Whether Section 26 of the Arbitration and Concilation Amending Act, 2015 is Retrospective or Prospective

1. SECTION 26 OF THE
ARBITRATION (AMENDING)
ACT, 2015: PROSPECTIVE OR
RETROSPECTIVE?
:Prepared by:
H. S. MULIA
1

2. Disclaimer
Views expressed in
this document are
for information and
academic purpose
only.
2

3. The Arbitration and Conciliation
(Amendment) Ordinance, 2015
merely stated that “it shall come
into force at once” and was
imprecise as to whether it would
apply to pending arbitrations and
related court proceedings or not. In
fact, the Law Commission in it's
246th
Report tried to clarify the
scope of operation of the
amendments with respect to
pending arbitrations (Section 85-A)
but Section 85-A of the Report was
orphaned by the Ordinance. 3

4. The Arbitration and
Conciliation (Amendment)
Act, 2015 which was
published in the Gazette on
31st
December, 2015 but
came into effect from
23.10.2015 i.e. from the
date of Ordinance came into
effect.
4

5. The Amended A & C Act
however, recognized the
problem that was there in
the Ordinance and fixed it
by including Section 26.
The fix, however, has
been a cause of much
conundrum, therefore,
first of all one has to look
at the Section 26 of the
Act. 5

6. Section 26:- Nothing contained in
this Act shall apply to the arbitral
proceedings commenced, in
accordance with the provisions of
Section 21 of the principal Act,
before the commencement of this
Act unless the parties otherwise
agree, but this Act shall apply in
relation to arbitral proceedings
commenced on or after the date of
commencement of this Act.
6

7. Various High Courts with regard to
the application of the provisions of
Section 26 of the Arbitration and
Conciliation (Amendment) Act,
2015 have opined that 'arbitral
proceedings' do not include
'proceedings in relation to arbitral
proceedings or 'court proceedings'
and thus, the amendments would
apply to 'court proceedings' but not
to 'arbitral proceedings'. These
decisions are discussed as follows: 7

8. i. The Division Bench of Kolkata
High Court in Sri Tufan Chatterjee
v. Sri Rangan Dhar, AIR (2016)
Cal 213, held that even the
pending court proceedings
relating to arbitration, which
were pending as on date when
the amendments were notified,
must be governed by The
Amendment Act and not the
unamended one.
8

9. ii. The Madras High Court in the
matter of New Tirupur Area
Development Corporation Ltd. v.
M/s Hindustan Construction Co.
Ltd, Application No. 7674 of
2015 in O.P. No. 931 of 2015,
decided against the use of
provisions contained in the
Amendment Act to 'court
proceedings', for such
arbitrations which commenced
prior to amendments being
notified. 9

10. iii. Bombay High Court in the
matters of Rendezvous Sports
World v. BCCI, 2016 SCC Online
Bom 255 has held that
amendments brought to Section
36 of the Act are procedural in
nature and further balances the
rights of both parties and
ordered the BCCI to file an
application seeking stay against
enforcement of arbitral awards
under challenge. This decision is
pending adjudication before the
Supreme Court of India now. 10

11. iv. Delhi High Court had taken a view
contradictory to that of the
Kolkata, Madras and Bombay High
Courts in the case of Ministry of
Defence, Government of India v.
Cenrex SP. Z.O.O., 2016 (1) Arb LR.
The Court while relying upon
Section 6 of the General Clauses
Act, came to a conclusion that an
Act (or an Ordinance for that
matter) cannot have retrospective
operation unless so provided in the
Act and any vested right in such
Act/provision cannot be deemed to
be taken away by means of the
amending or the repealing Act. 11

12. The Division Bench of Delhi High
Court in the case of Ardee
Infrastructure Pvt. Ltd. v. Ms.
Anuradha Bhatia & Ardee
Infrastructure Pvt. Ltd. v. Yashpal
& Sons, FAO(OS) No. 221/2016 and
FAO(OS) No.222/2016, dated
06.01.2017 had following facts to
deal with the case.
12

