AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 246

Amendment of Section 11

7. In section 11,

(i) In sub-section (4), sub-clause (b), after the words "by the" delete "Chief Justice" and add words "High Court" and after the words "designated by" delete the word "him" and add the word "it".

(ii) In sub-section (5), after the words "by the" delete "Chief Justice" and add words "High Court" and after the words "designated by" delete the word "him" and add the word "it".

(iii) In sub-section (6), sub-clause (c), after the words "may request the" delete "Chief Justice" and add words "High Court" and after the words "designated by" delete the word "him" and add the word "it".

(iv) after sub-section (6), insert sub-section "(6A) An appointment by the High Court or the person or institution designated by it under sub-section (4) or sub-section (5) or sub-section (6) shall not be made only if the High Court finds that the arbitration agreement does not exist or is null and void,

Explanation 1. If the High Court is prima facie satisfied regarding the existence of an arbitration agreement, it shall refer the parties to arbitration and leave the final determination of the existence of the arbitration agreement to the arbitral tribunal in accordance with section 16, which shall decide the same as a preliminary issue.

Explanation 2. For the removal of any doubt, it is clarified that reference by the High Court to any person or institution designated by it shall not be regarded as a delegation of judicial power.

Explanation 3. The High Court may take steps to encourage the parties to refer the disputes to institutionalised arbitration by a professional Indian or International Arbitral Institute.

[Note: The proposed section 11 (6A) envisages the same process of determination as is reflected in the proposed amendment to section 8. Explanation 2 envisages that reference by the High Court to any person or institution designated by it shall not be regarded as a delegation of judicial power. Explanation 3 has been inserted with the hope and expectation that High Courts would encourage the parties to refer the disputes to institutionalize arbitration by a professional Indian or international arbitral institute.]

(v) In sub-section (7), after the words "or sub-section (6)" add the words "or sub-section (6A)" and after the words "to the" delete the words "Chief Justice or the" and add the words "High Court is final where an arbitral tribunal has been appointed or a" and after the words "person or institution" add the words "has been" and after the words "designated by" delete the words "him is final" and insert the words "the High Court, and no appeal, including letters patent appeal, shall lie against such order."

[Note: This amendment ensures that

(a) an affirmative judicial finding regarding the existence of the arbitration agreement; and (b) the administrative act of appointing the arbitrator are final and non-appealable.]

(vi) In sub-section (8), delete the words "The Chief Justice or the person or institution designated by him, in appointing an arbitrator," and add the words "The High Court or the person or institution designated by it, in appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of section 12 sub-section (1) and "

(vii) In sub-section (8), sub-clause (b), add the words "the contents of the disclosure and"

(viii) In sub-section (9), delete the words "Chief Justice" and add the words "Supreme Court" before the words "of India" and after the words "designated by" delete the word "him" and add the word "it".

(ix) In sub-section (10), after the word "The" delete the words "Chief Justice" and add the words "High Court" and after the words "scheme as" delete the word "he" and add the word "it" and after the words "sub-section (6) to" delete the word "him" and add the word "it".

(x) In sub-section (11), after the words "sub-section (6) to" delete the words "the Chief Justices of" and after the words "High Courts or" delete the word "their" and add the word "its" and after the words "designates, the", delete the words "Chief Justice" and add words "High Court" and after the word "or" delete the word "his" and the word "its".

(xi) In sub-section (12), sub-clause (a) after the words "reference to" delete the words ""Chief Justice"" and add the words ""High Court"" and after the words "reference to" delete the words ""Chief Justice" and add the words ""Supreme Court".

(xii) In sub-section (12), sub-clause (b) after the words "reference to" delete the words "Chief Justice" and add the words "High Court" and after the words "construed as a reference to, " delete the words "the Chief Justice of" and after the words "in that clause, to" delete the words "the Chief Justice of".

(xiii) after sub-section (12), add sub-section "(13) An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or their designate as the case may be, as expeditiously as possible and an endeavour shall be made to dispose of the matter within 60 days from the date of service of notice on the opposite party."

[Note: This amendment is to ensure speedy disposal of S 11 applications.]

(xiv) after sub-section (13), add sub-section " (14) In determining the fees of the arbitral tribunal in the case of arbitrations other than international commercial arbitrations and the schedule for its payment to the arbitral tribunal, the High Court is empowered to frame necessary rules, and for which purpose the High Court may look to the Sixth Schedule of the Act.

Explanation: For the removal of doubt, it is hereby clarified that this sub-section (14) of section 11 shall not apply in case where parties have agreed for determination of fees as per the rules of an arbitral institution."

[Note: There have been instances where arbitrators are known to charge excessive fees. An indicative fee schedule is therefore provided in the 6th Schedule. The High Courts are given liberty to frame their own rules in this regard.]



Amendments to the Arbitration and Conciliation Act, 1996 Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys