In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the commencement of the 2015 Act, i.e., October 23, 2015, irrespective of whether such court proceedings were commenced prior or after the 2015 Act. As is so often the case with constitutional challenges, following an expansive and intricate analysis, the SCI, by its decision dated November 27, 2019, struck down Section 87 of the 1996 Act on grounds of it being contrary to the fundamental essence behind the implementation of the 1996 Act and violative of Article 14 of the 1950 Constitution of India (“1950 Constitution”). Through this research, the authors attempt to analyze the possible ramifications of the aforesaid judgement against the backdrop of the United Nations Commission on International Trade Law (UNCITRAL) Model Law (“UNCITRAL Model Law”), Indian Arbitration law, and relevant applicable constitutional principles of India. The authors also attempt to expound upon the two-cherry doctrine and its relevance in the context of Indian arbitral jurisprudence while juxtaposing it with the position of the UNCITRAL Model Law.
Sai Ramani Garimella and Gautam Mohanty,
The Faux Pas of Automatic Stay Under the Indian Arbitration Act, 1996 - The HCC Dictum, Two-Cherry Doctrine, and Beyond,
21 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol21/iss1/7