13. Facts:- The notice invoking the
arbitration clause was given by the
respondents on 07.06.2011. The
statement of claim was filed in
February 2013 and an interim award
was made on 10.07.2014. The final
award was made by the arbitral
tribunal on 13.10.2015. The petition
under Section 34 objecting to the
award was filed on 04.01.2016. In the
meanwhile, the amendments to, inter
alia, Sections 34 and 36 were
introduced by the Amending Act with
effect from 23.10.2015. 13

14. The Division Bench of Delhi
High Court has classified
arbitral proceedings which
commenced in accordance
with Section 21 of the principle
Act i.e. prior to 23.10.2015,
into three categories:
14

15. a. where the 'arbitral proceedings' had
commenced prior to 23.10.2015 and
were pending before an arbitral
tribunal on 23.10.2015;
b. where the 'arbitral proceedings' had
commenced prior to 23.10.2015 and
the award was made prior to
23.10.2015, but the petition under
Section 34 seeking the setting aside of
the award was made after 23.10.2015;
c. Where the 'arbitral proceedings' had
commenced prior to 23.10.2015 and
not only the award was made prior to
23.10.2015, but the petition under
Section 34 had also been instituted
before the court prior to 23.10.2015. 15

16. The Delhi High Court has finally held
that :-
1) Section 26 of the Amending Act, if a
narrow view of the expression 'arbitral
proceedings' is to be taken, it is silent
on those categories of cases where the
arbitral proceedings commenced prior
to 23.10.2015 and the award was
made prior to 23.10.2015, but a
petition under Section 34 was under
contemplation or was already pending
on 23.10.2015;
16

17. 2) In such eventuality, the amended
provisions pertaining to those
categories would apply only if, they
were merely procedural and did not
affect any accrued right;
3) In the facts of the Delhi High Court,
the amendment to Sections 34 and 36,
which pertain to the enforceability of
an award, certainly affect the accrued
rights of the parties;
17

18. 4) As a result, the petitions
filed under Section 34 of the
Principle Act would have to be
considered under the
unamended provisions of the
Principle Act and consequently,
the applicants of Section 34
would be entitled to automatic
stay of enforcement of the
award till the disposal of the
said application.
18

19. In para No.32 it has been held
that:- Thus, if the expression
'arbitral proceedings' used in
the first limb of Section 26 is
given the same expansive
meaning as the expression 'in
relation to arbitration
proceedings' as appearing in
the second limb of Section 26,
then, the matter becomes very
simple and does not result in
any anomaly. 19

20. Meaning thereby, all the 'arbitral
proceedings' including the 'court
proceedings' arising out of the arbitral
proceeding, which commenced in
accordance with the provisions of
Section 21 of the Principle Act prior to
23.10.2015, would be governed,
subject to an agreement between the
parties to the contrary, by the
unamended provisions. And all those
'arbitral proceedings' which
commenced on or after 23.10.2015
would be governed by the amended
provisions in terms of the second part
of Section 26. 20

21. It is interesting that Sections 34
and 36 of the pre-Amendment
Act did not expressly provide
for an automatic stay on the
execution of the award, and the
same came into existence by
virtue of judicial interpretation
in the case of National
Aluminium Co. Ltd. v. Pressteel
& Fabrication (P) Ltd., 2004 (1)
SCC 540.
21

22. The Supreme Court in that case
observed that according to the
mandatory language of Section
34, when an award is
challenged within the time
stipulated in Section 34, it
becomes inexecutable. It was
interpreted that there is no
discretion left to pass any
interlocutory order in regard to
the said award, except to
adjudicate the correctness of
the claim made by the
Applicant therein. 22

23. As far as an accrued rights u/s 34 and
36 are concerned, Delhi High Court
relying on the ratio laid down in
Thyssen Stahlunion Gmbh v. Steel
Authority of India Limited, reported in
1999 (9) SCC 334, held that, with
regard to automatic stay and all
aspects of enforceability of an award
entail an accrued right both; in the
person in whose favour the award is
made and against whom the award is
pronounced; and an automatic stay on
the award upon filing of petition under
Section 34 was an accrued right in
favour of the Applicant of Section 34
and accrued right in favour of the
decree holder u/s 36. 23

