ARBITRATION TRIBUNAL:
Sec. 2(d) of Arbitration and Conciliation Act, 1996 defines 'Arbitration Tribunal' as a sole arbitrator or a panel or arbitrators.
APPOINTMENT OF ARBITRATOR:
Sec. 11 of the Act deals with the appointment of arbitrators.
The number of arbitrators may be decided by the parties to the dispute, provided that such number shall not be an even number. If there is no agreement the arbitral tribunal shall consist of a sole arbitrator;
Arbitrator may be of any nationality unless otherwise agreed to by the parties;
In the absence of agreement, in arbitration with three arbitrators each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the Presiding Arbitrator. In 'M.M.T.C., Limited V. Sterlite Industries India Limited' -AIR 1997 SC 605 it was held that merely because the arbitration agreement stipulates that an even number of arbitrators it will not render arbitration agreement invalid. The two arbitrators should appoint an arbitrator before proceeding with the reference;
If within 30 days the parties fail to appoint their arbitrators or the two arbitrators fail to appoint the third arbitrator the arbitrator shall be appointed by the Chief Justice or a person or institution designated by him. In the absence of agreement in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within 30 days from the receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him;
Where under an appointment procedure agreed upon by the parties, a party to fails to act as required under that procedure or the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or a person, including an institution fails to perform any function entrusted to him or it under that procedure, a party may request Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment;
The Chief Justice can make any scheme as considers appropriate for the appointment of arbitrators. They would have due regard to qualification of arbitrators agreed to between the parties and considerations likely to secure an independent and impartial arbitrator. In 'Union of India and others V. Giridharan Lal and Others' - (1999) 35 CLA (Snr.) 31 (Raj) Sections 3 and 115 of CPC read with Section 11960 of the Arbitration and Conciliation Act, 1996 - Subordination of Courts - Revision by High Court - Chief Justice designates District Judge as authority to discharge judicial function under Sec. 11(6) of the Arbitration and conciliation Act, 1996 - District Judge so authorized will not come under the definition of 'court' sub ordinate to High Court and his orders will not be revisable by the High Court under Sec. 115 of the Civil Procedure Code;
Where more than one request has been made to the Chief Justice of different High Courts or their designates, the Chief Justice or the designate to whom the request has been first made shall alone be competent to decide the issue;
Where the matter of appointment of arbitrator arises in an international commercial arbitration the same may be referred to Chief Justice of India.
CHALLENING THE APPOINTMENT OF ARBITRATORS:
Sec. 12 provides that the appointment of arbitrator or arbitrators can be challenged on grounds specified in it;
The appointment of arbitrator can be challenged only if-
- the circumstances exist that give rise to justifiable doubts as to his independence or impartiality;
- he does not possess the qualification agreed by the parties;
It is also permitted to challenge the appoint if the party becomes aware of the above grounds after an appointment is made;
Unless there is an agreement, a party intends to challenge an arbitrator shall within 15 days after becoming aware of the constitution of arbitral tribunal or after becoming aware of any circumstances of doubting his independence or impartiality or not possessing the qualifications agreed to by the parties and a written statement of the reasons for the challenge of arbitral tribunal;
The Tribunal shall decide on the challenge unless the arbitrator under challenge resign on his own or other party agrees to the withdrawal of the arbitration;
If the challenging petition is not successful the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. But at that stage the challenging party has the right to make an application in the court to set aside the award in accordance with Sec.34 of the Act. The Court may decide, if the award is set aside, as to whether the arbitrator who is challenged is entitled to any fees.
TERMINATION OF THE ARBITRATOR:
The mandate of an arbitrator shall terminate if he becomes de jure or de factor unable to perform his functions or fails to act without undue delay due to some other reasons;
If the arbitrator himself withdrawn or the parties agree to terminate his mandate, it may be terminated.
SUBSTITUTION OF ARBITRATOR:
Where the mandate of an arbitrator terminates a substitute arbitrator shall be appointed according to rules that were applicable to the appointment of arbitrator being replaced.
