Court : Mumbai
Reported in : 1998(2)BomCR25
..... repeal and saving---(1) the arbitration (protocol and convention) act, 1937 (6 of 1937) the arbitration act, 1940 (10 of 1940) and the foreign awards (recognition and enforcement) act, 1961 (45 of 1961) are hereby repealed. ..... as on 25th january, 1996, the law on arbitration in india was contained in three enactments, namely :---(i) the arbitration act, 1940 (ii) the arbitration (protocol and convention) act, 1937 (iii) the foreign awards (recognition and enforcement) act, 1961. ..... zaiwala, learned counsel for the respondents, is that under section 85 of the new act even though the old act has been repealed, the provisions of the old act would continue to apply in relation to arbitral proceedings which have commenced before the arbitration and conciliation ordinance came into force. ..... section 85 of the ordinance by which the 1937 act, the arbitration act of 1940 and the 1961 act were repealed, provides :---'85. ..... it is contended that the proceedings which have commenced under the arbitration act, 1940 are saved and protected by the arbitration and conciliation act, 1996 and therefore any proceedings relating to the dispute which have been raised by the petitioner can be adopted under the arbitration act, 1940 only. ..... a preliminary objection was raised to the maintainability of the application on the ground of the repeal of 1961 act by the arbitration and conciliation ordnance, 19896. .....
Tag this Judgment!Court : Mumbai
Reported in : 1998(3)BomCR837; 1999(1)MhLj462
..... - (1) the arbitration (protocol and convention ) act, 1937 (vi of 1937), the arbitration act, 1940 (x of 1940) and the foreign awards (recognition and enforcement) act, 1961 (xlv of 1961) are hereby repealed. ..... such a provision leaving it to the discretion of the parties to the proceedings to decide about the procedure to be followed- either in terms of the new act or the old act- is certainly in consonance with the scheme of the act, whereunder most of the provisions of the new act, the procedure regarding various stages of the arbitration proceedings is made subject to the agreement to the contrary between the parties, thereby giving ample freedom to the parties to decide about the procedure to be followed in such proceedings ..... in fact, the above quoted objects described in the bill of 1995, disclose a clear intention on the part of the legislature to make the arbitration procedure not only fair and efficient, but capable of meeting the need of each and every arbitration proceedings and further to minimise interference of the court in such proceedings and to give finality to the awards passed in such proceedings without much scope for judicial review of the same. ..... now if we peruse the preamble of the new act, it is seen that it reads thus:'an act to consolidate and amend the law relating to domestic arbitration ..... .....
Tag this Judgment!Court : Mumbai
Reported in : 1999(2)BomCR158; 1999(2)MhLj1
..... to the same effect is the provision in section 7(1) of the protocol and convention act of 1937 which requires that the enforcement of the foreign award must not be contrary to the public policy or the law of india. ..... in this context, it would also be of relevance to mention that under article 1(c) of the geneva convention act of 1927,it is permissible to raise objection to the enforcement of arbitral award on the ground that the recognition or enforcement of the award is contrary to the public policy or to the principles of the law of the country in which is sought to be relied upon. ..... the apex court in para 13 relied upon the observations from the book written by redfern and hunter 'in the law and practice of international commercial arbitration' and approved them which are as under :'a party seeking to enforce an award in an international commercial arbitration may have a choice of country in which to do so, as it is sometimes expressed, the party may be able to go forum shopping. ..... (b) if, on such a reference, one party fails to appoint an arbitrator, either originally, or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and his award shall be binding on both parties as if he had been appointed by consent. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR2001Bom45; 2000(4)BomCR574
..... ---(1) the arbitration (protocol and convention act, 1937 (6 of 1937), the arbitration act, 1940 (10 of 1940) and the foreign awards (recognition and enforcement) act, 1961 (45 of 1961) are hereby repealed. . 4 ... ..... upon hearing the learned advocates and on perusal of the records, and considering the facts of the case, the arbitration clause in the agreement between the parties, and the various provisions contained in the new act including those relating to repeal and saving of the old act, the point for determination which arises in this petition is whether the proceedings in the case in hand after 25th january, 1996 are governed by the provisions of the old act or the new act. 3. ..... repeal - (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this act came into force unless otherwise agreed by the parties but this act shall apply in relationto arbitral proceedings which commenced on or after this act comes into force; (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this act, be deemed respectively to have been made or issued under this act .....
Tag this Judgment!Court : Mumbai
Reported in : 2001(4)ALLMR143; 2001(3)BomCR652
..... they are, the law on arbitration in india is at present substantially contained in three enactments, namely, the arbitration act, 1940, the arbitration (protocol and convention) act, 1937 and the foreign awards (recognition and enforce-ment) act, 1961. ..... the 1996 act, as the preamble indicates, is an act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental ..... being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy and the observation of the supreme court that, lacking precedent, the court can always be guided by the light of the preamble to the constitution and the principles underlying the fundamental ..... rights and the directive principles enshrined in our constitution. .....
