Oil and Natural Gas Corporation Ltd. vs Afcons Gunanusa Jv

Arbitration Law – Concepts of costs and fees in arbitration – Distinguished.

Arbitration Law – Ad hoc arbitration – Direction / guidelines issued for governing proceedings in ad hoc arbitrations. In the instant arbitration petition, the following issues in relation to the arbitrators’ fees arose for consideration: (i) Whether the arbitrator

(s) are entitled to unilaterally determine their own fees; (ii) Whether the term “sum in dispute” in the Fourth Schedule to the Arbitration Act means the cumulative total of the amounts of the claim and counterclaim; (iii)Whether the ceiling of Rs 30,00,000 in the entry at Serial No 6 of the Fourth Schedule of the Arbitration Act is applicable only to the variable amount of the fee or the entire fee amount; and (iv)Whether the ceiling of Rs 30,00,000 applies as a cumulative fee payable to the arbitral tribunal or it represents the fee payable to each arbitrator.

Disposing of the appeals, the Court

HELD:

Per D.Y. Chandrachud, J. [for himself and Surya Kant, J.]

1.1. ARBITRATOR’S FEE: On a review of a few foreign jurisdictions that either have explicitly recognised an arbitrators’ entitlement to remuneration and/or have dealt with the issue of arbitrators’ power of fixing their own remuneration, it is seen that although there are jurisdictional differences, the following broad principles emerge: (i) Typically, the fees payable to arbitrator(s) are determined through an agreement between the parties (of which the arbitrator(s) become aware of when they take up the assignment) or a separate agreement of the parties with the arbitrator(s). The arbitrator(s) then become bound by such contractually agreed fees; and (ii) Certain arbitration legislations give the arbitrator(s) effective power to determine their own fees, typically when there is an absence of agreement between the parties on the subject. However, such determination of fees is subject to review by the courts who can reduce the fees if they are not reasonable. Thus, arbitrator(s) do not possess an absolute or unilateral power to determine their own fees. Parties are involved in determining the fees of the arbitrator(s) in some form. It could be by: (i) determining the fees at the threshold in the arbitration agreement; or (ii) negotiating with the arbitrators when the dispute arises regarding the fees that are payable; or

(iii) by challenging the fees determined by the tribunal before a court. [Paras 66 and 67][720-C-F]

1.2 Party autonomy is a cardinal principle of arbitration. The arbitration agreement constitutes the foundation of the arbitral process. The arbitral tribunal is required to conduct the arbitration according to the procedure agreed by the parties. The procedure may stipulate adherence to institutional rules or ad hoc rules or a combination of both. [Para 68][721-B]

1.3 (i) In terms of the decision of this Court in Gayatri Jhansi Roadways Ltd and the cardinal principle of party autonomy, the Fourth Schedule is not mandatory and it is open to parties by their agreement to specify the fees payable to the arbitrator(s) or the modalities for determination of arbitrators’ fees; and (ii) Since most High Courts have not framed rules for determining arbitrators’ fees, taking into consideration Fourth Schedule of the Arbitration Act, the Fourth Schedule is by itself not mandatory on court-appointed arbitrators in the absence of rules framed by the concerned High Court. Moreover, the Fourth Schedule is not applicable to international commercial arbitrations and arbitrations where the parties have agreed that the fees are to be determined in accordance with rules of arbitral institutions. The failure of many High Courts to notify the rules has led to a situation where the purpose of introducing the Fourth Schedule and sub-Section (14) to Section 11 has been rendered nugatory, and the court-appointed arbitrator (s) are continuing to impose unilateral and arbitrary fees on parties. Such a unilateral fixation of fees goes against the principle of party autonomy which is central to the resolution of disputes through arbitration. Further, there is no enabling provision under the Arbitration Act empowering the arbitrator(s) to unilaterally issue a binding or enforceable order regarding their fees. [Para 79][730-G-H; 731A-D]

