Report No. 176
2.28 Section 34A (continued)
Proposal for additional grounds in case of non correction of mistakes and non consideration of an issue referred to the arbitral tribunal, rejected on the ground that existing provisions provide adequate remedies:
The plea before us is that failure to deal with all the issues submitted for arbitration has not been made a ground. Section 33(4) permits parties to move the arbitral tribunal in this behalf and for the tribunal to pass an additional award. Such a provision is in Article 33(3) of the Model Law, Article 1708 of the Belgium Code, Artilce 106 of the Netherlands Act, 1986, Article 826 of the Italian Code and section 57(3)(b0 of the English Act, 1990, Article 1058(1)(3) of the German Act and section 32 of th Swedish Act, 1999.
Further failure to decide the issues submitted for decision, under the English Act, 1990 amounts to an 'irregularity' and section 68(2)(d) and permit an appeal, if the court considers it necessary to remedy the situation in the context of substantial justice. No doubt, there may be cases where the decision is implied in another finding or the award, looked at as whole, shows that the tribunal had not overlooked the issue.
Or the evidence may have been insufficient. It was suggested before us that in cases where the tribunal has not decided an issue submitted to it and refuses to deal with it in an application under section 33(4), the court must have to be given a discretion to call for a supplemental award containing reasons regarding the omitted issue, depending upon the circumstances of the case.
(b) The second suggestion is that under section 33(1), the party can request that arbitral tribunal to correct typographical errors or provide an interpretation and in case the arbitral tribunal does not properly respond, there must be a provision for appeal under section 34.
The suggestion for including these two extra items in section 34, referred to in (a) and (b) above, is not being accepted inasmuch as in 1996 Act does contain a provision to cover these two contingencies. A look at section 34(3) shows that the application to set aside the award is to be filed normally in 90 days and where the Tribunal has been requested under section 33 (i.e., under sub-section (4) of section 33 to decide an issue not decided or under sub-section (1) of section 33 to make corrections or give an interpretation), the 90 days time gets extended till the response is given by the arbitral tribunal to the request.
In other words, after the tribunal gives its response, the objections for the said response can also be stated in the application filed under section 34(1). We, however, propose addition of the new sub-sections (5) and (6) of section 34, so that these objections can be considered by the Court, in the light of the grounds available under the Act.
That would mean that the aggrieved party can challenge the response of the arbitral tribunal to the requests under section 33(1) and (4), while moving the Court under section 34(1). These two contingencies are clearly covered by the existing provisions. Hence the request to include these two grounds relating to various types of mistakes is rejected as unnecessary.