The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Curious Case-
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1.1 (a) Shapoorji Pallonji and Co. Pvt. Ltd. vs. Jindal India Thermal Power Limited[1]
1.2 (b) MBL Infrastructures vs. Rites Ltd.[1]
Curious Case- Section 29a Arbitration Act provides for the extension of the mandate of the arbitral tribunal. If the arbitral tribunal fails to make an award within the speculated time frame of 12 months. The said section was introduce in the Arbitration and Conciliation (Amendment) Act 2015. Wherein a timeline of 12 months was set out from the date of reference for the tribunal to make an award. The said time period of 12 months could be further extend by a period of 6 months.
Additionally, the competent court was further veste to extend the mandate by another 6 months. If the award couldn’t be made in the extend period i.e. 12 months + 6 months[1]. The provisions, as introduced in the year 2015 was applicable to international as well as domestic commercial arbitrations.
The Arbitration act underwent another rampant change recently in the year 2019, pursuant to which the section 29A witnessed a substantial change in the applicability. Post the amendment in 2019, the mandate of making an award was to be compute from the date of completion of proceedings as oppose to the earlier date of the reference made to the tribunal. Additionally, the applicability of the section was also restrict to domestic arbitrations. The same amounts to a significant amount of shift in the applicability of the section.
The amended provision of section 29A was enforce w.e.f. 30th August 2019 vide the notification of the same date leaving an ambiguity regarding its applicability of being retrospective or prospective in nature. Ever since the enforcement, various courts have witness the ambiguity being raise and have try to lay down principles governing the same. Some relevant judgements defining the position of law and the applicability of the said section are laid down hereinbelow;
The Hon’ble High Court of Delhi in the captioned matter had an occasion to test the applicability of the provision in question. Vide an order date 23rd January 2020, the Hon’ble Court held that the amendment to section 29A shall be apply retrospectively for being procedural in nature and therefore the amend provision would apply to all the arbitration proceedings pending as on the effective date i.e. 30th November 2019. The Single Judge bench while pronouncing this decision substantially relied upon the said notification without much deliberation on any other aspect.
The Hon’ble Delhi High Court was once again posed with the same question of law regarding the applicability of the amend provision of Section 29A and surprisingly a different bench of the same Court opin that the said provision would be prospectively applicable as the notification doesn’t contain anything otherwise. It is noteworthy that the decision in MBL didn’t consider
the law laid down by the same court in Shapoorji Pallonji.
Both the decisions added to the conundrum, more importantly having been pass by a single judge.
Pursuant to a lapse of almost 7 months, the High Court was once again pose with the same challenge to examine the nature and applicability of the amend Section 29A (1) of the Arbitration Act.
In the case of ONGC Petrochemicals Additions Ltd. vs Ferns Construction Company[1] Inc. the High Court prima facie dealt with the issue as to whether the international commercial arbitration proceedings seated in India be bound by the amended Section 29 A. The said proposition was also an occasion for the High Court to once again,
deal with the question of the said provision being retrospective or prospective in nature.
The Hon’ble High Court primarily placed reliance upon MBL Infrastructures and opin that the said decision was pass without considering the Shapoorji Pallonji Curious case which was pronounce prior in time and as per the general principle reliance should have been place upon the same. The High Court reaffirmed its decision in Shapoorji Pallonji Curious case on the grounds that the amend provision is procedural in nature and therefore should be apply retrospectively.
One issue that the Court face was the judgement pass in BCCI vs. Kochi Cricket (P) Ltd. [2] wherein the Hon’ble Supreme Court took the view that the erstwhile Section 29 A as amended under the Amendment Act 2015 would be applicable prospectively
the proceedings commenced on or after 23rd October 2015. The view was taken by the Hon’ble Court due to the presence of Section 26 in the Act. It stipulates the prospective application of the amendments.
However, such qualification has not been incorporate under the Amendment Act 2019. Therefore, no bar exists under the Amendment Act 2019 for the retrospective application of Section 29A. The Hon’ble Court also clarified that the international commercial arbitrations would not be
bound by the mandatory timeline stipulated u/s 29 A (1). Hence would fall outside the purview of Section 29 of the Arbitration Act.
The abovementioned decision is a welcome step and a clarification of the conundrum cause due to the earlier decisions thereby settling the position of law. The retrospective application would also mean that the existing arbitrations as on 30th August 2019 wouldn’t have to file a Curious case 29A application for the extension of the mandate of the tribunal. Needless to mention that the said decision is in conformity with the jurisprudence. The law laid down time and
again making procedural law retrospective in nature unless an exception already exists in the legislation.
[1] Arbitration and Conciliation Act, 1996 § 29A (3)
[2] O.M.P. (MISC) (COMM.) 512/2019
[3] O.M.P. (MISC) (COMM.) 56/2020
[4] OMP(MISC) (COMM) 256/2019, decided on 21 July 2020
[5] BCCI vs. Kochi Cricket, (2018) 6 SCC 287
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