1.4 (i) Arbitration proceedings must be conducted expeditiously; (ii) Court interference should be minimal; and (iii) When one or both parties, or the parties and the arbitral tribunal are unable to reach a consensus, it is open to the arbitral tribunal to charge the fee as stipulated in the Fourth Schedule, which is the model fee schedule and can be treated as binding on all. Consequently, when an arbitral tribunal fixes the fee in terms of the Fourth Schedule, the parties should not be permitted to object the fee fixation. It is the default fee, which can be changed by mutual consensus and not otherwise. [Para 105][754-B-D] INTERPRETATION OF “SUM IN DISPUTE” IN THE

FOURTH SCHEDULE

2.1 On basis of analysis, the following principles emerge:

(i) The Arbitration Act treats claims and counter-claims at par, and holds them subject to the same procedural timelines and requirements; (ii) The Arbitration Act allows the arbitral tribunal to fix a deposit of costs for claims and counter-claims separately, recognizing that they are distinct proceedings since: (a) the proceeding for adjudicating on the claim is independent of the proceeding for deciding the counter-claim; (b) distinct issues may arise before the tribunal while adjudicating on the claim and counter-claim; (c) the evidence led in support of the claim may not be dispositive of the material which would be relied on to decide the counterclaim; and (d) the decision on the claim does not necessarily conclude the adjudication of the counter-claim; and (iii)The Arbitration Act considers claims and counter-claims to be independent proceedings since the latter is not contingent upon the former. Rather, it protects the right of any respondent to raise a counter-claim in an arbitration proceeding, provided it arises from the arbitration agreement under dispute. Further, in the event of a default in the payment of a deposit either for the claim or counter-claim, it specifically notes that the proceedings will be terminated only in respect of the claim, or as the case may be, the counter-claim in respect of which the default has occurred; (iv)Though a counter-claim may arise from similar facts as a claim, the counter-claim is not a set off and is not in the nature of a defence to the claim; and (v) A counter-claim will survive for independent adjudication even if the claim is dismissed or withdrawn and the respondent to a claim would be entitled to pursue their counter-claim regardless of the pursuit of or the decision on the claim. [Para 117][760-C-H; 761-A]

2.2 On analysis of the statutory framework of the Arbitration Act and the CPC, related academic discourse and judicial pronouncements, the following conclusions emerge: (i) Claims and counter-claims are independent and distinct proceedings; (ii) A counter-claim is not a defence to a claim and its outcome is not contingent on the outcome of the claim; (iii) Counter-claims are independent claims which could have been raised in separate proceedings but are permitted to be raised in the same proceeding as a claim to avoid a multiplicity of proceedings; and (iv)The dismissal of proceedings in relation to the original claim does not affect the proceedings in relation to the counter-claim. [Para 135][770-A-D]

2.3 On a combined reading of Section 31(8), Section 31A and Section 38(1) of the Arbitration Act, it is clear that: (i) separate deposits are to be made for a claim and counter-claim in an arbitration proceeding; and (ii) these deposits are in relation to the costs of arbitration, which includes the fee of the arbitrators. Therefore, prima facie, the determination of the fee under the Fourth Schedule should also be calculated separately for a claim and counter-claim – i.e., the term “sum in dispute” refers to independent claim amounts for the claim and counterclaim. Such an interpretation is also supported by the definition of claim and counter-claim, and by the fact that the latter constitutes proceedings independent and distinct from the former. [Para 136] FEE CEILING IN FOURTH SCHEDULE

3. The Law Commission of India (LCI) 246th Report, indicates that the legislative intent behind the introduction of the Fourth Schedule was to put an end to the practise of arbitrators charging exorbitant fees from the parties taking their services in ad hoc arbitrations. Consequently, when there is a option of setting the ceiling of the fees in the Fourth Schedule at either Rs 30,00,000 or Rs 49,87,500, it would be appropriate to choose the lower amount since it would be in keeping with legislative intent. The 2015 Arbitration Amendment Act was clearly enacted with the intent to give effect to the recommendation of the LCI 246th Report on the point. Thus, the ceiling of Rs 30,00,000 in entry at Serial No 6 of the Fourth Schedule is applicable to the sum of base amount and the variable amount, and not just the variable amount. [Para 155][782-A-C]

