Adr Final Jp

AN IN-DEPTH ANALYSIS OF THE 2019 AMENDMENT TO THE ARBITRATION AND CONCILIATION ACT, 1996

FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE TITLED –

ALTERNATIVE DISPUTE RESOLUTION

ACADEMIC SESSION – 2017 - 2022

SUBMITTED TO: Mr. HRISHIKESH MANU FACULTY OF ALTERNATIVE DISPUTE RESOLUTION

SUBMITTED BY: JAGRITI PANDEY B.A., LL.B. (Hons.) ROLL NO.: 1735 SEMESTER- 6th

CHANAKYA NATIONAL LAW UNIVERSITY NYAYA NAGAR, MITHAPUR, PATNA - 800001

TABLE OF CONTENTS ACKNOWLEDGEMENT ..................................................................................................... 3 DECLARATION .................................................................................................................. 4 INTRODUCTION ................................................................................................................ 5 ARBITRAL INSTITUTIONS ............................................................................................... 7 APPOINTMENT OF ARBITRATORS UNDER SECTION 11............................................. 9 ARBITRATION COUNCIL ............................................................................................... 10 GRADING OF ARBITRAL INSTITUTIONS AND ARBITRATORS ............................... 11 TIMELINES ....................................................................................................................... 12 AMENDMENT TO SECTIONS 34 AND 45 ...................................................................... 15 QUALIFICATIONS AND EXPERIENCE OF ARBITRATORS ........................................ 16 CONFIDENTIALITY OF ARBITRATION PROCEEDINGS ............................................ 19 CONCLUSION AND SUGGESTIONS .............................................................................. 20 BIBLIOGRAPHY ............................................................................................................... 21

ACKNOWLEDGEMENT On this occasion of completion of my project work, I would like to express my indebtedness towards my respected faculty, Mr. Hrishikesh Manu, who was always there to assist me in this journey. He guided me with infinite patience and warmth throughout the course of making this project work. Whenever I visited him for any suggestion, he used to show me one or the other effective way out. As per his suggestion, I went through several books from CNLU library and visited many websites for the purpose of this project. His contribution is invaluable for the completion of this project. Other than him, I would like to thank my friend Deeptangshu who helped me out by providing with some very important books which were unavailable in the library.

DECLARATION I hereby declare that the work submitted in the B.A., LL.B. (Hons.) Project Report entitled “AN IN-DEPTH ANALYSIS OF THE 2019 AMENDMENT TO THE ARBITRATION AND CONCILIATION ACT, 1996” submitted at Chanakya National Law University is an original work undertaken by me carried out under the supervision of Mr. HRISHIKESH MANU. I made this project work all by myself by burning the midnight lamp. There is no kind of copyright violation on my part. NAME OF CANDIDATE: JAGRITI PANDEY. CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

INTRODUCTION The object of the Arbitration and Conciliation Act, 1996 is to comprehensively consolidate and amend the law relating to domestic arbitrations, international commercial arbitration and enforcement of foreign arbitral awards and also to define the law relating to conciliation and for matters connected therewith or incidental thereto. The Arbitration and Conciliation (Amendment) Bill, 2019 was introduced in Rajya Sabha by the Minister for Law and Justice, Mr. Ravi Shankar Prasad, on July 15, 2019, to amend the Act, with primary aim to strengthen the Indian arbitral institution and promote institutional arbitration. Further also to promote the alternate dispute resolution as a mechanism to solve the dispute arisen between the parties instead of approaching to the courts. It would be worth mentioning that the Principal Act was earlier amended by the Arbitration and Conciliation (Amendment) Act, 2015 and the said amendment revolutionized the alternate dispute resolution process, with the introduction of minimal interference of the Court in arbitration proceedings, completing the arbitration process in a time bound manner and speedily disposal of the matters. Before the said amendment act of 2015 there were no strict timelines within which the proceedings were to be concluded and at times the arbitration proceedings continue for three to four years. The present amendments have enlisted the hurdles and obstructions for the development of institutional arbitration and to prepare a channelized route for institutional arbitration. The present amendment had been proposed by a committee constituted by the Central Government, under the Chairmanship of Justice B.N. Srikrishna, Former Judge of Supreme Court of India.

RESEARCH QUESTIONS: 1. What was the pretext of the 2019 amendments? 2. How did the amendments of 2019 differently affect the arbitration system in India than 2015 amendments? 3. What are the fundamental changes brought by the latest amendment? 4. How much difference will be brought in by the 2019 amendments as far as speed of arbitration proceedings is concerned?

