Section 12 & 34 - Independence and impartiality of arbitrator

2003(1) RAJ 382 (Bom)
Saurabh Kalani Vs Tata Finance Ltd

There was an allegation that the arbitrator had acted as an advocate for the claimant /Tata Finance or its sister concerns. On examination it was found that the arbitrator had no such affiliation, contract or interest with the claimant and the arbitrator's employment with Tata International Ltd ended over 12 years prior to the reference of this dispute. It was admitted by the arbitrator that he had acted as an advocate for Tata International over 5 years earlier in an unconnected matter which had no bearing on the present dispute. There had been an employment in the distant past with another public company, albeit in the same group, but it was not such as to warrant invocation of circumstances spelt out in Section 12. The arbitrator has also been a member of the Bar for over 15 years ever since he ceased to he in the service of Tata International Ltd.

It was held that the allegations against the arbitrator was unsubstantiated and frivolous and there was no justifiable doubt as to his independence or impartiality.

2002(1) RAJ 151 (Del)
Unipack Industries Vs Subhash Chand Jain

The stage and scope of challenge to appointment of arbitrator was discussed in this case.

It was held that although an arbitrator is under a duty to disclose in writing the circumstances likely to give doubts as to his independence or impartiality, in case such doubts still arise, the arbitrator can be challenged if circumstances arise as to produce doubts about his independence or impartiality or he does not possess the qualification agreed to between the parties.

Section 13 provides the procedure in this regard, subject to what is agreed between the parties. U/s 13(1), if a party intends to challenge the arbitrator, then he may send a written statement giving reasons for challenging the arbitral tribunal, within 15 days of becoming aware of the constitution of the tribunal. The tribunal is competent to look into the controversy however, Section 13 (4) clearly prescribes that the tribunal shall continue with the proceedings. Subsequently when the award is made, the party can challenge the award and it can be the said ground which he had taken at the initial stage.

2000(1) RAJ 336 (Bom)
Anuptech Equipments Private Ltd Vs Ganpati Co-operative Housing Society Ltd

The usual norm is that if the objection to the appointment of an arbitrator, who is not duly qualified, has been waived, then it would not be open to the petitioner to challenge his appointment on the ground that he was not duly qualified. In this case, the court had to examine whether the right to object had been waived by the petitioner.

It was held that it is not possible to accept that there has been a waiver on the petitioner's part, who had been constantly reminding the respondent to appoint a person duly qualified. There is nothing on record to show that the petitioner was aware of the arbitrator's qualifications. The tribunal, therefore, as constituted was not in terms of the agreement between the parties. U/s 12(3), the appointment of the arbitrator could have been challenged, if he did not possess the qualifications agreed to by the parties, at the earliest available opportunity possible. The challenge was made within a reasonable time and therefore the court is of the view that there has been no waiver by the petitioner.

2003(4) RAJ 561 (Kar)
RK Agarwal Vs BPK Johri

There was a plea that absence of appellate remedy before the award is made by the arbitral tribunal renders the statute arbitrary and opposed to Article 14 of the Constitution.

It was held that it is wrong to say that no appeal is provided against the order. An appeal may be filed [vide section 12(5)] wherein the adverse order u/s 13(4) can be challenged. The only difference is that the stage of appeal is postponed. The legislature has, in its wisdom, chosen the appropriate stage to provide the right of appeal. There is no vested right of appeal and as such the demarcating of the stage of appeal cannot be described as an arbitrary exercise of statute making power.

The legislature felt that frequent recourse to appellate remedy destroys the essence behind the enactment of the Arbitration Act. As there is no inherent right of appeal except as conferred by statute, it is difficult for the court to hold that it amounts to arbitrariness violating the protective cover of Article 14 of the Constitution.

2000(4) RAJ 153 (AP)
M. Mohan Reddy Vs Union of India

The petitioner was aggrieved that the unsuccessful challenger, either u/s 13(4) or 16(5) have no right to appeal while the person who suffers an order upholding an objection has a right to appeal u/s 37 (1)(a). The question before the court was whether the above sections were violative of the Constitution.

It was held that it is not desirable for the arbitrator to proceed with the enquiry before deciding the competence first. Once the arbitrator rules that he has jurisdiction, the aggrieved party subjected to arbitration is not left remediless, but he has to wait and invoke Section 34 for setting aside the award.

On the other hand, if the party subjected to arbitration is given a chance to appeal at the threshold, as is given to the party seeking arbitration, the entire proceedings may be stalled and it may take years to resolve the same. The Legislature has aimed to cut short the procedural aspects for providing speedy and efficacious remedy and not providing an appeal against the ruling of the arbitrator upholding his competence to deal with the matter is one such step in aid of faster disposal of the proceedings.

2002(1) RAJ 281 (Del)
Jai Singh Vs Delhi Development Authority

The petitioner filed an application for revocation of the arbitrator's authority after participation in the proceedings which were now at the last stage. The arbitrator was designated by post and there was frequent change in the arbitrator due to transfers however, after the appointment of the present arbitrator, there had been no change.

It was held that in the present case, the petitioner had participated in the arbitration proceedings, all his claims had been agitated before the arbitrator, records had been perused by the arbitrator in support of the claims, written arguments had been submitted therefore it was too late for the petitioner to approach this court for termination of the authority of the arbitrator. There was no justification or merit in the petitioner's application.

1998 (1) RAJ 223 (P&H)
Harike Rice Mills Vs State of Punjab

This case explored the basis of the provision for challenge to appointment of an arbitrator.

It was held that the Parliament had enacted the 1996 Act on the lines of UNCITRAL Model Law, as approved by the General Assembly of the United Nations subject to slight modifications suiting local conditions in our country. Under the Model Law, a party has been given a right to challenge the appointment of an arbitrator before the arbitrator himself and if the party is unsuccessful, Article 12(3) of the Model Law grants a last resort to the party to approach the Court to challenge the appointment at that stage itself without waiting for the arbitrator to make the award.

However, section 13 (4) an (5) make a distinct departure in this regard, with a view to prevent dilatory tactics. For this reason, the Parliament has not allowed the unsuccessful party to challenge the appointment immediately when its challenge had been unsuccessful before the arbitrator. The section requires the party to wait and challenge the same only after the arbitral award has been made.

2003(4) RAJ 394 (Kar)
Rail India Technical and Economic Services Ltd Vs. Ravi Construction, Bangalore

This case helped in the determination of what constituted a waiver to the objection to appointment of the arbitrator. According to section 4, if a party, who knows that any requirement under the 1996 has not been complied with and yet proceeds with the arbitration without stating his objections to such non compliance without undue delay or within the fixed time frame, shall be deemed to have waived his right to object.According to section 13, a party who intends to challenge an arbitrator has to send a written statement of reasons within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in section 12(3). However, the appellant failed to object to the appointment of the arbitrator within the time frame.

It was held that reading all these sections together, it is clear that if the Claimant wanted to challenge the appointment of the arbitrator, it ought to have raised it before the arbitrator in the manner provided in section 13(2). Since it failed to do so, it has waived its right to object to the appointment of the arbitrator.

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