CEILING APPLICABLE TO INDIVIDUAL ARBITRATORS

4. The submission that the ceiling of Rs 30,00,000 prescribed in the entry at Serial No 6 of the Fourth Schedule will be applicable to the cumulative fee paid to the entire arbitral tribunal, i.e., in a three member tribunal, and each individual arbitrator would receive a fee of Rs 10,00,000 is erroneous, and hence must be rejected. First, there is nothing in the language of the Fourth Schedule to support such an interpretation. The header of the third column states “Model Fee” and does not specify it to be in respect of the whole tribunal. Second, if such an interpretation were to be adopted, it would lead to absurd consequences. For instance, in an arbitration where the sum in dispute is large enough to trigger the ceiling of Rs 30,00,000 and it were to be adjudicated by a three-member tribunal, the maximum fee would have to be divided amongst the three arbitrators. On the other hand, if the same dispute were to be adjudicated by a sole arbitrator, the sole arbitrator would then receive the whole amount of the maximum fee, i.e., triple of what each individual arbitrator would have received in a three-member tribunal. Such a disparity is inconceivable, regardless of the extra work a sole arbitrator may have to put in. This is further bolstered by the Note to the Fourth Schedule, which states that “[i]n the event the arbitral tribunal is a sole arbitrator, he shall be entitled to an additional amount of twenty-five per cent on the fee payable as per the above”. Consequently, the sole arbitrator would not only receive Rs 30,00,000, but an additional 25 per cent over and above it. Indeed, it is clear that the Note was added to the Fourth Schedule to fairly compensate sole arbitrators who arguably would have to do more work than as a member of a larger tribunal; which is why they are allowed payment of 25 per cent of the fee over and above what they would be paid pursuant to the table given in the Fourth Schedule. The corollary of this is that the fee provided in Fourth Schedule is for each individual arbitrator, regardless of whether they are a member of a multimember tribunal or a sole arbitrator. Finally, this interpretation of the Fourth Schedule, that the fee provided therein is applicable for each individual arbitrator and not the whole arbitral tribunal, has also been fairly conceded before this Court by the Attorney General. [Para 157][782-E-H; 783-A-B] CONCLUSION

5. (i) Arbitrators do not have the power to unilaterally issue binding and enforceable orders determining their own fees. A unilateral determination of fees violates the principles of party autonomy and the doctrine of the prohibition of in rem suam decisions, i.e., the arbitrators cannot be a judge of their own private claim against the parties regarding their remuneration. However, the arbitral tribunal has the discretion to apportion the costs (including arbitrators’ fee and expenses) between the parties in terms of Section 31(8) and Section 31A of the Arbitration Act and also demand a deposit (advance on costs) in accordance with Section 38 of the Arbitration Act. If while fixing costs or deposits, the arbitral tribunal makes any finding relating to arbitrators’ fees (in the absence of an agreement between the parties and arbitrators), it cannot be enforced in favour of the arbitrators. The arbitral tribunal can only exercise a lien over the delivery of arbitral award if the payment to it remains outstanding under Section 39(1). The party can approach the court to review the fees demanded by the arbitrators if it believes the fees are unreasonable under Section 39(2);

(ii) Since this judgment holds that the fees of the arbitrators must be fixed at the inception to avoid unnecessary litigation and conflicts between the parties and the arbitrators at a later stage, this Court has issued certain directives to govern proceedings in ad hoc arbitrations;

(iii)The term “sum in dispute” in the Fourth Schedule of the Arbitration Act refers to the sum in dispute in a claim and counter-claim separately, and not cumulatively. Consequently, arbitrators shall be entitled to charge a separate fee for the claim and the counter-claim in an ad hoc arbitration proceeding, and the fee ceiling contained in the Fourth Schedule will separately apply to both, when the fee structure of the Fourth schedule has been made applicable to the ad hoc arbitration;

(iv)The ceiling of Rs 30,00,000 in the entry at Serial No 6 of the Fourth Schedule is applicable to the sum of the base amount (of Rs 19,87,500) and the variable amount over and above it. Consequently, the highest fee payable shall be Rs 30,00,000; and