HYPOTHESIS: The researcher will seek to establish that the 2019 amendments are absolutely necessary provided the ground reality existing in the arbitration practice in India.

ARBITRAL INSTITUTIONS Section 1(ca) has been introduced to define an 'arbitral institution' as an arbitral institution designated by the Supreme Court or a High Court under the Act. The 2019 Amendment introduces Section 11(3A) to the Act whereby the Supreme Court of India and the High Courts shall have the power to designate arbitral institutions, which have been graded by the Arbitration Council of India (“ACI”) under Section 43-I (also introduced by the 2019 Amendment). The underlying idea is that instead of the court stepping in to appoint arbitrator(s) in cases where parties cannot reach an agreement, the courts will designate graded arbitral institutions to perform that task (per Sections 11(4)–(6) of the Act, as amended by the 2019 Amendment). However, it is the grading aspect which I intend to deal with some detail.1 The 2019 Amendment introduces Part 1A to the Act, which is titled as ‘Arbitration Council of India’ (Sections 43A to 43M) and which empowers the Central Government to establish the ACI by an official gazette notification (Section 43B). The ACI shall be composed of (i) a retired Supreme Court or High Court judge, appointed by the Central Government in consultation with the Chief Justice of India, as its Chairperson, (ii) an eminent arbitration practitioner nominated as the Central Government Member, (iii) an eminent academician having research and teaching experience in the field of arbitration, appointed by the Central Government in consultation with the Chairperson, as the Chairperson-Member, (iv) Secretary to the Central Government in the Department of Legal Affairs, Ministry of Law and Justice and (v) Secretary to the Central Government in the Department of Expenditure, Ministry of Finance – both as ex officio members, (vi) one representative of a recognised body of commerce and industry, chosen on rotational basis by the Central Government, as a part-time member, and (vii) Chief Executive Officer-Member-Secretary, ex officio (Section 43C(1)(a)–(f)). The ACI is inter alia entrusted with grading of arbitral institutions on the basis of criteria relating to infrastructure, quality and calibre of arbitrators, performance and compliance of time limits for disposal of domestic or international commercial arbitrations (Section 43I).2 The main drawback of this scheme is that it limits party autonomy in international arbitration through governmental and court interference. The ACI is a government body which shall regulate the institutionalization of arbitration in India and frame the policy for grading of The Report of the Expert Committee on Legal Aid: Processual Justice to the People‖, Government of India, Ministry of Law, Justice and Company Affairs. 2 K Ravi Kumar, ―Alternative Dispute Resolution in Construction Industry”, International Council of Consultants (ICC) papers, available at www.iccindia.org, at p. 2. 1

arbitral institutions. The fact remains that the court’s choice in designating an arbitral institution will be limited by the options presented to it by the ACI. Consequently, the choice of a foreign party appearing before the Supreme Court and seeking appointment of an arbitrator will be limited to institutions which have ACI accreditation and to such arbitrators who may be on the panel of such arbitral institutions. The court will be equally handicapped in designating an ungraded institution – which has a global reputation for its facilities and quality of services and which wants to simply establish its local office in India, without going through the administrative hurdles of being graded by the ACI. 3 The 2019 Amendment, albeit aimed at institutionalizing the arbitration scene in India, leaves the discretion in the hands of courts and executive to decide who gets to be a part of this reform.

Another

problem associated

with

this

governmental

control

over

the

institutionalization process is the (possible) nepotism, red-tapism, lack of objectivity and lack of transparency in the grading process. In my experience, a foreign party often prefers to stay away from an arbitration regime with significant degree of court or governmental interference. However, it is nonetheless a welcome move by the government to acknowledge that institutional arbitration is the only way ahead to attract foreign parties to include India as the seat in their arbitration agreements.

Report on National Juridicare Equal Justice – Social Justice”, Ministry of Law, Justice and Company Affairs, 2019 Report. 3

