Arbitration & Conciliation (Amendment) Bill, 2021
Lok Sabha Passes Arbitration & Conciliation (Amendment) Bill, 2021.
It is already in force by way of an Ordinance promulgated on 4th November, 2020.
Highlights of the Bill:
It seeks to amend the Arbitration and Conciliation Act, 1996 so as to (i) enable automatic stay on awards in certain cases and (ii) specify by regulations the qualifications, experience and norms for accreditation of arbitrators.
Seeks to ensure that stakeholder parties can seek an unconditional stay on enforcement of arbitral awards in cases where the “arbitration agreement or contract is induced by fraud or corruption.”
Also does away with the 8th Schedule of the Act that contained the necessary qualifications for accreditation of arbitrators.
Added a proviso in Section 36 of the Arbitration Act and will come into effect retrospectively from October 23, 2015. As per this amendment, if the Court is satisfied that a prima facie case is made out that the arbitration agreement or contract which is the basis of the award was induced or effected by fraud or corruption, it will stay the award unconditionally pending disposal of the challenge made to the award under Section 34.
Issues raised with respect to proposed amendment to Section 36 of the Act:
It is very easy for the losing party to allege corruption and obtain an automatic stay on enforcement of the arbitral award. Thereafter, the parties will have to wait for enforcement till final disposal by the Court. This defeats the very objective of alternate dispute mechanism by drawing parties to Courts and making them prone to prolonged litigation.
Legislation does not define Fraud/ Corruption.
Retrospective application of Amendment Act (from 2015) with respect to automatic stay may open floodgates of litigation.
Amendment will affect enforcement of contracts and ultimately affect ease of doing business in India.
Until recently, an arbitration award was enforceable even if an appeal was filed against it in the court under Section 36 of the law. The court, however, could grant a stay on the award on conditions as it deemed fit.
What is Arbitration?
Arbitration is an alternative dispute resolution (ADR) procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
What is Conciliation?
Conciliation is also an alternative dispute resolution instrument where parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation.
The doctrine of Separation of powers
Law Minister Ravi Shankar Prasad recently told the Lok Sabha that just as independence of the judiciary is a part of the basic structure of the Constitution, the principle of separation of powers is also a part of that basic structure. He asserted that governance and lawmaking should be left to the elected members of the legislature.
He also urged the judiciary to exercise its discretion in accepting public interest litigations.
What’s the issue?
There has been a “rush to file PILs on almost every issue” nowadays.
What is the doctrine of Separation of Power?
It refers to the model of governance where the executive, legislative and judicial powers are not concentrated in one body but instead divided into different branches.
It is not explicitly mentioned in the constitution.
Articles in the Constitution facilitating Separation of Powers are as follows:
Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of the judiciary.
Article 122 and 212: Validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. Also, Legislators enjoy certain privileges with regard to speech and anything said in the Parliament cannot be used against them.
Judicial conduct of a Judge of the Supreme Court and the High Court cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
Article 361: The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
A new case of Ebola was diagnosed in Democratic Republic of Congo recently.
Following an outbreak in June 2020, the region was declared Ebola-free in November after no new cases were reported in more than 48 days.
What you need to know about Ebola?
Ebola virus disease (EVD), formerly known as Ebola haemorrhagic fever, is a severe, often fatal illness in humans.
Transmission: The virus is transmitted to people from wild animals and spreads in the human population through human-to-human transmission.
The average EVD case fatality rate is around 50%. Case fatality rates have varied from 25% to 90% in past outbreaks.
Prevention: Community engagement is key to successfully controlling outbreaks. Good outbreak control relies on case management, surveillance and contact tracing, a good laboratory service and social mobilisation.
Treatment: Early supportive care with rehydration, symptomatic treatment improves survival. There is yet no licensed treatment proven to neutralise the virus but a range of blood, immunological and drug therapies are under development.
An experimental Ebola vaccine, called rVSV-ZEBOV proved highly protective against EVD in a major trial in Guinea in 2015.
The rVSV-ZEBOV vaccine is being used in the ongoing 2018-2019 Ebola outbreak in DRC. Pregnant and breastfeeding women should have access to the vaccine under the same conditions as for the general population.
The public mistrust and militia attacks have prevented health workers from reaching some hard-hit areas for administering the vaccines.
The Farakka ‘lock’ and hilsa, why there is both hope and apprehension
In February 2019, the government had unveiled a project to redesign the navigation lock at the Farakka Barrage at a cost of Rs 360 crore to create a “fish pass” for the hilsa.
Fish passes to be built at Farakka also known as fish ladders or fish ways aim to assist fish in crossing obstacles presented by dams and barrages.
Hilsa fish migration:
In scientific parlance, the hilsa (Tenualosa ilisha) is an anadromous fish. That is, it lives most of its life in the ocean, but during the rainy season, when it is time to spawn, the hilsa moves towards the estuary, where the rivers of India and Bangladesh meet the Bay of Bengal.
A large part of the shoal travels upstream in the Padma and the Ganga some are known to move towards the Godavari, and there are records of hilsa migration to the Cauvery.
What affected the fish movement?
Historical records also show that until the 1970s, the hilsa would swim the Ganga upstream to Allahabad and even to Agra.
But the Farakka Barrage, which became operational on the Ganga in 1975, disrupted the westward movement of the hilsa.
The barrage had a navigation lock that stopped the fish from swimming upstream beyond Farakka.
What are fish ladders?
They usually consist of small steps that allow the fish to climb over the obstacles and enable them to reach the open waters on the other side.
For the intervention to work, the water running over these ladders must be controlled. It must be adequate to catch the attention of the fish, but not too strong to deter them from swimming against it.