ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2019

Preamble - ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2019

THE ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2019

[Act No. 33 of 2019]

[09th August, 2019]

PREAMBLE

An Act further to amend the Arbitration and Conciliation Act, 1996.

Be it enacted by Parliament in the Seventieth Year of the Republic of India as follows:--

Section 1 - Short title and commencement

1[(1) This Act may be called the Arbitration and Conciliation (Amendment) Act, 2019.

(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.]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 2 - Amendment of section 2

In the Arbitration and Conciliation Act, 1996 (26 of 1996) (hereinafter referred to as the principal Act),
in section 2,--

(i) in sub-section (1),--

(A) after clause (c), the following clause shall be inserted, namely:--

'(ca) "arbitral institution" means an arbitral institution designated by the

Supreme Court or a High Court under this Act;';

(B) after clause (h), the following clauses shall be inserted, namely:--

'(i) "prescribed" means prescribed by rules made under this Act;

 (j) "regulations" means the regulations made by the Council under this Act.';

(ii) in sub-section (2), in the proviso, for the word, brackets and letter "clause (a)", the word,
brackets and letter "clause (b)" shall be substituted.

Section 3 - Amendment of section 11

In section 11 of the principal Act,--

(i) after sub-section (3), the following sub-section shall be inserted, namely:--

"(3A) The Supreme Court and the High Court shall have the power to designate, arbitral
institutions, from time to time, which have been graded by the Council under section
43-I, for the purposes of this Act:

Provided that in respect of those High Court jurisdictions, where no graded

arbitral institution are available, then, the Chief Justice of the concerned High
Court may maintain a panel of arbitrators for discharging the functions and
duties of arbitral institution and any reference to the arbitrator shall be deemed
to be an arbitral institution for the purposes of this section and the arbitrator
appointed by a party shall be entitled to such fee at the rate as specified in the
Fourth Schedule:

Provided further that the Chief Justice of the concerned High Court may, from
time to time, review the panel of arbitrators.";

(ii) in sub-section (4), in the long line, for the portion beginning with "the appointment shall be
made" and ending with "designated by such Court", the following shall be substituted,
namely:--

"the appointment shall be made, on an application of the party, by the arbitral

institution designated by the Supreme Court, in case of international commercial
arbitration, or by the High Court, in case of arbitrations other than international
commercial arbitration, as the case may be";

(iii) in sub-section (5), for the portion beginning with "the appointment shall be made" and
ending with "designated by such Court", the following shall be substituted, namely:--

"the appointment shall be made on an application of the party in accordance with the
provisions contained in sub-section (4)";

(iv) in sub-section (6), in the long line, for the portion beginning with "party may request" and
ending with "designated by such Court", the following shall be substituted, namely:--

"the appointment shall be made, on an application of the party, by the arbitral

institution designated by the Supreme Court, in case of international commercial
 arbitration, or by the High Court, in case of arbitrations other than international
commercial arbitration, as the case may be";

(v) sub-sections (6A) and (7) shall be omitted;

(vi) in sub-section (8), for the words "The Supreme Court or, as the case may be, the High
Court or the person or institution designated by such Court", the words, brackets and figures
"The arbitral institution referred to in sub-sections (4), (5) and (6)" shall be substituted;

(vii) in sub-section (9), for the words "the Supreme Court or the person or institution
designated by that Court", the words "the arbitral institution designated by the Supreme Court"
shall be substituted;

(viii) sub-section (10) shall be omitted;

(ix) for sub-sections (11) to (14), the following sub-sections shall be substituted, namely:--

"(11) Where more than one request has been made under sub-section (4) or sub-
section (5) or sub-section (6) to different arbitral institutions, the arbitral institution to
which the request has been first made under the relevant sub-section shall be
competent to appoint.

(12) Where the matter referred to in sub-sections (4), (5), (6) and (8) arise in an
international commercial arbitration or any other arbitration, the reference to the
arbitral institution in those sub-sections shall be construed as a reference to the arbitral
institution designated under sub-section (3A).

(13) An application made under this section for appointment of an arbitrator or

arbitrators shall be disposed of by the arbitral institution within a period of thirty days
from the date of service of notice on the opposite party.

(14) The arbitral institution shall 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.

Explanation.-- For the removal of doubts, it is hereby clarified that this sub-
section shall not apply to international commercial arbitration and in arbitrations
(other than international commercial arbitration) where parties have agreed for
determination of fees as per the rules of an arbitral institution.".

