Arbitration and Conciliation, 1996: s.12(5) and its proviso – Applicability of the proviso – Held: The proviso to s.12(5) applies only if subsequent to arising of disputes between the parties, the parties waive the applicability of sub-section (5) of s.12 by an express agreement in writing – The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct – The instant case disclosed no such express agreement – The fact that a statement of claim was filed before the arbitrator, would not mean that there was an express agreement in words that both parties wished continuation of arbitrator so appointed despite his being ineligible to act as such. Arbitration and Conciliation, 1996: s.12(5) – Interpretation of – Eligibility to be appointed as arbitrator – In the instant case, agreement provided for appointment of arbitrator by the Managing Director of appellant-company – Accordingly, in terms of the arbitration clause, appointment of arbitrator was made – On 3.7.2017, TRF judgment of Supreme Court held that since Managing Director of a company which was one of the parties to the arbitration was himself ineligible to act as arbitrator, such ineligible person could not appoint an arbitrator, and any such appointment would be null and void – In view of TRF judgment, in the instant case, validity of appointment of arbitrator challenged by the Managing Director himself – Held: In the instant case, appointment of the arbitrator was after the introduction of s.12(5) in the statute book – The Managing Director of the appellant himself could not have acted as an arbitrator, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule – The scheme of ss.12, 13 and 14 was that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under ss.12(1) to 12(4) r/w s.13 – However, where such person becomes “ineligible” to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator – In such a case, i.e., a case which falls under s.12(5), s.14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under s.12(5), being ineligible to be appointed as an arbitrator – This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under s.14(1) itself – If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in s.12(5), r/w the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Allowing the appeals, the Court
HELD: 1.1 Section 12(1), as substituted by the Arbitration and Conciliation (Amendment) Act, 2015 makes it clear that when a person is approached in connection with his possible appointment as an arbitrator, it is his duty to disclose in writing any circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality. Once this is done, the appointment of the arbitrator may be challenged on the ground that justifiable doubts have arisen under sub-section (3) of Section
12 subject to the caveat entered by sub-section (4) of Section 12. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2). The arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. It is only post award that the party challenging the appointment of an arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act. [Para 14] [113-E-H; 114-A-B]
1.2 Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be “ineligible” to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. Where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an “express agreement in writing”. The “express agreement in writing” has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. [Para 15][114-B-F]
2.1 The Law Commission Report makes it clear that there are certain minimum levels of independence and impartiality that should be required of the arbitral process, regardless of the parties’ agreement. Thus, it will be seen that party autonomy is to be respected only in certain exceptional situations which could be situations which arise in family arbitrations or other arbitrations where a person subjectively commands blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality. The scheme of Sections 12, 13, and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12(1) to 12(4) read with Section 13. However, where such person becomes “ineligible” to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case, i.e., a case which falls under Section 12(5), Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under Section 14(1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. [Paras 16, 17][114-F-G; 116-A-G]
2.2 In the instant case, it is clear that the Managing Director of the appellant could not have acted as an arbitrator himself, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule. Whether such ineligible person could himself appoint another arbitrator was only made clear by this Court’s judgment in TRF Ltd. on 03.07.2017, in which it was held by this Court that an appointment made by an ineligible person is itself void ab initio. There is no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book on 23.10.2015, and the arbitrator was appointed long after 23.10.2015. The judgment in TRF Ltd. nowhere stated that it will apply only prospectively. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. Considering that the appointment in the case of TRF Ltd. of a retired Judge of this Court was set aside as being non-est in law, the appointment of arbitrator in the present case must follow suit. [Para 18][116-H; 117-B-G]
3. Applicability of the proviso to Section 12(5) on the facts of this case.
Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the instant case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. which, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. and asking him to declare that he has become de jure incapable of acting as an arbitrator. The impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the instant case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. [Para 20][118-B-H; 119-A-C]
TRF Ltd. v. Energo Engineering Projects Ltd. (2017) 8 SCC 377 : [2017] 7 SCR 409 ; Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665 HRD Corporation v. GAIL (India) Ltd. (2018)
12 SCC 471 : [2017] 11 SCR 857 – relied on.
All India Power Engineer Federation v. Sasan Power Ltd. (2017) 1 SCC 487 : [2016] 9 SCR 901 ; Vasu P. Shetty v. Hotel Vandana Palace (2014) 5 SCC 660 : [2014] 9 SCR 38 ; BSNL v. Motorola India (P) Ltd. (2009) 2 SCC 337 : [2008] 13 SCR 445 – held
inapplicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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