The document summarizes key aspects of the Arbitration and Conciliation Act 1996 in India, including amendments made in 2015, 2019, and 2020. It provides an overview of the parts of the act relating to domestic and foreign arbitration, conciliation procedures, enforcement of foreign awards, and the roles of courts in arbitration. It also summarizes changes introduced by the amendments, such as recognizing electronic agreements, establishing an Arbitration Council of India, relaxing time limits, ensuring confidentiality for arbitrators, and clarifying stay provisions for arbitral awards.

1. Dispute and Conflict Avoidance in Construction Management
(Arbitration and Conciliation Act 1996
Amended in 2015, 2019, 2020)
Authored By:
Triveni Prasad Nanda
Assistant Professor
RICS-SBE/XX/XX/S006/R02
Revised on: 24-05-2019

2. • The UNCITRAL model law on international commercial
arbitration was adopted by the united nations commission on
international trade law (UNCITRAL) on 21 June 1985, at the
close of the commission's 18th annual session.
• The general assembly, in its resolution 40/72 of 11 December
1985, recommended "that all states give due consideration to
the model law on international commercial arbitration, in view of
the desirability of uniformity of the law of arbitral procedures
and the specific needs of international commercial arbitration
practice".

3. Generally all disputes of a civil nature or quasi-civil nature which
can be decided by a civil court can be referred to arbitration:
• Relating to property
• Right to hold an office
• Compensation for non-fulfilment of a clause in a contract
• Disputes in a partnership
What can be referred to arbitration

4. The law has given jurisdiction to determine certain matters to specified
tribunal only; these cannot be referred to arbitration:
• Matters involving questions about validity of a will.
• Relating to appointment of a guardian.
• Pertaining to criminal proceedings
• Relating to Charitable Trusts
• Winding up of a company
• Matters of divorce or restitution of conjugal rights
• Lunacy proceedings
• Disputes arising from an illegal contract
• Insolvency matters, such as adjudication of a person as an
insolvent.
• Matters falling within the purview of the Competition Act.
Disputes excluded from the Arbitration Act

5. ARBITRATION & CONCILIATION ACT 1996
The Act is divided in to the following parts
(a) Part I -Domestic arbitration - sets out general provisions on
domestic arbitration
(b) Part II -Enforcement of foreign awards - addresses the
enforcement of foreign awards (Chapter 1 deals with New York
Convention awards and Chapter II with awards under the 1927
Geneva Convention)
(c) Part III -Conciliation procedures
(d) Part IV -Supplementary provisions
Parts I and II are the most significant and are based on the
UNCITRAL Model Law and the New York Convention respectively.

6. The act also contains seven schedules which are as follows:
• The 1958 New York Convention on the recognition and enforcement of
foreign arbitral awards (section 44);
• The 1923 Geneva Protocol on arbitration clauses (section);
• The 1927 Geneva Convention on the execution of foreign arbitral awards
(section 53);
• The model fee schedule for calculating arbitrators’ fees (section 11(14));
• The arbitrator guidelines on impartiality and independence (section
12(1)(b));
• The model form for arbitrators’ disclosure of independence and impartiality
(section 12(1)(b)); and
• The grounds for ineligibility in case of an arbitrator’s relationship with the
parties or counsel (section 12(5)).
Schedules in the ACA 1996

7. Arbitration agreement - an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.
Power to refer parties to arbitration when there is an arbitration agreement.
Interim measures by court
• Appointment of a guardian for a minor or person of unsound mind for the
purposes of arbitral proceedings
• Protection in respect of preservation, interim custody or sale of any goods which
are the subject-matter of the arbitration agreement
• Securing the amount in dispute
• The detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute
• Interim injunction or the appointment of a receiver;
• Any other interim measure of protection as may appear to the court to be just and
convenient
Part 1 - Arbitration Agreement

8. • The Arbitral Tribunal is not bound by Code of Civil Procedure,
1908 or Indian Evidence Act, 1872.
• The parties to arbitration are free to agree on the procedure to
be followed by the Arbitral Tribunal.
• Law of limitation (1963) applicable
• Flexibility in respect of procedure, place & language.
• Submission of statement of claim & defence maybe amended/
supplemented at any time
• Hearings & Written Proceedings –at the discretion of the
tribunal
• Can be oral at the request of either party
• Settlements during Arbitration
Conduct of Arbitral Proceedings

9. • The decision of Arbitral Tribunal will be by majority
• The arbitral award shall be in writing and signed by the
members of the tribunal.
• The award should be dated and place where it is made should
be mentioned.
• Copy of award given to each party.
• Tribunal can make interim award also.
Arbitral Award

