Appointment of arbitrator

Dr. Leena Moudgil
Associate Professor
VSLLS, VIPS

(1) The parties are free to determine the number of
arbitrators, provided that such number shall not be an
even number.
(2) Failing the determination referred to in sub-section (1),
the arbitral tribunal shall consist of a sole arbitrator.
In MMTC v. Sterlite Industries India Ltd., AIR 1997 SC 605
Non- adherence of odd numbers by the parties will not
render the award invalid nor the arbitral agreement shall
be treated as invalid on the sole ground of even no. of
arbitrators.
 In Narayan Prasad Lohia v. Nikunj Kumar Lohia,
AIR 2002 SC 1139
As a matter of public policy, it can not be said that S. 10
compulsorily precludes appointment of even no. of
arbitrators.

(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the
arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each
party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third
arbitrator who shall act as the presiding arbitrator.
“(3A) The Supreme Court and the High Court shall have the power to designate, arbitral institutions,
from time to time, which have been graded by the Council under section 43-I, for the purposes of
this Act:
Provided that in respect of those High Court jurisdictions, where no graded arbitral institution are
available, then, the Chief Justice of the concerned High Court may maintain a panel of arbitrators
for discharging the functions and duties of arbitral institution and any reference to the arbitrator
shall be deemed to be an arbitral institution for the purposes of this section and the arbitrator
appointed by a party shall be entitled to such fee at the rate as specified in the Fourth Schedule:
Provided further that the Chief Justice of the concerned High Court may, from time to time, review
the panel of arbitrators.
43-I. The Council shall make grading of arbitral institutions on the basis of criteria relating to
infrastructure, quality and calibre of arbitrators, performance and compliance of time limits for
disposal of domestic or international commercial arbitrations, in such manner as may be
specified by the regulations.

 (4) If the appointment procedure in sub-section (3) applies and— (a) a party fails to appoint an arbitrator within thirty days from
the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator
within thirty days from the date of their appointment, “the appointment shall be made, on an application of the party, by the
arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case
of arbitrations other than international commercial arbitration, as the case may be”;
 (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the
arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made
on an application of the party in accordance with the provisions contained in sub-section (4);
 (6) Where, under an appointment procedure agreed upon by the parties,—
 (a) a party fails to act as required under that procedure; or
 (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
 (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,
 the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in
case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial
arbitration, as the case may be to take the necessary measure, unless the agreement on the appointment procedure provides other
means for securing the appointment.
 2 [(6A) Omitted
 (6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of
this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.]
 (7) Omitted].
 Q: DO we have time limit in s. 11(3-6)??
Datar Switchgears Ltd v. Tata Finance Ltd. , (2000) 8 SCC 151
Q. Are S. 11 AND S. 8 two sides of the same coin?
Q. Whether preliminary objections can be considered in s. 11 (6)?

 Konkan Railway Construction Corporation Ltd. vs. M/S Mehul Construction, AIR 2000 SC 2821
 Konkan Railway Construction Corporation Ltd. vs. M/S Rani Construction, AIR 2002 SC 778
 SBP Co. v. Patel Engineering Case
It is necessary to define what exactly the Chief Justice, approached with an application
under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own
jurisdiction in the sense, whether the party making the motion has approached the right High
Court.
He has to decide whether there is an arbitration agreement, as defined in the Act and whether the
person who has made the request before him, is a party to such an agreement.
It is necessary to indicate that he can also decide the question whether the claim was a dead one;
or a long barred claim that was sought to be resurrected and whether the parties have concluded
the transaction by recording satisfaction of their mutual rights and obligations or by receiving the
final payment without objection.
It may not be possible at that stage, to decide whether a live claim made, is one which comes
within the purview of the arbitration clause. It will be appropriate to leave that question to be
decided by the arbitral tribunal on taking evidence, along with the merits of the claims involved in
the arbitration.
The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an
arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects,
the Chief Justice can either proceed on the basis of affidavits and the documents produced or take
such evidence or get such evidence recorded, as may be necessary. We think that adoption of this
procedure in the context of the Act would best serve the purpose sought to be achieved by the Act
of expediting the process of arbitration, without too many approaches to the court at various
stages of the proceedings before the Arbitral tribunal.

 (8) “The arbitral institution referred to in sub-sections (4), (5) and (6), before appointing an
arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of
sub-section (1) of section 12, and have due regard to— (a) any qualifications required for
the arbitrator by the agreement of the parties; and (b) the contents of the disclosure and
other considerations as are likely to secure the appointment of an independent and
impartial arbitrator.
 (9) In the case of appointment of sole or third arbitrator in an international commercial
arbitration, the arbitral institution designated by the Supreme Court may appoint an arbitrator
of a nationality other than the nationalities of the parties where the parties belong to
different nationalities.
 (10) Omitted.
 (11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-
section (6) to different arbitral institutions, the arbitral institution to which the request has been
first made under the relevant sub-section shall be competent to appoint.
 (12) Where the matter referred to in sub-sections (4), (5), (6) and (8) arise in an international
commercial arbitration or any other arbitration, the reference to the arbitral institution in those
sub-sections shall be construed as a reference to the arbitral institution designated under sub-
section (3A).
 (13) An application made under this section for appointment of an arbitrator or arbitrators shall be
disposed of by the arbitral institution within a period of thirty days from the date of service of
notice on the opposite party.
 (14) The arbitral institution shall determine the fees of the arbitral tribunal and the manner of its
payment to the arbitral tribunal subject to the rates specified in the Fourth Schedule.
Explanation.—For the removal of doubts, it is hereby clarified that this sub-section shall not apply
to international commercial arbitration and in arbitrations (other than international commercial
arbitration) where parties have agreed for determination of fees as per the rules of an arbitral
institution.

