The CAN Foundation seminar on 'Evolution of Arbitration Law In India'
The CAN Foundation seminar on 'Evolution of Arbitration Law In India'
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Ad hoc arbitration go on endlessly; Some retired judges let it linger because of fee: Justice Indu Malhotra at CAN Foundation seminar

Supreme Court Justice Indu Malhotra speaking at a webinar along with Senior Advocate Shyam Divan and NLU Orissa Vice Chancellor SriKrishna DevaRao

Aditi Singh

Speaking on the need to move from ad-hoc arbitrations to institutionalized arbitrations, Supreme Court judge, Justice Indu Malhotra said that the ad-hoc arbitrations went on endlessly.

I regret to say it but a lot of retired judges would let the arbitrations keep on pending because they were charging on a per hearing basis..The 2015 amendment has made a tremendous change by placing a statutory limit.
Justice Indu Malhotra

Justice Indu Malhotra was speaking on the theme 'Evolution of Arbitration Law In India' at a webinar hosted by National Law University, Odisha in association with The CAN Foundation.

Senior Advocate Shyam Divan also spoke at length on the theme at the Webinar.

Prof. (Dr.) Srikrishna Deva Rao, Vice-Chancellor of National Law University, Odisha delivered the welcome address.

During her keynote speech, Justice Indu Malhotra clarified that the Arbitration Council of India was conceived as a promotional body under the 2019 Amendment Act and not as a regulatory body.

"Arbitration Council of India was conceived as a promotional body which would promote arbitration in India.. India was certainly looking to be a hub of arbitration in this region of the world.. even though there was a misconception by many international practitioners that it was another regulatory body..there is no regulatory power which is ascribed to this body."
Justice Indu Malhotra

The aim of the 2019 amendment was to transform the arbitration system in India from ad-hoc to institutional by substantially amending Section 11, Justice Malhotra said during her address.

She added that the Arbitration Council was yet to come into force as the government was still considering the form in which it should be brought about.

Justice Malhotra also discussed in detail the amendment introduced to the Arbitration Act in 2015.

The 2015 Amendment to the Arbitration & Conciliation Act, 1996 was the most significant milestone on the arbitration landscape of India, she said.

Informing the participants that the 2015 amendment was brought pursuant to the 246th Report of the Law Commission, Justice Malhotra stated that it brought several substantive amendments to the law of arbitration in India.

"'..first was that it provided a statutory time limit under Section 29A of the Act.. which has since been increased by the 2019 amendment. There is no other statute is the world which has a statutory time limit for the completion of arbitral proceedings."
Justice Indu Malhotra

Justice Malhotra further discussed the changes introduced to the definition of "court" under the act as well as to Sections 8, 11.

The 2015 amendment brought about the most important amendment by the insertion of sub-section 6 to section 11.. It, in fact, legislatively overruled Patel Engineering decision of the Constitution Bench, Boghara Polyfab, Master Construction and several decisions..It reinforced Kompetenz-Kompetenz.
Justice Indu Malhotra

She also spoke on the introduction of statutory disclosures under Section 12 and power of the arbitral tribunal to grant interim relief under Section 17 of the Arbitration Act.

Fast track arbitration was also introduced by the Tribunal as a mode of disclosure where the arbitration dispute could be resolved on the basis of documents only, Justice Malhotra added.

Remarking that the Indian Act was the only Act which has narrowly defined "public policy", Justice Malhotra stated that that ground of "public policy" was now available only when there was fraud, contravention of fundamental policy of Indian law, or violation of notion of justice.

Speaking on the impact of COVID-19 on the arbitration, Justice Malhotra said that conducting proceedings online was cutting down travel costs and expedited the process.

Watch the full seminar here:

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