APPOINTMENT OF ARBITRATORS UNDER SECTION 11 The Amendment Act empowers the Supreme Court (in the case of an international commercial arbitration) and the High Court (in cases other than international commercial arbitration) to designate arbitral institutions for the purpose of appointment of arbitrators. Such arbitral institutions will be graded by the Arbitration Council of India (discussed below). Where a graded arbitral institution is not available, the Chief Justice of the concerned High Court may maintain a panel of arbitrators for discharging the functions and duties of the arbitral institution.4 In the absence of a procedure to appoint an arbitrator or failure of such procedure under the agreement, the appointment will be made by the arbitral institution designated by the Supreme Court or the High Court, as the case may be. The application for appointment of an arbitrator will be disposed of by the arbitral institution within a period of thirty days from the date of service of notice on the opposite party. The arbitral institution will determine the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal subject to the rates specified in the Fourth Schedule to the Act.5 The Amendment Act has modified Section 11 of the Arbitration Act relating to appointment of arbitrators by courts pursuant to an application by a party. The amendment allows the Supreme Court (in cases of international commercial arbitrations) and the High Courts (in cases of other arbitrations) to delegate appointment of arbitrators to arbitral institutions graded by the Council or in its absence, a panel of arbitrators. Such appointment of arbitrator must be completed within 30 days from the application being made by the parties. Further, the arbitral institutions or panel of arbitrators have the power to determine the fees of the arbitrators, subject to the rates specified in the Fourth Schedule of the Arbitration Act. Delegation of the courts' power to appoint arbitrators together with the reduction in timelines for such appointment is a positive step towards expediting arbitration proceedings. Further, this amendment is in consonance with practices followed in other arbitration friendly jurisdictions such as Hong Kong and Singapore.6

Rishabh Sinha, Sarabjeet Singh, “Taking Alternative Dispute Resolution To The Common Man”, National Law Institute University, Bhopal. 5 Hernando de Soto, The Other Path, 1st ed., Harper & Row. 6 Paul Whitley, “ARBITRATION IN INDIA”, Talk to the European Branch of the C.I.Arb. at Salice d‘Ulcio, Italy, 9th / 10th April 2019. 4

ARBITRATION COUNCIL The Bill seeks to establish an independent body called the Arbitration Council of India (ACI) for the promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanisms. Its functions include: (i) framing policies for grading arbitral institutions and accrediting arbitrators, (ii) making policies for the establishment, operation and maintenance of uniform professional standards for all alternate dispute redressal matters, and (iii) maintaining a depository of arbitral awards (judgments) made in India and abroad.7 Part 1A has introduced the concept of an Arbitration Council of India ('Council'), which will be established by a notification by the Central Government, and will have its headquarters in Delhi. The composition of the Council will include a Chairperson who is a Judge of the Supreme Court/ Chief Justice of a High Court/Judge of a High Court or an eminent person, having special knowledge and experience in the conduct or administration of arbitration, who will be appointed by the Central Government in consultation with the Chief Justice of India. The other Members of the Council will include an eminent arbitration practitioner and an eminent academician. The ex-officio Members of the Council will include the Secretary to the Government of India in the Department of Legal Affairs, Ministry of Law and Justice and Secretary to the Government of India in the Department of Expenditure, Ministry of Finance or their respective representatives not below the rank of Joint Secretary. One representative of a recognised body of commerce and industry will be a part time member. The Council will, inter alia, promote and encourage arbitration, mediation, conciliation or other alternative dispute resolution mechanisms and for that purpose, will frame policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration. The Council will also frame policies governing the grading of arbitral institutions and arbitrators and recognise professional institutes providing accreditation of arbitrators.8

Kachwaha, Sumeet, “The Indian Arbitration Law: Towards a New Jurisprudence”, Int. A.L.R. 2019, 10(1), p. 13-17. 8 Javed, “Judicial Ambush of Arbitration in India”, L.Q.R. 2020, 120 (OCT), pp. 571-574. 7

GRADING OF ARBITRAL INSTITUTIONS AND ARBITRATORS The Council will make grading of arbitral institutions on the basis of criteria relating to infrastructure, quality and calibre of arbitrators, performance and compliance of time limits for disposal of domestic or international commercial arbitrations, in such manner as may be specified by the regulations under the Act. The qualifications, experience and norms for accreditation of arbitrators will be such as specified in the Eighth Schedule to the Act.9

9

Special Address by Dr. S. Muralidhar, International Conference on ADR, Conciliation, Mediation and Case Management Organised By the Law Commission of India at New Delhi on May 3-4, 2019.

