On Sunday, Supreme Court judge, Justice Indu Malhotra joined in a Webinar on the theme 'Evolution of Arbitration Law In India' and pointed the drwabacks of ad-hoc arbitration and need of institutionalized arbitration.

She stated that ad-hoc arbitrations went on endlessly:

I regret to say it but a lot of retired judges would let the arbitrations keep on pending because they were charging on a per hearing basis..The 2015 amendment has made a tremendous change by placing a statutory limit.

Delivering her speech, she went onto clarify that the Arbitration Council of India was conceived as a promotional body under the 2019 Amendment Act and not as a regulatory body.

She said:

"Arbitration Council of India was conceived as a promotional body which would promote arbitration in India.. India was certainly looking to be a hub of arbitration in this region of the world.. even though there was a misconception by many international practitioners that it was another regulatory body..there is no regulatory power which is ascribed to this body."

She pointed that the aim of the 2019 amendment was to transform the Arbitration System in India from ad-hoc to institutional by substantially amending Section 11.

She added that the Arbitration Council was yet to come into force as the government was still considering the form in which it should be brought about.

Further discussing in detail the amendment introduced to the Arbitration Act in 2015, she stressed that the 2015 Amendment to the Arbitration & Conciliation Act, 1996 was the most significant milestone on the arbitration landscape of India.

Brought pursuant to the 246th Report of the Law Commission, 2015 amendment has brought several substantive amendments to the law of arbitration in India, she added.

"'..first was that it provided a statutory time limit under Section 29A of the Act.. which has since been increased by the 2019 amendment. There is no other statute is the world which has a statutory time limit for the completion of arbitral proceedings."

Justice Malhotra further discussed the changes introduced to the definition of 'Court' under the Act as well as to Sections 8, 11.

She quoted saying:

The 2015 amendment brought about the most important amendment by the insertion of sub-section 6 to section 11.. It, in fact, legislatively overruled Patel Engineering decision of the Constitution Bench, Boghara Polyfab, Master Construction and several decisions..It reinforced Kompetenz-Kompetenz.

She also spoke on the introduction of statutory disclosures under Section 12 and power of the arbitral tribunal to grant interim relief under Section 17 of the Arbitration Act.

Fast track arbitration was also introduced by the Tribunal as a mode of disclosure where the arbitration dispute could be resolved on the basis of documents only, Justice Malhotra added.

While remarking that the Indian Act was the only Act which has narrowly defined 'public policy', she stated that ground of public policy was now available only when there was fraud, contravention of fundamental policy of Indian law, or violation of notion of justice.

In her closure to the speech, she discussed the impact of COVID-19 on the Arbitration and said that conducting proceedings online was cutting down travel costs and expedited the process.

 

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