Section 85: Repeal and savings

Arbitration and Conciliation Act, 1996 • Official Statutory Text & Practice Guide

Statutory Regulation
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Act 1996
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Legal Commentary & Landmark Judgments: Section 85

Section 85 of the Arbitration and Conciliation Act, 1996 formally repealed the Arbitration (Protocol and Convention) Act, 1937, the Indian Arbitration Act, 1940, and the Foreign Awards (Recognition and Enforcement) Act, 1961, while incorporating a comprehensive savings clause.

  • Repeal of Predecessor Acts: Formally repealed the 1937 Protocol Act, the 1940 Arbitration Act, and the 1961 Foreign Awards Act.
  • Savings for Pending Proceedings: Section 85(2)(a): The provisions of the said enactments shall continue to apply to arbitral proceedings which commenced before this Act came into force, unless the parties otherwise agree.
  • Applicability of New Act: All arbitral proceedings commenced on or after 22nd August 1996 are governed strictly by the 1996 Act.
  • Party Agreement to Apply New Act: Parties were granted statutory autonomy to agree in writing to apply the 1996 Act to pending old proceedings.
Key Landmark Precedents:
  • Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., (1999) 9 SCC 334: The Supreme Court authoritatively analyzed Section 85, holding that arbitral proceedings commenced prior to 22nd August 1996 continue under the 1940 Act unless parties expressly agree to apply the 1996 Act; enforcement of awards is governed by the regime under which the proceedings were conducted.
  • Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333: Settled that Section 85 unified three fragmented arbitration statutes into a single, cohesive, self-contained code.
Courtroom Practice & Strategic Litigation Guidance:

Section 85 marks the decisive boundary between the old 1940 Act regime and modern arbitration; for all agreements and disputes where Section 21 notice was issued after 22nd August 1996, the 1996 Act applies exclusively.