Applicability of the 2015 Arbitration Amendment Act: Which Position Should Prevail?

05 Aug 2019

Author: Saloni Gupta (Law Student at GNLU, Gandhinagar)

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Introduction In Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd, the Supreme Court held that amendments made to the Arbitration and Conciliation Act, 1996 (“1996 Act”) by way of the Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendment Act”) which came into effect on October 23, 2015 are prospective in nature. However, the Court carved out an exception for Section 36 of the 1996 Act, stating that the said section would operate retrospectively. Prior to the 2015 amendment to the 1996 Act, under Section 36 Courts granted an automatic stay on enforcement of an award until the expiry of the time limit for challenging the award or until the disposal of such a challenge, if made. Post the 2015 amendment, Section 36 has been amended and states that no automatic stay will be granted on enforcement of an award and such a stay can only be granted on a separate application being made to the court. Reasoning of the Supreme Court Prospective nature of the 2015 Amendment Act Interpretation of Section 26 of the 2015 Amendment Act Section 26 of the 2015 Amendment Actdeals with the applicability of the said act to pending proceedings.[1] The Supreme Court held that Section 26 comprises of two independent parts.  The first part applies only to the arbitral proceedings which have been initiated in accordance with Section 21. This section appears in Chapter V of the Parent Act, titled ‘Conduct of Arbitral Proceedings.’ Therefore, the first part only deals with the conduct of…
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Can a Court Appoint an Arbitrator if the Arbitration Agreement is Contained in an Insufficiently Stamped Contract?

16 Jun 2019

Author: Pranav Narsaria (Law Student at GNLU, Gandhinagar)

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In SMS Tea Estates[i](“SMS Tea Estates”), the Supreme Court held that if an arbitration clause is contained in a document which is not duly stamped, such an arbitration clause cannot be acted upon. Further, the Supreme Court held that while hearing an application under section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”) the judge must first impound the insufficiently stamped document and only once the defect with respect to the stamp duty is cured, the court shall proceed further with the application.   Thereafter, the Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”) introduced section 11 (6-A) in the Act, which limits the role of the court while determining an application for appointment of an arbitrator such that, “the Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.”   In this backdrop, the question which arose for determination before the Supreme Court in Garware Wall Ropes[ii]was whether the court is now precluded from impounding an insufficiently stamped instrument while determining an application under section 11 of the Act given its limited role in the constitution of the tribunal. We reflect upon the findings of the Supreme Court in its recent decision.   [i]SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66.   [ii]Garware Wall Ropes…
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