INTRODUCTION:

In India, in ancient times, people often voluntarily submitted their disputes to a group of wise men—called the panchayat—for a dispute resolution. This soon germinated into a whole system of arbitration. The first modern arbitration law in India was created by the Bengal Regulations in 1772, during the British rule.

The law for arbitration in India evolved from the primitive law used during the period of the East India Company. The first Arbitration Act (1899) was based on the English act of 1889. After this, the Arbitration Act of 1940 was introduced in the country. It was observed that this act was based largely on multiple opportunities being awarded to litigants to approach the court for intervention. Given the fact that the judicial system in the country was extremely sluggish, it was found that such a provision only led to further delays in the judicial process.

Further, in view of several inadequacies observed in the existent system, the Law Commission of India (hereafter referred to as Commission) was faced with the challenge of reviewing the provisions of the Arbitration and Conciliation Act 1996 (hereafter referred to as the Act).

The Commission had recommended various amendments under the 176^th report on the Arbitration and Conciliation (Amendment) bill, 2001. After due deliberation, the Government accepted most of the recommendations and accordingly introduced the ‘Arbitration and Conciliation (Amendment) Bill, 2003’ in Rajya Sabha on 22^nd Dec 2003. This bill was reviewed and was found to be insufficient and contentious, and a decision was taken that the Bill in its current form cannot be passed. It was therefore withdrawn from the Rajya Sabha.

The next step in this direction was taken by the Ministry of Law and Justice in April 2010 when they invited suggestions from eminent lawyers, judges, industry experts, and other stake holders. Their responses were received and assessed, and a number of conferences were conducted across the country to further invite suggestions from personnel of this domain. After due deliberation the Ministry prepared draft proposals for the same.

This proposal was submitted to the Commission for further scrutiny. The Commission set up an expert committee for the review of the draft proposal and make suggestions accordingly.

After careful consideration the commission prepared a report of the amendments to be made in the existent bill so as to cater to the changing times in the industry.

Development of Arbitration in India:

Arbitration in India is still in early stages of growth and has a long way to go to achieve speedy judgments. However it is fast growing and expanding. Like most Indian laws, the Arbitration Law is also based on the English Arbitration Law. Arbitration has grown over three phases, and over a very long period. It can be categorized as Ancient Period, British Rule Period and Independency Period.

In the ancient times, though courts weren’t prevalent, disputes were amicably solved by the elders and wise men of the city, town or village in the name Panchayat. Later these panchayats went on to gain constitutional recognition in 1992. In British Period, various laws were introduced for the purpose of dispute resolution. After Independence, when the country started its own judicial system, the shortcomings, drawbacks and the nuances hidden started to come out, deeming the 1940 Arbitration Act unsatisfactory. With this India opened a whole new chapter of Arbitration method, to be accepted and enforced by 1996.

The drafting of arbitration clause is a foundation and requires caution at three levels. First the essential elements of the arbitration clause which makes the clause valid, some adoptions and peculiar situations to be considered and the requirements of the parties to be considered. If any international standards are prescribed they should be valid. The requirements for an international clause are that the agreement should be in writing, it should deal with existing and future issues, and the dispute should arise with respect to a legal relationship. It should be the consent of both the parties for effective interpretation. The parties should intend to arbitrate. Initially, the process was seen as a matter of suspension, but in today’s scenario courts see it an appropriate way to solve commercial disputes.

The Pre 1996 situation:

It was observed that prior to 1940, there was a school of thought which said that courts should not have the right to reassess the judgment issued by an arbitral tribunal, and should be treated the same as a final judgment issued by a court of law. The court may have a different interpretation of the documents submitted as evidence, or the order of precedence, or the sequence of event occurrences but does not possess the right to veto the judgment passed by the arbitral tribunal. It was believed that arbitrators are well read in terms of facts as well as law, and hence therefore had the power to judge right from wrong, and their decisions could not be attacked. The decision, however erroneous, cannot be contested by the court of law (Aishwarya Padmanabhan et al.)

In addition to this, it is to be noted that the court was not given the right to appraise the evidence presented before it by the tribunal. Owing to the fact that the arbitral tribunal was said to possess good understanding of engineering as well as law, it was possible that the court can come up with a completely different conclusion of the case at hand (Aishwarya Padmanabhan et al.).

Thus it is evident that a number of steps were taken to give arbitration an autonomous status and separate it from the judiciary.

The Post 1996 situation:

Before the Arbitration and Conciliation Act 1996 came into existence the law governing the arbitration in India were three statutes: the Arbitration Act 1937 ( Protocol and Convention), the Indian Arbitration Act 1940, and the Foreign Awards Act 1961 (Recognition and Enforcement). The 1961 Act which employed the New York convention 1958 and the 1937 Act were used for foreign awards.

In the light of the aforementioned situations, the Arbitration and Conciliation act of 1996 was introduced in India. In January 1996 a new arbitration act was introduced based on the United Nations Commission on International Trade Law (UNCITRAL) of 1985. This Act was introduced since it was realized that an act that was more responsive to contemporary requirements of the country needs to be brought into force. One of the main objectives of the Act was to minimize the supervisory role of courts in the arbitral process, and to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court.

Furthermore, in order to attract the international mercantile community in view of the growing volume of Indian trade, the Government was forced to revisit the clauses set down in the Act of 1940 and make necessary amendments to the same to modify it in tune with the changing times.

The basic structure of the Act was that it possessed three sections, domestic arbitration, international commercial arbitration, enforcement of foreign award and conciliation.

The objectives of the act are as enumerated below:

1. To make provision and to provide a platform for a fair, efficient and capable arbitration procedure;

2. To make sure the arbitral tribunal is within its limits of jurisdiction;

3. To encompass upon international, commercial and domestic arbitration and conciliation;

4. To minimise the supervision of the courts over the arbitral process;

5. To make sure that every arbitral award is similar to award of a decree by the courts of the jurisdiction.

It was also observed by the Supreme Court that in cases where in a remedy was not provided by the statute, the court should devise a mechanism to deliver justice since that is the very basis for the existence of a judiciary. With due regard to the objective of the act and to the intention of the judiciary, the overall aim of the justice system which is to provide redressal to an aggrieved party should not be disturbed.

The main aim of the 1996 act was to bring about a legal framework for fair and just settlement of disputes arising in International Commercial Arbitration. There are a number of cases where a certain clause of the contract could have more than one possible interpretation. In such cases the court shall adopt that interpretation that is just, reasonable and sensible rather than the interpretation that adds no value to the case at hand.