24. It is also the settled law that the
right of appeal is not a mere matter
of procedure but is a vested right
inherited by a party from the
commencement of the action in a
court of first instance, and such a
right cannot be taken away except
by an express provision or by
necessary implication.
Please refer - Hoosein Kasam Dada
(India) Ltd. v. State of Madhya
Pradesh, A.I.R. 1953 S.C. 221.
24

25. It is also the settled principle of law
that an appeal is a continuation of suit.
Not only can a right of appeal not be
taken away by a procedural enactment
which is not made retrospective, the
right cannot be impaired nor can new
conditions be attached to the filing of
the appeal, nor can a pre-existing
condition be made more onerous or
more stringent so as to affect the right
of appeal arising out of a suit instituted
prior to the enactment. Therefore, the
right to challenge an award under
Section 34 of the Principal Act, 1996 is
a substantive right.
25

26. Accrual of Substantive Right under the
1996 Regime:-
Clearly, substantive rights would accrue
when 'arbitration proceedings' are
invoked under the pre-Amendment
regime. These accrued rights include, for
instance, a wider ground like 'patent
illegality' against an arbitral award from
an 'International Commercial Arbitration'
seated in India; an automatic suspension
of the enforcement of the award
provided an application u/s 34 has been
filed within time limit prescribed.
Please refer - Central Inland Water
Transport Corporation Limited v. Brojo
Nath Ganguly, 1986 S.C.R. (2) 278;
Pressteel & Fabrication (P) Ltd. (supra) 26

27. The Amendment Act, however,
puts an embargo on the use of the
wider ground of 'patent illegality'
against arbitral awards in
'international commercial
arbitrations' [Section 34 (2-A)],
and besides, it makes the right
under Section 34 more onerous by
the amputation of automatic
suspension of the enforcement of
the award, by adding Section
36(2) and 36 (3) of the New Act. 27

28. The Amendment Act affecting an Accrued
Substantive Right:-
That the Amendment has placed a
restriction, or that it has had an impact on
the right under Section 34 which cannot be
disputed.
The question, therefore, is whether such a
restriction or burden can be imposed on the
right to seeking setting aside an award
(arising from pre-Amendment arbitral
proceedings). That would not be the case,
going by the ratio laid down by the Judicial
Committee in Colonial Sugar Refining Co.
Ltd. v. Irving [1905 A.C. 369 (U.K.)] which
stated that any interference with the existing
rights is contrary to the well-known principle
that statutes are not to be held to act
retrospectively, unless a clear intention to
that effect is manifested. 28

29. This principle was notably applied
by the Supreme Court in Hoosein
Kasam Dada Ltd. (supra) which
stated that a pre-existing right of
appeal is not destroyed by an
amendment, if the amendment is
not made retrospective by express
words or necessary intendment.
The fact that the pre-existing right
of appeal continues to exist must
necessarily imply that the old law
which created that right of appeal
must also exist to support the
continuation of that right. 29

30. The Old Act continues to exist for the
purpose of supporting the pre-
existing right of appeal. This rationale
was also applied by the Calcutta High
Court in Nagendra Nath Bose v. Mon
Mohan Singha, A.I.R. 1931 Cal. 100.
Therefore, it necessarily follows that
Section 26 of the Amending Act would
be rendered illogical when applying
the new regime to 'court proceedings'
(commenced after the Amendment)
which are in relation to pre-
Amendment 'arbitral proceedings',
while applying the old regime to said
arbitral proceedings. 30

31. It is, therefore, reasonable to infer from
the above that a right to set aside an
award under Section 34 would not be
affected by an amendment in the case
of pending challenges before the court.
This is true even in cases where a
challenge, that is connected to pre-
Amendment 'arbitral proceedings', is
made after the Amendment Act came
into force. Ultimately, the date that
really needs to be looked into is the
date of commencement of the original
'arbitral proceeding' (pre or post-
Amendment) which, eventually
culminates into a challenge under
Section 34. 31

32. Above referred discussion pre-
empts any counter-submissions
that termination of arbitral
proceedings and the setting
aside of the award are two
separate proceedings and,
therefore, after the proceedings
are terminated and final award
is made, reference has to be
made to the new regime for
setting aside the award.
32

