Retrospective Applicability Of Section 12(5), Introduced By Arbitration Amendment Act, 2015: The Supreme Court Examines

In the recent landmark judgement passed in the case of Ellora Paper Mills Limited vs. The State of Madhya Pradesh¹ by a bench consisting of Hon'ble Justices Mr.M.R. Shah and Mrs. Nagarathna, dated January 4, 2022, the Hon'ble Supreme Court of India, held that the arbitrator's mandate attracts the incapacity to act under Section 12(5) read with Schedule VII of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”), immediately on its introduction by the Amendment Act of 20152, even though the Arbitral Tribunal may have been appointed much before the Amendment Act of 2015², and the challenge to the appointment of Arbitral Tribunal may have already settled much prior to the Amendment Act of 2015. The Hon'ble Supreme Court of India overruled the view of the Hon'ble High Court of Madhya Pradesh, which had held that the Amendment Act, 2015 did not apply retroactively to arbitration proceedings already in progress unless the parties agreed