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Report No. 176

2.18.1 Procedure for enforcement of peremptory orders passed by the arbitral tribunal under sec. 17, 23 and 24 by the court:

Provision proposed to prevent dilatory tactics: Sec.24B Several retired Judges who have been dealing with arbitration matters have pointed that the absence of a procedure for enforcement of the 'interim measures' granted by the arbitral tribunal through the court and that this is creating serious problems and prejudice to parties in whose favour such orders are passed. The arbitrators feel helplessness sometimes. As at present, the only effective remedy is for the parties to move the court under sec.9 for interim measures pending arbitration.

This may, no doubt, include seeking orders for enforcement of the interim measures granted by the arbitral tribunal. But the Commission was requested to make some special provision in this behalf as is provided in sec. 42 of the English Act, 1996. The Commission has noticed that the Model Law does not contain any separate procedure to deal with this problem while the English Act, 1996, effectively deals with it in sec. 42 of that Act. But Indian conditions certainly require a special provision.

After due consideration of the lacuna, the Commission is of the view that it is appropriate to adopt the procedure as indicated in sec. 42 of the English Act 1996 with some modifications. We propose to omit clause (c) of sub-section (2) of sec. 42 inasmuch as the provisions proposed are to be always applicable. It is proposed to confer powers on the court to enforce the pre-emptive orders passed by the arbitral tribunal under section 24A (1) in respect of its earlier order under section 17A, 23 and 24.

These powers of the court can be invoked by any of the parties to arbitration with the permission of the arbitral tribunal after notice to the other party/parties or even by the arbitral tribunal upon notice to the parties. These powers are obviously independent of any order that the court may pass under section 9. However, the orders passed under proposed sec. 34B for implementing the orders of the arbitral tribunal will obviously be subject to the orders that may be passed by the Court in appeal under clause (b) of sub section (2) of sec. 37.



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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