The Arbitration and Conciliation Act, 1996:

The Act is divided into 4 sections as below:

1. Part I – titled “Arbitration” (Sections 2 to 43)

2. Part II – titled “ Enforcement of certain foreign awards” (Sections 44 to 60)

3. Part III – titled “ Conciliation” (Sections 44 to 81)

4. Part IV – titled “ Supplementary Awards” (Sections 82 to 86)

Applicability of Arbitration:

Disputes may be of two classes, those which can be adjudicated though arbitration and those which can only be adjudicated by a court of law. Following are some cases of disputes that cannot be adjudicated by arbitration:

i. Disputes relating to rights and liabilities that arise out of criminal offence;

ii. Matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;

iii. Guardianship matters;

iv. Testamentary matters;

v. Eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction.

Types of Arbitration India:

There are two types of procedures for arbitration in India.

1. Ad hoc arbitration - the procedures have to be agreed upon by the parties and the arbitrator and coordination between the parties and involves a lot of time.

2. Institutional arbitration - the rules of the procedure are already established by the institution and the fees are also fixed and regulated under rules of the institution. The parties can choose the arbitrators from the fixed panel and these are specialized arbitrators (K.Sharma.et.al, 2009).

Role of the courts:

The main advantage of the Act is that the role of the courts has been reduced to a great extent, giving freedom, efficient and quick arbitration between the parties.

However the parties can approach the court for any of the 2 reasons:

1. For any interim measure of protection

2. For the court to assist in the appointment of an arbitrator in case any of the parties fails to get an arbitrator themselves.

The Law Commission report:

Justice B. P. Jeevan Reddy, had made a 354 page report, which was the 176^th report on the Arbitration and Conciliation Act 1996 and submitted to Shri Arun Jaitley, the then Hon’ble Minister of Law, Justice and Co Affairs, in the year 2001. This report focussed on the drawback that the act has and some proposals for amendments. In this report the prime focus was given to Part-I which dealt with the arbitration in the Indian context.

The sole purpose of introducing the act in 1996 was to fast track cases in India, to achieve quick and cost effective dispute resolution. But the working of the legal system in the country shows that it is still evolving and it will take longer for it to be effective. (Divya Suwasini et. Al, Sept 2010). The paper in particular also pointed out that arbitration in both within the country and outside seems to be a mere duplication of the courts and hence isn’t being effective. It was also quoted that the “law in action” and the “law in books” don’t conform to each other (J. Gaya et. Al)

Drawbacks/ Key areas of concern in the 1996 Act:

1. Enforceability of foreign awards

The jurisdiction of awarding and challenging a foreign award is not very clear and is ambiguous. The challenging and enforcing jurisdictions of the New York convention and the Indian law is clashing, hence it will create issues in such cases of ambiguity of jurisdiction. The question of where the award is enforceable and where it is relied upon comes up in such cases. Upon analysis, it is found that the Indian approach to enforceability is full of shortcomings.

A case study on Bhatia International throws more light upon a situation of this sort. While one side believes that Indian jurisdiction should supersede foreign arbitral awards, another side believes that international arbitration should be free of domestic judicial influence.

2. Systemic delays in the process

The Law commission Report suggested that the delays do exist in the system, and it has to be rectified through analytical approach to the problems arising. The commission also suggested that an arbitrator be appointed for an unbiased and fair means of solving issues, and at the same time get expert advices. Furthermore it was also suggested that the awards should be able to be challenged up to a period of 1 year from notice period in both domestic and international situations.

3. Judicial intervention in foreign seated arbitration

If the arbitration is seated abroad for assets in India, it was seen that there was a lack of redress available to the parties.

Enforcing Foreign Arbitral Awards:

The party which intends to enforce a foreign award has to produce the arbitral award and agreement of arbitration in original or its certified copy to the District Court having jurisdiction over the subject matter of the award. Court can refuse the enforcement of award only in cases specified in section 48. Section 48 of the 1996 Act enumerates the conditions for the refusal to enforce a foreign award in an Indian Court. Thus, if the subject matter of the dispute or difference is not capable of settlement by arbitration in India or if the enforcement of the award was contrary to public policy of India, the Court may refuse to enforce the award. Otherwise, the foreign award is enforceable through Court as if it is a decree of the Court. If the Court declines to enforce the arbitral award, appeal can be made to the Court where appeal normally lies from the District Court. However, no further appeal can be made except appeal to Supreme Court. Probably, the aggrieved party may be able to approach International Court of Justice, as the convention is an international convention, signed by many of the member countries. One advantage of foreign award, according to foreign parties, is that Indian Courts come into picture only at the time of implementation of award. The Courts can refuse to implement the award only on limited grounds.

Contention with Foreign Awards:

There was also a contention regarding disputes involving an India party where the seat of arbitration is outside India. Prior to 1996, foreign parties faced difficulties in enforcing foreign awards in India due to the ruling that Part I of the Act was applicable to foreign awards as well. Thus the Indian judiciary introduced certain rulings pursuant to which the Act was made more structured. In view of this contention that foreign awards were subjected to interference by Indian courts, a change was brought about in the Act. It has made in conformance to the territoriality principle which has been espoused in the UNCITRAL model law which means that Part I of this Act is only applicable to disputes where the seat of arbitration is India irrespective of whether this dispute involves Indian parties of foreign parties. In addition to this, Part I of the Act has no applicability outside India even if the parties in dispute choose to apply the Act. In the case of Indian awards, the Act will supersede all other laws applicable in this land.

It is also to be note that rulings that were introduced are only applicable to arbitration agreements executed after Sept 2012. Thus Indian parties who were protected by Indian courts irrespective of the location of the seat of arbitration were not required to exercise caution while choosing a seat for arbitration post introduction of the new rulings to the Act.

Controversy regarding foreign awards:

The New York Convention allows parties two reservations to limit the scope of the Convention:

1. Reciprocity Reservation which permits any state to enforce any arbitral awards made in the territory of a state that is itself a party to the New York Convention

2. Commercial Reservation which permits any state to limit the application of the New York Convention to differences arising out of legal relationships that are considered to be ‘commercial’ under the national law of the state.

The problem arises while enacting the reciprocity reservation into the Indian Law. This seems to have added an additional condition for enforcing the foreign award. The provision has imposed a twofold requirement for the enforcement namely, that the award made in the reciprocating country and the reciprocating country itself be declared as such by the Central Govt. of India in the official gazette (P. Nair, 2014). This could cause an issue as out of the 145 territories of the New York Convention, only 50 have been declared by the Indian Central Government.

