The Arbitration and Conciliation (Amendment Act), 2021 ("2021 Amendment") is perhaps the most current intrusion in what seems being the Indian Parliament's never-ending attempts to tamper with the structure and purpose of the 1996 Act. The 2021 Amendment was signed into law on March 10, 2021, after the President of India issued the Arbitration and Conciliation (Amendment) Ordinance, 2020 in November 2020.
Features of the bill:
Arbitrator’s Qualifications: -
It repeals the Eighth Schedule of the Arbitration and Conciliation Act, 1996, which stipulated that the arbitrator must be
It repeals the Eighth Schedule of the Arbitration and Conciliation Act, 1996, which stipulated that the arbitrator must be
The criteria for arbitrator accreditation are intended to be regulated by regulations drafted by an arbitration body that will be established.
The Act includes rules for local and international arbitration, as well as a definition of the law governing conciliation processes.
To begin with, the 2021 Amendment modifies the 1996 Act's system by introducing additional barriers to the execution of arbitral rulings. Second, the 2021 Amendment undoes the enforcement-friendly amendments to the 1996 Act by limiting the power of judges to tailor relief to the situations. Finally, introducing ill-defined criteria for executing arbitral rulings (a) throws a wrench in the works of implementation, and (b) establishes reasons for resisting regulation that are distinct from the reasons for challenging an award.
The 1996 Act eliminated the overly cautious methodology of the 1940 Arbitration Act, which required the Court's stamp of approval before an arbitral ruling could be enforced. In reality, the 1996 Act went one step farther than the UNCITRAL Model Law ("Model Law") in bestowing direct implementation on arbitral decisions, which permitted an award-debtor to contest the award both at the dispute stage (Article 34) and at the implementation or acknowledgment stage (Article 36). It is clear from the start that the 2021 Amendment will jeopardise this course. The 2021 Amendment requires the Court to make a prima facie opinion that there was no deceit or dishonesty in the obtaining of the agreement or in the issuing of the decision in order to dismiss a Section 36 application. The fact that such a finding will still be subject to the outcome of the Section 34 application does not lessen the challenge, given that the ultimate disposition of such processes (including appeals to the Supreme Court) can take up to 6 years on average.In this way, the 2021 Amendment reintroduces the barrier to enforcement (in circumstances of suspected misconducts), reverting the arbitral regime backwards.
Benefits:
Would ensure that all parties involved in the arbitral proceedings are treated equally.
When an agreement or contract is "inspired by misconducts," all participants have the ability to request an absolute stay on the execution of arbitral verdicts.
Monitoring for abuse of the terms of the Arbitration and Conciliation Act of 1996 will save taxpayers money by punishing those responsible for illegally syphoning off funds.
Drawbacks:
When it comes to the execution of international contracts and agreements, India already falls behind. The bill has the potential to stifle the Make in India campaign's ethos and lower India's standing in the Ease of Doing Business Index.
India wants to establish itself as a centre for local and international arbitration. Commercial disputes may now take longer to resolve as a result of the adoption of these legal changes.
Conclusion:
The Arbitration and Conciliation Act of 2021 was enacted with legislators' good objectives in mind: to make India's arbitration centre a friendlier environment. To a significant extent, this goal has been accomplished. The new regulations have decreased the number of incidents of arbitral awards involving malfeasance. This has allowed the parties to avoid being harmed by the arbitral decisions' unfavourable consequences. Another move toward removing the 8th Schedule would be to hire qualified foreign arbitrators to assist India develop a global arbitration centre.
However, this legislation has several problems as well. With the adoption of Section 36(3), the courts' to assess the prima facie element of fraud and corruption has increased.By removing the 8th schedule from the main Act of 2019, the scope for appointing foreign arbitrators and arbitrators in other professions without any credentials has been expanded. This may result in the selection of inexperienced arbitrators, as well as a negative impact on Indian arbitrators due to the ease with which foreign arbitrators may be appointed. It will also make it more difficult for the parties, councils, and Indian courts to assess the arbitrator's competence on a regular basis.
This article is written by Tanishq Chandel, of Amity Law School.