(v) This ceiling is applicable to each individual arbitrator, and not the arbitral tribunal as a whole, where it consists of three or more arbitrators. Of course, a sole arbitrator shall be paid 25 per cent over and above this amount in accordance with the Note to the Fourth Schedule. [Para 158][783-C-F; 784-A-E]

Bharat Aluminium Co. v. Kaiser Aluminium Technical Services (2016) 4 SCC 126 : [2016] 1 SCR 364; Copper Ltd Centrotrade Minerals & Metal Inc. v. Hindustan (2017) 2 SCC 228 : [2016] 9 SCR 83; Salem Advocate Bar Assn. (II) v. Union of India (2005) 6 SCC 344 : [2005] 1 Suppl. SCR 929; Indian Oil Corpn. Ltd. v. Amritsar Gas Service (1991) 1 SCC 533 : [1990] 3 Suppl. SCR 196; Nityanand Sharma v. State of Bihar (1996) 3 SCC 576 : [1996] 2 SCR 1; Aswini Kumar Ghose v. Arabinda Bose 1953 SCR 1 and Indore

Development Authority (LAPSE-5 J.) v. Manoharlal (2020) 8 SCC 129 : [2020] 3 SCR 1 – followed.

Sanjeev Kumar Jain v. RS Charitable Trust (2012) 1 SCC 455 : [2011] 12 SCR 744; Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd. (2017) 4 SCC

665 : [2017] 1 SCR 798; State of Goa v. Praveen Enterprises (2012) 12 SCC 581 : [2011] 10 SCR 1026; Jag Mohan Chawla v. Dera Radha Swami Satsang

(1996) 4 SCC 699 : [1996] 2 Suppl. SCR 509; Aphali Pharmaceuticals Ltd. v. State of Maharashtra (1989) 4 SCC 378 : [1989] 1 Suppl. SCR 129; Mohd. Shabir v. State of Maharashtra (1979) 1 SCC 568 : [1979] 2 SCR 997; Mithilesh Kumari v. Prem Behari Khare (1989)

2 SCC 95 : [1989] 1 SCR 621- relied on.

Assam State Weaving and Manufacturing Co. Ltd. v. Vinny Engineering Enterprises (P) Ltd. AIR 2010 Cal 52- approved.

NHAI v. Gayatri Jhansi Roadways Ltd. (2020) 17 SCC 626; Union of India v.Singh Builders (2009) 4 SCC

523 : [2009] 3 SCR 563; Dattatraya Govind Mahajan v. State of Maharashtra (1977) 2 SCC 54; Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Ors. (2012) 1 SCC 455 : [2011] 12 SCR 744; Triveni Shankar Saxena v. State of UP & Ors. 1992 Suppl. 1 SCC 524 : [1991] 3 Suppl. SCR 534; Voltas Ltd. v. Rolta India Ltd. (2014) 4 SCC 516 : [2014] 2 SCR 797; Rajni Rani v. Khairati Lal (2015) 2 SCC 682 : [2014]

10 SCR 971; Thomas Mathew v. KLDC Ltd. (2018) 12 SCC 560 - referred to.

Gammon Engineers and Contractors Pvt. Ltd. v. NHAI 2018 SCC OnLine Del 10183 and NHAI v. Gayatri

Jhansi Roadways Ltd. 2017 SCC OnLine Del 10285 referred to. KS Norjarl AS v. Hyundai Heavy Indus. Co., [1992] 1 QB 863, 884; Compagnie Européenne de Céréales SA v. Tradax Exp. SA [1986] 2 Lloyd’s Rep. 301 (QB); Jivraj v. Hashwani [2011] UKSC 40; Taylor v. Caribou

102 Me 401 : 67 A 2 (1907); Hussmann (Europe) Ltd v. Al Ameen Development & Trade, [2000] 2 Lloyd’s Rep. 83 Queen’s Bench Division (Commercial Court) – referred to.