Unenforceable awards:

Under Section 48 and 57 of the Arbitration and Conciliation Act, an Indian Court can refuse to enforce a foreign arbitral award if it falls within the scope of following defenses:

1. The parties are under some incapacity;

2. The agreement is void;

3. The award contains decisions on matter beyond the scope of the arbitration agreement;

4. The composition of the arbitral authority or arbitral procedure was not in accordance with the arbitration agreement;

5. The award has been set aside or suspended by a competent authority of the country in which it was made;

6. The subject matter of dispute cannot be settled by arbitration under Indian Law, or

7. The enforcement of the award would be contrary to Indian public policy.

Recent Amendments:

The law of ministry proposed major changes in the Arbitration and Conciliation Act, 1996 to make out of court settlements of dispute easy. The law minister made a statement that any person being approached as an arbitrator will have to give a no conflict of interest declaration to the party, "the possible arbitrator shall disclose in writing any past or present relationship, direct or indirect, financial, business, professional or social or relationship with any of the parties involved in the dispute. The attempt to amend the Act in 2003, as per recommendations of the Law Commission, was not successful. The standing committee of law ministry felt that provisions of the bill gave way for excessive intervention by the courts in arbitration proceedings and many amendments after which the bill was withdrawn from Rajya Sabha. The proposal to amend the powers of courts to appoint arbitrators on the matter of seeking to institutionalize arbitration in India as per international standards and reduce the interference of courts in the process, if in case the parties have not named an arbitrator, the Chief Justice, instead of choosing an arbitrator, may choose an institute which will refer the matter to one or more arbitrators from its panel. Thus we can, institutionalize the system of arbitration in the country. On the integrity of arbitrators, the institutions will ensure that the person being hired is accredited and is a person of integrity.

The law of ministry also proposed the changes in the power exercised by the Chief Justice of the High Court or the Chief Justice of India that said that the power is not an administrative power, it is a judicial power. The power could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute. The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge.

The law of ministry proposes that there are three stages of grant of interest in the arbitral proceedings under the Act- which are pre reference; pendent lie and post award. The sum to be paid by the by arbitral award shall have interest rate one percent higher than the current rate of interest. Unless mentioned the date of award should be eighteen percent per annum from date of award to date of payment. This is done to erase the disputes between the parties.

The law also proposed that the arbitral award may be set aside by court if there is a conflict with the public policy under certain grounds that are incapacity of a party, arbitration agreement is not valid, if the party making applications is not given proper notice of appointment of arbitrator or of the proceedings and the arbitral procedure is not according to the agreements between the parties.

The amendments to the Arbitration and Conciliation Act, 1996, aimed at sending a signal to the international community that settling commercial disputes in India is no more a difficult and costly proposition, was cleared by the Union Cabinet recently. One of the key amendments to curb delay in arbitration is to stipulate a condition that the arbitrator in a commercial dispute will have to settle the case in nine months unless the High Court grants an extension.

The Law Commission Report, no. 246, of August 2014, is passed and approved by the president could prove to be a great advantage and have many benefits is the ordinance is in accordance with the said report. Some of the key takeaways that could lead to major transformation in arbitration system of the country are:

1. The whole process and system could gain institutional to the emergency arbitrator.

2. With respect to domestic ad hoc arbitration there could be legal framework for the fee structure of the arbitrator. This would empower the arbitrators and help them function better. The schedule could be updated every 3-4 years to make sure it stays realistic.

3. The conduct of the proceedings itself will change a new leaf. Technological advances such as teleconferencing, video recording the whole process instead of written/filed records, video conferencing etc have suggested. This also discourages frequent and baseless sittings and adjournments.

4. The neutrality of the arbitrators is ensured by making sure there is no relation or reason for any interest between any of the parties and the arbitrator.

The proposed amendment ensures that an Indian Court can only exercise jurisdiction under Part I where the seat of the arbitration is in India. To this extent, it over-rules Bhatia International case (shall be discussed later in detail), and re-enforces the “seat centricity” principle of BALCO case. However, applications that are already pending in an Indian court and which have been filed on the basis of the Bhatia International case rule, should be protected. The proposed amendment ensures that the default rate of interest is in line with prevailing commercial realities and not an arbitrary figure of 18% (N. Sinha, Jan 2015).

Public Policy in Arbitration and Conciliation Act:

The understanding of when Public Policy (PP) exception should be used or not, requires us to firstly understand its meaning. Unfortunately, there is no specific definition quoted anywhere about the definition of PP. However, the definition or citation is always made by the Courts (Habibisavadkouhi et. Al, 2014). Also there is no global uniform definition for PP. Hence it is even more challenging to decide upon one judgement. In India, the definition of PP for one state will differ from its meaning in other states.

The phrase “Public policy of India” used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of Public policy connotes some matter which concerns Public good and the Public interest. What is for Public good or in Public interest or what would be injurious or harmful to the Public good or Public interest has varied from time to time (S. Shrivastava et. Al, 2015). However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in Public interest. Such award /judgment/decision is likely to adversely affect the administration of justice. The result would be -award could be set aside if it is contrary to:

1. Fundamental policy of Indian law; or

2. The interest of India; or

3. Justice or morality, or

4. In addition, if is patently illegal.

Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the Public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court. Such award is opposed to Public policy and is required to be adjudged void.

Arbitration for Business Disputes:

Business is growing fast and expanding ever since 1991 to a great extent. With growing businesses, the disputes associated with them are also growing manifold. Such kind of business disputes always call for speedy solutions. Hence litigation methods cannot be used, since it may be time consuming. The major problem is for the businesses where stakes are very high and formal documents – contracts, arbitration clause, bank guarantee, indemnity, etc. – have been prepared (A.K. Agarwal, 2008). Arbitration as a method for speedy redressal of business disputes is facing uncertainty in India. Court intervention has to be reduced to the minimum. It is true that this intervention can never be eliminated. Thus, there is an urgent need to speed up the numerous matters pending in the subordinate courts, particularly in the court of District Judges. This can easily be done if the legislation allows transfer of these matters to the courts of the Additional District Judges. Not only the present business disputes are taking a much longer time for resolution, the future investment is also being blocked. Foreign investors are diffident to invest in India as the general perception is that business disputes last till eternity. This must come to an end. There has to be a holistic approach to it. The arbitration law, along with the procedural law, must be made business-friendly.