 M/s. Bel House Associates Pvt. Ltd. under liquidation through the Official Liquidator filed these petitions under Ss.
11(5) and (6) of the Arbitration and Conciliation Act, 1996 for appointing an arbitrator for adjudicating the disputes
between the petitioner and the respondents, the Southern Railway.
 Under sub-s. 2 of S.11, the parties are free to agree on a procedure for appointing an arbitrator or arbitrators. It is
sub-s. (6) which applies to cases where an agreed procedure is contemplated in the agreement whereas sub-ss. 3, 4
and 5 would apply in the case where a procedure had not been agreed upon between the parties regarding
arbitration. Sub-s. 3 and 4 of S. 11 would cover contingencies where there are more than one arbitrators to be
appointed whereas sub-s. 5 covers the appointment of a sole arbitrator and on a notice being given by one of the
parties and the other party failing to make appointments. In such cases, the appointments have to be made by the
Chief Justice or by any person designated by him. But in the case where the procedure for appointing an arbitrator
had been agreed upon by the parties, the Chief Justice has to take "necessary measure" for "securing the
appointment" in accordance with the terms of the arbitration agreement.
 Sub-ss. (4) and (5) authorises the Chief Justice to appoint an arbitrator whereas the wording in sub-s. (6) is different
where the Chief Justice has to take necessary measures for securing the appointment. The difference in the language
used in the above sub-section would reveal the difference in the approach to be made by the Chief Justice in the
appointment of the arbitrator. The Supreme Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co. (2000) 7
Supreme Court Cases 201) had considered the nature of the order passed by the Chief Justice regarding appointment
of an arbitrator and held that the appointment is of administrative nature. While considering the above aspect, the
Supreme Court in para 5 of this judgment held:
 ".....While sub-ss. (4) and (5) deal with removal of obstacles arising in the absence of agreement between the parties
on a procedure for appointing the arbitrator or arbitrators, sub-s. (6) seeks to remove obstacles arising when there is
an agreement appointment procedure. These obstacles are identified in clauses (a), (b) and (c) of sub-s. (6). Sub-s.
(6) provides a cure to these problems by permitting the aggrieved party to request the Chief Justice or any person or
institution designated by him to take the necessary measure i.e., to make the appointment, unless the agreement on
the appointment procedure provides other means for securing the appointment. Sub-s. (6), therefore, aims at
removing any deadlock or undue delay in the appointment process. This being the position, it is reasonable to hold
that while discharging the functions under sub-s. (6), the Chief Justice or his nominee will be acting in his
administrative capacity and such an construction would subserve the very object of the new arbitration law."
 The above observation of the Supreme Court also would reveal the difference between the nature of appointment
under sub-ss. 3, 4, 5 and 6. In fact, the nature of the order of appointment differs in the case where there is no
procedure agreed upon between the parties and when the procedure had been agreed upon, between the parties for
appointment of the arbitrator, this court has only to implement the above procedure and there is no scope for
appointing an independent arbitrator at the first instance. Hence this court cannot appoint an independent arbitrator
as prayed for; but has only to implement the procedure agreed upon between the parties regarding the arbitration.

 Applicant has not appointed its arbitrator.
Respondent has also not been called upon to
appoint its arbitrator by the said notice or
otherwise. An application for appointment of
an arbitrator, therefore, is not maintainable
unless the procedure and mechanism agreed
to by and between the parties is complied
with.

 Relying on the doctrine of kompetenz – kompetenz enshrined in
Section 16 of the Arbitration & Conciliation Act, 1996
(Arbitration Act) and the legislative intent to restrict judicial
intervention at pre-reference stage, the Supreme Court held that
the issue of limitation would be decided by an arbitrator.
 It also reaffirmed that the legislative intent of the Arbitration Act
is party autonomy and minimal judicial interference in the
arbitration process. It observed that the regime of the Arbitration
Act outlines that once an arbitrator has been appointed, all
objections and issues are to be decided by the arbitrator.
 The Supreme Court observed that the issue of limitation is a
jurisdictional issue which should be decided by the arbitrator in
terms of Section 16 of the Arbitration Act and not before the High
Court at the pre-reference stage under Section 11 of the
Arbitration Act. The Supreme Court observed that once the
arbitration agreement is not in dispute, all issue including
jurisdictional issues are to be decided by the arbitrator.

 The Supreme Court held that an application under Section
11 of the Arbitration & Conciliation Act, 1996 (Arbitration
Act) shall not be maintainable on account of the provision
laid down in Section 3G(5) of the National Highways Act,
1956 (NH Act), which provides for appointment of
arbitrator by central government.
 The Supreme Court observed that the usage of the term
'subject to' in Section 3G(5) of the NH Act clearly indicates
that the provisions of the NH Act will have an overriding
effect vis-à-vis the Arbitration Act in relation to land
compensation matters arising under the NH Act.
 It held that in view of the power being vested exclusively
with the central government to appoint an arbitrator
under Section 3G(5) of the NH Act, being a special
enactment, the application filed under Section 11(6) of the
Arbitration Act for appointment of an arbitrator was not
maintainable and the provisions of the Arbitration Act
could not be invoked for the purpose.

 Brahmani River Pellets Limited Vs. Kamachi Industries Limited (Judgment dated 08
August 2019 in Civil Appeal No. 5850 of 2019.)
The Supreme Court, while relying on Swastik Gases (P) Ltd. Vs. Indian Oil Corporation
Ltd. observed that non-use of words like 'exclusive jurisdiction', 'only', 'exclusive',
'alone' is not decisive and does not make any material difference.
It observed that when the contract specifies the jurisdiction of the court at a particular
place, only such court will have the jurisdiction to deal with the matter and the
parties intended to exclude all other courts.
The Supreme Court held that in the instant case, the parties had agreed for
Bhubaneshwar as the 'venue' for arbitration proceedings. Thus, the intention of the
parties was to exclude jurisdiction of all other courts. Accordingly, the Supreme
Court held that the High Court of Madras had no jurisdiction to entertain jurisdiction
under Section 11(6) of the Arbitration & Conciliation Act, 1996.
M/s.ONGC Mangalore Petrochemicals Ltd. Vs. M/s. ANS Constructions Ltd. & Anr. –
2018 SCCOnline Sc 99 has held that if the Court finds while dealing with an
application under Section 11 of the Act that the applicant had given “No Dues/No
Claim Certificate” and had accepted the final payment in full and final satisfaction
of all its claims and there was accord and satisfaction, no arbitrable dispute exists
and thus the dispute was not referred to the arbitration. Supreme Court did not
consider Section 11(6-A) in this judgment.