10. An arbitral award may be set aside by the Court only if;
• The party furnishes proof of some incapacity
• the arbitration agreement is not valid under the law to which the
parties have subjected it
• the party was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
• the arbitral award deals with a dispute not contemplated by or not
falling within the terms of the submission to arbitration, or it contains
decisions on matter beyond the scope of the submission to
arbitration
• the composition of the arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties
• the arbitral award is in conflict with the public policy of India.
Arbitral Award - Appeal

11. • Fees and expenses of arbitrators and witnesses, legal fees and
expenses, administration fees of the institution supervising the
arbitration and other expenses.
• Tribunal can decide the cost and share of each party.
• If parties refuse to pay the costs, the Arbitral Tribunal may
refuse to deliver its award; thus any party can approach Court.
• The Court will ask for deposit from the parties and on such
deposit, the award will be delivered by the Tribunal. Then Court
will decide the costs of arbitration and shall pay the same to
Arbitrators. Balance, if any, will be refunded to the party.
Cost of Arbitration

12. • The earlier arbitration law was that the party could access court
almost at any stage of arbitration.
• Now, approach to court has been drastically curtailed.
• If an objection is raised by the party, the decision on that
objection can be given by Arbitral Tribunal itself & the arbitration
proceedings are continued
• The aggrieved party can approach Court only after Arbitral
Award is made.
• Appeal to court is now only on restricted grounds.
• Tribunal cannot be given unlimited and uncontrolled powers
and supervision of Courts cannot be totally eliminated.
Intervention by Court

13. Foreign award means an arbitral award on differences relating to
matters considered as commercial under the law in force in India.
The foreign awards which can be enforced in India are as follows :
• New York convention award -made after 11th October, 1960
• New York convention awards are enforceable in India.
• New York convention was drafted and kept in United Nations for
signature of member countries on 21st December, 1958.
• Geneva convention award - made after 28th July, 1924.
Part 2 - Enforcement of Foreign Awards

14. To enforce a foreign award party has to
• produce arbitral award, agreement of arbitration to the district court
having jurisdiction over the subject matter of the award.
• The enforcement of award can be refused by court only in cases
specified in law.
• 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.
• No further appeal can be made (except appeal to Supreme Court) .
• Indian courts can be approached only at the time of implementation
of award.
• The courts can refuse to implement the award only on limited
grounds.
Part 2 - Enforcement of Foreign Awards

15. The act makes provision for conciliation proceedings. In
conciliation proceedings:
• There is no agreement for arbitration.
• Conciliation can be done even if there is arbitration agreement.
• The conciliator only brings parties together and tries to solve
the dispute using his good offices.
• The conciliator has no authority to give any award.
• Helps parties in arriving at a mutually accepted settlement.
Part 3 – Conciliation

16. • In such agreement they may draw and sign a written settlement
agreement. Duly signed by the conciliator
• However after the settlement agreement is signed by both the
parties and the conciliator, it has the same status and effect as if it is
an arbitral award.
• Conciliation is the amicable settlement of disputes between the
parties, with the help of a conciliator.
• The conciliation proceedings can start when one of the parties
makes a written request to other to conciliate, briefly identifying the
dispute.
• The conciliation can start only if other party accepts in writing the
invitation to conciliate.
• Unless there is written acceptance, conciliation cannot commence. If
the other party does not reply within 30 days, the offer for
conciliation can be treated as rejected
Part 3 – Conciliation

17. • The High Court has the power to make rules under this act
• Removal of difficulties by central Government through
provisions made under the Act
• Rules made by Central Government subject to approval by
parliament
• The present Act overrules the previous Acts
Part 4 – Supplementary Provisions

18. • Change in the definition of the term court defined in
Section 2(1)(e)
• Before Amendment - Prior to the amendment the definition
of the term court was ambiguous. It was ambiguous in the
sense that it did not clearly demarcate the boundary
between the jurisdiction of the district court and high court.
• After Amendment - After the amendment the word court to
be referred as principal civil court of original jurisdiction in
case of domestic arbitration and High court in case of
international commercial arbitration.
Changes in 2015 Amendments

19. • Recognition of Communications through Electronic Means
as an agreement in writing, Section 7 (4)(b)
• An agreement shall be considered in writing for the purpose
of assuring the validity of arbitration agreement if the
communication has been made or words have been
exchanged between the parties through electronic means.
• Thus, now if the parties have exchanged words through
emails or even through messengers that can also be
considered as agreement in writing.
Changes in 2015 Amendments