Delay in Arbitration due to disputes raised from Construction Claims:

According to a Construction Industry Development Council (CIDC) Survey, Rs.1,35,000 crores remains blocked in the construction sector over disputes (Dr. V. Patil, 2014). Ther e is no denial that arbitration is better in terms of quick justice compared to court. Yet the fact remains that many a time completion of arbitration proceedings also take a very long time. There are many reasons for the same. One of reason for delay can be attributed to the action of one of the parties to the contracts, in which contractual party approaches the court at different stages of arbitration.

Arbitration in Construction Industry:

The construction industry throughout the world, and especially in India is very fragmented, and is disproportionately functional. There is no long term relationship between the client and contracting agencies. As such there is no bond with their functionality, except thoroughly professional. Often construction jobs lead to delays due to various reasons which is altogether different research analysis. (Vidya Rajarao et.al, PwC). These delays pave way for misunderstandings which slowly root to disputes amongst the various parties, and also could lead to suspension of work till the resolution is met with to the issue. These delays lead to losses at personal level, to the government, the client agencies etc. To avoid all this a proper mechanism is needed that will guarantee a fair and efficient means, such as using expert opinions on the subject matter, to make sure the losses are reduced, if not nullified. An example is explained.

Importance of Arbitration procedures in Construction Law:

The construction industry is one of the fastest growing sectors of the Indian economy, and a lot of money is spent in construction related disputes. Arbitration occupies a prime position in commercial dispute resolution in India. In a survey conducted in 2001 by the Construction Industry Development Council (CIDC), the total amount of capital blocked in construction sector due to disputes is over INR 540,000 million.

As already mentioned in the previous sections, Part I of the Act applies to India alone and Part II applies to foreign awards i.e. in territories which are parties to the New York Convention and have been notified as reciprocating territories by the Govt. of India. However, it is to be noted that if an award is made in a non-convention territory, the Act is not applicable for dispute resolution in such areas. This translates to the fact that the Indian Court would have to act in complete absence of statutory governance and legislate the dispute. Considering the long history of arbitration in India, it is surprising to note that there is a possibility of lacunae in the system that is imagined to be fool proof.

Thus, the amendments made in 2014 are expected to tackle these lapses in the system and frame a more infallible dispute resolution system.

Comparative Statement:

Sl. No.	Amendments	1996	2014
1	Institutional Arbitration in India 11(6A)	Arbitration may be conducted ad hoc or under institutional procedures and rules. The parties had the option to choose their method according to their own rules and procedures which fits their needs.	The Law Commission Report attempts to encourage the culture of institutional arbitration in India; seeks to accord legal recognition to an 'emergency arbitrator', the new norm in most institutional rules; suggests that the Government consider formation of a specialized body which has representation from all stakeholders of arbitration, which body could be entrusted to encourage the spread of institutional arbitration. The establishment of trade and commerce bodies that can be moulded into rules of the renowned arbitration centre and formation of Arbitration Commission of India.
2	Conduct of arbitral proceedings 24(1)	1. Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted oil the basis of documents and other materials: Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. 2. The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property. 3. All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.	The Law Commission Report attempts to discourage the practice of frequent adjournments as well as seeks to push for continuous sittings of the tribunal for recording evidence and arguments. However, inspite of acknowledging that formal sittings merely for compliances should be avoided and use of technologies like video-conferencing and tele-conferencing is encouraged.
3	Arbitrator's fees (28)	The cost of arbitration can be high if the arbitral tribunal consists of retired Judges. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. When an arbitrator is appointed by a court without indicating fees, either both parties or at least one party is at a disadvantage. the parties feel constrained to agree to whatever fees is suggested by the arbitrator, even if it is high or beyond their capacity.	The Law Commission Report recommends, for domestic ad hoc arbitrations, a model schedule of fees, which will be updated regularly to ensure that they remain realistic. The Commission notes that International Commercial arbitrations involve foreign parties who might have different values and standards for fees for arbitrators; similarly, institutional rules might have their own schedule of fees; and in both cases greater deference must be accorded to party autonomy.
4	Costs 6-A	Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties. “costs” means reasonable costs relating to (a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties; (b) any expert advice requested by the conciliator with the consent of the parties; (c) any assistance provided pursuant (d) Any other expenses incurred in connection with the conciliation proceedings and the settlement agreement. The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party.	A regime of actual costs incurred is proposed based on Rule 44 of the Civil Procedure Rules of England. A general rule requiring a losing party to pay actual costs of the successful party, as proposed, would certainly inspire most parties to be reasonable about resolving disputes. More so, manufactured counterclaims and dilatory tactics would be minimized and thus, the overall speed and efficacy of the arbitral process would be bound to improve. By keeping a check on parties' conduct including potential offers to settle the disputes, the Law Commission Report seeks to cast an obligation upon each party to the proceeding to cooperate and be reasonable at each step.
Sl. No.	Amendments	1996	2014
5	Appointment of an arbitrator 11(7)	A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. he parties are free to agree on a procedure for appointing the arbitrator or arbitrators. a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.	The Law Commission Report proposes to make appointment of an arbitrator an administrative decision to be carried out by the High Court or the Supreme Court, as the case may be. This approach is designed to bring Indian arbitration in line with global best practices It is also provided that such an application be endeavoured to be disposed of expeditiously, and also within a 60 day period, from service of notice. The issue of jurisdiction of the arbitral tribunal, if in question, could be raised before the arbitral tribunal. Though the Law Commission Report provides for a challenge of refusal to appoint an arbitrator under the Act, it does not provide for a situation where an arbitral tribunal holds that it has jurisdiction. Parties to arbitration will therefore need to go through the entire arbitral process before being able to challenge the jurisdiction of the arbitral tribunal itself.
6	Challenges to arbitral awards 34(2b)	The Commission has found that challenges to arbitration awards are similarly kept pending for many years. The claims by the court were not understood by the arbitrator and required separate respondents. a High Court does not exercise ordinary original jurisdiction international or national.	In any event within a period of one year from the date of service of notice. The Commission has further provided a time limit which mirrors the time limits set and is aimed at ensuring that parties take their remedies seriously and approach a judicial forum expeditiously, and not by way of an afterthought. The Commission has also recommended mandatory disclosures by the prospective arbitrators in relation to their ability to devote sufficient time to complete the arbitration and render the award expeditiously. It is recommended that in the case of international commercial arbitrations, where there is a significant foreign element to the transaction and at least one of the parties is foreign, the relevant “Court” which is competent to entertain proceedings arising out of the arbitration agreement, should be the High Court.
7	Interim orders by the arbitral tribunal (17)	A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a pica merely because that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. the arbitral tribunal takes a decision rejecting the plea, continue with die arbitral proceedings and make an arbitral award. A party aggrieve by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.	Once a court grants interim relief of the Act, arbitration proceedings should be commenced within 60 days thereafter failing which the interim relief will cease to operate. Once the arbitral tribunal is constituted, a court will not ordinarily entertain a petition (before the arbitral tribunal) would not be efficacious. The Law Commission report doesn't provide for enforceability of interim orders passed by arbitral tribunals (both for emergency arbitrator and a duly constituted arbitral tribunal) in foreign seated arbitrations.
8	Setting aside of domestic award recognition/enforcement of foreign awards (34)-2A	The part of the Arbitration and Conciliation Act, 1996 that has come to scrutiny the most are the powers conferred upon the court to set aside an arbitral award. The decision given by the Court in ONGC vs. Saw Pipes, where it was held that "public policy" was a ground to set aside an arbitral award, in case it was found to be "patently illegal". This not only causes an unnecessary delay, but questions the very finality of the Arbitral process, thus shaking the confidence of domestic and foreign investors in the arbitration process of the country.	In light of the same, the Commission has suggested restricting the scope of the concept of "patent illegality", not to include the "interests of India", but as a basis to challenge an arbitral award only if it is opposed to the "fundamental policy" or it is in conflict with "most basic notions of morality or justice" 3. The Commission has further suggested that "patent illegality" shall be a ground for setting aside awards in domestic arbitrations seated in India only.
9	Judiciary And Arbitration (5)	The intervention of the judicial body in arbitration has been a major concern as it goes beyond the scope of some parties with respect to time and money.	Reduce the involvement of judiciary and more power to the arbitral tribunal. It is however, equally important that the balance is maintained by a recognition by the courts that just as arbitration exists only to serve the interests of the community, so also their own powers are conferred only to support, not supplant, the extra-judicial process which the parties have chosen to adopt.
7(3B)