33. The interplay between Section 9 of
the New Act and Section 17 of the
Old Act:-
Sections 9 and 17 of the 1996 Act
deal with Court-ordered and
Tribunal-ordered interim measures,
respectively. Section 17, as
modified by the Amendment Act,
finally gives teeth to the orders of
the arbitral tribunal. Under the new
Act, the interim orders of an
Arbitral Tribunal are statutorily
enforceable in the same manner as
orders of a Court. 33

34. This was not the case under the old
regime. Please refer - Sundaram
Finance Ltd v. NEPC India Ltd., 1999
(2) S.C.C. 479; M.D., Army Welfare
Housing Organisation v. Sumangal
Services Pvt. Ltd, 2004 (9) S.C.C.
619.
Since the Arbitral Tribunal is now
bestowed with such privileges,
Section 9(3) has also been
introduced. It states that once the
Arbitral Tribunal has been
constituted, the court shall not
entertain an application under
Section 9(1).
34

35. If the view that the Arbitration and
Conciliation (Amendment) Act, 2015
would run as Retrospective is taken into
consideration, serious contradictions
emerge in the interplay between Sections
9 and 17,
Suppose 'court proceeding' u/s 9 is
required to be filed in the Court on or
after 23.10.2015 in relation to the 'arbitral
proceedings' commenced before the
Amendment, it would be under Section 9
of the new Act.
In this scenario, if a person in need of an
'enforceable' interim order approached
the court, his application under Section 9
would not be entertained because of the
restriction imposed by Section 9(3). 35

36. However, an inconsistency surfaces when
the party, instead of filing an application
u/s 9 takes a recourse to Section 17, and
then realises that the arbitral tribunal has
no power to enforce its order nor does it
provide for judicial enforcement (unlike
the amended Section 17).
Section 17 under the new regime
providing for enforceable interim
measures is crucial for the working of the
arbitration system, since it ensures that
even for the purpose of interim measure,
parties can approach the arbitral tribunal
rather than knocking the door of the
Court. 36

37. Suppose the proposition that the Amended
A & C Act would not apply retrospectively
to all 'arbitral proceedings' then in that
case an interim order rendered by an
arbitral tribunal in pre-Amendment arbitral
proceedings may not be enforceable.
But if the proposition that the Amended A
& C Act would apply retrospectively to all
'arbitral proceedings', it would be abruptly
governed by the post-Amendment law that
would deem it to be an order of the court
and enforce it as if it were an order of the
court. What was earlier unenforceable,
suddenly becomes enforceable in a way
that is unfair to one party, disrupting the
equilibrium of being governed by one
regime. 37

38. The category of court
proceedings not addressed by
Section 26 of the Amending Act
would have to be resolved by the
general rule that a particular
case, not provided for, must be
disposed-off according to the law
as it existed before such
amending statute.
Please refer - Maulavi Hussein
Haji Abraham Umarji v. State of
Gujarat 2004 (6) S.C.C. 672.
38

39. Where the amending law, dealing
with substantive rights, is being
applied retrospectively, it must
stand the test of fairness.
Please refer - Hitendra Vishnu
Thakur v. State of Maharashtra, 1994
(4) S.C.C. 602.
There is no reason why a
retrospective application of the
Amendment may not be made
applicable to a category of 'court
proceedings' which arising out of the
pre-Amendment 'arbitral
proceeding', especially, if it touches
a substantive right in existence. 39

40. It cannot be disputed that, if the
matter in question was a matter of
procedure only, the retrospective
applicability of the Amendment
would have been well founded.
On the other hand, if it is more
than a matter of procedure and
touches a substantive right in
existence, it may be conceded
that, in accordance with a long
line of authorities extending to the
present day, the Amendment
would be purely prospective. 40

41. The conclusion therefore, that
may be drawn is that the
unamended 1996 Act would
apply to the whole gambit of
'arbitration proceedings' which
commenced before the
Amendment Act, right upto the
culmination of the proceedings
into a challenge or an
enforcement of the award.
41

42. Thank
You
42