Section 4 - Amendment of section 17

1[In section 17 of the principal Act, in sub-section (1), the words and figures "or at any time after the
making of the arbitral award but before it is enforced in accordance with section 36" shall be omitted.]
 1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 5 - Amendment of section 23

1[In section 23 of the principal Act, after sub-section (3), the following sub-section shall be inserted,
namely:--

"(4) The statement of claim and defence under this section shall be completed within a period
of six months from the date the arbitrator or all the arbitrators, as the case may be, received
notice, in writing, of their appointment.".]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 6 - Amendment of section 29A

1[In section 29A of the principal Act,--

(a) for sub-section (1), the following sub-section shall be substituted, namely:--

"(1) The award in matters other than international commercial arbitration shall be made
by the arbitral tribunal within a period of twelve months from the date of completion of
pleadings under sub-section (4) of section 23:

Provided that the award in the matter of international commercial arbitration

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 under sub-section (4) of section 23.";

(b) in sub-section (4), after the proviso, the following provisos shall be inserted, namely:--

"Provided further that where an application under sub-section (5) is pending, the
mandate of the arbitrator shall continue till the disposal of the said application:

Provided also that the arbitrator shall be given an opportunity of being heard before the
fees is reduced.".]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 7 - Amendment of section 34

1[In section 34 of the principal Act, in sub-section (2), in clause (a), for the words "furnishes proof
that", the words "establishes on the basis of the record of the arbitral tribunal that" shall be
substituted.]
 1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 8 - Amendment of section 37

1[In section 37 of the principal Act, in sub-section (1), for the words "An appeal", the words
"Notwithstanding anything contained in any other law for the time being in force, an appeal" shall be
substituted.]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 9 - Insertion of new sections 42A and 42B

1[After section 42 of the principal Act, the following sections shall be inserted, namely:--

"42A. Confidentiality of information.

Notwithstanding anything contained in any other law for the time being in force, 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 the purpose of implementation and enforcement of award.

42B. Protection of action taken in good faith.

No suit or other legal proceedings shall lie against the arbitrator for anything which is in
good faith done or intended to be done under this Act or the rules or regulations made
thereunder.".]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 10 - Insertion of new Part

After Part I of the principal Act, the following Part shall be inserted, namely:--

'PART IA

Arbitration Council of India

43A. Definitions

In this Part, unless the context otherwise requires,--

(a) "Chairperson" means the Chairperson of the Arbitration Council of India

appointed under clause (a) of sub-section (1) of section 43C;
 (b) "Council" means the Arbitration Council of India established under section
43B;

(c) "Member" means a Member of the Council and includes the Chairperson.

43B. Establishment and incorporation of Arbitration Council of India.

(1) The Central Government shall, by notification in the Official Gazette, establish, for
the purposes of this Act, a Council to be known as the Arbitration Council of India to
perform the duties and discharge the functions under this Act.

(2) The Council shall be a body corporate by the name aforesaid, having perpetual
succession and a common seal, with power, subject to the provisions of this Act, to
acquire, hold and dispose of property, both movable and immovable, and to enter into
contract, and shall, by the said name, sue or be sued.

(3) The head office of the Council shall be at Delhi.

(4) The Council may, with the prior approval of the Central Government, establish
offices at other places in India.

43C. Composition of Council

(1) The Council shall consist of the following Members, namely:--

(a) a person, who has been, a Judge of the Supreme Court or, Chief Justice of a
High Court or, a Judge of a High Court or an eminent person, having special
knowledge and experience in the conduct or administration of arbitration, to be
appointed by the Central Government in consultation with the Chief Justice of
India-Chairperson;

(b) an eminent arbitration practitioner having substantial knowledge and

experience in institutional arbitration, both domestic and international, to be
nominated by the Central Government-Member;

(c) an eminent academician having experience in research and teaching in the

field of arbitration and alternative dispute resolution laws, to be appointed by
the Central Government in consultation with the Chairperson-Member;

(d) Secretary to the Government of India in the Department of Legal Affairs,

Ministry of Law and Justice or his representative not below the rank of Joint
Secretary-Member, ex officio;

(e) Secretary to the Government of India in the Department of Expenditure,

Ministry of Finance or his representative not below the rank of Joint Secretary-
Member, ex officio;
 (f) one representative of a recognised body of commerce and industry, chosen
on rotational basis by the Central Government-Part-time Member; and

(g) Chief Executive Officer-Member-Secretary, ex officio.

