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Law & Policy Columns
Has Section 11(6A) been deleted from the Arbitration Act?
The 2019 amendment to Section 11 is yet to take effect, and as such, incorporating the amendments to Section 11 of the Arbitration Act in bare acts is erroneous, writes Amit George.
Various recent Bare Act publications of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) are reflecting a version of the Arbitration Act with the amended Section 11 as modified by the Arbitration and Conciliation (Amendment) Act, 2019 (‘Amendment Act’).
As way of background, it is relevant to note that the Amendment Act ushered in various amendments, including significant changes to Section 11 of the Arbitration Act. One of the significant changes to Section 11 pertains to the deletion of Section 11(6A), a provision that limited the scope of examination by a Court, at the stage of appointment of an arbitral tribunal, to the existence of an arbitration agreement alone.
Though the Amendment Act received the assent of the President on 9th August, 2019 and was published accordingly on the same date, the enforcement of its provisions was deferred to a later date; to be notified by the Central Government. This was in terms of Section 1(2) of the Amendment Act, which provides as under:
“(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.”
Subsequently, a Gazette Notification dated 30th August, 2019 was formally issued by the Central Government bringing Sections 1, 4, 5, 6, 7, 8, 9, 11, 13 and 15 of the Amendment Act into force from 30th August, 2019. It is relevant to note that the Gazette Notification has brought the Sections of the Amendment Act into force, thereby effectuating the amendments made in the corresponding sections of the Arbitration Act. The reference to ‘Section 11’ in the Gazette Notification is to the said Section in the Amendment Act, by dint of which the corresponding amendment in Section 45 of the Arbitration Act has been brought into effect. However, Section 3 of the Amendment Act, and which is the relevant Section which seeks to amend Section 11 of the Arbitration Act, is yet to be notified. As on date, as a result of the Gazette Notification, Sections 17, 23, 29A, 34, 37, 45 and 50 of the Arbitration Act stand amended and the newly introduced Sections 42A, 42B, and 87 stand inserted in the Arbitration Act. The amendment to Section 11 is yet to be notified.
Hence, any Bare Act incorporating the amendments to Section 11 of the Arbitration Act, as brought about by the Amendment Act, is evidently erroneous and should be viewed with the requisite caution by practitioners.
Dr. Amit George is an Advocate practicing before the High Court of Delhi.
Read the August 2019 Notification: