WHO IS AN ARBITRATOR

INTRODUCTION

Arbitration is a part of Alternative Dispute Resolution (ADR) and is a popular form of ADR used to resolve dispute that is used by individuals and business to resolve disagreements in place of litigation. Arbitration provides flexible, better-quality justice, less time consuming and less expensive resolution of the dispute. [i]

WHO IS AN ARBITRATOR?[ii]

An arbitrator is an independent third party, who acts as the “decision-maker” in the dispute between two or more parties. It is the job of the arbitrator to review the evidences, testimonies, facts and background of the dispute presented by the obligated parties and to interpret and apply the applicable rules and laws, thereby issuing a decision in order to resolve the dispute.

APPOINTMENT

In India, the provision for the appointment of arbitrator is present in the CHAPTER III (Composition of arbitral tribunal) of The Arbitration and Conciliation Act, 1996. Section 10 and 11 of this Act deals with the appointment of the arbitrator(s).

Section 10 of this Act deals with the number of arbitrators that is to be appointed for solving a dispute. The parties are free to determine the number of arbitrators, given that the number shall not be even. If the parties fail to comply with given clause and fail to appoint an arbitrator, the arbitral tribunal shall consist of a sole arbitrator.[iii]

Section 11 of this Act deals with the requirements and procedure for the appointment of an arbitrator.[iv] The following qualifications must be met for the appointment of the arbitrator:

  1. A person of any nationality may be an arbitrator, unless otherwise is agreed by the parties.
  2. The parties are free to choose the procedure for appointing the arbitrator(s). A party may request the Supreme Court or the High Court or any institution or person designated by such Court, to take necessary steps in cases where, the party or parties fail to act as required according to the appointment procedure agreed upon by the parties; or if the parties, or the two appointed arbitrators, fail to reach an agreement; or if a person or institution fails to perform any function assigned to him under that procedure, unless other means for securing the appointment is already mentioned in the agreement on the appointment procedure.
  3. If they fail in agreement in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator as the presiding arbitrator. If a party fails to appoint an arbitrator within thirty days from receipt of a request from the other party to do so, or if the two appointed arbitrators fail to appoint a presiding arbitrator within thirty days, or in case of a sole arbitrator, if the parties fail to agree on the arbitrator, the Supreme Court or the High Court or any institution or person designated by such Court shall make the appointment, only upon the request by a party.
  4. In case of appointment of a sole or third arbitrator in an International Commercial Arbitration, any arbitrator of a nationality other than the nationalities of the parties may be appointed by the Supreme Court or any institution or person designated by such Court.

DUTIES OF AN ARBITRATOR

There are certain set of duties which an arbitrator has to follow while resolving the dispute among parties in order to provide equal, just and impartial award. [v]They are:

  • The arbitrators have to be independent and impartial.
  • To give equal opportunities to the parties to present their case and to hear their side equally.
  • They have a duty to disclose all the relevant facts which is needed to be known by the parties.
  • It is the duty of the arbitrators to fix time and place for arbitration, according to the convenience of the parties.
  • It is their duty to determine the rules for the procedure of arbitration.
  • It is their duty to effectively resolve their dispute.
  • Lastly, it is the duty of the arbitrator to interpret and correct the award passed by himself within a limited period of time.

POWERS OF AN ARBITRATOR[vi]

There are certain powers which an arbitrator holds whilst resolving the dispute. They are:

  • They have a power to administer an oath to the parties and witnesses.
  • They have a power to take interim measures.
  • They have a power to proceed to ex-parte, according to Section 25.
  • They have a power to appoint an expert.
  • They have a power to make awards.

SOURCES


[i] WIKIPEDIA, https://www.wikipedia.org/ (last visited Nov 7, 2021).

[ii] WIPO (WORLD INTELLECTUAL PROPERTY ORGANIZATION) https://www.wipo.int/portal/en/index.html (last visited on Nov 11, 2021).

[iii] The Arbitration And Conciliation Act, 1996, §10.

[iv] The Arbitration And Conciliation Act, 1996, §11.

[v] Akshaya K, Power And Duties Of Arbitrators, VIAMEDIATIONCENTRE, (Nov 12, 2021, 11 AM) https://viamediationcentre.org/  

[vi] Ayush Verma, Powers and Functions of the Arbitrator under Arbitration and Conciliation Act, 1996, IPLEADERS, (Nov 8, 2021, 2 PM) https://blog.ipleaders.in/

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