• Arbitration and Conciliation Act, 1996, Section 15(2) - Provides that a substitute arbitrator must be appointed according to the rules that are applicable for the appointment of the arbitrator being replaced - This would imply that the appointment of a substitute arbitrator must be according to the same procedure  adopted  in  the  original  agreement  at  the initial stage - Procedure agreed upon by the parties for the appointment of the original arbitrator is equally applicable to the appointment of a substitute arbitrator, even if the agreement does not specifically provide so. 2019 SCeJ 43
  •  Arbitration and Conciliation Act, 1996, Section 15(2) -  Appointment of  substitute arbitrator -  Clause of the agreement expressly provided that each party shall nominate one arbitrator, and the third arbitrator shall be appointed in accordance with the Rules of the ICA -  The Appellant had requested for 30 days’ time to appoint another nominee arbitrator, after objections were raised by the ICA to the first nomination - The ICA declined to grant the period of 30 days, and instead appointed the arbitrator on behalf of the Appellant  - ICA could have filled up the vacancy only if the Appellant had no intention of filling up the vacancy - The ICA could not have usurped the jurisdiction over appointment of the nominee arbitrator on behalf of the State prior to the expiry of the 30 days’ period requested by the Petitioner -  The appointment of the nominee arbitrator on behalf of the Appellant by the ICA was unjustified and contrary to the Rules of the ICA itself. 2019 SCeJ 43
  •  Arbitration and Conciliation Act, 1996, Section 15(2) -  Appointment of  nominee arbitrator -  Bias  - Petitioner-State  proposed  M  as the nominee arbitrator of the State who was retired Chief engineer who retired 10 years ago from the services of the State -  Objection raised by Respondent No. 2 – ICA to the arbitrator nominated by the Appellant-State,  that the nominee arbitrator was a retired employee of the Appellant- State, and as such there may be justifiable doubts to his independence and impartiality to act as an arbitrator - Apprehension was unjustified since the test to be applied for bias is whether the circum-stances are such as would lead to a fair-minded and informed person to conclude that the arbitrator was infact biased - The 1996 Act does not disqualify a former employee from acting  as  an  arbitrator,  provided  that  there are  no justifiable doubts as to his independence and impartiality -  Fact that the arbitrator was in the employment of the State of - Haryana over 10 years ago, would make the allegation of bias clearly untenable - Mere allegations of bias are not a ground for removal of an arbitrator.    2019 SCeJ 43
  • Arbitration and Conciliation (Amendment) Act, 2015,  Fifth  Schedule  - First entry - Past/former employees acting as an arbitrator - Grounds to determine whether circum-stances exist  which  give  rise  to  justifiable  doubts  as to the independence or impartiality of an arbitrator - The first entry to the Fifth Schedule reads “Arbitrator’s relationship with the parties or counsel ; 1. The Arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.” -  The Entry indicates that a person, who is related to a party as an employee, consultant, or an advisor, is disqualified to act as an arbitrator -  The words “is an” indicates that the person so nominated is only disqualified if he/she is a present/current employee, consultant, or advisor of one of the parties - An arbitrator who has “any other” past or present “business relationship” with the party is also disqualified -  The word “other” used in Entry 1, would indicate a relationship other than an employee, consultant or an advisor -  The word “other” cannot be used to widen the scope of the entry to include past/former employees - Mere allegations of bias are not a ground for removal of an arbitrator. 2019 SCeJ 43
  • Arbitration and Conciliation Act, 1996 (26 of 1996) S. 15(2) - Arbitrator replaced - Any hearings previously held by the replaced arbitrator may or may not be repeated at the discretion of the newly appointed Tribunal, unless parties have agreed otherwise - Equally, orders or rulings of the earlier arbitral Tribunal are not to be invalid only because there has been a change in the composition of the earlier Tribunal, subject, of course, to a contrary agreement by parties - This also indicates that the object of speedy resolution of disputes by arbitration would best be sub-served by a substitute arbitrator continuing at the point at which the earlier arbitrator has left off. (S.C.)(183) P.L.R.
  • Arbitration and Conciliation Act, 1996 (26 of 1996) S. 15(2) - Arbitrator to whom the matter was referred earlier with the consent of the parties withdraws therefrom - Where the mandate of an arbitrator terminates, a substitute arbitrator "shall" be appointed - This can only be done where the arbitration agreement does not show that it was intended that the vacancy caused be not supplied unless it is clear that an arbitration agreement on the facts of a particular case excludes either expressly or by necessary implication the substitution of an arbitrator, whether named or otherwise, such a substitution must take place - Arbitration and Conciliation Act, 1940 (26 of 1940) Sectrion 8(1)(b). (S.C.)(183) P.L.R.
  • Arbitration and Conciliation Act, 1996 (26 of 1996) S. 15(2) - Once arbitration agreement was entered into between the parties, that too in a pending suit, the intention of the parties was to settle the matter through arbitration and not to come back to the Court again for decision of the same dispute by court adjudicatory process - Civil Procedure Code, 1908 (V of 1908) S. 89. Held, per A.K. Sikri, J, J.) that for enacting Section 89 is to encourage the parties to the dispute to settle their dispute by adopting one of the four methods provided therein. Not only that it results in lessening the burden of the court, experience has shown that many cases which come to the Court can be resolved more suitably and with better outcomes if the methods of ADR prescribed in Section 89 of the CPC are resorted to. It is here that depending upon the nature of dispute and relationship between the parties etc., the Court may suggest a particular form of ADR, whether arbitration or mediation etc. can be chosen. Therefore, what is to be kept in mind is that once arbitration agreement was entered into between the parties, that too in a pending suit, the intention of the parties was to settle the matter through arbitration and not to come back to the Court again for decision of the same dispute by court adjudicatory process. (S.C.)(183) P.L.R.