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Report No. 76

2.3. Doubt as to position under section 47.-

It is not, however, clear whether this position survives in India after the enactment of section 47 of the Arbitration Act, 1940. Under that section, subject to certain exceptions, the provisions of the Act shall apply to "all arbitrations" and to all proceedings thereunder. This shows a clear intention to make the Act exhaustive .1 If so, oral agreements do not fall within the scheme of the Act. If the contrary is the position, and if oral agreements are still regarded as permissible, the situation would not be very satisfactory.

In the first place, such agreements would not be governed by the Act, and a parallel law for the operation of such agreements and for the enforcement of awards passed thereon would co-exist with the Act. Secondly, such a parallel law cannot draw upon the various provisions of the Act (like the filling of vacancies, powers of arbitrators, powers of courts and so on), which are intended to fill up gaps left by the parties. There will, therefore, arise many uncertainties. In the third place, such a construction might defeat the object of the Act of 'consolidating' the law relating to 'arbitration'.

1. Vithal Das v. Shrinath, ILR 1948 All 10.

Arbitration Act, 1940 Back

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