Supplementary Provisions: Sections 82 to 86

Part IV closes the Act with five short sections on rule-making, the removal of difficulties and the repeal of the earlier law. They are easy to overlook and they decide a question that arises constantly in practice: which version of the law governs a given arbitration. Section 85 repealed the Acts of 1937, 1940 and 1961 while saving their application to proceedings already commenced, and the transitional jurisprudence that grew around it was later repeated, almost point for point, when the amendments of 2015 and 2019 raised the same question.

1. Rules by the High Court: Section 82

Section 82, Arbitration and Conciliation Act, 1996

The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act.

The power is confined to proceedings before the court, and it cannot touch the conduct of the arbitration itself, which the parties and the tribunal control under Section 19. The rules made under it govern the form of applications under Sections 9, 11, 14, 27, 34 and 36, the documents to accompany them and the procedure on hearing. The provision also matters for the Fourth Schedule, which supplies a model fee structure for arbitrators and which operates where the High Court has framed rules for the purpose; where it has not, the Schedule has no compulsory application and fees are as agreed.

2. Removal of Difficulties: Section 83

Section 83 empowered the Central Government, if any difficulty arose in giving effect to the provisions of the Act, to make by order published in the Official Gazette such provisions not inconsistent with the Act as appeared necessary for removing the difficulty, and provided that no such order could be made after the expiry of two years from the date of commencement of the Act. Every such order was to be laid before each House of Parliament. The power is therefore spent, the two-year window having closed in 1998, and the section is of historical interest only. Its significance for an answer is that it illustrates the standard legislative device of a time-limited enabling power, which cannot be used to amend the Act or to do anything inconsistent with it.

3. Rules by the Central Government: Section 84

Section 84 empowers the Central Government to make rules for carrying out the provisions of the Act, and requires every rule so made to be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for the period prescribed, with the usual provision for modification or annulment. The distinction between Sections 82 and 84 is one of subject matter: the High Court makes rules about proceedings before the court, and the Central Government makes rules on the matters the Act leaves to be prescribed.

4. Repeal and Savings: Section 85

Section 85, Arbitration and Conciliation Act, 1996

(1) The Arbitration (Protocol and Convention) Act, 1937, the Arbitration Act, 1940 and the Foreign Awards (Recognition and Enforcement) Act, 1961 are hereby repealed.

(2) Notwithstanding such repeal, (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; (b) all rules made and notifications published under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.

Which version of the law applies, and the rule-making provisions in outline

The pivot is the date on which the arbitral proceedings commenced, and that date is fixed by Section 21: unless otherwise agreed, proceedings commence on the date on which a request for the dispute to be referred is received by the respondent. Where the request was received before the Act came into force on 25 January 1996, the old law governs the whole of the arbitration, including proceedings in court arising from it, unless the parties agreed otherwise. Where it was received afterwards, the Act of 1996 applies.

📖 Thyssen Stahlunion GmbH v. Steel Authority of India Ltd., (1999) 9 SCC 334

Held: The expression in relation to arbitral proceedings in Section 85(2)(a) is wide enough to cover the proceedings for enforcement of the award, so where the arbitration commenced before the 1996 Act came into force, the repealed Act continues to govern the whole matter, including enforcement. The words unless otherwise agreed by the parties permit the parties to elect for the new Act, and the agreement may be express or implied from conduct.

Significance: The decision fixed the meaning of the savings clause and established that the date of commencement under Section 21, and not the date of the award or of the court proceeding, is the determining factor.

⚠ The same question, asked three times

Section 85(2)(a) settled the transition from the old Acts to the Act of 1996. The identical question arose again with Section 26 of the Amendment Act of 2015, where it was held that the amended Section 36 applies to applications under Section 34 pending on 23 October 2015. It arose a third time when Section 87, inserted in 2019, sought to confine the 2015 amendments to arbitrations commenced after that date, and that section was struck down as manifestly arbitrary in 2020. The Amendment Act of 2021 then made the proviso to Section 36(3) operate retrospectively from 23 October 2015. An answer on transitional provisions should set out this sequence, because the reasoning in each round borrows from the last.

5. Repeal of the Ordinance: Section 86

The legislation was first promulgated as an Ordinance in January 1996 and re-promulgated twice before the Bill was passed. Section 86 repeals the third of those Ordinances, the Arbitration and Conciliation (Third) Ordinance, 1996, and provides that notwithstanding the repeal, anything done or any action taken under that Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. The section explains why the Act, which received assent on 16 August 1996, is deemed to have come into force on 25 January 1996: continuity had to be preserved for arbitrations conducted under the Ordinances in the intervening months.

6. Why These Sections Matter

Section	Practical use
Section 82	The source of the High Court rules governing applications under the Act, and of the rules that make the Fourth Schedule fee structure operative
Section 83	Spent; the power could not be exercised after two years from commencement
Section 84	The source of the rules prescribing matters left to the Central Government
Section 85	Decides which statute governs an arbitration begun before 25 January 1996, and supplies the reasoning applied to later transitions
Section 86	Explains the deemed commencement on 25 January 1996 and preserves acts done under the Ordinances

7. Related Topics and Provisions

Topic or provision	Connection
Historical Development of Arbitration Law in India	The statutes repealed by Section 85 and the three Ordinances of 1996
Arbitration Act, 1940 vs Arbitration and Conciliation Act, 1996	The law that continues to govern proceedings begun before 1996
Finality and Enforcement: Sections 35 and 36	The automatic stay, and how the 2015 change reached pending matters
Section 21, A&C Act, 1996	Commencement, which fixes the applicable statute
Fourth Schedule, A&C Act, 1996	Model fees, operative where High Court rules under Section 82 so provide