Sections 85 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 85 repeals three earlier enactments and says which law governs arbitral proceedings begun before and after the 1996 Act came into force, and what happens to old rules and notifications. Section 86 repeals the Arbitration and Conciliation (Third) Ordinance, 1996 and treats what was done under it as done under this Act. This follows the India Code consolidated text consulted.
Section 85(1) repeals the Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961). Despite the repeal, the old enactments apply to arbitral proceedings commenced before this Act came into force, unless the parties have otherwise agreed, while this Act applies to proceedings commenced on or after that date (section 85(2)(a)). Old rules and notifications are deemed made under this Act to the extent not repugnant (section 85(2)(b)). Section 86 repeals the Arbitration and Conciliation (Third) Ordinance, 1996 and deems actions under it taken under the corresponding provisions of this Act.
What the text does not say here
Sections 85 and 86 name the repealed enactments. The text consulted does not set out their contents, and this article describes none of them. It also does not give the date on which this Act "came into force" in these sections; section 1 deals with commencement, and the text of sections 85 and 86 uses the phrase without a date. This article states no date for it.
Where these sections sit
Sections 85 and 86 are the repeal and savings provisions of Part IV, "Supplementary provisions". They follow the rule-making powers in sections 82 to 84; see our article on sections 82 to 84. Section 87 then deals with the 2015 Amendment Act and proceedings begun before 23rd October, 2015; see our article on section 87. The commencement of this Act itself is covered in our article on section 1. If an old arbitration is still on your desk and you need to know which Act's rules govern, our legal consultation team can help you place it.
Section 85(1): what is repealed
The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
| Enactment | Number and year |
|---|---|
| Arbitration (Protocol and Convention) Act, 1937 | 6 of 1937 |
| Arbitration Act, 1940 | 10 of 1940 |
| Foreign Awards (Recognition and Enforcement) Act, 1961 | 45 of 1961 |
Section 85(2): savings "notwithstanding such repeal"
Clause (a): which Act governs which proceedings
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.
Putting it in a table:
| Arbitral proceedings commenced | Law that applies under section 85(2)(a) | Can the parties change it? |
|---|---|---|
| Before this Act came into force | The provisions of the repealed enactments | Yes: "unless otherwise agreed by the parties" |
| On or after this Act came into force | This Act | The clause states no such qualification for this limb |
Points to notice:
- The test is when the arbitral proceedings commenced. Section 21 of Part I deals with the commencement of arbitral proceedings; see our article on section 21.
- The old enactments continue for earlier proceedings only "unless otherwise agreed by the parties". The clause does not say in what form that agreement is made.
- Printing note. Clause (a) reads "on or after this Act comes into force", in the present tense, beside "came into force" earlier in the same clause. We quote it as printed.
- Court proceedings. Clause (a) speaks of arbitral proceedings. It does not say what governs a court proceeding related to them. For the later 2015 transition, which does speak of court proceedings, see our article on section 87.
Clause (b): old rules and notifications
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.
This is a continuity rule for subordinate instruments: those that are not repugnant to this Act are treated as made or issued under it. The text consulted does not list any such rules or notifications, and none is named here.
Section 86: the Third Ordinance of 1996
Sub-section (1)
The Arbitration and Conciliation (Third) Ordinance, 1996 (Ord. 27 of 1996) is hereby repealed.
Sub-section (2)
Notwithstanding such repeal, any order, rule, notification or scheme made or anything done or any action taken in pursuance of any provision of the said Ordinance shall be deemed to have been made, done or taken under the corresponding provisions of this Act.
| Feature | Section 86 |
|---|---|
| Enactment repealed | Arbitration and Conciliation (Third) Ordinance, 1996 (Ord. 27 of 1996) |
| What is saved | Any order, rule, notification or scheme made, or anything done or any action taken, in pursuance of the Ordinance |
| Effect | Deemed made, done or taken under the corresponding provisions of this Act |
The section does not describe what the Ordinance contained, and nothing is said here about it.
Sections 85 and 86 side by side
| Point | Section 85 | Section 86 |
|---|---|---|
| Heading in the body | "Repeal and savings" | "Repeal and saving" |
| What is repealed | Three Acts of 1937, 1940 and 1961 | One Ordinance (Ord. 27 of 1996) |
| Saving for earlier proceedings | Old enactments apply to arbitral proceedings commenced before this Act came into force, unless otherwise agreed | Not a proceedings rule; saves orders, rules, notifications, schemes, things done and actions taken |
| Saving for rules and notifications | Deemed made or issued under this Act, to the extent not repugnant | Deemed made, done or taken under the corresponding provisions of this Act |
An illustration
Suppose a dispute between Sahni Builders and a supplier is in an arbitration that began years before this Act came into force. Under section 85(2)(a), the provisions of the repealed enactments apply to those proceedings unless the parties have otherwise agreed. A new arbitration started afterwards between other parties falls under this Act. The names are invented, and the example does not fix any date.
Need help with an older arbitration?
Proceedings that began long ago can sit under a different statute from the one you expect, and the agreement of the parties can change the position. Our legal consultation team can help you read the arbitration agreement, the dates and the history of the proceedings and place them under the right provisions.
Key takeaways
- Section 85(1) repeals the Acts of 1937, 1940 and 1961 named in it.
- Under section 85(2)(a), the old enactments apply to arbitral proceedings commenced before this Act came into force, unless the parties otherwise agree; this Act applies to later proceedings.
- Under section 85(2)(b), old rules and notifications not repugnant to this Act are deemed made or issued under it.
- Section 86 repeals the Third Ordinance of 1996 and deems things done under it done under the corresponding provisions of this Act.
- The text of sections 85 and 86 gives no date of coming into force; none is stated here.
Read next
- Section 87: proceedings commenced before 23 October 2015
- Sections 82 to 84: rules by High Court, removal of difficulties and central rules
- Section 21: commencement of arbitral proceedings
- Section 1: short title, extent and commencement
Disclaimer: Based on the India Code consolidated text of the Arbitration and Conciliation Act, 1996, whose footnotes show amendments up to Act 3 of 2021 and a latest date of 12 October 2023, as consulted on 2 October 2026. Rules, regulations and notifications under the Act, later amendments and the commencement of the Mediation Act, 2023 should be checked. This article is general information, not legal advice; check the official text before acting.