20. OBJECTIVES:
• Making India the hub of international arbitration – to attract
Indian and foreign parties to make India as a seat of arbitration
• Moving towards institutional arbitration
• Addressing the cost effectiveness and time in decision of the
arbitral tribunal
Changes in 2019 Amendments

21. Arbitration Council of India (ACI):
The main functions of Arbitration Council of India are to:
• promote the alternative dispute resolution mechanism
• making policies to create arbitral institutions and accredited arbitrators
• make policies for establish and operation of professional standards
• maintain the depository of arbitral awards both domestic and
international
the Chairperson of ACI can be a Supreme Court judge or CJI, or a High
Court judge or High Court chief justice or any eminent person practicing
arbitration
Appointing the Arbitrators mechanism:
courts will designate arbitration institute which will make appointment of
arbitrators and 30-day timeline has been
given for making the appointment of arbitrators to the arbitration
institutes
Changes in 2019 Amendments

22. Relaxation of time limits:
• For international commercial arbitration, there is no time limit
• For domestic arbitration, this bill introduces the time limit for filing of
pleadings i.e. written submission and statement of claim is 6 months for
domestic arbitration. Therefore, total of 18 months and if necessary, it will
extend to another 6 months.
• For India seated arbitration, the same time limits were applied as domestic
arbitration.
Confidentiality and immunity of arbitrator:
A lot of arbitrators are sued in the process of arbitration. So that under section
42A & 42B, there is given a freehand to arbitrators who has goodwill.
Clarification on applicability of act 2015:
The act 2015 will be applicable to the arbitrations which are post 2015.
Similarly, for the court proceedings also, court proceeding of arbitrations
which are post 2015. Example: BCCI and KOCHI.
Changes in 2019 Amendments

23. Fee schedule:
Schedule IV is for fee, applicable for arbitrators from the parties. And
this schedule IV is applicable for domestic arbitrations only. Not
applicable for international commercial arbitrations.
Section 34:
The sections 34 states that whatever points are risen before the arbitral
tribunal, those points only considered after
that
Eighth schedule:
The eighth schedule gives the arbitrator’s qualification, i.e. the arbitrator
should have 10 years of experience as an advocate or chartered
account or cost accountant or company secretary or officer as legal
matter in government or have a senior managerial position in private
sector or senior managerial position in administration.
Changes in 2019 Amendments

24. Automatic stay on awards:
• The 1996 Act allowed a party to file an application to set aside an
arbitral award (i.e., the order given in an arbitration proceeding).
Courts had interpreted this provision to mean that an automatic stay
on an arbitral award was granted the moment an application for
setting aside an arbitral award was made before a court. In 2015,
the Act was amended to state that an arbitral award would not be
automatically stayed merely because an application is made to a
court to set aside the arbitral award.
• The Ordinance specifies that a stay on arbitral award can be
provided (even during the pendency of the setting aside application)
if the court is satisfied that: (i) the relevant arbitration agreement or
contract, or (ii) the making of the award, was induced or effected by
fraud or corruption. This change will be effective from October 23,
2015.
Changes in 2020 Ordinance

25. Qualifications of arbitrators:
• The Act specified certain qualifications, experience and
accreditation norms for arbitrators in a separate schedule. The
requirements under the schedule include that the arbitrator
must be: (i) an advocate under the Advocates Act, 1961 with 10
years of experience, or (ii) an officer of the Indian Legal
Service, among others.
• Further, the general norms applicable to arbitrators include that
they must be conversant with the Constitution of India. The
Ordinance omits the Schedule for arbitrators and states that the
qualifications, experience, and norms for accreditation of
arbitrations will be specified by regulations.
Changes in 2020 Ordinance

26. • https://www.lexology.com/library/detail.aspx?g=72bcbbe3-c139-46f2-b9ce-086394161f41
• http://legislative.gov.in/sites/default/files/A1996-26.pdf
• https://www.mondaq.com/india/arbitration-dispute-resolution/792842/highlights-of-the-
proposed-amendments-to-the-arbitration-and-conciliation-act-1996
• https://www.manupatrafast.in/NewsletterArchives/listing/ILU%20RSP/2015/Dec/Highlights%20o
f%20Amendment%20to%20the%20Arbitration%20and%20Conciliation%20Act%201996%20via
%20Arbitration%20Ordinance%202015.pdf
• https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=8687
• https://prsindia.org/billtrack/the-arbitration-and-conciliation-amendment-ordinance-
2020#:~:text=The%20Arbitration%20and%20Conciliation%20(Amendment)%20Ordinance%2C
%202020%20was%20promulgated,law%20for%20conducting%20conciliation%20proceedings.
Further Reading