The Amendment Act applies to applications under S.34 filed after its commencement, clarifying the scope and distinction in applicability of law.

1. Identical orders passed by the District Judge, Alappuzha on interlocutory applications filed in two original petitions under S.34 of the Arbitration and Conciliation Act, 1996 (hereinafter mentioned as "the Act") are under challenge in these original petitions. Those interlocutory applications were filed by the petitioners herein, who are the respondents in the original petitions under S.34 of the Act, seeking an adjudication on their maintainability. Learned District Judge, in both these matters, found that the petitions under S.34 of the Act are maintainable in the presented form. The applications filed by the petitioners were hence dismissed. Feeling aggrieved, they have come up before this Court.

2. As the facts and legal questions are identical in both these matters, they are heard together and disposed of by this common judgment.

3. Heard the learned counsel for the petitioners and the contesting respondents.

4. It is a common Knowledge that the Act underwent drastic amendments through the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter mentioned as "the Amendment Act"). S.34 of the parent Act was amended by the aforementioned Amendment Act. Two Explanations have been added to S.34(2) of the Act. The expression "public policy of India" occurring in S.34(2)(b)(ii) of the Act has been explained by adding Explanation 1. By adding Explanation 2, it has been clarified that whether there is a contravention with the fundamental policy of Indian law, an expression occurring in Explanation 2, shall not entail in a review on merits of the dispute.

5. Newly added sub-section (2A) may not be relevant for our purpose as it relates to international commercial arbitrations.

6. The moot point is regarding interpretation of S.26 of the Amendment Act. It reads as follows:

"26. Act not to apply to pending arbitral proceedings. -

 Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of S.21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act."

7. Before dwelling on S.26 of the Amendment Act, it will be apposite to consider S.21 of the Act which deals with commencement of the arbitration proceedings. The Section says that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. An arbitration proceedings commenced in accordance with S.21 of the Act comes to an end as provided in S.32 of the Act. It says that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral Tribunal under sub-section (2) thereof. It is also to be noted that none of the conditions in sub-section (2) to S.32 of the Act does exist in this case.

8. On a reading of S.26 of the Amendment Act, it will be clear from the first limb that the provisions in the Act, as amended by the Amendment Act, will not apply to arbitral proceedings commenced, in accordance with the provisions of S.21 of the Act, before the commencement of the Amendment Act. A rider is provided that the parties can otherwise agree to be governed by the amended Act. If the parties do not agree to go under the amended Act, the unamended Act will govern the field.

9. Latter part of the Section shows that the amended Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of the Amendment Act. Both sides have advanced arguments in relation to the possible interpretations to