Sl. No.	Amendments	1996	2014
10	Delays in Courts, before the tribunal and investment Treaty Risks. 11(7)	Judicial intervention in arbitration proceedings adds significantly to the delays in the arbitration process and ultimately negates the benefits of arbitration. First, the judicial system is over-burdened with work and is not sufficiently efficient to dispose cases, especially commercial cases, with the speed and dispatch that is required. Second, the bar for judicial intervention has been consistently set at a low threshold by the Indian judiciary, which translates into many more admissions of cases in Court which arise out of or are related to the Act.	The Government must consider this experience of the Delhi High Court, and request the Chief Justices to create specialized and dedicated arbitration benches. The Commission also believes that one of the methods to provide relief against frivolous and misconceived actions is to implement a regime for actual costs as is implemented in the UK and also other jurisdictions.
11	Scope and Nature of Pre-Arbitral Judicial Intervention (37)	Situations where the intervention of the Court is envisaged at the pre-arbitral stage, i.e. prior to the constitution of the arbitral tribunal. It has direct impact on the conduct of arbitration. The scope and nature of permissible pre-arbitral judicial intervention has to be known. High court orders are necessary, identifying the need for arbitration and type of claim.	The judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. An appeal can be maintained in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator.
12	Judicial Intervention of foreign seated arbitrations (8 and 11)	The Supreme Court of India, in the BALCO judgment, declared that Part I and Part II of the Arbitration and Conciliation Act are exclusive of each other and this decision was given a prospective effect. In line with this decision of the Supreme Court, the Commission made a few recommendations in order to reduce the judicial intervention in foreign-seated arbitrations. The Supreme Court in the Bharat Aluminum case ruled that a court in India is not empowered to grant interim relief in foreign-seated arbitrations. This creates complications for the parties involved in arbitrations outside the country.	In order to redress this situation, the Commission has suggested an amendment to section 17 of the act, to the effect that Indian courts are endowed with the power to grant interim relief in the case of international or foreign seated arbitrations and that the orders passed by an arbitral tribunal should be statutorily enforceable. In addition to this, the Committee also recommends the recognition and enforcement of the interim orders granted by emergency arbitrators.
13	Automatic stay of enforcement of Award and upon Admission of challenge (36)	The Act makes it clear that an arbitral award becomes enforceable as a decree only after the time for filing a petition under section 34 has expired or after the section 34 petition has been dismissed. This automatic suspension of the execution of the award, the moment an application challenging the said award is filed under section 34 of the Act leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs.	The award will not become unenforceable merely upon the making of an application under section 34.
14	Arbitrability of fraud and complicated issues of fact (16)	Issue that has emerged on various instances is that of the arbitrability of fraud. After a series of judgments giving conflicting views on the matter, the High Courts declared that a mere "allegation of fraud" would be arbitrable, while a serious issues of fraud would not be arbitrable. However, the controversy continues to exist.	The Committee has suggested an amendment to section 16 of the act, to the effect that the arbitral tribunal shall not have the power to make an award on "a serious question of law, complicated questions of fact or allegations of fraud, corruption.”
15	Neutrality of Arbitrators 12(3)	The parties faced criticism due to partiality of arbitrators and the direction of arbitration process was not justified on legal grounds as the intervention of other parties caused issues.	The Commission has recommended that, anyone who has been an employee, consultant or adviser to a party, or has had business with one of the parties, shall not be allowed to sit as arbitrator in that case.
16	Definition of “Party” 2(h)	A “party” to mean “a party to an arbitration agreement.” This cannot be read restrictively to imply a mere “signatory” to an arbitration agreement, since there are many situations and contexts where even a “non-signatory” can be said to be a “party” to an arbitration agreement.	This is just to clarify that a “party” also includes a person who derives his interest from such party, and further re-enforces the decision of the Supreme Court.
17	Interests on Sums Awarded (31)	Future interest is payable not only on the principal sum but also on the interest accrued till the date of the award remains controversial. Award of interest on interest is not only permitted but also the norm.	The Commission has recommended amendments to section 31 to clarify the scope of powers of the arbitral tribunal to award compound interest, as well as to rationalize the rate at which default interest ought to be awarded and move away from the existing rate of 18% to a market based determination in line with commercial realities.
Sl. No.	Amendments	1996	2014
18	Transitory Provision	ADDITION OF SECTION 85-A	The scope of operation of each of the amendments with respect to pending arbitrations/proceedings. As a general rule, the amendments will operate prospectively, except in certain cases as set out in section 85-A
Other Amendments
2(f)iii	“international commercial arbitration		The intention behind the proposal is that the test for determining the residence of a company must be based on its place of incorporation and not the place of central management/control. This adds greater certainty to the law, and re-enforces the “place of incorporation” principle laid down by the Supreme Court
25(b)			In section 25, sub-clause (b), after the words “by the claimant” add the words “and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited;”
7(3A)		“(3A) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (3B) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference. Explanation: For the purpose of this Act, "electronic communication" means any communication that the parties make by means of data messages; "data message" means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex and telecopy.” This amendment brings Indian law in conformity with the UNCITRAL Model Law on International Commercial Arbitration and clarifies that an arbitration agreement can be concluded by way of electronic communication as well.]	The proposed sections 7(3A) and 7(3B) is intended to bring the Indian law in conformity with the UNCITRAL Model law and clarifies that an arbitration agreement can be concluded by way of electronic communication as well.