P St J Langan, Maxwell on The Interpretation of Statutes (N M Tripathi Private Ltd, 1976 David St John Sutton, Judith Gill and Matthew Gearing); Russell on

Arbitration (24 th edition, 2015) (“Russell on Arbitration”); Gary B Born, International Commercial Arbitration (2nd edition, 2014) Loukas A Mistelis (ed), Concise International Arbitration (2 nd edition, 2015) Chapter 23 (“Mistelis on Arbitration”); Halsbury’s Laws of India (Civil Procedure) (2 nd edition); Zuckermann on Civil Procedure (Sweet & Maxwell, 4th edition) Justice GP Singh, Principles of Statutory Interpretation (14 th edition, Lexis Nexis); Diggory Bailey and Luke Norbury, Bennion on Statutory

Interpretation (7th edition, Lexis Nexis)- referred to.

Per Sanjiv Khanna, J.

HELD : 1.1. While I am entirely in agreement with the considered view expressed by D.Y. Chandrachud, J. that –(a) party autonomy and arbitration agreement are the foundation of the arbitral process, and therefore, when the parties fix the fee payable to the arbitral tribunal, the law does not permit the arbitral tribunal to derogate and ask for additional or higher fee; (b) where the court while appointing an arbitrator fixes the fee, the arbitral tribunal cannot ask for supplementary or higher fee; and (c) in both cases, the fee payable to the arbitral tribunal may be enhanced either by a written agreement between the parties or by a court order. However, I am unable to concur that in the absence of any agreement between the parties, or the parties and the arbitral tribunal, or a court order fixing the fee, the arbitral tribunal is not entitled to fix the fee, as I am of the opinion that by the implied terms of the contract and as per the provisions of the Arbitration and Conciliation Act, 1996, an arbitral tribunal can fix a reasonable fee, which an aggrieved party, who is not a signatory to the written agreement, can question under sub-section (3) of Section 39 of the A&C Act during the pendency of the arbitration proceedings, or in case the arbitral tribunal claims lien on the award in terms of sub-section (2) to Section 39 of the A&C Act. At the same time, I respectfully agree with D.Y. Chandrachud, J., that when an arbitral tribunal, even in the absence of consent of the parties, fixes the fee in terms of the Fourth Schedule, the parties should not be permitted to object the fee fixation. The Fourth Schedule is the default fee, declared by the legislature as fair and reasonable, which can be changed by mutual consensus, and not otherwise. Further, post the enforcement of the Arbitration Amendment Act, 2019 vide Act 33 of 2019 on 30th August 2019, and insertion of sub-section (3A) to Section 11, the proviso to the sub-section states that the fee prescribed in the Fourth Schedule is mandatory and applies to all arbitrations including ad hoc arbitrations, albeit in case of institutional arbitrations, as per sub-section (14) to Section 11 of the A&C Act, the fee fixed by the institution “subject to the rates specified in the Fourth Schedule” would be payable. [Para 2][786-F-H; 787A-D]

1.2. On interpretation of the Fourth Schedule, I respectfully agree with the view expressed by D.Y. Chandrachud J. on interpretation of Serial No.6 and that the fee prescribed is for each member of the arbitral tribunal, with a note providing for an additional amount of twenty five percent in case of a sole/single member arbitral tribunal. Even so, on these aspects I would like to give a separate reasoning, as also point anomalies in the Fourth Schedule. However, in my opinion, the expression “sum in dispute” means the sum total of both the claims and counter claims. [Para 3][787-E-F]

