Report No. 76

Arbitration Act, 1940

Contents
Chapter I	Introductory
1.1	Reasons for taking up the subject
2.	Essence of the law of arbitration
3.	Delay and expense
4.	Approach
5.	Roman law
6.	Common law policy against ouster of jurisdiction
7.	History of control by courts
8.	U.S.A
9.	Institutional arbitration in the U.S.A
10.	Regulation
11.	Yajnavalkya and Narada
12.	Villages in India
13.	Dr. P.N. Sen's view
14.	The Regulations
15.	Regulations in Bengal and Madras
16.	Bombay Regulations
17.	Act of 1859 and later Acts
18.	Act of 1899
19.	Act of 1899 and Code of 1908
20,21.	Genesis
22,23.	Civil Justice Committee
24.	Act of 1940
25.	Scheme
26.	Arbitration agreement
27.	Working of the agreement
28.	Award and its filling and confirmation
29.	Arbitration with intervention of court or in suit
30.	General provisions
31.	Acts of 1937 and 1961
32.	Other provisions in Central enactments
33.	Local Acts
34,35.	Impacts of amendments limited
Chapter 2	Definitions
2.1.	Arbitration agreement
2.	Validity of oral agreement
3.	Doubt as to position under section 47
4.	History of section 47
5.	Object of requirement of writin
6.	Recommendation to amend section 47
7.	Section 2(a) and rules of Association enjoining arbitration by members
8.	Recommendation to insert an Explanation below section 2(a)
9.	Section 2(a) and arbitration at the option of party
10.	Signatures not necessary
11.	Whether fresh consent required
12 to 14.	Conflict of decisions
15.	Foreign Award Act, 1961
16.	Contrast between 1961 Act and 1940 Act
17.	Later Supreme Court Judgment
18.	Position in other countries
19.	Position in other countries according to replies received by the Indian Council of Arbitration
20.	Amendment needed
21.	Recommendation to amend section 2(a)
22.	Sectio.- other clauses
23,24.	Frustration of the contract
25.	Privy Council Case
26 to 29.	English cases of 1953 and 1956
30.	English law
31,32.	Provision in Administration of Justice Act, 1970
Chapter 3	Arbitration without Intervention of a Court
3.1.	Section
2.	Section 4
3.	Associations
4,5.	Foreign court may be an arbitrator
6.	Section 5
7.	Discretion how to be exercised
8.	Effect of revocation of authority-Recommendations
9.	Recommendation to rectify grammatical inaccuracy
10.	Recommendation
11.	Recommendation
12.	Provisions in case of insolvency
13.	Position under section 7
14.	Comparison with English Act
15,16.	Difference between English and Indian Act
17.	Appointment by consent
18.	Section 8(1)(a) and three arbitrators
19.	Section 8(1)(b)
20.	Section 8(1)(b) and named arbitrators
21.	Judicial decisions under section 8 as to named arbitrators
22.	Cases under second Schedule
23.	Recent cases as to named arbitrator
24.	Interpretation of section 8(1)(b)
25 to 28.	No change and Section 8
29.	Death of arbitrator appointed by court or incapacity etc
30.	Section 9
31,32.	Section 10(1) and difference between arbitrators as to choice of umpire
33.	Section 10(3)
34.	Section 11
35.	Power of the Court of remove arbitrators, umpires in certain circumstances
36.	Time limits
37,38.	Section 11(2)
39.	Section 11(4) and the aspect of notice
40.	Section 12
41.	Controversy as to case of single arbitrator
42.	Recommendation to amend section 12(1)
43.	Section 12(2)
44.	Section 12(3)
Chapter 4	Powers of the Arbitrator
4.1.	Power to administer oath
2.	Section 13(a)
3.	Power to proceed ex part
4.	Section 13(b)
5,6,7.	Section 13(b) and two kinds of special cases
8.	English law
9.	Statement of case
10.	English case as to "special case"
11.	Recommendation of Civil Justice Committee
12.	Sections 13(b), (c), (d) & (e)
13.	Section 13
14.	History of the law in England
15.	History of the law in India
16.	Four stages relevant to the award of interest
17.	Law applicable to each stage
18.	First period
19.	Second period
20.	High Court decision
21,22.	Position under the Act
23.	Supreme Court judgment of 1967
24 to 27.	Present position
28.	Position summed up
29.	Recommendation to insert new section
30.	Recommendation to insert new section as section 13A
31.	Section 14
32 to 35.	Appeal
36.	Section 14(1) and registered awards
37.	Fees
38.	Section 14(2)-The requirement of filing
39,40,41.	Section 14(2) and case of death of arbitrator-Proposed section 14(2A)
42,43.	Recommendation as to section 14 to cover cases of death of the arbitrator without filing the award and similar situatio
44.	Suggestion not accepted
45.	Burden on the arbitrator
46.	Laymen as arbitrators
47.	Likelihood of awards being challenged
48.	Nature of reasons
49,50.	Voluntary character and the consideration of speed
Chapter 5	Proceedings in the Court on an Award
5.1.	Sections 15 to 17 and Scheme
2.	Section 15
3,4.	History and position in England