Case Studies

The following case studies have been considered as part of this thesis.

a. Bharat Aluminium Co. VERSUS Kaiser

Sl. No.	Details
1.	Year	2005
2.	Court Level	Supreme Court of India
3.	Date of Decision	6 September 2012.
4.	Constitutional Bench	5 Judge panel
5.	Sections of Act 1996	34,2(7),9,11
6.	Appellant	Bharat Aluminium Co.
7.	Respondent	Kaiser Aluminium Technical Service, Inc.
8.	Situation and Task	An agreement dated 22 April, 1993 (“Agreement”) was executed between BALCO and Kaiser, under which Kaiser was to supply and install a computer based system at BALCO’s premises. As per the arbitration clause, any dispute under the Agreement would be settled in accordance with the English Arbitration Law and the venue of the proceedings would be London. The governing law would be Indian Law. The arbitral tribunal passed two awards in England which were sought to be challenged in India of the Act in the district court at Bilaspur. During the proceedings in London, an application was made by appellants, before the District Judge at Mangalore, against the encashment of refund bank guarantees. The applications were allowed and were consequently challenged in High Court of Bangalore. The Bangalore High Court set aside the application so allowed on the grounds that the appellants had an alternative remedy in the courts of London and further since the substantive law governing the contract, and the arbitration agreement, is English law, the English courts should be approached. This was also challenged in this petition to the Supreme Court.

Sl. No.	Details
8.	Legal Scenario	· No applicability of Part I of the Act in respect of the International Commercial Arbitrations having their seat outside India. · No Interim Reliefs available to the Parties of International Commercial Arbitrations having their seat outside India. · Indian Courts can no longer set aside foreign arbitral awards. · Only the Courts, where the seat of arbitration is situated, have competence to annul Foreign Awards. · No Scope for Recognition and Enforcement of Non-Convention Awards.
9.	Judgement	Supreme Court ruling in the Bharat Aluminium case means that Indian courts will no longer be able to set aside awards or issue interim measures in respect of arbitrations seated abroad. This ends the uncertainty for the international arbitration community and allows arbitration to be seen as a much more viable method for dispute resolution in India. The Supreme Court has confirmed that there can be no “overlapping or intermingling” of the provisions contained in Part I of the Act with the provisions contained in Part II (which relates to the enforcement of foreign awards).Part I of the Act will have no application to international commercial arbitrations, seated outside India. The seat or legal place of the arbitration is the “centre of gravity” in an international arbitration. Awards rendered in commercial arbitrations seated outside India will only be subject to the jurisdiction of the Indian courts when they are sought to be enforced in India in accordance with the provisions contained in Part II of the Act. Parties will therefore need to rely on the relief afforded by the courts of the jurisdiction in which the arbitration is seated. As the choice of seat can have significant implications for the way arbitration is conducted, parties should carefully consider their choice at the drafting stage.
10.	Result	The judgment passed was better for the international arbitration community. It provided the much needed certainty for those involved in Indian- related commercial contracts where arbitration is provided as the method of dispute resolution. It creates a positive impact on the way in which India is viewed from an international arbitration perspective; providing parties with a greater incentive to arbitrate rather than being forced to resort to the protracted litigation in Indian courts. The judgment leads to concern for those who have already entered into arbitration agreements involving business or transactions in India. Overall this is a positive development which should strengthen the Indian arbitration regime and put India on the map of arbitration friendly nations.