(2) The Chairperson and Members of the Council, other than ex officio Members, shall
hold office as such, for a term of three years from the date on which they enter upon
their office:

Provided that no Chairperson or Member, other than ex officio Member, shall

hold office as such after he has attained the age of seventy years in the case of
Chairperson and sixty-seven years in the case of Member.

(3) The salaries, allowances and other terms and conditions of the Chairperson and
Members referred to in clauses (b) and (c) of sub-section (1) shall be such as may be
prescribed by the Central Government.

(4) The Part-time Member shall be entitled to such travelling and other allowances as
may be prescribed by the Central Government.

43D. Duties and functions of Council.

(1) It shall be the duty of the Council to take all such measures as may be necessary to
promote and encourage arbitration, mediation, conciliation or other alternative dispute
resolution mechanism and for that purpose to frame policy and guidelines for the
establishment, operation and maintenance of uniform professional standards in respect
of all matters relating to arbitration.

(2) For the purposes of performing the duties and discharging the functions under this
Act, the Council may--

(a) frame policies governing the grading of arbitral institutions;

(b) recognise professional institutes providing accreditation of arbitrators;

(c) review the grading of arbitral institutions and arbitrators;

(d) hold training, workshops and courses in the area of arbitration in

collaboration of law firms, law universities and arbitral institutes;

(e) frame, review and update norms to ensure satisfactory level of arbitration
and conciliation;

(f) act as a forum for exchange of views and techniques to be adopted for
creating a platform to make India a robust centre for domestic and international
arbitration and conciliation;
 (g) make recommendations to the Central Government on various measures to
be adopted to make provision for easy resolution of commercial disputes;

(h) promote institutional arbitration by strengthening arbitral institutions;

(i) conduct examination and training on various subjects relating to arbitration

and conciliation and award certificates thereof;

(j) establish and maintain depository of arbitral awards made in India;

(k) make recommendations regarding personnel, training and infrastructure of

arbitral institutions; and

(l) such other functions as may be decided by the Central Government.

43E. Vacancies, etc., not to invalidate proceedings of Council.

No act or proceeding of the Council shall be invalid merely by reason of--

(a) any vacancy or any defect, in the constitution of the Council;

(b) any defect in the appointment of a person acting as a Member of the

Council; or

(c) any irregularity in the procedure of the Council not affecting the merits of the
case.

43F. Resignation of Members.

The Chairperson or the Full-time or Part-time Member may, by notice in writing, under
his hand addressed to the Central Government, resign his office:

Provided that the Chairperson or the Full-time Member shall, unless he is

permitted by the Central Government to relinquish his office sooner, continue to
hold office until the expiry of three months from the date of receipt of such
notice or until a person duly appointed as his successor enters upon his office or
until the expiry of his term of office, whichever is earlier.

43G. Removal of Member.

(1) The Central Government may, remove a Member from his office if he--

(a) is an undischarged insolvent; or

(b) has engaged at any time (except Part-time Member), during his term of
office, in any paid employment; or
 (c) has been convicted of an offence which, in the opinion of the Central
Government, involves moral turpitude; or

(d) has acquired such financial or other interest as is likely to affect prejudicially
his functions as a Member; or

(e) has so abused his position as to render his continuance in office prejudicial
to the public interest; or

(f) has become physically or mentally incapable of acting as a Member.

(2) Notwithstanding anything contained in sub-section (1), no Member shall be

removed from his office on the grounds specified in clauses (d) and (e) of that sub-
section unless the Supreme Court, on a reference being made to it in this behalf by the
Central Government, has, on an inquiry, held by it in accordance with such procedure as
may be prescribed in this behalf by the Supreme Court, reported that the Member,
ought on such ground or grounds to be removed.

43H. Appointment of experts and constitution of Committees thereof.

The Council may, appoint such experts and constitute such Committees of experts as it
may consider necessary to discharge its functions on such terms and conditions as may
be specified by the regulations.

43-I. General norms for grading of arbitral institutions.

The Council shall 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.

43J. Norms for accreditation.

The qualifications, experience and norms for accreditation of arbitrators shall be such as
specified in the Eighth Schedule:

Provided that the Central Government may, after consultation with the Council,
by notification in the Official Gazette, amend the Eighth Schedule and
thereupon, the Eighth Schedule shall be deemed to have been amended
accordingly.

