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Impact of 2015 Amendments to Arbitration & Conciliation Act

Impact of 2015 Amendments to Arbitration & Conciliation Act <br>1996 on the International Arbitrations & Enforcement of Foreign awards

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Impact of 2015 Amendments to Arbitration & Conciliation Act

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  1. Impact of 2015 Amendments to Arbitration & Conciliation Act,1996 on the International Arbitrations & Enforcement of Foreign awards 2nd India International Arbitration Summit 23rd March 2017 Presented by S. Ravi Shankar, Arbitration lawyer & Senior Partner Law Senate Law Firm – New Delhi, Mumbai ravi@lawsenate.com www.lawsenate.com

  2. Major changes of the Arbitration & Conciliation (Amendment) Act 2015 • Arbitration & Conciliation (Amendment) Act, 2015 (23rd October 2015) • Deals with many major challenges faced by parties arbitrating in India and outside India. • Courts should try to dispose applications seeking appointment of arbitrators within 60 days from the date of Notice (S.11) • Power to Chief Justice to designate an Institution to appoint arbitrators • After getting an interim order under S.9, Parties need to start the arbitration proceedings within 60 days • Fees fixed for the ad-hoc arbitrators on the basis of the value of the dispute (4th Schedule) (No sitting, reading & writing fee) • Arbitral Institutions are allowed to have a higher Fee scale www.lawsenate.com www.lawsenate.com

  3. Major changes of the Arbitration & Conciliation (Amendment) Act 2015 • An arbitration has to be completed within 12 months S.29A • Both parties can jointly extend the completion period by 6 months • After that only court can extended the time for completion • While extending the time for completion court can fix terms • Fast Track Arbitration S.29B to be completed with in 6 months • No need for oral hearing in Fast track arbitrations, matter will be decided on the basis of pleadings & Documents • If Arbitrator can not complete the arbitration within the time limit he looses the mandate to continue the arbitration • Interim orders can be granted by Indian Courts in support of Foreign seated International Arbitrations www.lawsenate.com www.lawsenate.com

  4. Major changes of the Arbitration & Conciliation (Amendment) Act 2015 • No automatic stay on filing of an appeal challenging an Arbitral award S.36, while granting stay courts can impose terms • Disclosure to be made by Arbitrators about their relationship with parties & counsels (Fifth Schedule) to ensure impartiality in the lines of “ IBA Guidelines on Conflict of interest in International Arbitrations. • Costs follow the event S.31.A • Costs including counsel fees, expenses, arbitrator fees can be claimed • Narrow scope for the Term Public Policy S.34 to avoid courts interference into the arbitral awards www.lawsenate.com

  5. Enforcement of Foreign awards • A Foreign award is binding if passed in a New York convention seat which is notified by India on reciprocity basis • Party wishes to enforce a foreign award should produce • Original or certified copy of the award • Original or certified copy of the arbitration agreement • Other evidences to prove it is foreign award, If court is satisfied it will be deemed to be a decree of the court S.58 • A Foreign seated arbitration award can not be challenged in India www.lawsenate.com

  6. Refusal to Enforce a Foreign award • A Court can refuse a Foreign award only when there is proof that there was • In capacity of parties to enter into the contract • Deficiency of notice to parties by the arbitrator/ Institution • The issues decided in the arbitration are not arbitrable • Tribunal was not formed as per the arbitration clause • Award is set aside by the competent court in the seat of arbitration • Award is Contrary to Public Policy of India • Normally Courts do not interfere into the foreign seated arbitration awards

  7. Public Policy of India • Intervention by courts on the issue of “Public Policy of India” is reduced • Public Policy gets violated if Award was by fraud corruption • Or Contravention to the fundamental policy of Indian Law • Or Conflict with the most basic notions of morality of Justice • But it is clarified that contravention with fundamental Policy of Indian law shall not entail a review on the merits of the dispute • Hence Arbitration scene in India has become more effective & Efficient after 2015 amendments.

  8. PROGRESSIVE APPROACH OF COURTS • “All disputes or Differences whatsoever arising between the parties out of, or relating to, the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in India through the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of ICA. • If either party is in disagreement with the arbitration result in India, either party will have the right to appeal to a second arbitration in London, UK in accordance with the Rules of Conciliation and arbitration of the International Chamber of Commerce in effect on the date hereof and the result of this second arbitration will be binding on both the parties. Judgment upon the award may be entered in any court in jurisdiction. “ • (2016) SCC Online SC 1482 Centro trade Minerals & Metals Inc Vs Hindustan Copper Ltd., www.lawsenate.com

  9. THANKS www.lawsenate.com www.lawsenate.com

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