LexTHYSSEN STAHLUNION GMBH ETC. versus STEEL AUTHORITY OF INDIA LTD.
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THYSSEN STAHLUNION GMBH ETC. v. STEEL AUTHORITY OF INDIA LTD. OCTOBER 7, 1999 [D.P. WADHWA AND M.B. SHAH, JJ.] Arbitration : Arbitration Act, 1940-Sections 2(e), 14, 17, 30, 48--Arbitration and Conciliation Act, 1996-Sections 9, 10, 11(4)(b), 32, 34, 36, 42, 85-Arbitral proceedings commenced before the 1996 Act came into force-Award rendued after commencement of the 1996 Act-Enforcement of award-Ap- plicability of provisions-Held, the provisions of Arbitration Act, 1940 shall apply in relation to arbitral proceedings which have commenced before coming into force of the Arbitration and Conciliation Act, 1996--Expression A B c 'in relation to' occurring in Section 85(2)(a) of 1996 Act has to be given full D effect to, which saves not only the proceedings pending at the time of commencement of 1996 Act but also the provisions of the 1940 Act for enforcement of the award under that Act-Both the Acts being vastly different to each other, multiple and complex problems would arise if the award given under 1940 Act is said to be enforced under the 1996 Act-The 1996 Act E would be applicable in relation to arbitral pruceedings which commenced on or after the 1996 Act came into force-Hence-Section 6 of the General Clauses Act would be inapplicable-General Clauses Act, 1897-Section 6. Accrued right-Existence of-Held, once the arbitral proceedings have commenced under the 1940 Act, the right to be governed by that Act for F enforcement of the awa!t! is certainly a right accrued-It is 11ot necessary that for such right to accrue, some legal proceedings for enforcement must be pending under the 1940 Act at the time when 1996 Act came into force-Saving clause as enshrined in Section 85(2)(a) of the 1996Act has the effect of saving the whole of the 1940 Act until the time of enforcement of the G award and preserves the existing rights accrued under the 1940 Act. Parties entering into an agreement for application of the 1996 Act even before that Act came into force-Tenability of-Held, in cases where arbitral proceedings commenced before coming into force of the 1996 Act and are pending before the arbitrator, it is open to the parties to agree that 1996 Act H 461 462 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R. A be applicable to such arbitral proceedings and they could so agree even before the coming into force of the 1996 Act-Parties can always agree that provisions that are in. force at the relevant time would apply and it is not necessary.Jor the parties to know what law will be in force at the time of the conduct of arbitration proceedings-That would not be in restraint of legal B proceedings under Section 28 of the Contract Aa-However, the parties cannot agree to the applicability of the old Act after the new Act has come into force, when arbitral proceedings under the old Act have not commenced though the arbitral agreement was under the old Act-Contract Act, 187'2:- Exception I to Section 28. C Foreign Awards (Recognition and Enforcement) Act, 1961-Foreign award given after the commencement of the Arbitration and Conciliation Act, 1996-Enforcement of-Held, a foreign award given after the commencement of the 1996 Act can be enforced only under the 1996 Act as there is no vested right to have the foreign award enforced under the Foreign Awards Act-This D is imspective of the fact that the arbitral proceedings. commenced in a foreign jurisdiction-Applicability of the Foreign Awards Act is not saved by virtue of the saving clause in Section 85(2)(a) of the 1996Act as the Foreign Awards Act contains provisions only for the enforcement of the foreign award and not for the arbitral proceedings-Moreover, there is not much difference in the provisions of the Foreign Awards Act and the 1996 Act for the enforcement E of the arbitration award-Since no right accmed, Section 6 of the General Clauses Act would not apply. Civil Appeal numbers 6036/98, 4928/97 and 61/99 raise three dif- ferent questions relating to the construction and interpretation of Section F 85 of the Arbitration and Conciliation Act, 1996 which contains repeal and saving provision of the three Acts namely, t~ Arbitration (Protocol and Convention) Act, 1937; the Arbitration Act, 1940; and the Foreign Awards (Recognition and Enforcement) Act, 1961. In CA No. 6036/98, the arbitration proceedings commenced on Sep- G tember 14, 1995 under the Arbitration Act, 1940. Hearing before the sole arbitrator took plac
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