TIMELINES As per the newly introduced Section 23(4), the statement of claim and defence shall be completed within a period of six months from the date of appointment of the arbitrator(s) and as per Proviso to the amended Section 29(1), the award in the matter of international commercial arbitration may be made as expeditiously as possible with an endeavour to deliver it within 12 months from the date of completion of pleadings under Section 23(4). Whilst it is a welcome step – certainly with the right intent – it may lead to conflicts with the rules of an arbitral institution as it overlooks the procedural aspects inherent to a complex international arbitration. In international arbitration, the arbitrators routinely hold a case management hearing, and after consultation with the parties, issue an order on the procedural timetable for completion of pleadings, conduct of hearings etc. (e.g., see Rule 24 of the 2017 ICC Arbitration Rules). However, if Section 23(4) restricts a tribunal from being in control of its proceedings, then it may be impossible to effectively conduct complex multi-party arbitrations involving massive documents, where it may be practically impossible to complete pleadings in six months. Similarly, the autonomy of parties to decide on a more flexible procedural schedule will be severely limited. Most importantly, the parties will always be wary of the fate of an award where the time requirements of Section 23(4) are not strictly abided. 10 The 2019 Amendment relaxes the stringent time-period for completion of arbitration proceedings as prescribed by the 2015 Amendment to a certain extent. The 2019 Amendment frees international commercial arbitrations from a pre-determined timeperiod, albeit retaining a ‘pious-hope’ provision for completion thereof within a period of 12 months from the date of completion of pleadings. In the case of a domestic arbitration, the time-period of 12 months (extendable of course by another 6 months subject to consent by the parties, and thereafter by the Court) for the conclusion of the proceedings is now to be reckoned from the date of completion of pleadings instead of from the date of constitution of the arbitral tribunal. In order to ensure that this phase of completion of pleadings does not become a runaway-horse, there is a period of six months which has been prescribed for the filing of the Statement of

10

Indu Malhotra, “Fast Track Arbitration”, ICA‘s Arbitration Quarterly, ICA, 2019, vol. XLI/No.1 at p 8.

Claim and Defence. It is, however, unclear as to what are the consequences of a breach of the six-month period by the parties.11 The Amendment Act has amended Section 29A of the Arbitration Act to alter the timelines for completing arbitrations. Under the amended section, all parties must file their statement of claim and statement of defence within six months from the date of receipt of notice of appointment of arbitrators. Upon completion of pleadings, arbitration is required to be completed within 12 months therefrom, extendable by another 6 months by mutual consent of the parties. If arbitration is not completed within 18 months from the date of completion of pleadings the court's permission is required for the arbitration to continue. Additionally, while any application for extension of timeline is pending before the court, the mandate of the arbitrators has specifically been allowed to continue. The amended Section 29A makes the revised timelines mandatory only for arbitrations where all parties are Indian. These timelines are not binding, but only recommendatory for international commercial arbitrations. This amendment, though well-intentioned, lacks clarity in certain respects. The timeline of six months for filing the statements of claim and defence would compel parties to file their case on jurisdiction, other preliminary issues and substantive issues at the outset. Parties would not have the option to bifurcate arbitration proceedings into two stages – the first stage, being initial pleadings and award on preliminary/jurisdictional issues and then, if required, the second stage, comprising of pleadings and award on substantive issues. This could result in inflexibility in the arbitration proceedings and escalated costs for the parties.12 A statutory time limit for completion of arbitration is a unique aspect of arbitration in India and has helped India gain some traction as a seat of arbitration. Removal of this time limit for international commercial arbitration is likely to influence foreign parties to opt for a seat outside of India in jurisdictions having a more advanced arbitration regime and a reputation for expeditious court proceedings relating to arbitration.13 •

Completion of pleadings: Section 23 has been amended to state that the statement of claim and defence must be completed within a period of six months from the date the

Aloke Ray, Dipen Sabharwal, “What Next for Indian Arbitration?”, The Economic Times, 29 August, 2019. Zaiwalla, Sarosh, “Challenging Arbitral Awards: Finality is Good but Justice is Better” , 20(2), Journal of International Arbitration , 2020. 13 Sarah Hilmer, “Did Arbitration Fail India or Did India Fail Arbitration”, Int. A.L.R. 10(2), 2020, pp. 33-37. 11 12

arbitrator or all the arbitrators (as the case may be) received notice, in writing, of their appointment. •

Arbitral award: In cases other than international commercial arbitration, the award will be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings. In the case of international commercial arbitrations, the award may be made as expeditiously as possible and endeavour may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings.

•

Extension of time: Where an application for extension of time is pending, the mandate of the arbitrator will continue till the disposal of the said application.