2. Sub-section (8) to Section 31, as originally enacted before its substitution by Act No. 3 of 2016, had stipulated that unless otherwise agreed by the parties, the arbitral tribunal shall fix the cost of arbitration. The explanation to this Section clarified that the expression ‘costs’, for the purpose of the sub-section, means reasonable costs relating to the fees and expenses of the arbitrator and the witnesses. The sub-section emphasised that the agreement between the parties is paramount and binding. The arbitral tribunal is entitled to fix costs of arbitration, which includes the fee and expenses of the arbitrator, if the agreement between the parties is wordless and silent as to the fee payable to the arbitral tribunal. The word ‘cost’, it is argued, is different from the arbitrator’s fee and therefore, the arbitral tribunal is not competent or authorised to fix its own fee on the principle of nemo judex in causa sua, that is, ‘no one should be judge in their own cause’. The principle would apply where the parties have fixed the fee payable to the arbitral tribunal, either as a term in the arbitration agreement or otherwise by an agreement, either before or after the appointment of the arbitral tribunal. This principle will apply equally where the court fixes the fee as a term of appointment. However, this principle will have no application where the parties or the court has left it to the arbitral tribunal to fix its own fee. In other words when the arbitration agreement is silent and the parties have not agreed on the quantum of fee payable to the arbitral tribunal, or the court order does not fix the fee, the arbitral tribunal has the right and power to fix its own fee. [Paras 15 and 23][797-D-E; 798-A-B; 805-D-F]

3. It will be appropriate to summarize the legal position as under:

(a)The arbitral tribunal is bound by the fee or remuneration fixed by the parties in the arbitration agreement, or by mutual consent, whether before or after the disputes have arisen. (b) Where the court refers disputes to an arbitral tribunal, in the absence of any agreement between the parties fixing the fee payable to the arbitral tribunal, it should fix the fee so payable. The fee fixed by the court is binding on the arbitral tribunal. (c) It is desirable that the parties/court should ascertain the fee structure from the prospective arbitrators before an arbitrator is nominated/appointed. (d) In the absence of a written agreement or a court order fixing the fee of the arbitral tribunal, the arbitral tribunal is entitled to ‘fair and reasonable fee’, which should be done in a transparent manner and in consultation with the parties. This exercise should be undertaken at the initial/preliminary stage. However, lack of consensus, would not bar an arbitral tribunal from fixing ‘fair and reasonable fee’. An aggrieved party would be entitled to question the fee fixed by the arbitral tribunal in terms of Section 39 of the A&C Act. On a challenge being raised, the court would examine the question of reasonableness of fee with reference to the factors stated above and in particular with reference to the Fourth Schedule of the A&C Act. The fee structure mentioned in the Fourth Schedule or by the respective High Courts would be per se treated and regarded as ‘fair and reasonable fee’. (e) Fee once fixed cannot be increased or enhanced except with the consent of all the parties or by an order of the court. (f) Post the enactment and enforcement of Act No.

33 of 2019, and in terms of the first proviso to sub-section (3A) of Section 11 of the A&C Act, the arbitral tribunal is entitled to the fee at the rate specified in the Fourth Schedule. Consequently, the arbitral tribunal is not entitled to deviate and fix a higher fee. Similarly, arbitral institutions, in terms of Section 11(14), are bound to follow the fee structure mentioned in the Fourth Schedule. However, sub-sections (3A) and (14) of Section 11 do not bar or prohibit the ad hoc arbitral tribunal or the arbitral institution to charge arbitration fee which is less or lower than what is stipulated in the Fourth Schedule. Sub-sections (3A) and (14) of Section 11 are binding on the parties and the arbitral tribunal. [Para 35][814G-H; 815-A-H]

4. High cost of arbitration is one of the prime reasons for the reluctance of the litigants to accept arbitration as an alternative to court litigation. Arbitration, as a process of justice delivery, is substitutional in character, would remain unattractive unless it is affordable and a lower cost alternative to litigation. This being the objective of the scheme of the provisions of the A&C Act in general, and Sections 2(1)(d), 2(9), 7, 8, 9, 11, 17 and 23, it would be appropriate to hold that arbitral tribunal, as statutorily conceived, is to examine and adjudicate all disputes arising from the contract and, therefore, the Fourth Schedule mindfully uses the expression “sum in dispute”. Any contrary interpretation conceiving separate fee for claim and counter-claim, which, it is apparent, would substantially enhance the cost of arbitration, and dissuade the litigants from resorting to arbitration. The heading “sum in dispute” will mean the aggregate of all the amounts in dispute without any bifurcation and separate application of the fee schedule with reference to the amount subject matter of the claim(s), and the amount subject matter of the counter-claim(s). The aforesaid dictum would not apply in cases where there is an umbrella arbitration clause, which applies to different/distinct contracts, in which case each contract would be treated as a separate arbitration proceeding viz. the claim, counter-claim and set-off relating to that contract. [Paras 46, 47 and 48][822-A-C, F-G; 823-A]