Tag this Judgment!Court : Mumbai
Reported in : 2005(2)ARBLR125(Bom); 2005(2)BomCR364
..... , arbitration act, 1940, arbitration (protocol and convention) act, 1937 and the foreign act. ..... on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the low in force in india, made on or after the 11th day of october 1960-(a) in pursuance of an agreement in writing for arbitration to which the convention set forth in the first schedule applies, and(b) in one of such territories as the central government, being satisfied that reciprocal provisions have been made may, by notification in the official gazette, declare to be territories to which the said ..... shri dave submits that a situation of conflict may arise in the context of sections 44 and 45 in as much as the legality, validity and enforceability of an arbitration agreement can be tested on the touchstone of applicability of 1996 act and other indian laws but when a foreign award which is made in arbitral proceedings outside india, arising out of an agreement subjected to indian laws exclusively, then, it will not be open to challenge at all. ..... now the arbitration act 1940 has been repealed. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR2007Bom149; 2007(3)ALLMR304; 2007(2)ARBLR362(Bom); 2007(3)BomCR393; 2008(1)CTC7
..... the law of arbitration in india was earlier substantially contained in three enactments, namely, the act of 1940, arbitration (protocol and convention) act, 1973 and the foreign awards (recognition and enforcement) act, 1961. ..... the definition of 'court' under section 2(e) could be divided in the following manner: (i) the principal civil court of original jurisdiction in a district, and includes the high court in exercise of its ordinary original civil jurisdiction; (ii) having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit; and (iii) it does not include any civil court of a grade inferior to such principal civil court, or any court of small ..... in omni bus industrial development corporation, the learned judge while dealing with the definition of 'court', under section 2(e) of the arbitration and conciliation act, 1996 (for short the 'act of 1996'), has taken a view that the court of civil judge, senior division, goa being the principal court of original civil jurisdiction, would be entitled to hear an appeal under section 34 of the act of 1996, while in cotton corporation of india ltd. ..... this act repeals the act of 1940. ..... even the preamble of a statute is equally an important part and can be pressed into service to aid the construction thereof.9. .....
Tag this Judgment!Court : Mumbai
Reported in : (2008)110BOMLR1189
..... (1) the arbitration (protocol and convention) act, 1937 (6 of 1937), the arbitration act, 1940 (10 of 1940) and the foreign awards (recognition and enforcement) act, 1961 (45 of 1961) are hereby repealed. ..... claimants have preferred this appeal against the impugned judgement and order dated 4th april, 2000 passed by the learned single judge in arbitration petition no.65 of 2000 rejecting summarily the petition without going into the merits, by holding that the same is barred by limitation by applying the provisions of section 34(3) of the arbitration and conciliation act, 1996 (new arbitration act) though the arbitration commenced under the arbitration act, 1940 (old arbitration act).2 the respondents tender was accepted by the appellants on 11.6.1990 on the ..... repeal, (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this act came into force unless otherwise agreed by the parties but this act shall apply in relation to arbitral proceedings which commenced on or after this act comes into force;(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this act, be deemed respectively to have been made or issued under this act .....
Tag this Judgment!Court : Mumbai
Reported in : 2008(6)BomCR540
..... it is worthy to note that the arbitration act, 1996 not only repeals the arbitration act, 1940 but also repeals the arbitration (protocol and convention) act, 1937 and foreign awards (recognition and enforcement) act, 1961. ..... counsel submitted that the provisions contained in part ii and part iii are totally new provisions and were not contained in the arbitration act, 1940 and, therefore, the arbitration act, 1996 cannot be construed as a repeal and re-enactment of the arbitration act, 1940 so as to attract the provisions of section 8 of the general clauses act. ..... a counsel for the petitioners submitted that the arbitration act, 1940 was repealed and re-enacted by the arbitration act, 1996 and therefore reference to the arbitration act, 1940 in article 3 must be construed as a reference to the arbitration act, 1996 in view of section 8 of the general clauses act.16. ..... in my view sub-section (2) of section 85 of the arbitration act, 1996 is only a transitory provision and merely because the pending arbitration proceedings are saved from the application of the arbitration act, 1996, it cannot be said that the arbitration act, 1940 does not repeal by the arbitration act, 1996.19. ..... merely because the arbitration act, 1996 re-enacts the provisions relating to two or three acts, which were simultaneously repealed, it cannot be said that the arbitration act, 1996 is not a repeal and re-enacted the arbitration act, 1940. .....
Tag this Judgment!Court : Mumbai
Reported in : 2008(6)BomCR546
..... thc apex court in sundaram finance' case (supra) clearly observed that prior to the promulgation of the new act, the law on arbitration in india was substantially contained in three enactments, namely, the arbitration act, 1940, the arbitration (protocol and convention) act, 1937 and the foreign awards (recognition and enforcement) act, 1961. ..... dealing with the question about the intention of the legislature in repealing the old act and enacting the new act and bearing in mind the object of the new act, the apex court while enumerating the difference between the provisions of law comprised under the new act vis-a-vis the old act clearly held that:a bare comparison of different provisions of the arbitration act of 1940 with the provisions of the arbitration and conciliation act, 1996 would unequivocally indicate that the 1996 ..... in fact, the very preamble of the new act provides that whereas the united nations commission on international trade law has adopted the uncitral model law on international commercial arbitration in 1985 and the general assembly of the united nations has recommended that all countries give due consideration to the said model law and in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice, the uncitral has adopted the uncitral .....
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