 In the case of Union of India v/s. Parmar Construction Company, 2019 SCCOnline SC 442 has held
that the Court has to put emphasis to act on the agreed terms and to first resort to the procedure
as prescribed and open for the parties to the agreement to settle differences/disputes arising
under the terms of the contract through appointment of a designated arbitrator but emphasis
should always be on the terms of the arbitration agreement to be adhered to or given effect as
closely as possible.
 Where the impartiality of the arbitrator in terms of the arbitration agreement is in doubt or
where the Arbitral Tribunal appointed in terms of the arbitration agreement has not functioned or
has failed to conclude the proceedings or to pass an award without assigning any reason and it
became necessary to make a fresh appointment, Chief Justice or his designate in the given
circumstances after assigning cogent reasons in appropriate cases may resort to an alternative
arrangement to give effect to the appointment of independent arbitrator under Section 11(6) of
the Act.
 In the case of Mankastu Impex Private Limited Vs. Airvisual Limited, (2020) 5 SCC 399 has
considered the fact that parties had agreed that place of arbitration is at Hong Kong. The
petitioner was incorporated in India and the respondent company was incorporated under
the laws of Hong Kong. Hong Kong was the place of arbitration. It would not lead to the
conclusion that the parties have chosen Hong Kong as seat of arbitration. The reference to
Hong Kong as “place of arbitration” is not a simple reference as the “venue” for the
arbitral proceedings; but a reference to Hong Kong is for final resolution by arbitration
administered in Hong Kong. Section 11 has no application to international commercial
arbitration seated outside India. Petition filed under Section 11(6) is held not maintainable

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in
writing any circumstances—
(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the
parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind,
which is likely to give rise to justifiable doubts as to his independence or impartiality; and
(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to
complete the entire arbitration within a period of twelve months.
Explanation 1.—The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist
which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.
Explanation 2.—The disclosure shall be made by such person in the form specified in the Sixth Schedule.
(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay,
disclose in writing any circumstances referred to in sub-sec. (1) unless they have already been informed of
them by him.
(3) An arbitrator may be challenged only if— (a) circumstances exist that give rise to justifiable doubts as to his
independence or impartiality, or (b) he does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for
reasons of which he becomes aware after the appointment has been made.
(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel
or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall
be ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-
section by an express agreement in writing.
The words in red are 2015 Amdt.

 S.P. Singla Constructions Private Limited Vs. State of Himachal Pradesh, (2019) 2 SCC
488 while dealing with amended Section 12(5) has held that provisions of
Amendment Act, 2015 w.e.f. 23rd October 2015 cannot have retrospective operation
in arbitral proceedings already commenced unless parties otherwise agree.
Termination of arbitration proceedings is not permissible owing to default of
claimant/failure of claimant in communicating his statement of claim unless the
arbitrator indicates that no adjournments would be given.
 Sawarmal Gadodia Vs. Tata Capital Financial Services Limited, 2019 SCC OnLine
Bom 849 has held that under Section 12, an arbitrator is bound to make the
necessary disclosure in the event of him having been appointed as an Arbitrator on
two or more occasions by one of the parties, or an affiliate of one of parties, within
the past three years, against Item 4 of his Disclosure in the form set out in the Sixth
Schedule. He is bound to disclose the "circumstances disclosing any past or present
relationship with or interest in any of the parties or in relation to the subject
matter in dispute, whether financial, business, professional or other kind, which is
likely to give rise to justifiable doubts as to your independence or impartiality.”
Learned arbitrator is bound to specify the exact number of the ongoing arbitrations
before him and not an 'approximate number'. Learned arbitrator not having
disclosed that he was appointed by the respondent company in arbitration petitions
where the respondent company was the claimant in view of Item No.22 of the Fifth
Schedule, the said fact constitutes a ground giving rise to justifiable doubts as to
the independence or impartially of the arbitrator. The arbitral awards are
accordingly set aside on that ground.

 In the case of the Government of Haryana PWD Haryana (B and R) Branch Vs. M/s.G.F. Toll Road Pvt.
Ltd. & Ors. - 2019(1) Scale 134
After considering the 2015 amendment has held that since the appointment of the arbitrator was made prior to
the 2015 Amendment Act when the Fifth Schedule was not inserted, the objection raised by a party that an
arbitrator was an ex-employee of a party could not be entertained. It is held by the Supreme Court that the
Arbitration Act does not disqualify a former employee from acting as an arbitrator, provided that there are no
justifiable doubts as to his independence and impartiality. The Supreme Court after considering entry 1 of
Fifth and Seventh Schedule has held that an arbitrator who has “any other” past or present “business
relationship” with the party is also disqualified. The word “other” used in entry 1 would indicate a relationship
other than an employee, consultant or an advisor. The word “other” cannot be used to widen the scope of entry
to include past/former employees. It is held that the entry 1 indicates that a person, who is related to a party as
an employee, consultant or an adviser is disqualified to act as an arbitrator. The words “as an” indicate that the
person so nominated is only disqualified if he/she is the present/current employee, consultant or adviser of one
of the parties.
In the case of Bharat Broadband Network Limited v/s. United Telecoms Limited, AIR 2019 SC 2434 after
construing Section 12(5) of the Arbitration Act read with Fifth, Sixth and Seventh Schedule held that the
Managing Director of the party, who was a named arbitrator, could not act as arbitrator nor could be allowed
to appoint another arbitrator. The disclosure of a prospective arbitrator has to be made in the form specified in
the Sixth Schedule and the ground stated in the Fifth Schedule are to serve as a guide in determining whether
circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.
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. Such ineligibility can be removed by an express agreement in writing. It is held that learned
arbitrator had become de jure inability to perform his function as an arbitrator.

 (1) Subject to sub-section (4), the parties are free to agree on a
procedure for challenging an arbitrator.
 (2) Failing any agreement referred to in sub-section (1), a party who
intends to challenge an arbitrator shall, within fifteen days after
becoming aware of the constitution of the arbitral tribunal or after
becoming aware of any circumstances referred to in sub-section (3) of
section 12, send a written statement of the reasons for the challenge to
the arbitral tribunal.
 (3) Unless the arbitrator challenged under sub-section (2) withdraws from
his office or the other party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
 (4) If a challenge under any procedure agreed upon by the parties or
under the procedure under sub-section (2) is not successful, the arbitral
tribunal shall continue the arbitral proceedings and make an arbitral
award.
 (5) Where an arbitral award is made under sub-section (4), the party
challenging the arbitrator may make an application for setting aside such
an arbitral award in accordance with section 34.
 (6) Where an arbitral award is set aside on an application made under
sub-section (5), the Court may decide as to whether the arbitrator who is
challenged is entitled to any fees.

