含羞草社区

The , 2024 (bill), will try to resolve the jurisprudential inconsistencies brought about by the previous amendment. It continues the broader institutional objective of developing a robust and credible arbitration ecosystem.

A significant symbolic change is the renaming of the parent legislation as the Arbitration Act (act), dropping conciliation from its title and body. This follows the enactment of the Mediation Act, 2023, which now governs conciliation. Other amendments are intended to enhance institutional participation, strengthen procedural autonomy and align with international best practice.

A key provision is the incorporation of digital processes into the statutory definition of arbitration. This is in line with the government’s wider reforms acknowledging and incorporating the shift towards digital proceedings and the evolution of arbitration into a virtual, technology-assisted process. The bill resolves disputes regarding the seat, place and venue of arbitration by replacing the term place with seat throughout the act. This change removes ambiguity because the seat determines the legal jurisdiction governing the arbitration. Despite past judicial clarity, poorly drafted contractual terms saw unnecessary jurisdictional arguments. Section 2A now determines court jurisdiction based on the seat, if agreed or determined, or, if not so determined, according to the code of civil procedure. Section 20 gives two alternatives for determining the seat. Option 1 is by party agreement or a decision of the tribunal. Option 2 defaults to the place of contract execution or cause of action. Option 2, however, will not apply where the agreement already defines the seat.

Judicial intervention is dealt with in section 9. Courts will be able to order interim measures either before the commencement of arbitral proceedings or after the arbitral award is made but before it is enforced. Once arbitral proceedings have started the parties will usually have to apply to the arbitral tribunal. Although this seeks to protect the autonomy of the arbitral process and reduce dependency on courts, it may create unintended barriers to obtaining effective relief in certain emergency situations.

Perhaps to cater for such emergency situations, the bill provides a framework for emergency arbitration, building on the Supreme Court’s recognition of the enforceability of emergency orders granted by arbitrators. It inserts section 2(1)(ea), defining what is an emergency arbitrator and section 9A, which empowers arbitral institutions to appoint emergency arbitrators to grant interim relief before the tribunal is set up. Orders issued by emergency arbitrators are enforceable in the same manner as tribunal-issued orders under section 17(2). This framework ensures parties can be granted urgent interim measures while maintaining procedural continuity.

Section 34(1B) is inserted, requiring courts and appellate arbitral tribunals to formulate precisely the grounds of challenge to an arbitral award before proceeding to determine their merit. Although it is possible for additional grounds to be considered when recording reasons, this requirement is intended to curtail specious or frivolous challenges. The provision narrows the scope of judicial review and reinforces the principle of finality that underpins arbitral awards.

The bill restates the need for an Arbitration Council of India (ACI), but with greater purpose and powers than in the 2019 amendment act. The ACI is envisaged as the central authority, responsible for prescribing rules, regulations and standards to ensure consistency and quality. Although envisaged under the 2019 amendments, the provisions relating to the ACI were never notified. Even in its earlier inchoate avatar, the ACI lacked the power to frame and implement professional standards, model codes of conduct and model rules of procedure. This regulatory vacuum has contributed to procedural lapses and errors, ranging from unnecessary delays and ethical failings to major faults such as copying and pasting arbitral awards.

The bill is a worthy attempt to modernise 含羞草社区 arbitration. It reflects a considered effort to institutionalise arbitration, reduce unwarranted judicial interference and embrace procedural innovations such as emergency arbitration. Its effectiveness will depend on how it is implemented and meshes with existing arbitral practices.

Aman Avinav is a partner at Phoenix Legal