AMENDMENT TO SECTIONS 34 AND 45 Section 34 of the Act replaces the words "furnishes proof that", with "establishes on the basis of the record of the arbitral tribunal that", to clarify that the parties must rely on the record before the arbitral tribunal alone at the time of challenge of an award. Section 45 of the Act, under Part II (power of Courts to refer the matter to arbitration unless it finds that the arbitration agreement is null and void, inoperative and incapable of being performed) has been amended to substitute the words "unless it finds", with the words "unless it prima facie finds".14 An interesting modification brought about by the 2019 Amendment is in relation to the manner of ‘proving’ the pre-requisites for interference with an award under Section 34. Whereas the provision in the 1996 Act required a party to ‘furnish proof’ of the existence of circumstances that would justify interference with an award, the 2019 Amendment clarifies that the said circumstances have to be established on the basis of the record of the arbitral tribunal. This not only removes the otherwise ambiguous phrase ‘furnish proof’, yet further, it seems to expressly clarify that the demonstration has to be made by the party concerned on the basis of the record of the arbitral tribunal alone, thereby expressly barring reference to material which was not placed before the arbitral tribunal.15 The 2019 Amendment has sought to bring about textual equivalence between Section 45 and Section 8 of the 1996 Act as regards the nature of the determination required to be made by a Court. Section 45 which required the Court to come to a definitive finding that a matter was not capable of settlement through arbitration, has now been amended to reflect, parimateria with Section 8(1), that a Court may refuse a reference to arbitration under Section 45 upon arriving at a prima-facie finding that the arbitration agreement was null and void, inoperative or incapable of being performed.16

Sarah Hilmer, “Did Arbitration Fail India or Did India Fail Arbitration”, Int. A.L.R. 10(2), 2019, pp. 33-37. Prathamesh D. Popat, “ Online Dispute Resolution In India”, Proceedings of the UNECE Forum on ODR 2020. 16 Justice S.B.Sinha, “ADR and Access to Justice: Issues and Perspectives”, SCR, 2019. 14 15

QUALIFICATIONS AND EXPERIENCE OF ARBITRATORS A person will not be qualified to be an arbitrator unless he is/ has been: (i) an advocate within the meaning of the Advocates Act, 1961 having ten years of practice experience as an advocate; (ii) a chartered accountant within the meaning of the Chartered Accountants Act, 1949 having ten years of experience; (iii) a cost accountant within the meaning of the Cost and Works Accountants Act, 1959 having ten years of experience; (iv) a company secretary within the meaning of the Company Secretaries Act,1980 having ten years of experience; (v) an officer of the Indian Legal Service; (vi) an officer with law degree having ten years of experience in the legal matters in the Government, autonomous body, public sector undertaking or at a senior level managerial position in private sector; (vii) an officer with engineering degree having ten years of experience as an engineer in the Government, autonomous body, public sector undertaking or at a senior level managerial position in the private sector or self-employed; (viii) an officer having senior level experience of administration in the Central Government or State Government or having experience of senior level management of a public sector undertaking or a Government company or a private company of repute; or (ix) a person having educational qualification at degree level with ten years of experience in a scientific or technical stream in the fields of telecom, information technology, intellectual property rights or other specialized areas in the Government, autonomous body, public sector undertaking or a senior level managerial position in a private sector, as the case may be.17 The Schedule also prescribes general norms applicable to arbitrators, including the following: •

The arbitrator must be impartial and neutral and avoid entering into any financial business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias amongst the parties;

•

The arbitrator must be conversant with the Constitution of India, principles of natural justice, equity, common and customary laws, commercial laws, labour laws, law of torts, making and enforcing the arbitral awards, domestic and international legal system on arbitration and international best practices; and

Nancy J. Manring,‖ ADR and Administrative Responsiveness: Challenges for Public Administrators”, Public Administration Review, Vol. 54, No. 2 (Mar. - Apr., 2019), pp. 197- 203. 17

•

The arbitrator should be capable of suggesting, recommending or writing a reasoned and enforceable arbitral award in any dispute which comes before him for adjudication.18

