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Expressing his views on the Arbitration and Conciliation (Amendment) Act, 2019, Justice Rohinton Nariman has remarked that the newly inserted Eighth Schedule was contrary to the ethos of International Arbitration and Section 11(9) of the Arbitration Act.
Justice Nariman opined that “on his reading” of the nine categories under the Schedule, it seemed to be “reasonably clear” that the person appointed had to be an Indian national.
“This is one very major lacuna if you are going to attract persons to this country so that we then be an international hub, it is very difficult then to have an arbitration council, which then accredits institutions and arbitrators, and then picks up people who are only Indian Nationals.”
“The problem is that you have many loopholes like this in the amendment. This is one of the glaring ones.,” he said.
Justice Nariman was speaking at the 3rd ICC India Arbitration Day on September 14, 2019, at New Delhi.
Commenting on the constitution of the Arbitral Council under the Act, Justice Nariman said,
“I don’t know why two secretaries from the Government are interposed in the Council. Wholly unnecessary but it has been done.”
Justice Nariman also spoke on the new timeline for arbitration in India, which grants an additional six months to the parties to complete the proceedings.
“Somehow an additional six months have been gratuitously given in this amendment Act..I don’t know why.. For a statement of claim and defence to be filed ..you don’t require six months for that. This again, somehow or the other, is retrogressive. Old law was correct. Somehow or the other you have added six months to the period of one year unnecessarily.”
Justice Nariman nonetheless added that the importance given by the Arbitral Council to domestic and international arbitration was “a step in the right direction”.
“What will really give flesh to this step is a recommendation of the Srikrishna Committee..this is an extremely important recommendation which can only come into existence after this Council is set up and this Council will take some time.. Justice Srikrishna Committee said that a Standing Committee may be constituted under the aegis of APCI to review development in arbitration law and practice..”, he said.
Giving the opening address, Abhinav Bhushan, Director, South Asia, ICC Arbitration & ADR also said,
“Indian arbitration is, at crossroads; and it is important now that we think about how we frame the conversations and questions about arbitration in India. The ICC International Court of Arbitration is committed to see the growth of arbitration in India and welcome, ICC Arbitrations seated in India, with Indian laws governing the contract and disputes adjudicated with Indian arbitrators.”
The event also witnessed an Oxford Style Debate on the motion ‘This house believes that the Arbitration and Conciliation (Amendment) Act, 2019 is progressive for the Arbitration Ecosystem in India.’
While Senior Advocate Nakul Dewan and Fereshte D Sethna, Founder & Managing Partner, DMD Advocates spoke against the motion, Senior Advocate Ritin Rai and Senior Advocate and ASG Madhavi Diwan argued for the motion.
Salim Moollan QC, Essex Court Chambers, London, Percival Billimoria, Head of Chambers, Chambers of PS Billimoria and Niti Dixit, Partner, S&R Associates comprised the Jury.
Diwan and Rai argued that the new amendment would give an impetus to arbitration not being an after-hours affair or a post-retirement affair by overhauling mindset. It was argued that the amendment would expedite the process of arbitration while bringing clarity on the procedure.
Meanwhile, Dewan and Fereshte argued that new amendment had sought to “detach ourselves” from the international system. Attacking the Arbitral Council and its system of accreditation and grading, they argued that it went against the ethos of party autonomy in arbitration and a death blow to international commercial arbitration.
The debate ended in a draw.