Report No. 176
2. Proposals on which views are invited
2.1 Does Section 5 of 1996 Act require any amendment ?
It has been pointed out that in Sec.5 of the Act which prevents intervention by the Court during the pendency of arbitration, the opening clause, "notwithstanding anything contained in other law for the time being in force" is not contained in the Model Law. We have already extracted Sec.5 in Chapter I under point 1.3. Art.5 of the Model law reads thus:
"Art.5. In matters governed by this law, no court shall intervene except where so provided in the law" We find that arbitration statutes in several countries are similar to Art.5 of the Model law and do not contain the words, "not withstanding anything contained in other law for the time being in force".
See for example Art.5 of the Canadian Act 1986, Section 5 of the German Act 1998, Art. 6 of the Korean Act 1999, Art.5 of the Irish Act1998 and Art.5 of the Zimbabwe Act 1996 etc., While it is true that the non-obstante clause in Section 5 of the 1996 Act do not find place in Art.5 of the Model law and statutes in other countries, perhaps the same result is achieved by the words "except where so provided in the law"
The object of the "non-obstante" clause in Section 5 of the Indian Act appears to be by way of abundant caution and the addition of these words in Section 5 does not appear to make any difference.