(1) The mandate of an arbitrator shall terminate and he shall be substituted
by another arbitrator, if—
(a) he becomes de jure or de facto unable to perform his functions or for
other reasons fails to act without undue delay; and
(b) he withdraws from his office or the parties agree to the termination of
his mandate.
(2) If a controversy remains concerning any of the grounds referred to in
clause (a) of sub-section (1), a party may, unless otherwise agreed by the
parties, apply to the Court to decide on the termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator
withdraws from his office or a party agrees to the termination of the
mandate of an arbitrator, it shall not imply acceptance of the validity of
any ground referred to in this section or sub-section (3) of section 12.
Wanbury Ltd. vs. Candid Drug Distributors – 2015 SCC Online Bom 3810 has
held that the power of the arbitral tribunal to issue directions to file
pleadings and documents, includes the power to grant extension of time.
Such orders passed by the arbitral tribunal are procedural and can be
recalled if sufficient case is made out.

(1) In addition to the circumstances referred to in section 13 or section 14, the
mandate of an arbitrator shall terminate— (a) where he withdraws from office for
any reason; or (b) by or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-
section (2), any hearings previously held may be repeated at the discretion of the
arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal
made prior to the replacement of an arbitrator under this section shall not be
invalid solely because there has been a change in the composition of the arbitral
tribunal.
In the case of Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla, (2016) 3 SCC 619 has
held that where the mandate of an arbitrator is terminated, an appointment of a
substitute arbitrator may be in accordance with the arbitration agreement unless
such arbitration agreement, either expressly or by necessary implication excludes
the substitution of an arbitrator, whether named or otherwise. The learned
arbitrator named, in that matter, in the consent order passed by the Bombay High
Court had resigned. Supreme Court upheld the judgment of the Bombay High Court
appointing substituted arbitrator.

 (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement,
and for that purpose—
 (a) an arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract; and
 (b) a decision by the arbitral tribunal that the contract is null and void shall not
entail ipso jure the invalidity of the arbitration clause.
 (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defence; however, a party shall not be
precluded from raising such a plea merely because that he has appointed, or
participated in the appointment of, an arbitrator. (Sec. 12(1), 12(2), 12(3)(b), 13(2),
16(3), 16(1))
 (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings.
 (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or
sub-section (3), admit a later plea if it considers the delay justified.
 (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-
section (3) and, where the arbitral tribunal takes a decision rejecting the plea,
continue with the arbitral proceedings and make an arbitral award.
 (6) A party aggrieved by such an arbitral award may make an application for setting
aside such an arbitral award in accordance with section 34.(Art. 16-UNCITRAL Model
Law)

 This appeal arises out of a sub-contract given by the appellant to the respondent in respect of work to be done for installation of a geo-textile tubes embankment with
toe mound at village Pentha in Odisha for protection against coastal erosion. The sub-contract agreement is dated 14.06.2013, Annexure III of which contains the
following arbitration clause:
 “Any and all claims, disputes, questions or controversies involving the parties and arising in connection with the Agreement or execution, interpretation, validity,
performance, termination hereof which cannot be finally resolved by such parties negotiation shall be resolved by final and binding arbitration held in Pune. The
disputes shall be referred to a sole arbitrator to be appointed by GWRL and COMACOE jointly in agreement.”
 Section 16 of the Act only makes explicit what is even otherwise implicit, namely, that the Arbitral Tribunal constituted under the Act has the jurisdiction to rule on its
own jurisdiction, including ruling on objections with respect to the existence or validity of the arbitration agreement.
 Sub-section (1) also directs that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
It also clarifies that a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
 Sub-section (2) of Section 16 enjoins that a party wanting to raise a plea that the Arbitral Tribunal does not have jurisdiction, has to raise that objection not later than
the submission of the statement of defence, and that the party shall not be precluded from raising the plea of jurisdiction merely because he has appointed or
participated in the appointment of an arbitrator.
 Sub-section (3) lays down that a plea that the Arbitral Tribunal is exceeding the scope of its authority, shall be raised as soon as the matter alleged to be beyond the
scope of its authority is raised during the arbitral proceedings. When the Tribunal decides these two questions, namely, the question of jurisdiction and the question of
exceeding the scope of authority or either of them, the same is open to immediate challenge in an appeal, when the objection is upheld and only in an appeal against
the final award, when the objection is overruled.
 Sub-section (5) enjoins that if the Arbitral Tribunal overrules the objections under sub-section (2) or (3), it should continue with the arbitral proceedings and make an
arbitral award.
 Sub-section (6) provides that a party aggrieved by such an arbitral award overruling the plea on lack of jurisdiction and the exceeding of the scope of authority, may
make an application on these grounds for setting aside the award in accordance with Section 34 of the Act.
 The question, in the context of sub-section (7) of Section 11 is, what is the scope of the right conferred on the Arbitral Tribunal to rule upon its own jurisdiction and
the existence of the arbitration clause, envisaged by Section 16(1), once the Chief Justice or the person designated by him had appointed an arbitrator after satisfying
himself that the conditions for the exercise of power to appoint an arbitrator are present in the case. Prima facie, it would be difficult to say that in spite of the
finality conferred by sub-section (7) of Section 11 of the Act, to such a decision of the Chief Justice, the Arbitral Tribunal can still go behind that decision and rule on
its own jurisdiction or on the existence of an arbitration clause. It also appears to us to be incongruous to say that after the Chief Justice had appointed an Arbitral
Tribunal, the Arbitral Tribunal can turn round and say that the Chief Justice had no jurisdiction or authority to appoint the Tribunal, the very creature brought into
existence by the exercise of power by its creator, the Chief Justice. The argument of the learned Senior Counsel, Mr K.K. Venugopal that Section 16 has full play only
when an Arbitral Tribunal is constituted without intervention under Section 11(6) of the Act, is one way of reconciling that provision with Section 11 of the Act,
especially in the context of sub-section (7) thereof. We are inclined to the view that the decision of the Chief Justice on the issue of jurisdiction and the existence of a
valid arbitration agreement would be binding on the parties when the matter goes to the Arbitral Tribunal and at subsequent stages of the proceeding except in an
appeal in the Supreme Court in the case of the decision being by the Chief Justice of the High Court or by a Judge of the High Court designated by him.
 The concept of separability of the arbitration clause/agreement from the underlying contract is a necessity to ensure that the intention of the parties to resolve the
disputes by arbitration does not evaporate into thin air with every challenge to the legality, validity, finality or breach of the underlying contract. The
Indian Arbitration Act, 1996, as noticed above, under Section 16 accepts the concept that the main contract and the arbitration agreement form two independent
contracts. Commercial rights and obligations are contained in the underlying, substantive, or the main contract. It is followed by a second contract, which expresses
the agreement and the intention of the parties to resolve the disputes relating to the underlying contract through arbitration. A remedy is elected by parties outside
the normal civil court remedy. It is true that support of the national courts would be required to ensure the success of arbitration, but this would not detract from the
legitimacy or independence of the collateral arbitration agreement, even if it is contained in a contract, which is claimed to be void or voidable or unconcluded by one
of the parties.