5. The model fee mentioned in the third column of the Fourth Schedule would be the fee payable to each member of the arbitral tribunal, and in cases where the arbitral tribunal consists of a sole arbitrator, he shall be entitled to an additional amount of 25% above the amount specified in the model fee. It is apparent that this interpretation has been accepted and followed by several arbitral tribunals since introduction of the Fourth Schedule. This interpretation has gained acceptance. To interpret it differently would lead to confusion and chaos which must be avoided, even if the other interpretation is plausible. However, in view of the above interpretation, the Fourth Schedule does require modification and moderation. For example, where the sum in dispute is Rs.5,00,000/-, in case of the sole arbitrator, the amount payable to him would be Rs.56,250/-, that is, Rs.45,000/- plus 25% (Rs.11,250) of Rs.45,000/-.In case of an arbitral tribunal of three arbitrators, the fee payable would be Rs.1,50,000/-. This fee is too high and would be unacceptable to most of the litigants as they would be liable to pay minimum arbitration fee of nearly 11% in case of sole arbitrator and nearly 30% in case of an arbitral tribunal consisting of three members. [Paras 53 and 54][825-BE]

National Highways Authority of India v. Gayatri Jhansi Roadways Limited (2020) 17 SCC 626 – relied on.

Aphali Pharmaceuticals Ltd.v. State of Maharashtra & Ors. (1989) 4 SCC 378 : [1989] 1 Suppl. SCR 129 – held inapplicable.

Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 : [2009] 3 SCR 563; Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others. (2012) 1 SCC 455 : [2011] 12 SCR 744; Orissa Mining

Corporation Ltd. v. Prannath (1997) 3 SCC 535 – referred to.

K/S Norjarl A/S v. Hyundai Heavy Industries Co. Ltd. (1991) 3 All ER 211- referred to.

Julian D.M. Lew, Loukas A. Mistelis, et

al., Comparative International Commercial Arbitration, ‘Chapter 12 Rights and Duties of Arbitrators and Parties’ Russell on Arbitration (24th Edition).; Robert Merkin QC, LLD,”Arbitration Law”, Service Issue No.83, November 2019; Datuk Professor Sundra

Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), 2016; Michael Mcilwrath and John Savage, International Arbitration and Mediation: A Practical Guide, (2010); Russell on Arbitration, 24th Edition; International Commercial Arbitration’, 2nd Edition, 2914; Julian D.M. Lew, Loukas A. Mistelis, et al., Comparative International Commercial

Arbitration, ‘Chapter 12 Rights and Duties of

Arbitrators and Parties’; Redfern and Hunter on International Arbitration, Oxford University Press, 6 th Edn., 2015; Russell on Arbitration, 24th Edition under the heading ‘Determination of the recovery of costs of the arbitration’; Datuk Professor Sundra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), 2016. Chapter 24 in the said book refers to Gary Born, International Commercial Arbitration; Tackaberry, and Marriott, Bernstein’s Handbook of Arbitration and Dispute Resolution Practice (4th Edn., 2003); Mustill and Boyd, The Law and Practice of Commercial Arbitration in England, (2nd Edn., 1989); Datuk Professor Sundra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), 2016; ‘India’s Grand Advocates: A Legal Elite Flourishing in the Era of Globalization’, by Marc Galanter and Nick Robinson, published by the Harvard Law School, and ‘Litigation Expenses: High Cost of Justice’, by Usha Rani Das; Earl T. Crawford, The Construction of Statutes, 3rd Edition; J. G. Sutherland, Statutes and Statutory Construction, 3rd Edition, Vol.3, pp. 410-412; Earl T. Crawford, The Construction of Statutes, 3rd Edition; Professor Sundra Rajoo, Law, Practice and Procedure of Arbitration (Second Edition), 2016 – referred to.