Case Laws
Acts
Notifications
Circulars
Classification
Forms
Manuals
Articles
News
D. Forum
Highlights
Notes
🚨 Important Update for Our Users
We are transitioning to our new and improved portal - www.taxtmi.com - for a better experience.
⚠️ This portal will be discontinued on 31-07-2025
If you encounter any issues or problems while using the new portal,
please
let us know via our feedback form
so we can address them promptly.
Home
2017 (9) TMI 56 - SC - Indian LawsEligibility of arbitrator - persons who become ineligible to be appointed as arbitrators - Applicability of Sections 12 and 14 of the Arbitration and Conciliation Act 1996 - Held that - Reading the heading which appears with Item 16 namely Relationship of the arbitrator to the dispute it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly Justice Doabia has no such involvement Item 16 cannot be read as including previous involvements in another arbitration on a related issue involving one of the parties as otherwise Item 24 will be rendered largely ineffective. It must not be forgotten that Item 16 also appears in the Fifth Schedule and has therefore to be harmoniously read with Item 24. It has also been argued by learned counsel appearing on behalf of the respondent that the expression the arbitrator in Item 16 cannot possibly mean the arbitrator acting as an arbitrator but must mean that the proposed arbitrator is a person who has had previous involvement in the case in some other avatar. According to us this is a sound argument as the arbitrator refers to the proposed arbitrator. This becomes clear when contrasted with Items 22 and 24 where the arbitrator must have served as arbitrator before he can be disqualified. Obviously Item 16 refers to previous involvement in an advisory or other capacity in the very dispute but not as arbitrator. It was also faintly argued that Justice Doabia was ineligible under Items 1 and 15. Appointment as an arbitrator is not a business relationship with the respondent under Item 1. Nor is the delivery of an award providing an expert opinion i.e. advice to a party covered by Item 15. The fact that Justice Doabia has already rendered an award in a previous arbitration between the parties would not by itself on the ground of reasonable likelihood of bias render him ineligible to be an arbitrator in a subsequent arbitration. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously if Justice Doabia did not indicate anything to the contrary he would be able to devote sufficient time to the arbitration and complete the process within 12 months. Also faintly urged that the arbitrator must without delay make a disclosure to the parties in writing. Justice Doabia s disclosure was by a letter dated October 31 2016 which was sent to the Secretary General of the International Centre for Alternative Dispute Resolution (ICADR). It has come on record that for no fault of Justice Doabia the ICADR through oversight did not handover the said letter or a copy thereof to the appellant until November 24 2016 which is stated in its letter dated November 29 2016. This contention also therefore need not detain us. As argued that under Explanation 3 to the Seventh Schedule maritime or commodities arbitration may draw arbitrators from a small specialized pool in which case it is the custom and practice for parties to appoint the same arbitrator in different cases this is in contrast to an arbitrator in other cases where he should not be appointed more than once. We are afraid that this argument again cannot be countenanced for the simple reason that Explanation 3 stands by itself and has to be applied as a relevant fact to be taken into account. It has no indirect bearing on any of the other items mentioned in the Seventh Schedule. Appeal dismissed.
|