 Now section 16 has conferred power on the arbitral tribunal to decide whether there is in 'existence' an arbitration
clause. But, it must be noted that the language employed by section 16 of the new Act shows that the said provision
is only an enabling one which,- unlike section 33 in the old Act of 1940,- now permits the arbitral tribunal to decide a
question relating to the 'existence', of the arbitration clause. This section corresponds to Article 16 of the UNCITRAL
Model Law and Article 21 of the UNCITRAL Arbitration Rules. While Article 16 of the Model Law says that the arbitral
tribunal may rule on its own jurisdiction, Article 21 of the Rules states that the 'arbitral tribunal shall have power to
rule' on these questions. Such power given to the arbitral tribunal is also referred to as 'Kompetenz- kompetenz".
 The more important question however is whether section 16 excludes the jurisdiction of the Chief Justice of India or
his designate in this behalf if a question as to the existence of the arbitration clause is raised by the respondent in his
reply to the petition filed under section 11. (I am not concerned with the question of the validity or effect of the
arbitration clause, in the present case). In my view, section 16 does not take away the jurisdiction of the Chief
Justice of India or his designate, if need be, to decide the question of the 'existence' of the arbitration
agreement. Section 16 does not declare that except the arbitral tribunal, none else can determine such a question.
Merely because the new Act permits the Arbitrator to decide this question, it does not necessarily follow that at the
stage of section 11 the Chief Justice of India or his designate cannot decide a question as to the existence of the
arbitration clause.
 Now Section 16 of the new Act permits the arbitral tribunal to treat the arbitration clause as an independent clause
and section 16 says that the arbitration clause does not perish even if the main contract is declared to be null and
void. Keeping these latter and other similar situations apart, I am of the view that in cases where a dispute raised at
the stage of the application under section 11 that there is no arbitration clause at all, then it will be absurd to refer
the very issue to an arbitrator without deciding whether there is an arbitration clause at all between the parties to
start with. In my view, in the present situation, the jurisdiction of the Chief Justice of India or his designate to
decide the question as to the 'existence' of the arbitration clause cannot be doubted and cannot be said to be
excluded by section 16. Further, a reading of sub-clauses (4),(5) and (6) of section 11 shows that they enable the
Chief Justice or his designate to appoint arbitrator or arbitrators, and likewise section 11(12) enables the Chief
Justice of India or his designate to appoint arbitrator or arbitrators; under Rule 2 of the scheme framed by the Chief
Justice of India, a request is to be made to the Chief Justice of India alongwith with a duly certified copy of the
'original arbitration agreement'.

 Aurohill Global Commodities Ltd. vs M.S.T.C. Ltd. on 31 July, 2007
M/s Aurohill Global Commodities Ltd. has filed an arbitration application herein
under Section 11(9) read with Section 11(5) of the Arbitration and Conciliation Act,
1996 (the "said Act") for the appointment of arbitrators to settle the dispute
between the said company and M/s M.S.T.C. Ltd. (PSU).
 The alleged contract is an international transaction, therefore, this Court has the
power to appoint an arbitrator in accordance with the terms of the contract. Under
the said Act, the arbitral tribunal has very wide powers. The powers of the courts
have been curtailed.
 The arbitral tribunal's authority under Section 16 of the said Act is not confined to
the width of its jurisdiction but goes to the very root of its jurisdiction.
 In Reva Electric Car v. Green Mobil,2012 wherein it was inter alia observed as
follows: “ Under Section 16(1), the legislature makes it clear that while considering
any objection with respect to the existence or validity of the arbitration agreement,
the arbitration clause which formed part of the contract, has to be treated as an
agreement independent of the other terms of the contract. To ensure that there is
no misunderstanding, Section 16(1)(b) further provides that even if the Arbitral
Tribunal concludes that the contract is null and void, it should not result, as a
matter of law, in an automatic invalidation of the arbitration clause. Section
16(1)(a) presumes the existence of a valid arbitration clause and mandates the same
to be treated as an agreement independent of the other terms of the contract. By
virtue of Section 16(1)(b), it continues to be enforceable notwithstanding a
declaration of the contract being null and void.

 The concept of separability of the arbitration clause/agreement
from the underlying contract is a necessity to ensure that the
intention of the parties to resolve the disputes by arbitration
does not evaporate into thin air with every challenge to the
legality, validity, finality or breach of the underlying
contract. The Indian Arbitration Act, 1996, as noticed above,
under Section 16 accepts the concept that the main contract and
the arbitration agreement form two independent contracts.
Commercial rights and obligations are contained in the
underlying, substantive, or the main contract. It is followed by a
second contract, which expresses the agreement and the
intention of the parties to resolve the disputes relating to the
underlying contract through arbitration. A remedy is elected by
parties outside the normal civil court remedy. It is true that
support of the National Courts would be required to ensure the
success of arbitration, but this would not detract from the
legitimacy or independence of the collateral arbitration
agreement, even if it is contained in a contract, which is claimed
to be void or voidable or unconcluded by one of the parties.