b. Reliance Industries Limited & Anr. Versus Union of India

Sl.No	Details
1.	Year of Appeal	2014
2.	Court Level	Supreme Court of India
3.	Constitutional Bench	7 judge panel
4.	Sections of Act 1996	34,11(6)
5.	Situation and Task	In 1994, Reliance Industries Limited (Reliance) entered into two Production Sharing Contracts (PSCs) with the Government of India concerning two offshore oilfields located to the north-west of Mumbai. Another party was Enron Oil and Gas India Limited; that was absorbed into the BG Group in 2002, and renamed BG Exploration and Production India Limited (BG). A dispute arose concerning the payment of royalties under the PSCs. Reliance and BG argued that they were entitled to US$ 11.4 million in compensation following changes to the Indian law on royalties, because in the PSCs the Government had promised to indemnify them against such changes. They started an arbitration. The seat of the arbitration was in London; the governing law of the PSCs was Indian law; and the parties had expressly agreed in the PSCs that English law would govern the arbitration clauses.
6.	Appellant	Reliance Industries Limited & Anr.
7.	Respondent	Union of India
8.	Legal Scenario	A issue arose as to whether the claims were "arbitrable"; that is, whether they could be referred to arbitration at all, or whether they had to be heard by the various statutory tribunals in India established to deal with petroleum matters. This was on the basis that payment of royalties concerned the national interests of India and was therefore an issue of public policy. The Tribunal decided in a Partial Award that the claims were arbitrable, because they concerned contract terms to offset the effect of changes to the law and not a dispute under the relevant Indian statute itself. The Government challenged that decision in the High Court of Delhi. It argued that the High Court had jurisdiction to overturn the Partial Award because BALCO did not apply to the PSCs, which were signed before September 2012: the powers of the Indian courts over this foreign-seated arbitration remained, therefore. It also argued that since the claim was for the refund of public monies, it must be heard by the statutory bodies and not by a private arbitral tribunal. The High Court agreed with the Government, and set aside the Partial Award.
Sl.No	Details
9.	Judgement	The Indian courts had no powers On appeal to the Supreme Court, a number of earlier authorities concerning arbitration had to be considered. For new contracts, BALCO has confined those authorities to the history books; for pre-September 2012 contracts, however, they remain very much alive. Part 1 includes section 34, which was the basis on which the Government had challenged the Partial Award. If section 34 was excluded, therefore, there could be no challenge. Bhatia International had said Part 1 could apply to foreign-seated arbitrations,3 and Venture Global had said that parties could agree to exclude Part 1.4 After Venture Global, it had become the practice to exclude Part 1 expressly in arbitration agreements. The PSCs pre-dated that, however. The Supreme Court ruled that the parties had impliedly excluded Part 1 by agreeing that the seat of the arbitration was London, and that English law applied to the arbitration clause. This meant the English courts, not the Indian courts, supervised the arbitration. Public policy did not stand in the way The Supreme Court also dismissed the Government's argument that public policy dictated that the questions in this matter should go to a statutory tribunal. This was a claim arising from commercial contracts. Also, the arbitration agreements were separate contracts within the PSCs and governed by English law; meaning that the public policy argument did not impact on the question of whether the Indian courts could review the Tribunal's jurisdiction.
10.	Result	This case is a reminder that the pre-BALCO law remains in place for older India-related contracts. Parties wanting to avoid this and benefit from BALCO can amend their contracts to include a new arbitration clause. • If parties do not amend their contracts, they can at least refer to this case as an attempt by the Supreme Court to reconcile the case law before and after BALCO. • Foreign parties should be aware that public policy plays an important role in Indian commercial law – reflecting the significant involvement of the Government in business, particularly in the natural resources sector. However, the Indian courts have demonstrated in this case (and in others) that public policy arguments do not always succeed

c. HCC v/s Union of India

Sl. No.	Details
1.	Appeallant	HCC
2.	Respondent	Union of India
3.	Contract	Construction of Highway bridges
4.	Judgement day	12^th October 1966 (the Act 1940 used)
5.	Situation	In connection with the execution of the contract, some disputes arose between the parties and were referred to the joint arbitration of Sri B. K. Guha and Sri N. P. Gurjar. As there was difference of opinion between the two arbitrators, the matter was referred to an umpire, namely, Sri Dildar Hussain, retired Chief Engineer, Hyderabad.
6.	Umpire’s award	May 27^th, 1961
7.	Petition	On August 4^th, 1961, by the appellant before the subordinate judge first class, Delhi
8.	Sections referred	s14, s17 of Act 1940
9.	Submittals	The award and the proceedings were to be filed by the umpire. Umpire submitted it on September 13^th 1961.
10.	Objection	Raised by the respondent that by s14, that the filed documents weren’t valid and legal under the section mentioned. The appellant then went in revision to the High Court. The High Court dismissed the revision application holding that the document filed in court was admittedly not the original award and that it was clear from a perusal of the document itself that it was not a signed copy thereof. Certain alternative arguments were submitted to the High Court which was rejected and the revision application thus failed. Thereupon the appellant obtained special leave.
		The Umpire had written “certified as correct copy of the award dated the 27th May, 1961”. There were ambiguities about the definition of the words ‘copy’ and ‘signed’. The debate was whether the copy submitted is to be assumed as a document true and accurate or a copy.
		Finally after many decisions the Court gave its judgement in favour of the appellant that what the Umpire wrote didn’t make a difference.
		The fact that the umpire wrote the words "certified as correct copy of the award dated the 27th May, 1961" above his signatures does not in our opinion make any difference and the document it still a signed copy of the award. If anything, these words show that document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as follows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in court was a signed copy of the award as required by s. 14(2).

d. State of Goa Vs M/s Praveen Enterprises

Sl. No.	Details
1.	Appellant	State of Goa
2.	Respondent	M/s Praveen Enterprises
3.	Contract	They had entrusted a construction work to the respondent Praveen enterprises, of farm development in Salcette Taluka.
4.	Process of Arbitration	They had agreed upon arbitration through an arbitrator appointed by the Chief Engineer, CPWD.
5.	Commencement of work	Work commenced on 16. 11. 1992 and was completed on 5. 5. 1994. The contract was terminated by the appellant that even beyond EOT the work was not completed. (31.3.1995)
6.	Sections invoked	11, 2(9), 23
7.	Claims made	Respondent put some claims and also asked for the appointment of an arbitrator, but the appellant didn’t do so in the beginning. Later by 1998 the arbitrator was fixed and by 1999 the parties was called for the arbitration and to file their statements. So this was after the Act was in place. Statements from both parties were filed by April (respondent) and June (Appellant) in the year 1999.
8.	Award	Award was granted in July 2000, considering 14 claims of the respondent and 4 claims of the appellant. He awarded to the respondent, Rs.1,00,000/- towards claim No.2 with interest at 12% per annum from 26.8.1998 to 19.2.1999; Rs.3,63,416/- towards claim No.3 with interest at 12% per annum from 18.9.1995 to 22.2.1999; and Rs.59,075/- towards claim No. 14 (additional claim No. ii) with interest at 12% per annum from 18.9.1995 to 22.2.1999. In regard to the counter claims made by the appellant, the arbitrator awarded to the appellant Rs.2,94,298/- without any interest in regard to counter claim No.3. The arbitrator rejected the other claims of respondent and appellant. He awarded simple interest at 18% per annum on the award amount from the expiry of one month from the date of the award and directed both parties to bear their respective costs.
9.	Award challenged	The respondent challenged this award for rejecting of the other claims and the award on counter claim no 3 under section 34 of the Act. The fast track civil court rejected the claim but accepted the objection on the counter claim. The appellant challenged the said judgment by filing an arbitration appeal before the High Court. The High Court of Bombay dismissed the appeal by judgment dated 31.8.2007. The High Court held that the counter claims were bad in law as they were never placed before the court by the appellant (in the proceedings under section 11 of the Act for appointment of arbitrator) and they were not referred by the court to arbitration. The High Court held that in such circumstances arbitrator had no jurisdiction to entertain a counter claim.
10.	Inference	The position emerging from above discussion may be summed up as follows: (a) Section 11 of the Act requires the Chief Justice or his designate to either appoint the arbitrator/s or take necessary measures in accordance with the appointment procedure contained in the arbitration agreement. The Chief Justice or the designate is not required to draw up the list of disputes and refer them to arbitration. The appointment of Arbitral Tribunal is an implied reference in terms of the arbitration agreement. (b) Where the arbitration agreement provides for referring all disputes between the parties (whether without any exceptions or subject to exceptions), the arbitrator will have jurisdiction to entertain any counter claim, even though it was not raised at a stage earlier to the stage of pleadings before the Arbitrator. (c) Where however the arbitration agreement requires specific disputes to be referred to arbitration and provides that the arbitrator will have the jurisdiction to decide only the disputes so referred, the arbitrator's jurisdiction is controlled by the specific reference and he cannot travel beyond the reference, nor entertain any additional claims or counter claims which are not part of the disputes specifically referred to arbitration.
11.	Position in case	The arbitration clause in this case contemplates all disputes being referred to arbitration by a sole arbitrator. It refers to an Appointing Authority (Chief Engineer, CPWD), whose role is only to appoint the arbitrator. Though the arbitration clause requires the party invoking the arbitration to specify the dispute/s to be referred to arbitration, it does not require the appointing authority to specify the disputes or refer any specific disputes to arbitration nor requires the Arbitrator to decide only the referred disputes. It does not bar the arbitrator deciding any counter claims. In the absence of agreement to the contrary, it has to be held that the counter claims by the appellant were maintainable and arbitrable having regard to section 23 read with section 2(9) of the Act. Counter claim no.(3) in regard to which Rs.2,94,298/- has been awarded by the Arbitrator relates to the cost of pipes entrusted by the appellant for carriage from store to site, which were not accounted for by the respondent. It is not shown to be barred by limitation. We find no error in the reasoning of the arbitrator in awarding Rs.2,94,298/- under counter claim no.(3).
12.	Conclusion	In view of the above, this appeal is allowed and the order of the High Court affirming the judgment of the trial court in regard to counter claim No.3, is set aside. Consequently the award of arbitrator is upheld in its entirety and the challenge thereto by the respondent is rejected.