43K. Depository of awards.

The Council shall maintain an electronic depository of arbitral awards made in India and
such other records related thereto in such manner as may be specified by the
regulations.
 43L. Power to make regulations by Council.

The Council may, in consultation with the Central Government, make regulations,
consistent with the provisions of this Act and the rules made thereunder, for the
discharge of its functions and perform its duties under this Act.

43M. Chief Executive Officer.

(1) There shall be a Chief Executive Officer of the Council, who shall be responsible for
day-to-day administration of the Council.

(2) The qualifications, appointment and other terms and conditions of the service of the
Chief Executive Officer shall be such as may be prescribed by the Central Government.

(3) The Chief Executive Officer shall discharge such functions and perform such duties
as may be specified by the regulations.

(4) There shall be a Secretariat to the Council consisting of such number of officers and
employees as may be prescribed by the Central Government.

(5) The qualifications, appointment and other terms and conditions of the service of the
employees and other officers of the Council shall be such as may be prescribed by the
Central Government.'.

Section 11 - Amendment of section 45

1[In section 45 of the principal Act, for the words "unless it finds", the words "unless it prima facie
finds", shall be substituted.]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 12 - Amendment of section 50

1[In section 50 of the principal Act, in sub-section (1), for the words "An appeal", the words
"Notwithstanding anything contained in any other law for the time being in force, an appeal" shall be
substituted.]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 13 - Insertion of new section 87

1[After section 86 of the principal Act, the following section shall be inserted and shall be deemed to
have been inserted with effect from the 23rd October, 2015, namely:--
 "87. Effect of arbitral and related court proceedings commenced prior to 23rd October, 2015.

Unless the parties otherwise agree, the amendments made to this Act by the Arbitration
and Conciliation (Amendment) Act, 2015 (3 of 2016) shall--

(a) not apply to--

(i) arbitral proceedings commenced before the commencement of the

Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016);

(ii) court proceedings arising out of or in relation to such arbitral

proceedings irrespective of whether such court proceedings are
commenced prior to or after the commencement of the Arbitration and
Conciliation (Amendment) Act, 2015 (3 of 2016);

(b) apply only to arbitral proceedings commenced on or after the

commencement of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of
2016) and to court proceedings arising out of or in relation to such arbitral
proceedings.".]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 14 - Insertion of new Schedule

After the Seventh Schedule to the principal Act, the following Schedule shall be inserted, namely:--

"THE EIGHTH SCHEDULE

(See section 43J)

Qualifications and Experience of Arbitrator

A person shall not be qualified to be an arbitrator unless he--

(i) is an advocate within the meaning of the Advocates Act, 1961 (25 of 1961) having
ten years of practice experience as an advocate; or

(ii) is a chartered accountant within the meaning of the Chartered Accountants Act,
1949 (38 of 1949) having ten years of practice experience as a chartered accountant;
or

(iii) is a cost accountant within the meaning of the Cost and Works Accountants Act,
1959 (23 of 1959) having ten years of practice experience as a cost accountant; or

(iv) is a company secretary within the meaning of the Company Secretaries Act, 1980
(56 of 1980) having ten years of practice experience as a company secretary; or
(v) has been an officer of the Indian Legal Service; or

(vi) has been 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; or

(vii) has been 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 private sector or self-employed; or

(viii) has been 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;

(ix) is a person, in any other case, having educational qualification at degree level with
ten years of experience in scientific or technical stream in the fields of telecom,
information technology, Intellectual Property Rights or other specialised areas in the
Government, Autonomous Body, Public Sector Undertaking or a senior level managerial
position in a private sector, as the case may be.

General norms applicable to Arbitrator

(i) The arbitrator shall be a person of general reputation of fairness, integrity and
capable to apply objectivity in arriving at settlement of disputes;

(ii) 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;

(iii) the arbitrator should not involve in any legal proceeding and avoid any potential
conflict connected with any dispute to be arbitrated by him;

(iv) the arbitrator should not have been convicted of an offence involving moral
turpitude or economic offence;

(v) the arbitrator shall 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;

(vi) the arbitrator should possess robust understanding of the domestic and
international legal system on arbitration and international best practices in regard
thereto;

(vii) the arbitrator should be able to understand key elements of contractual obligations
in civil and commercial disputes and be able to apply legal principles to a situation
 under dispute and also to apply judicial decisions on a given matter relating to
arbitration; and

(viii) 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.".

