The Debate Around Applicability : An Analysis of The Arbitration & Conciliation (Amendment) Act, 2015

Vartika Tiwari & Pragya Dubey

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On 23 October, 2015, with the intention of making India more arbitration-friendly, the President of India promulgated the Arbitration and Conciliation (Amendment) Ordinance, 2015 (“Ordinance”). This Ordinance was finally enacted as The Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendment”) by the Parliament on 31 December 2015. The period between the promulgation of the Ordinance and the enactment of the 2015 Amendment was marked with uncertainty as to the applicability of the amendments to pending arbitral proceedings and arbitration related court proceedings. This continuing confusion necessitated the incorporation of Section 26 in the 2015 Amendment to clarify the applicability of the 2015 Amendment. However, even Section 26 could not yield the desired results and varied interpretations provided by High Courts painted an inconsistent picture. Finally, the Hon’ble Supreme Court of India had to intervene and put the issue to rest in the matter of BCCI vs. Kochi Cricket Pvt. Limited (“BCCI Judgement”). Meanwhile, the Government of India via a press release dated 7 March, 2018 expressed its willingness to enact a certain Section 87 to the Arbitration and Conciliation Act, 1996 (“the Principal Act”) in order to clarify the issue, which was eventually incorporated in the Arbitration and Conciliation (Amendment) Bill, 2018 (“2018 Bill”). In this paper, the author seeks to discuss and analyse the issue of applicability of the 2015 Amendment. The paper has been divided into five parts - the first part provides a brief introduction to the debate; in the second part, the author discusses the conflicting interpretations of Section 26; in the third part, the author discusses the BCCI Judgement; the fourth part discusses the 2018 Bill and its implications and finally, in the fifth part, the author provides an in-depth analysis of the applicability provision.