OLYMPUS SUPERSTRUCTURES PVT. LTD.
Vs.MEENA VIJAY KHETAN
The time limits set in Arbitration Clause (2)
and (3) of Section 16 are mandatory and do
not permit the said question to be raised at a
later point of time even under Section 34.

 Under Section 16, a party can challenge the composition
of the arbitral tribunal before the arbitral tribunal itself.
Such a challenge must be taken, under Section 16(2),
not later than the submission of the statement of
defence.
 Section 16(2) makes it clear that such a challenge can
be taken even though the party may have participated in
the appointment of the arbitrator and/or may have
himself appointed the arbitrator. Needless to state a
party would be free, if he so choose, not to raise such a
challenge.
 Thus a conjoint reading of Sections 10 and 16 shows that
an objection to the composition of the arbitral tribunal
is a matter which is derogable. It is derogable because a
party is free not to object within the time prescribed
in Section 16(2). If a party chooses not to so object
there will be a deemed waiver under Section 4.

 Section 16 empowers the arbitral tribunal to rule on its own as well as on objections with respect
to the existence or validity of the arbitration agreement. Conferment of such power on the
arbitrator under 1996 Act indicates the intention of the legislature and its anxiety to see that the
arbitral process is set in motion. This being the legislative intent, it would be proper for the Chief
Justice or his nominee just to appoint an arbitrator without wasting any time or without
entertaining any contentious issues at that stage, by a party objecting to the appointment of an
arbitrator. If this approach is adhered to, then there would be no grievance of any party and in the
arbitral proceeding, it would be open to raise any objection, as provided under the Act.
 If it is held that an order under Section 11(6) is a judicial or quasi-judicial order then the said
order would be amenable for judicial intervention and any reluctant party may frustrate the entire
purpose of the Act by adopting dilatory tactics in approaching a court of law even against an order
of appointment of an arbitrator. Such an interpretation has to be avoided in order to achieve the
basic objective for which the country has enacted the Act of 1996 adopting Uncitral Model.
 If on the other hand, it is held that the order passed by the Chief Justice under Section 11(6) is
administrative in nature, then in such an event in a case where the learned Chief Justice or his
nominee refuses erroneously to make an appointment then an intervention could be possible by a
court in the same way as an intervention is possible against an administrative order of the
executive. In other words, it would be a case of non- performance of the duty by the Chief Justice
or his nominee, and therefore, a mandamus would lie. If such an interpretation is given with
regard to the character of the order that has been passed under Section 11(6) then in the event an
order of refusal is passed under Section 11(6) it could be remedied by issuance of a mandamus. We
are persuaded to accept the second alternative inasmuch as in such an event there would not be
inordinate delay in setting the arbitral process in motion. But, as has been explained earlier in the
earlier part of this judgment, the duty of the Chief Justice or his nominee being to set the arbitral
process in motion it is expected that invariably the Chief Justice or his nominee would make an
appointment of arbitrator so that the arbitral proceeding would start as expeditiously as possible
and the dispute itself could be resolved and the objective of the Act can be achieved.

 WHERE APPOINTMENT OF ARBITRATOR IS
MADE BY THE COURT, CAN THE APPOINTED
ARBITRATOR GO BEHIND DECISION OF
CHIEF JUSTICE?APS KHUSHWA V. MUNICIPAL
CORPORATION CASE, 2011

 Supreme Court in case of National Aluminium Company Limited v/s. Subhash Infra
Engineers Pvt. Ltd. and another, 2019 SCCOnline SC 1091 has held that any objection
with respect to existence or validity of the arbitration agreement can be raised only
by way of an application under Section 16 of the Arbitration Act. Such party who
seeks to raise such objection cannot maintain a suit for declaration and injunction
with such plea before the Civil Court.
 Supreme Court in the case of M/s.Canara Nidhi Limited Vs. M. Shashikala & Ors.
2019 SCCOnline SC 1244 has held that proceedings under Section 34 of the Act is
summary in nature. The scope of enquiry in the proceedings under Section 34 of the
Act is restricted to a consideration whether any of the grounds mentioned in Section
34(2) or Section 13(5) or Section 16(6) are made out to set aside the award. The
grounds for setting aside the award are specific. It is imperative that the arbitration
cases under Section 34 of the Act should be decided only with reference to the
pleadings and the evidence placed before the Arbitral Tribunal and the grounds
specified under Section 34(2) of the Act. Legal position is clarified that an
application for setting aside an arbitral award will not ordinarily require anything
beyond the record that was before the arbitrator. Cross examination of persons
swearing in to the affidavits should not be allowed unless absolutely necessary. It is
held that High Court did not keep in view that respondents had not made out
grounds that it is an exceptional case to permit them to adduce evidence in the
application under Section 34 of the Act. The said directions of the High Court
amount to retrial on the merits of the issues decided by the arbitrator.

 Bombay High Court in the case of Rajesh
Pravinchandra Rajygor Vs. Nitin Harjivandas
Rajygor, (2015) SCC OnLine Bom 4180 has held
that filing of statement of claim under Section
23 of the Arbitration Act is mandatory and the
said requirement is not derrogable. Objection
not raised by the respondent about the claimant
not filing of statement of claim by filing an
application under Section 16 of the Arbitration
Act would not amount to waiver. Such objection
can be raised for the first time in the application
under Section 34. The arbitrator cannot collect
evidence in absence of one party. Such award
shows perversity and can be set aside under
Section 34.

(1) A party may, during the arbitral proceedings apply to the arbitral tribunal—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral
proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration
agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in
arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any
person to enter upon any land or building in the possession of any party, or authorising any samples to be
taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the
purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and
the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in
relation to, any proceedings before it.
(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this
section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of
Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court.

