Photo of Anuradha Mukherjee

Partner in the Dispute Resolution Team at the Delhi office of Cyril Amarchand Mangaldas. Anuradha has extensive experience of more than 20 years in litigation and arbitration. She routinely advises domestic and international clients in strategizing and undertaking variety of civil, commercial and corporate litigations and arbitrations, and has been actively engaged in wide range of commercial and infrastructure arbitrations. Anuradha has appeared before various fora and courts including the High Court of Delhi, the Trial Courts, the Company Law Board, the Competition Commission, the Debt Recovery Tribunal, the State and National Consumer Forums and the Supreme Court of India. She can be reached at anuradha.mukherjee@cyrilshroff.com

The Arbitration and Conciliation (Amendment) Act, 2015 (2015 Amendment) came into force with effect from October 23, 2015. Although this amendment was enacted to remove controversies and iron out wrinkles in the Arbitration and Conciliation Act, 1996, (Parent Act), it has in fact, given rise to its own set of controversies. One of the burning issues was the applicability of the 2015 Amendment. Section 26 of the 2015 Amendment provides for its applicability, and reads as follows:

  1. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

One would believe that the above provision would have settled any issue of applicability of the 2015 Amendment. It has instead given rise to more litigation,[i] which has now been partially addressed by the Supreme Court.[ii]

The controversy in all the litigation that came up before the High Courts, and which also saw conflicting points of view, was around the applicability of the amended Section 36 of the Parent Act. In the pre-amendment era, when an award debtor challenged an award under Section 34, the award creditor was prevented from enforcing the award until a determination had been made by a court on the challenge, because of an ‘automatic stay’ on the operation of the award.

In order to overcome this, and for the benefit of award creditors, Section 36 of the Parent Act, was amended to do away with this ‘automatic stay’. It required the challenging party to separately apply for a stay and also required the court to direct the award debtor to deposit the award amount, so as to avoid frivolous challenges. The question for the courts has been the applicability of the amended Section 36 to Section 34 applications that were filed before and after the 2015 Amendment came into force.

Continue Reading BCCI v. Kochi Cricket: Supreme Court’s Much Needed Third Umpire Decision

Image credit: Scroll.in, September 26, 2017

This is the fifth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.


India’s judiciary has been known for judicial activism with the Supreme Court often deciding to intervene, not just to strike down laws that are held to be unconstitutional, but also in governance, which many believe ought to be the exclusive domain of the executive. While opinion is divided about the desirability of judicial activism, most would agree that it is the judiciary and its fearless will to intervene and deliver justice, even at the risk of stepping into the domain of the legislature or the executive, which has preserved democratic process over the years.

Unfortunately, rampant judicial activism has given rise to an inevitable debate about the balance of powers between the “three pillars of democracy” and then, as a corollary, the question of the manner in which Judges are appointed in the first place. The prevalent “Collegium System” has been severely criticised, as being non-transparent and prone to nepotism, with several jurists and respected members of the bar themselves pointing out that in no other large democracy does an institution so powerful, choose its own members. The time is therefore right to look closely at the history of how the “Collegium System” evolved, through what is known as the Three Judges Cases.

Continue Reading Should the Judges Cases be Revisited?