rights is one more step towards the global community's aim of aligning India's arbitration framework with worldwide best practices.
The clarity that the 2015 Amendment has provided in regards to retrospective applicability: to put an end to the debate surrounding the retrospective applicability of the 2015 Amendment, the new Section 87 of the Act defines that the 2015 Amendment will only apply to arbitrations proceedings commenced after the date of notification of the 2015 Amendment, and court proceedings involving arbitrations that commenced following the notification of the 2015 Amendment.
However, it should be noted that only the 2015 Amendment itself applies to arbitrations and court proceedings about prior arbitration proceedings and not arbitration and court proceedings about arbitration proceedings that occurred before the notification of the 2015 Amendment. This resulted in a considerable controversy in the legal profession, especially about the different concerns that arose.
One of the most prominent questions that preoccupied ICAs before the 2015 amendment was whether or not Part I applied to arbitrations held in a different country. While BALCO1 announced that the first part of the Act (international arbitration matters) would not apply to arbitrations seated outside of India, parties to ICAs (international arbitration matters) from outside of India were challenged when approaching Indian courts, specifically about interim protection. The loophole above was covered in the 2015 Amendment, which allows foreign-based ICAs to shift Indian courts through Sections 9 (interim measures taken by courts), 27 (court assistance in gathering evidence), 37(1) (appeals against specific rulings of the court), and 37(c) (barring of second appeals). Additionally, the 2015 Amendment granted foreign-seated International Cyclists' Association (ICA) member clubs an opportunity to opt-out of the application of Part I entirely by agreeing otherwise.
CONCLUSION
To be clear, however, the matter was laid to rest when the SC decided to strike down Section 87 of the Act on the grounds of manifest arbitrariness in the case of HCC, which nullified it, and in the BCCI case, which underscored the longstanding precedent that prevailed before the 2019 Amendment (as supported by the BCCI decision).
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.
- Introduction
- Amendments
- Conclusion