Note: Sec. 17 allows Interim measures by arbitral tribunal only in one situation:- during the arbitral
proceedings
Here, sec. 17 is different from sec. 9
 Prior to 2015, all the six different circumstances were not included.
 Now, Interim measure by tribunal shall be deemed to be an order of the Court for all purposes and shall
be enforceable under CPC, 1908.
Alka Chandewar vs Shamshul Ishrar Khan, (2017) 16 SCC 119
Section 17(2) was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral
Tribunal having to apply every time to the High Court for contempt of its orders would no longer be
necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be
enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court.
Thus we do not find Shri Rana Mukherjee's submission to be of any substance in view of the fact
that Section 17(2) was enacted for the purpose of providing a “complete solution” to the problem.
State of Gujarat v. Amber Builders [Judgment dated January 8, 2020 in Civil Appeal No. 8307 of 2019] The
Court held that on a conjoint reading of the Acts together, it is clear that the powers vested in the Tribunal
in terms of Section 17 of the A&C Act are concerned, such powers can be exercised by Arbitral Tribunal
constituted under the Gujarat Act because there is no inconsistency in these two Acts as far as the grant of
interim relief is concerned.
 Sona Corporation India Private Limited v. Ingram Micro India Private Limited [Judgment dated
20.01.2020 in ARB. A. (COMM.) 4/2019, Delhi HC] the Court held that there was no bar in law for an
arbitral tribunal to pass an order in a subsequent application filed before it under Section 17 of the
Arbitration Act, in variation of an order passed in the original Section 17 application, if it could be
demonstrated that material subsequent developments had occurred in the interregnum.

Sec.18- Equal treatment of parties—
The parties shall be treated with equality and each party shall be given a full
opportunity to present his case.
 The parties must be treated alike. Each party must have the same opportunity to put
forward his own case, and to test that of the opponent.
 The non-observance of natural justice is itself prejudice to any man and proof of prejudice
independently of proof of denial of natural justice is unnecessary.
 The rule of natural justice requires that parties should be given an opportunity to be
heard by the arbitrators, which means whatever material they want to place before the
arbitrators should be allowed to be placed.

Rudramani Devaru v. Shrimad Maharaj Niranjan Jagadguru, (2005)
The minimum requirements of a proper hearing should include:
(i) each party must have notice that the hearing is to take place and of the
date, time and place of holding such hearing;
(ii) each party must have a reasonable opportunity to be present at the
hearing along with his witnesses and legal advisers, if any, if allowed;
(iii) each party must have an opportunity to be present throughout the
hearing;
(iv) each party must have a reasonable opportunity to present statements,
documents, evidence and arguments in support of his own case;
(v) each party must be supplied with the statements, documents and
evidence adduced by the other side;
(vi) each party must have a reasonable opportunity to cross-examine his
opponent’s witnesses and reply to the arguments advanced in support of
his opponent’s case.
(vii) Each party to arbitration reference is entitled to advance notice of any
hearing and of any meeting of the arbitral tribunal as provided under
S.24 of the Act.

(1) The arbitral tribunal shall not be bound by the
Code of Civil Procedure, 1908 (5 of 1908) or the
Indian Evidence Act, 1872 (1 of 1872).
(2) Subject to this Part, the parties are free to
agree on the procedure to be followed by the
arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-
section (2), the arbitral tribunal may, subject to
this Part, conduct the proceedings in the manner
it considers appropriate.
(4) The power of the arbitral tribunal under sub-
section (3) includes the power to determine the
admissibility, relevance, materiality and weight
of any evidence.
 Can the arbitrator proceed ex-parte?

 Shri Ram Niranjan v. Union of India (2001)
As per terms of the arbitration agreement, both the
parties were required to nominate their respective
arbitrators.
Delay occurred on the part of one party to nominate its
arbitrator. Thereupon, the nominee-arbitrator of the
other party started conducting arbitration
proceedings ex parte in a tearing haste without
waiting for other party.
He not only proceeded ex parte on same date but also
recorded statement of witness and heard arguments.
It was held that the procedure adopted by the
arbitrator was in violation of the principles of natural
justice and the award rendered by him was set aside.
 Kalyan Corp. v. Dulhin bibi , 1996

1) The parties are free to agree on the place of
arbitration.
(2) Failing any agreement referred to in sub-
section (1), the place of arbitration shall be
determined by the arbitral tribunal having
regard to the circumstances of the case,
including the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section
(2), the arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it
considers appropriate for consultation among its
members, for hearing witnesses, experts or the
parties, or for inspection of documents, goods or
other property.

Sulaikha Clay Mines vs Alpha Clays , AIR 2005 Ker 3
Oral hearings were granted by the tribunal at the premises of
the parties without notice to the other. Inspections were
conducted without notice to both parties. Notes of
inspections were also not given to the parties. Hearing of
one party, in the absence of other, violates the
fundamental principles of natural justice, apart from
violation of Section 24(2) as notice of hearing was not
given to the parties. It is not that one party did not appear
after receiving notice. No notice of hearing was given to
the other side when the arbitrator decided to hear
opposite side in the residence or office of the
respondent.Place of arbitration was also not determined
and not intimated to the parties. Parties were not treated
equally. In the above circumstances, there is violation
of Sections 18, 19, 20 and 24(2) and (3) of the Act and the
court simply set aside the award under Section
34(2)(a)(iii) and (v) of the Act.

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
particular dispute commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent.
 Sec. 21 is necessary to be followed when the parties have not named the arbitrator.
 The commencement of arbitral proceedings is not on the day when arbitrator enters
upon reference (or called upon to act as an arbitrator) but on the date on which a
request for that dispute to be referred to arbitration is received by the respondent.
 SEC. 21 mentions about when request is made by one party and not whether request
is assented by other or not.
 The request for reference should include particulars of all the disputes.
 REFERENCE CAN BE UNILATERAL OR BILATERAL?
In Bhanwarilal v. P.C.Agarwal, AIR 1985 SC 1003
The question in issue was whether fresh assent of both the parties for the actual
reference is necessary or not. The Court held it depends upon whether arbitration
agreement as defined in s.2(a) of the Act only then clearly the actual reference to
arbitration would be consensual and not unilateral and no fresh assent of the parties
would be necessary nor will resort to s.20 be necessary. Reference can be unilateral.
 Firm Ashok Traders v. Gurumukh Das Saluja, AIR 2004 SC 4564
The commencement of arbitration proceedings under Sec. 21 is not dependent on
interim measures being allowed or denied in Sec.9 of the Act.

