Arbitration and Conciliation (A) Act, 2021
Recently, the Arbitration and Conciliation (Amendment) Act, 2021 was passed by Parliament. It seeks to amend the Arbitration and Conciliation Act, 1996. The Act contains provisions to deal with domestic and international arbitration and defines the law for conducting conciliation proceedings.
What are provisions amended under The Arbitration and Conciliation (Amendment) Act, 2021 and its implication on alternate dispute resolution in India?
• Automatic stay on awards: if the award is being given on the basis of an agreement based on fraud or corruption, then the court will not impose a condition to stay the award and grant an unconditional stay during the pendency of the appeal if it has been challenged under Section 34 of the arbitration law.
➢ Until recently, an arbitration award was enforceable even if an appeal was filed against it in the court under Section 36 of the law. But the court could grant a stay on the award on conditions as it deemed fit.
• Qualifications of arbitrators: The act removes the 8th Schedule of the Act which contained the necessary qualifications for accreditation of arbitrators. The qualifications for accreditation of arbitrators are proposed to be prescribed as per regulations framed by an arbitration council.
● Critics argue that Amendment represents a retrogression in the pro-arbitration regime sought to be fostered in India.
● It has been said that Amendment alters the scheme of the 1996 Act by creating new hurdles to the enforcement of the arbitral awards.
● With the inclusion of new grounds to resist the enforcement of awards, it may be expected that parties who are dissatisfied with the outcome of arbitral proceedings shall make every attempt to contend that their contract or the award is vitiated by fraud or corruption.
● Fraud and Corruption are nebulous concepts and that makes law’s standards vague.
● It would lead to a delay in the execution of a domestic arbitral award.
● Foreign parties may not opt for India as a favourable hub for arbitration.
India currently ranks at 163rd rank out of 193 in the enforcement of contracts thereby impacting our Ease of Doing Business. There is a need to ensure that we follow the procedures and guidelines as laid down in UNCITRAL Model Law on International Commercial Arbitration so as to not affect arbitration award holders.