COMPOSITION OF ARBITRAL TRIBUNAL

Section 10 to section 15 defines the composition of the Arbitral tribunal provided in chapter 3 of Arbitration and Conciliation Act,1996.

Section 10 deals with the number of Arbitrators.

Section 10(1) defines that the parties are free to choose the number of Arbitrators and they must be an odd number.

Section 10(2) defines if parties are failing to do the determination referred in subsection (1), then the Arbitral Tribunal shall consist of sole Arbitrator.

Section 11 provides the procedure of appointment of Arbitrator or Arbitrators with the court interference. The court assistance is the primary objective under this act to securing the constitution of the Arbitral tribunal.

(A) Who may be an Arbitrator- Any person of any nationality can become an Arbitrator unless otherwise agreed between the parties means if both the parties can agree that the Arbitrator must belong to the particular nationality then it can also valid.

(B) Procedure for an appointment- Parties are free to agree on the procedure for the appointment of the Arbitrator.

(C) In case of three Arbitrators, each party appoints one Arbitrator to themselves and that two appointed Arbitrators shall appoint a third Arbitrator who can act as a presiding Arbitrator or the head of the Arbitral tribunal.

(D) If parties failed to appoint within 30 days from the date of the requestor appointed Arbitrator failed to appoint a third Arbitrator then the appointment can be made by the chief justice of supreme court /High court/person or institution designated by SC or HC.

(E) Designation of any person or institution by the SC or HC not be regarded as the delegation of their judicial function.

(F) The decision of SC /HC /person or institution shall be final.

(G) Disposal of application- It can be done within 60 days from the date of its receipt.

(H) In the case of international commercial Arbitration- The SC/HC person or institution designated by SC or HC may appoint an Arbitrator of a nationality other than the nationality of the Parties to avoiding any type of impartiality.

For the appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, two things need to be taken care of:

(i) That there must a dispute between the parties to the agreement and it is alive.

(ii) That the arbitrator has got to be appointed consistent with the terms and conditions of the agreement and as per the necessity of the dispute.

Section 12 provides the grounds for challenging the appointment of Arbitrator.

● Disclosure of certain circumstances

Section 12(1) of the act which was amended in 2015 lays down that the Arbitrator must provide written disclosure of certain circumstances of his independence or impartiality.

Section 12(1)(a) states that the Arbitrator must disclose his past, present Direct or indirect relationship or if he has any trade, business, financial or any other relation or subject matter of the dispute with that parties that may rise impartiality in the case.

Section 12(1)(b) similarly to any circumstances that would affect an Arbitrator's capacity to devote enough time to finish the arbitration within 12 months.

Section 12(2) states that an Arbitrator should disclose any conflict of interest as soon as possible unless they have already been given.

● Other grounds for challenge

Section 12(3)- If he doesn't possess the qualifications that are agreed by the parties.

If any circumstances arise that gives justifiable doubts to his impartiality or independence.

Section 12(4) - A party challenged an Arbitrator appointed by him in case if the party become aware of the Arbitrator's disqualification or independency or impartiality after the appointment has been made.

Section 13 deals with the challenge procedure-

Section 13(2)-A challenged of an Arbitrator with the reasons for the challenge shall be submitted in writing to the Arbitral Tribunal within the 15 days after the party become aware of the appointment of an Arbitrator

section 13(3) of the Act states that unless the parties have agreed to a different procedure, the challenged Arbitrator withdraws from his office.

Section 13(4) states that If the challenge is unsuccessful and the parties have not agreed to the different procedure then the challenging parties bring the issue before the Arbitral Tribunal and ask an Arbitral award within one month after he received the notice of rejection.

Section 13(5)- If an arbitral award is made then as per with section 34, the party challenging the arbitrator make an application for setting aside such arbitral award.

After an arbitral award is set aside then the court decides whether the Arbitrator is entitled to any fees or not.

Section 14 and section 15 deals with the termination of Arbitrator's mandate.

Section 14 defines the situation in which an appointed Arbitrator's mandate shall end.

Section 14(1) deals with the following circumstances on which the mandate of an Arbitrator shall be terminated.

● If he/she is unable to perform his/her function or fails to act without undue delay for other reasons.

● If he/she withdraws from office.

● If Parties mutually agreed to terminate.

Section 15 of the act states that termination of mandate and substitution of Arbitrator.

Section 15(2) states that upon the termination of an Arbitrator's mandate, a new Arbitrator appointed by the parties as per the same rules that applied to the earlier appointment.

Section 15(3) allows the Arbitral Tribunal to repeat the hearing conducted previously in case of replacement of earlier Arbitrator that mention under Section 15(2).

Section 15(4) clarifies that the order given by the Arbitral Tribunal before the replacement under section 15(2), shall not get invalidated.

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