Failures in Law Making: The Case of Arbitration Law in India

National Seminar on Law & Practice of Arbitration in India as per the Amended Law, Indian Institute of Technical Arbitrators, Kolkata Chapter, 9th December 2016

9 Pages Posted: 20 Dec 2016  

Date Written: November 4, 2016

Abstract

The Statement of Objects and Reasons to the Arbitration & Conciliation (Amendment) Bill, 2015 placed substantial blame on the judiciary for the delay in disposal of arbitration matters and the increasing court interference in arbitration, both of which, according to the said Statement, had, the effect of undermining the object of the Arbitration & Conciliation Act, 1996. It is true that although the decisions in some cases could have been delivered taking into consideration the framework of arbitration, this paper argues that a substantial amount of blame falls on the law makers as well on two major aspects: If the judiciary has wrongly interpreted a particular provision, it is for the legislature to be proactive and immediately take action to correct the erroneous interpretation. However, it took about fifteen years for the government and the legislature to bring about the statutory reforms in the 1996 Act. This constitutes the first failure of the government and the legislature vis-à-vis the 1996 Act. Secondly, the courts cannot be entirely faulted since it was difficult to trace the legislative intent in enacting a particular provision of the 1996 Act. Therefore, an authoritative source such as parliamentary debates or reports of the Government on the 1996 Act would have aided the courts in finding out the legislative intent. This paper argues that failure by the lawmakers on both these counts contributed immensely to the failure of Arbitration & Conciliation Act, 1996 in achieving its objects.

Keywords: Arbitration and Conciliation Act 1996, Arbitration and Conciliation (Amendment) Act, 2015, Legislature, transparency in law making, judiciary, certainty of law, reforms in arbitration

JEL Classification: K10, K19, K40

Suggested Citation

Srinivasan, Badrinath, Failures in Law Making: The Case of Arbitration Law in India (November 4, 2016). National Seminar on Law & Practice of Arbitration in India as per the Amended Law, Indian Institute of Technical Arbitrators, Kolkata Chapter, 9th December 2016. Available at SSRN: https://ssrn.com/abstract=2887417

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