The Way Ahead:

We believe that the comparative study will help analyse the utility of the amendments when passed. By the latest update, the amendments have been passed in the Rajya Sabha as on 5^th August, 2015. The presidential authority is still awaited. However it was only accepted by the Rajya Sabha for 18 month fast tracking, rather than 9 month fast tracking of cases as proposed by the amendments in the beginning. Over time the amendments may shape fruitful for the industry if it fulfils the said purpose for which it was proposed in the first place. Hence more cases are being analysed as a part of our thesis as of now to understand the usefulness of the amendments.

REFERENCES:

1. The Arbitration and Conciliation Act, 1996

2. The 176^th Report of Law Commission of India.

3. UNCITRAL Model Law on International Commercial Arbitration, 1985

4. A Consultation Paper released by the Ministry of Law and Justice. Government of India, on The Arbitration and Conciliation Act. 1996

5. Indian Railway Standard General Conditions of Contract. July 2013 issued by Railway Board. Ministry of Railway. Government of India.

6. M. Manjula Rani et. Al. “Strengthening Arbitration through Judiciary”. American Journal of Research in Humanities. Arts and Social Sciences, Sept-Nov 2013, ISSN (Print): 2328-3734, ISSN (Online): 2328-3696, ISSN (CD-ROM): 2328-3688

7. Niteen Sinha. Indian Juris Associate Litigation Team Report, Jan 2015.

8. Pramod Nair. “Arbitration of M&A Transactions – A Practical Global guide”. J Sagar Associates Reports, 2014.

9. Shefali Roy. “The aspect of Jurisdiction in the Indian Arbitration – Enforcement of foreign awards in India”. The Indian Arbitratior – Indian Institute of Arbitration and Mediation Volume 7 Issue 1 Jan 2015.

10. S. Shrivastava et. al. “The public Policy – Creation of Legislature or Judiciary”. The Indian Arbitratior – Indian Institute of Arbitration and Mediation. Volume 7 Issue 1 Jan 2015

11. S. Habibisavadkouhi et al. “The Position and Problem of Public Policy in Indian Arbitration and Conciliation Act 1996”. Research Journal of Recent Sciences. Vol. 3(12) 92-98 December (2014) ISSN 2277-2502.

12. Justice A Shah. “Need to bring reforms in Arbitration Law”. Indian Council of Arbitration Journal. Quarterly. Vol. 43 Oct – Dec 2008.

13. P. Gupta et. Al. “‘An Overview Of Dispute Resolution Procedures In Road Projects With Reference To The Fidic Form Of Contract And Suggestions For Improvements”. Journal of Indian Roads Congress. Jan – March 2010.

14. Dr. S.K. Dixit. “Arbitration and Conciliation”. 7^th National Conference of Practising Company Secretaries.

15. A.K. Agarwal. “Resolving Business Disputes in India by Arbitration: Problems Due to the Definition of Court”. Indian Institute of Management. Ahmedabad. Research and Publications. W.P. No. 2008-12-03

16. Dr. V. Patil. “A Study of Delay in Arbitration Proceedings Due to Disputes Raised in Courts Related to Construction Claims”. Research Journal’s Journal of Management. Vol. 2. No. 3. April 2014. ISSN 2347-8217

17. Dr. V. Desai. “An analysis of the proposed amendments to the Arbitration and Conciliation Act. 1996”. Nishith Desai Associates Report. Sept 2014.

18. D. Suwasini. et. Al. “Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards”. Sept 2010

19. S. Kachwaha et. Al. “Arbitration in India: An Overview”. Kachwaha Parteners Reports. April 2009

20. A. Thomas. et. Al. “Recommendation on the Consultation Paper released by the Ministry of Law and Justice. Government of India. on The Arbitration and Conciliation Act. 1996”. Nishith Desai Associates. Global Think Tank. July 2010.

21. A. Padmanabhan. “Analysis of Section 34 of the Arbitration and Conciliation Act – Setting Aside of Arbitral Award and Courts’ Interference : An Evaluation with Case Laws”. Manapatra Publications.

22. V. Sharma. "Rendering India into an Arbitration Friendly Jurisdiction-Analysis of the Proposed Amendments to the Arbitration and Conciliation Act. 1996." NUJS L. Rev. 3 (2010): 529.

Received on 16.11.2015 Accepted on 24.12.2015

Int. J. Tech. 5(2): July-Dec., 2015; Page 131-144

DOI: 10.5958/2231-3915.2015.00009.7