The ACI is also entrusted with the function of reviewing the grading of arbitrators (Section 43D(2)(c)). The qualifications, experience and norms for accreditation of arbitrators shall be such as specified in the Eighth Schedule, as introduced by the 2019 Amendment (Section 43J). The Eighth Schedule stipulates nine categories of persons (such as an Indian advocate or cost accountant or company secretary with certain level of experience or a government officer in certain cases inter alia) and only those are qualified to be an arbitrator.19 Thus, a foreign scholar or foreign-registered lawyer or a retired foreign officer is outrightly disqualified to be an arbitrator under the 2019 Amendment. For obvious reasons, foreign parties will be discouraged to opt for Indian institutional arbitration where the choice of candidates as their potential arbitrators is limited by nationality, likelihood of lack of experience and specialization – both academic and professional – in handling international arbitrations. A new Eighth Schedule has been introduced in the Arbitration Act which provides for the qualification, experience and norms for accreditation of arbitrators. Advocates enrolled under the Indian Advocates Act, 1961, persons with law degrees who have been officers in government/autonomous bodies, public sector undertakings, private sector and certain other technical professionals such as chartered accountants, company secretaries and engineers with requisite experience can be appointed as arbitrators under the Schedule. Additionally, arbitrators are required to be fair, impartial, conversant with relevant laws and principles of natural justice and capable of delivering a reasoned and enforceable arbitral award.20 The qualifications provided under the Amendment Act formally mandate the normative criteria typically used by parties while appointing arbitrators and therefore ensure a basic check on the quality of arbitrators engaged in India-seated arbitrations. However, it remains to be seen how courts interpret the subjective qualifications of fairness, impartiality, legal knowledge and

Christine Cervenak, David Fairman and Elizabeth McClintock, ―Leaping the Bar: Overcoming Legal Opposition To ADR in the Developing World”, Dispute Resolution Magazine. 19 D. M. Popat, ―ADR AND INDIA: AN OVERVIEW”, THE CHARTERED ACCOUNTANT, DEC 2019, p. 756. 20 Indu Malhotra, ‗Fast Track Arbitration‘, ICA’s Arbitration Quarterly, ICA, 2019, vol. XLI/No.1, p. 29. 18

capability to write awards and if any arbitrator is disqualified or arbitral award set aside on this ground. Further, while the Schedule allows advocates enrolled under the Advocates Act and persons with law degrees who have been officers in public/private sector to be accredited as arbitrators, it is unclear if eminent advocates enrolled outside of India can be appointed as arbitrators in India-seated arbitrations. If appointment of foreign advocates as arbitrators is prohibited, it is likely to disincentivize foreign parties from choosing India as a seat of arbitration.

CONFIDENTIALITY OF ARBITRATION PROCEEDINGS The 2019 Amendment explicitly incorporates a requirement for the arbitrator(s), the arbitral institution concerned and the parties themselves to maintain the confidentiality of all arbitration proceedings, except where disclosure of the award is necessary for the purpose of its implementation and enforcement. As per the newly introduced Section 42A, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all arbitral proceedings except award, where its disclosure is necessary for implementation and enforcement of award. The ICC recently released updates to its Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration, effective 1 January 2019 in which it stated that all awards made as from 1 January 2019 may be published, no less than two years after their notification, based on an opt-out procedure (paras. 40-46). Per the opt-out procedure, any party may at any time object to publication of an award, or request that the award be sanitized or redacted. In such a case, the award will either not be published or be sanitized or redacted in accordance with the parties’ agreement. This shows at the outset that India’s practice in publishing the award is in line with globally established arbitral institutions. However, by not incorporating an opt-out scheme in Section 42A, the legislature missed the opportunity to bring clarity to the fate of an award in terms of its publication. Who will decide that the disclosure of an award is necessary for its implementation? Will it mean full disclosure or will parties be allowed to agree on a redacted award? These uncertainties, in my view, only add to the suspense.

CONCLUSION AND SUGGESTIONS The changes introduced by the Amendment Act have received mixed reactions from stakeholders. Amendments such as delegation of the court's power to appoint arbitrators, express provision for confidentiality, immunity to arbitrators, proof of incapacity or fraud for setting aside an award and continuation of an arbitrator's mandate pending application for extension of the arbitration timeline are progressive and commensurate with the objective of making India a more arbitration friendly jurisdiction. On the other hand, the amendment removing the mandatory timeline for international commercial arbitrations seated in India is likely to negatively impact India's perception as an attractive seat for arbitration. Further, certain amendments such as constitution of the Council, the wide powers entrusted to it and the prospective applicability of the 2015 Amendments may create some uncertainty, at least in the short term, in respect of ongoing and new arbitrations and related court proceedings. The effectiveness and success of these amendments will ultimately depend on how these amendments are implemented by the Central Government and interpreted by the judiciary.

BIBLIOGRAPHY REFERENCES 1. Ashwinie K Bansal , Arbitration : Procedure and Practice, LexisNexis India 2. Avatar Singh, Law of Arbitration and Concilliation, Eastern Law Book Company 3. N V Paranjape, Arbitration and Alternate Dispute Resolution, 2006

WEBSITES 1. www.lexisnexis.com 2. www.westlaw.com 3. www.jstor.org 4. www.wto.org 5. www.heinonline.com