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Supplementary Provisions of the Arbitration and Conciliation Act,1996

While Section 82( Power of the High Court to make Rules), Section 83 which would entail the removal of difficulties, Section 84 which underlines, in essence, the power to make rules and subsequently Sections 85 and 86 which contain the provisions for repealing and saving coupled with Eight Schedules which were the following-
The First Schedule is primarily a verbatim copy word by word of the entire text of the New York Convention, 1958.
The Second Schedule contains texts from the Geneva Protocol on Arbitration Clauses,1923.
The Third schedule entails the texts which were taken from the Geneva Convention on the Execution of Foreign Arbitral Awards of the year 1927.
While the fourth schedule essentially enabled high courts to fix fees of arbitral tribunals with a suggested model fee. The Fifth schedule ideally specific the grounds which can give rise to justifiable doubts as to the independence or impartiality of arbitrators precisely.
The sixth schedule underlined the circumstances that are likely to affect the independence or impartiality of arbitrators. The fifth and sixth schedules were respectively added through Amendment Act 3 of 2016.
The Seventh schedule mentioned the categories of persons who were permanently ineligible to be actually appointed as arbitrators. At the same time, the eight schedules underlined the qualifications as well as the requisite experience required from arbitrators. The eighth schedule, in turn, was added through Amending Act no.33 of 2019 in the August of 2019.

The amending act 33 of 2019, which was enacted last year in August, a completely new section 87 has been mainly introduced into the 1996 Act which reads as follows:

"Unless the parties otherwise agree, the amendments made to this act by the Arbitration and Conciliation Amendment Act,2015 shall
not altogether apply to the following

(i)arbitral proceedings that had commenced before the commencement of the Arbitration and Conciliation Amendment Act of 2015.
(ii) court proceedings which arose out of or in relation to such arbitral proceedings, regardless of whether the said court proceedings have commenced prior to or even after the commencement of the Arbitration and Conciliation Amendment Act,2015.

(b) shall apply only in turn to arbitral proceedings that have commenced on after the commencement of the Arbitration and Conciliation(amendment) act,2015, and to court proceedings which have arisen out of in or even in relation to said arbitral proceedings.

This particular section was severely criticized in the case of BCCI vs Kochi Cricket Pvt. Ltd reported in 2018 (6) SCC 287 by the Supreme Court of India:

Wherein Section 87 was purported to delete altogether section 26 of the Amendment Act of 2015 which has, in turn, resulted in the slowing down of reforms in Arbitration Law.

The Court also subsequently stated that with immediate effect of the proposed Section 87 will put all significant amendments which were made by the amending act of 2015 on a back burner altogether for the moment.

It was subsequently proposed by various legal luminaries that with consideration of the observations made by the Supreme Court of India in 2018 SCC,287, Section 87 should altogether be deleted so that Section 26 of the Amendment Act of 2015- Act 3 of 2016 by furthering comprehensive arbitral reforms gets restored altogether.

Source: Harmony amidst Disharmony: Fali S Nariman

  • Geneva Convention
  • Arbitration and Conciliation Act
  • Supreme Court

BY : Kabir Dev

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