Category: Appointment and Challenge

ISSUE:

What is the legal status of an EA, i.e. whether the EA is an arbitrator in terms of the Act and whether the interim order of an EA is an order under Section 17(1) and is enforceable under Section 17(2) of the Act?

Whether the EA misapplied the Group of Companies doctrine, which arguably applies only to proceedings under Section 8 of the Act?

Whether the interim order of EA is null and void as it was passed without jurisdiction

RULE:

Emergency arbitral awards are enforceable under Section 17(2) of the Arbitration and Conciliation Act, 1996 of India (the Act) as an interim order of an arbitral tribunal made under Section 17(1) of the Act.

ISSUE:

Whether the fees charged by the Arbitrator are subject to the statutory limits stipulated in the fourth schedule of the Arbitration and Conciliation Act 1996?

RULE:

Section 14 of the Arbitration and Conciliation Act 1996 deals with the resignation and termination of appointed arbitrators on the grounds of inability to perform duties de jure or de facto or any such reasons.

ISSUE:

Whether a party can appoint an arbitrator after the expiry of 30 days from the date of demand to do so, in a case falling under Section 11(6) of the Arbitration and Conciliation Act 1996?

RULE:

Section 11(6) of the Arbitration and Conciliation Act 1996 reads that when a party has failed to act as required by procedure, or when the parties fail to reach an amicable solution, they may request the Supreme Court or as the case may be, the High Court to take necessary steps or direct orders, unless the agreement between the disputing parties prescribes other means for the same.

ISSUE:

Whether Justice Lahoti should be removed as an Arbitrator under Items 1, 8 and 15 of the seventh schedule of the Arbitration and Conciliation Act 1996?

Whether Justice Doabia should be removed as an Arbitrator under Items 1, 15 and 16 of the Act?

RULE:

The IBA Guidelines on Conflicts of Interest in International Arbitration lay down the general principles on the appointment of an arbitrator, wherein, it is mandated that every arbitrator shall be impartial and independent and shall remain so until the final award has been declared. The Guidelines also state that an Arbitrator must also decline said appointments if he/she has doubts regarding the ability to be impartial and independent.

ISSUE:

Whether the Panel of Arbitrators by DMRC is in violation of Section 12(5) of the Arbitration and Conciliation Act 1996?

RULE:

Section 12(5) of the Arbitration and Conciliation Act 1996 holds that a person would be rendered ineligible to be appointed arbitrator or part of an Arbitral Tribunal if he/she stands to hold a relationship with either of the disputing parties.

ISSUE:

Whether an agreement which contains an arbitration clause has or has not been novated be decided in the exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties.

RULE:

The existence of an arbitration agreement presupposes a valid agreement which the Court would enforce by relegating the parties to the arbitration.

The existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law.

ISSUE:

Whether or not Section 11 (6) of the Arbitration and Conciliation Act of 1996 stands forfeited when the central Government exercised its right, which is bestowed by Section 3G (5) of the National Highway Act 1956 Act, to appoint an Arbitrator?

RULE:

Being a special enactment, the National Highway Act of 1956 is a code in and of itself that lays out the acquisition process as well as the method used to determine compensation by the competent authority. Anyone who feels that the compensation set under subsections (1) or (2) of Section 3G of the Act of 1956 is unfair can certainly move to appoint an arbitrator, who the Central Government is required to name under Section 3G(5) of the Act of 1956.

ISSUE:

Whether appointing the Indian Oil Corporation's Director as Arbitrator would take away the independence and impartiality of the arbitral tribunal?

RULE:

Government contract arbitration clauses stating that an employee of the Department (often a high official unrelated to the work or the contract) will serve as the Arbitrator are valid and enforceable.

While the appointment of an employee as an arbitrator is not ipso facto a ground to raise a presumption of bias.