Section 15 - Amendment to Act 3 of 2016

1[Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 shall be omitted and shall be
deemed to have been omitted with effect from the 23rd October, 2015.]

1. W.e.f. 30.08.2019 vide Notification No. SO3154(E) dated 30.08.2019.

Section 16 - Amendment to Fourth Schedule

In the Fourth Schedule to the principal Act, for the brackets, words and figures "[See section 11
(14)]", the brackets, words, figures and letter "[See section 11 (3A)]" shall be substituted.

Statement of Objects and Reasons - ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2019

STATEMENT OF OBJECTS AND REASONS

The Arbitration and Conciliation Act, 1996 (the said Act) was enacted to consolidate and amend the law
relating to domestic arbitration, 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 said Act was amended by the Arbitration and Conciliation (Amendment) Act, 2015 to make
arbitration process cost effective, speedy, with minimum court intervention.

2. The promotion of the institutional arbitration in India by strengthening Indian arbitral institutions has been
identified critical to the dispute resolution through arbitration. Though arbitral institutions have been working
in India, they have not been preferred by parties, who have leaned in favour of ad hoc arbitration or arbitral
institutions located abroad. Therefore, in order to identify the roadblocks to the development of institutional
arbitration, examine specific issues affecting the Indian arbitration landscape and also to prepare a road map
for making India a robust centre for institutional arbitration both domestic and international, the Central
Government constituted a High Level Committee under the Chairmanship of Justice B.N. Srikrishna, Former
Judge of the Supreme Court of India.

3. The terms of reference of the Committee, inter alia, include,--

(a) to examine the effectiveness of existing arbitration mechanism by studying the functioning and
performance of arbitral institutions in India;

(b) to devise a road map to promote institutional arbitration mechanisms in India; and
 (c) to evolve an effective and efficient arbitration eco-system for commercial dispute resolution and
suggest reforms in the Arbitration and Conciliation Act, 1996.

4. The High Level Committee submitted its Report on 30th July, 2017. With a view to strengthen institutional
arbitration in the country, the said Committee, inter alia, recommended for the establishment of an
independent body for grading of arbitral institutions and accreditation of arbitrators, etc. The Committee has
also recommended certain amendments to the said Act to minimise the need to approach the Courts for
appointment of arbitrators. After examination of the said recommendations with a view to make India a hub
of institutional arbitration for both domestic and international arbitration, it was decided to amend the
Arbitration and Conciliation Act, 1996.

5. Accordingly, a Bill, namely, the Arbitration and Conciliation (Amendment) Bill, 2018 was introduced in Lok
Sabha on the 18th July, 2018 and was passed by that House on the 10th August, 2018 and was pending in
Rajya Sabha. However, the Sixteenth Lok Sabha was dissolved and the Bill got lapsed. Hence, the present
Bill, namely, the Arbitration and conciliation (Amendment) Bill, 2019.

6. The salient features of the Arbitration and Conciliation (Amendment) Bill, 2019, inter alia, are as follows:--

(i) to amend section 11 of the Act relating to "Appointment of Arbitrators" so as to change the present
system of appointment of arbitrators by the Supreme Court or High Court, to a system where the
arbitrators shall be appointed by the "arbitral institutions" designated by the Supreme Court or High
Court;

(ii) in case where no graded arbitral institutions are available, the Chief Justice of the concerned High
Court may maintain a panel of arbitrators for discharging the functions and duties of arbitral
institutions;

(iii) to insert a new Part 1A to the Act for the establishment and incorporation of an independent body
namely, the Arbitration Council of India for the purpose of grading of arbitral institutions and
accreditation of arbitrators, etc.;

(iv) to amend section 23 of the Act relating to "Statement of claim and defence" so as to provide that
the statement of claim and defence shall be completed within a period of six months from the date the
arbitrator receives the notice of appointment;

(v) to provide that the arbitrator, the arbitral institutions and the parties shall maintain confidentiality
of information relating to arbitral proceedings and also protect the arbitrator or arbitrators from any
suit or other legal proceedings for any action or omission done in good faith in the course of
arbitration proceedings; and

(vi) to clarify that section 26 of the Arbitration and Conciliation (Amendment) Act, 2015, is applicable
only to the arbitral proceedings which commenced on or after 23rd October, 2015 and to such court
proceedings which emanate from such arbitral proceedings.

7. The Bill seeks to achieve the above objectives.

   

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