Monday, 20 June 2022

arbitration and conciliation amendment bill 2021

 ARBITRATION AND CONCILIATION AMENDAMENT BILL 2021


Mediation and Conciliation (Amendment) Bill, 2021 was introduced in Lok Sabha on February 4, 2021. It aims to amend the Mediation and Reconciliation Act, 1996.


Background


The Act was passed with a view to incorporating and amending the law relating to domestic mediation, international trade mediation, enforcement of foreign awards and law relating to reconciliation.

 In addition, the law was amended in 2015, to make the mediation process easier, less expensive and more secure

immediate dismissal and neutrality of the mediators.

 It was also amended in 2019 to promote institutional mediation in the country.

 The Arbitration and Conciliation (Amendment) Ordinance, 2020 was introduced to ensure that all stakeholders.

parties get the opportunity to demand unconditional residency of arbitral awards.


Key Feature of the Bill:


Automaticity residency in prizes:

The Bill stipulates that a stay of arbitral award may be granted by the Court, even in the event of a reliance on an application for exemption,

if the prima facie is satisfied that the mediation agreement is appropriate

caused by fraud or corruption.


Qualifications of arbitrators


The bill removes the 8th Schedule of arbitrators and states that the qualifications, information, and procedures for accreditation of arbitrators will be specified under the regulations of the Arbitration Council of India (ACI).

 According to Schedule 8, the arbitrator must be:

attorney under the Law of Attorneys Act, 1961 with 10 years' experience, or

 an official of the Indian Legal Service, among others.

The impact of the amendment on the bill in the dispute resolution process


LOOK INTO  Fraud and Corruption:

The amendment will help to ensure that all participants have the opportunity to seek unconditional residency of arbitral awards, where the arbitral award is due to fraud or

corruption.


  ARBITRATION AND CONCILIATION AMENDAMENT  BILL 2021

Promote India as a commercial mediator:

With the departure of Schedule 8, it will provide greater flexibility and promote India as a center for international trade mediation by attracting prominent mediators in the country.



conclusion 


While the drawbacks that the 2021 modification is trying to cure area is  still unclear , the aspect effects of the 2021 modification could persuade be a disaster. The adding of an additional appellant layer of judicial intervention, the multiplicity of proceedings, uncertainty within the application, encouraging a flurry of challenges and gap the pandora’s box qua the arbitrator’s liability including the dilution of the 2015 modification and failure in upholding the cardinal principle of the arbitration method, i.e., minimum judicial intervention through the 2021 modification might not augur well with India’s dream of turning into a pro-arbitration hub. For a jurisdiction wherever the social control of a judgment or a gift is already problematic, a sudden shift from Indian courts’ pro-enforcement approach to empowering the courts to grant associate unconditional remain the social control of associate arbitrational award is damaging to the inviolable unconditional right of social control, finality, associated binding nature of an arbitrational award. This impacts the enforceability of the contracts associated presumably produce an unease for the companies to work in a very regime wherever the parties area unit presumably liable to face another spherical of proceedings at the time of social control of the arbitrational award, depriving them of enjoying the fruits of the arbitrational award.


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