Sections 85 and 86: Repeal and Savings

Section 85: Repeal and Savings

The official consolidated text of the Arbitration and Conciliation Act, 1996 is available from India Code.

Meaning of Section 85

Section 85 performs two functions. First, it formally repeals the principal arbitration statutes that operated before the 1996 Act. Second, it contains savings provisions so that the repeal does not disrupt arbitral proceedings, rules and notifications that fall within the statutory protection.

A repeal-and-savings clause is a transitional provision. Its purpose is to identify which earlier legal regime continues to apply to pending or earlier matters and which regime governs matters commenced after the new law came into force.

Which Law Applies to Pre-1996 Arbitral Proceedings?

Section 85(2)(a) provides that the repealed enactments continue to apply in relation to arbitral proceedings that commenced before the Arbitration and Conciliation Act, 1996 came into force, unless the parties otherwise agreed.

Conversely, the 1996 Act applies to arbitral proceedings commenced on or after the Act came into force.

Saved Rules and Notifications Under Section 85(2)(b)

Section 85(2)(b) preserves rules made and notifications published under the repealed enactments to the extent that they are not repugnant to the Arbitration and Conciliation Act, 1996.

Such rules and notifications are deemed to have been made or issued under the 1996 Act, but only so far as they remain compatible with the newer statute.

Section 86: Repeal and Saving

Meaning of Section 86

Section 86 ensures continuity between the Arbitration and Conciliation (Third) Ordinance, 1996 and the enacted Arbitration and Conciliation Act, 1996. Although the Ordinance itself was repealed, measures taken under it were not automatically invalidated.

Orders, rules, notifications, schemes and other actions taken under the Ordinance are treated as having been made or taken under the corresponding provisions of the 1996 Act.

Why the Savings Provisions Still Matter

Although Sections 85 and 86 are transitional provisions, they can still matter where a dispute has a long procedural history or where rights and proceedings originated under the earlier arbitration regime.

In such matters, the relevant commencement date, the nature of the arbitral proceeding, the applicable earlier enactment, and any agreement between the parties may determine which statutory regime governs the issue.

Current Legal Position

The current official text of the Arbitration and Conciliation Act, 1996 continues to reproduce Sections 85 and 86 in Part IV under "Supplementary Provisions." Section 85 continues to preserve the earlier enactments for arbitral proceedings commenced before the 1996 Act came into force, subject to the statutory exception where the parties otherwise agreed.

Section 86 likewise continues to operate as the statutory saving for actions taken under the Arbitration and Conciliation (Third) Ordinance, 1996.