The appointment of an arbitrator is provided for under Section 11 of the Act. The law provides for full freedom for the parties to appoint an arbitrator of any nationality unless agreed to by the parties. However, in the event of a failure to appoint an arbitrator concerned they may go to court to appoint.
In the case of Konkan Railway Corporation v. Rani Construction Pvt Ltd, 2002 The Supreme Court held that the job of the Chief Justice of India and his nominees was to ensure the appointment of an independent, competent and impartial arbitrator who resolves disputes between parties to the best of his knowledge.
NUMBER OF ARBITRATORS-
The law provides that parties are free to determine the number of arbitrators, which should not however be an even number. If it fails any decision of the parties, the arbitral tribunal shall have single arbitrator. The legal requirement for odd number arbitrator is a diminished provision. The words “parties are free to decide the number of arbitrators” indicate that if they wish to exercise their right by voting for even the number of arbitrators and agree not to challenge the next award, the award will be valid and binding. The grant only provides a reason for any party in the event that even a number of parties are appointed to oppose such a formation of an arbitral tribunal. The party has the right to object to the formation of an arbitral tribunal, if such formality is inconsistent with the Act. However, there is no provision for what happens if the parties agree to have an even number of arbitrators. If the parties oppose the formation, it means that any challenge to the formation must be raised by the party within the prescribed period under the Act, otherwise that party will not be allowed to challenge the award once the arbitral tribunal has been approved. The law allows the arbitral tribunal to rule itself. The challenge to the arbitral tribunal’s jurisdiction should be raised, prior to the submission of the defence statement although the party may participate in the appointment of the arbitrator and/or it may be that he himself appoints the arbitrator. The Act respects the right of both parties to choose the number of arbitrators. If a party wishing to exercise a right fails to exercise that right within the prescribed period, he or she will be deemed to have relinquished his or her right to object.
POWER OF AN ARBITRATOR IN AN ARBITRATION PROCEEDING-
The Arbitration and Conciliation Act, 1996 provides several powers to an arbitrator in order to decide the award since Arbitrator is the one who will give the Arbitral Award. They are as follows-
- Power to direct an oath to the parties and witnesses;
- Power to take interim measures;
- Power to proceed to ex-parte;
- Power to appoint an expert;
- Power to make awards.
DUTIES OF AN ARBITRATOR IN AN ARBITRATION PROCEEDING-
In arbitration, the parties may assign certain duties to the arbitrator at the time of appointment. The general duties an arbitrator must perform in all types of arbitration are-
- Duties to be independent and impartial;
- Duty to determining the time and place of arbitration;
- Duty to disclosure;
- Duty to effectively resolve the dispute;
- Duty to determine the rule of procedure;
- Duty to interpret or correct the award.
GROUNDS FOR CHALLENGE OF ARBITRATORS-
Section 14 of the Arbitration and Conciliation Act,1996 talks about the grounds for challenge of Arbitrators. When a person is talking about his appointment as arbitrator, he or she will disclose to himself or herself any circumstances that may cause legitimate doubts about his or her impartiality or independence. From the time of his appointment and for all an arbitration steps, the arbitrator will immediately disclose any such new circumstances to the parties.
The arbitrator may be challenged only if there are circumstances that give rise to serious doubts about his or her impartiality or independence or if he or she does not have the qualifications agreed upon by the parties. The party may challenge the arbitrator in his or her selection of participants solely for reasons known to him or her after the appointment.
CHANGES SOUGHT TO BE BROUGHT BY THE 2019 AMENDMENT ACT-
The Amendment Act of 2019 aims to substantially change the state where parties fail to appoint their own arbitrators and seek to intervene in this matter. Section 11, as amended by the Amendment Act of 2019, now places this obligation on a regulatory body to be appointed by the High Court on the basis of the separation to be carried out by the Arbitration Council of India.
The amendments also do not specify any procedural requirements that are to be followed while filing Section 11 applications. When the contracting parties agree to have their arbitrations administered by any arbitral institution, they agree to all the procedural rules prescribed by the institution, including with respect to the form of pleadings and mode of service.
Pertinently, the arbitral institution also obligates to dispose of the Section 11 application within a period of 30 days from the date of service of notice on the opposite party in 2019 Amendment Act. The amended sub-section (13), makes this timeline mandatory and not merely directory, as it is currently worded. It is hoped that the amendments brought about by the legislature is followed in the future to further the object of the Act in this timeline.
The arbitrator should be chosen carefully because of the subject matter of the dispute should be in his special knowledge. He should be able to keep the atmosphere clear at the tribunal and must be comfortable in legal proceeding and to see that the evidence in the manner customary in the court of law and equity. He must take into account the facts of the dispute before him and his decision should be effective and impartial and should greatly benefit justice, a good conscience, and equality. These general powers and duties are essential for an arbitrator to conduct equitable arbitration proceedings, the arbitrator must also have to draw the checklist upon his specific duties assigned to him under the agreement. These duties differ from case to case so for every particular case so it is very significant impact in every case.
- Procedure for the Appointment of Arbitrator in India – Legodesk
- Arbitration and Conciliation Act, 1996
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