5.	Section 16 and grounds for remitting the award
6.	Scope of section 16
7,8.	History (1899 Act and Code of Civil Procedure)
9.	Present section narrower than English law
10.	Remission on other grounds not permissible
11.	Question of amendment considered change in the law
12.	Cases of mistake
13.	Recommendation to amplify section 16
14.	Section 16 and partial remission
15.	Obscurity as to the position of the first award
16.	Remission to new arbitrator
17.	Scope for improvement
18.	Position in England
19.	Recommendation as to section 16
20.	Section 30
21,22.	Section 17
23 to 25.	Conflict of views and its solution
Chapter 6	Arbitration with Intervention of The Court
6.1.	Section 20
2.	Section 20 Recommendation
3.	Sections 20(3) and 20(4) and section 20(5)
Chapter 7	Arbitration in Suits
7.1.	Section 21
2.	Section 21 and Appellate Court
3.	Recommendation as to section 21
4.	Section 22
5.	Section 23
6.	Recommendation to amend
7.	Section 25
Chapter 8	Provisions Applicable to all Arbitrations
8.1.	Section 26
2.	Section 27
3.	Amendment recommended
4.	Section 29
5.	Section 30
6.	Section 30(c)
7.	Position under the Code of 1908
8,9.	Conflict under 1940 Act
10.	Privy Council view and the altered structure of the 1940 Act
11.	Importance of the question
12.	Recommendation as to section 30
13,14.	Arbitrator not to be compelled to disclose the reasons for the award
15.	Recommendation to insert section 30A
16.	Sections 31, 32 and Schem
17.	Civil Justice Committee
18.	It was in view of these delaying tactics that the Civil Justice Committee felt, that what seemed to be most require
19.	Object of sections 31-33
20.	Section 31
21.	Section 31(1) and jurisdiction over a part of subject-matter
22.	Section 31(4) and meaning of "in any reference"
23.	Correct position
24.	Section 32
25.	Section 32 and validity of substantive agreement
26.	Section 32 and use of award as a defence
27.	Judgment of Supreme Court
28.	Recommendation to prohibit defence
29.	Section 32 and challenge on award in defence
30.	Recommendation as to section 32
31.	Section 33
32.	Section 33 and denial of factual existence of agreement by alleged party
33.	Various alternatives
34.	Conflict of decision as to the scope of expression "existence" and recommendation to amend section 33
35,36.	Section 34
37.	Expression "Judicial authority"
38.	Section 34 and foreign awards
39.	The expression "step in the proceedings"
40.	Recommendation to amend section 34
41.	Amendment as to suits brought under summary procedure
42.	Effect of legal proceedings on arbitration
43.	Report of Civil Justice Committee
44.	Section difficulty caused by the words "whole of the subject-matter" and "all parties"
45 to 47.	Section 36
48.	Limitation
49.	General principle as to limitation
50.	Scope as to infructuous arbitrati.- effect on suits
51.	Effect on fresh arbitration
52.	Whether arbitration a civil proceedi.- case law on section 14
53.	Comment in Bombay case
54.	No guidance available in Notes on clauses
55.	Case law
56,57.	Present position not satisfactor
58.	Recommendation as to section 37
59.	Recommendation
Chapter 9	Appeal
9.1.	Section 39
2,3.	No change required in section 39(1)
Chapter 10	Miscellaneous
10.1,2.	Scope of the Chapter
3.	Section 41
4.	Section 42
5.	Recommendation as to section 42, clause (a)
6 to 10.	Section 43
11.	Section .- operation of
12.	Section 47
13.	Recommendation as to section 47
14,15.	Section 47, Arbitration Act and Order 23, rule 3
Chapter 11	Procedural Provisions: the First Schedule
11.1.	First Schedule, paragraph 1
2.	First Schedule, paragraph 2
3.	Re-hearing of evidence by the umpire
4.	Recommendation
5.	First Schedule, paragraph 3
6.	Effect of failure to make award in time
7,8.	Importance of paragraph 3
9.	Two alternatives
10.	Merits of the first alternative
11.	Merits of the second alternative
12.	Recommendation to increase the time limit in paragraph three to six months
13 to 16.	Reasons for the recommendation as to time limit
17.	First Schedule, paragraph 3, "entering on the reference"
18.	English law
19.	Case law on paragraph 3
20.	Various tests
21.	Supreme Court case as to notice
22.	Provision in Electricity (Supply) Act, 1948
23.	Amendments to be made in paragraph 3
24	Recommendation as to paragraph 3
25,26,27.	Paragraph 4,5
28,29.	Recommendation to revise paragraph
30.	Recommendation to revise paragraph 6
31.	First Schedule paragrap
32,33.	Recommendation to insert an Explanation below paragraph 7
Chapter 12	Power of the Court: The Second Schedule
	Power of the Court
Chapter 13	Summary of Recommendations
Appendix	Copy of The Letter Received from the Secretary, Department of Legal Affairs
	Copy of The Letter Received from the Secretary, Department of Legal Affairs