In 2015 the Indian Government made significant changes to the Arbitration and Conciliation Act 1996 as part of its programme to bring its arbitration laws in line with modern practice and to improve India's reputation as a hub for both Indian and international arbitration.
Key changes included:
- Giving Indian courts the power to grant interim measures in support of arbitration outside India.
- Limiting public policy as a grounds for resisting enforcement to circumstances where there has been fraud or corruption, or contravention of the fundamental policy of Indian law or the most basic notions of morality or justice.
- Providing for applications arising out of international arbitration to be made to High Courts where judges familiar with international arbitration can hear them.
- Providing a time-limit of 12 months, extendable by 6 months, from appointment within which an arbitrator must provide their award.
While India's moves to improve its arbitration laws were widely welcomed, some of the actions taken either did not go far enough or acted as an impediment to progress (such as the time limit for provision of the award). In the last few weeks, Prime Minister Modi has approved a bill with further reforms to the Arbitration and Conciliation Act 1996 to address concerns raised after the 2015 reforms and issues that have arisen since those reforms were put into practice.
The new proposed amendments include:
- Establishment of a new 'Arbitration Council of India' to grade arbitral institutions and accredit arbitrators as well as setting policy and guidelines.
- Exclusion of international arbitration from the timeframe of 12 months for delivery of the award. The new proposed time frame is 12 months from the completion of party pleadings.
- An ability for parties to directly approach certain designated institutions for the appointment of arbitrators rather than approaching the courts.
- Confidentiality of the arbitral proceedings except the award.
The new proposals have already raised questions of their own such as on the confidentiality of arbitral awards (being a cornerstone of the arbitral process). Given that the drive behind the 2015 and proposed 2018 reforms are for India to take its place on the world-stage of arbitration it is unlikely that India will adopt rules that are out-of-sync with leading arbitration jurisdictions. The proposal for an Arbitration Council is of particular interest and may enable a well-informed progressive body to push India's laws, judiciary and relationships with institutions forward in a positive way for the benefit of both the Indian legal market, its businesses and foreign businesses who work and invest in India.
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