1993 (12) TMI 237 - Other - Indian Laws

Summary

Issues Involved:

1. Whether the arbitrator was entitled to take into account the delay preceding the enactment of Section 13A of the Arbitration Act 1950.
2. Whether the statute had a retrospective effect.
3. The fairness and legislative intention behind Section 13A.

Summary:

Issue 1: Delay Preceding Section 13A

The arbitrator dismissed the owners' claim for damages due to "inordinate and inexcusable delay" in advancing the arbitration, citing Section 13A of the Arbitration Act 1950, inserted by the Courts and Legal Services Act 1990. The owners argued that the arbitrator should only consider the delay from 1 January 1992, when Section 13A came into force, to 13 January 1992, when the charterers applied to dismiss the claim. However, the arbitrator included the delay from 5 August 1985, when arbitration proceedings began, to 1 January 1992. The arbitrator's decision was upheld, as it was determined that he was right to consider the entire period of delay.

Issue 2: Retrospective Effect

The owners contended that the statute should not have retrospective effect, relying on the presumption against attributing retrospective intention to Parliament. However, it was concluded that the 1990 Act did not retrospectively deprive the owners of any right, as they never had a right to render impossible the fair resolution of arbitration issues or cause serious prejudice by inordinate and inexcusable delay. The statute was intended to apply to ongoing arbitrations, including those with delays occurring before the enactment of Section 13A.

Issue 3: Fairness and Legislative Intention

The legislative history and judicial precedents were examined to determine the fairness of applying Section 13A retrospectively. It was noted that the new powers under Section 13A were intended to address the problem of stale claims in arbitration, aligning arbitration practices with those of the High Court. The statute aimed to prevent unfair resolutions due to prolonged delays. The court concluded that the partially retrospective application of Section 13A was justified to achieve this legislative intent.

Conclusion:

The appeal was allowed, affirming that the arbitrator had the jurisdiction to consider delays preceding the enactment of Section 13A and that the statute's partially retrospective effect was intended by Parliament to ensure fair resolution of arbitration disputes.