 22. Language.—(1) The parties are free to agree upon the
language or languages to be used in the arbitral proceedings.
 (2) Failing any agreement referred to in sub-section (1), the
arbitral tribunal shall determine the language or languages to be
used in the arbitral proceedings.
 (3) The agreement or determination, unless otherwise specified,
shall apply to any written statement by a party, any hearing and
any arbitral award, decision or other communication by the
arbitral tribunal.
 (4) The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the language
or languages agreed upon by the parties or determined by the
arbitral tribunal.
 This provision is incorporated in 1996 Act. In 1940, there was no
provision on language.
 Also, Keeping in view that parties from different countries are
entering into arbitration, the provision on language is much
needed.

 (1) Within the period of time agreed upon by the parties or determined
by the arbitral tribunal, the claimant shall state the facts supporting his
claim, the points at issue and the relief or remedy sought, and the
respondent shall state his defence in respect of these particulars, unless
the parties have otherwise agreed as to the required elements of those
statements.
 (2) The parties may submit with their statements all documents they
consider to be relevant or may add a reference to the documents or
other evidence they will submit.
 (2A) The respondent, in support of his case, may also submit a
counterclaim or plead a set-off, which shall be adjudicated upon by the
arbitral tribunal, if such counterclaim or set-off falls within the scope of
the arbitration agreement.
 (3) Unless otherwise agreed by the parties, either party may amend or
supplement his claim or defence during the course of the arbitral
proceedings, unless the arbitral tribunal considers it inappropriate to
allow the amendment or supplement having regard to the delay in
making it.
 “(4) The statement of claim and defence under this section shall be
completed within a period of six months from the date the arbitrator or
all the arbitrators, as the case may be, received notice, in writing, of
their appointment.”.

 Claim means not only monetary claims but also includes any right
of which the party is likely to be deprived because of dispute or
difference arising between them in relation to the contract.
S. 23(1)-
 It gives freedom to the parties to prescribe the time limit for
submission of statements before tribunal.
 What will be included in claims by claimant?- three points (facts
supporting his claim, the points at issue and the relief or remedy
sought)
 What will be stated in defence by respondent? (the respondent
shall state his defence in respect of above particulars)
S. 23(2)- It gives option to the parties to submit the relevant
document. After 2015 Amdt., the respondent may submit counter
off or plead set off.
S.23(3)- Amendment or supplement of claim or defence – is allowed
only when tribunal considers it appropriate.
S. 23(4)- Time limit of 6 months for statement of claim and
defence. It is counted from the date arbitrator/s received notice
of appointment in writing.

 In Jeypore Sugar Co. v. Laxmi Organic Industries Ltd, AIR
2016 NOC 288 (Mad)
The arbitrator has not only to entertain a counter claim, he
has to decide it with a statement of reasons.
Bombay High Court in the case of Rajesh Pravinchandra
Rajygor Vs. Nitin Harjivan das Rajygor, (2015) SCC
OnLine Bom 4180 has held that filing of statement of
claim under Section 23 of the Arbitration Act is mandatory
and the said requirement is not derrogable. Objection not
raised by the respondent about the claimant not filing of
statement of claim by filing an application under Section
16 of the Arbitration Act would not amount to waiver. Such
objection can be raised for the first time in the application
under Section 34. The arbitrator cannot collect evidence in
absence of one party. Such award shows perversity and can
be set aside under Section 34.

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to
hold oral hearings for the presentation of evidence or for oral argument, or whether
the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of
the proceedings, on a request by a party, unless the parties have agreed that no oral
hearing shall be held:
Provided further that the arbitral tribunal shall, as far as possible, hold oral hearings
for the presentation of evidence or for oral argument on day-to-day basis, and not
grant any adjournments unless sufficient cause is made out, and may impose costs
including exemplary costs on the party seeking adjournment without any sufficient
cause.
(2) The parties shall be given sufficient advance notice of any hearing and of any
meeting of the arbitral tribunal for the purposes of inspection of documents, goods
or other property.
(3) All statements, documents or other information supplied to, or applications made to
the arbitral tribunal by one party shall be communicated to the other party, and any
expert report or evidentiary document on which the arbitral tribunal may rely in
making its decision shall be communicated to the parties.
By 2015 Amendment, Section 24 of the Act is amended. Second Proviso to sub-section
(1) of Section 24 is inserted. It is provided that the arbitral tribunal shall, as far as
possible, hold oral hearings for the presentation of evidence or for oral argument on
day-to-day basis, and not grant any adjournments unless sufficient cause is made
out, and may impose costs including exemplary costs on the party seeking
adjournment without any sufficient cause.

 Padam Chand Jain v. Hukam Chand Jain (1999)
When the arbitrator accepts documents from one party in the absence of
the other party, the arbitrator would be guilty of misconducting the
proceedings because no arbitrator can accept document from one party
at the back of the other.
 Damodar Prasad Gupta v. Saxena, AIR 1959 Punj 476
In the absence of specific provisions to the contrary in the statute or the
contract of agreement, the parties to an arbitration proceeding are
entitled to a reasonable notice of the time and place of the hearing and
have an absolute right to be heard and to present their evidence before
the arbitrators. If they are deprived of this right the Court will not
hesitate to set aside the award on the ground of misconduct even though
there may have been no improper intention. The rule that the parties to
an arbitration agreement have a right to be heard is however, subject to
the qualification that where the agreement of submission provided in
clear and unequivocal language that the arbitrator may proceed in the
absence of the parties or that he may or may not hear the witnesses, or
that he may give his award without enquiry, the award will not be
invalidated on the ground that the arbitrator had refused to hear
evidence. If the arbitrator acts within the scope of the authority
conferred upon him by the agreement of the parties and if he keeps
himself within the jurisdiction so conferred his award is as valid and
binding as the judgment of a Court of law.

 25. Default of a party.—
 Unless otherwise agreed by the parties, where, without showing sufficient cause,—
 (a) the claimant fails to communicate his statement of claim in accordance with
sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;
 (b) the respondent fails to communicate his statement of defence in accordance
with sub-section (1) of section 23, the arbitral tribunal shall continue the
proceedings without treating that failure in itself as an admission of the allegations
by the claimant and shall have the discretion to treat the right of the respondent to
file such statement of defence as having been forfeited.
 (c) a party fails to appear at an oral hearing or to produce documentary evidence,
the arbitral tribunal may continue the proceedings and make the arbitral award on
the evidence before it.
Section 25 of the Act is also amended. In view of amendment in clause (b) of Section
25, the arbitral tribunal has discretion to treat the right of the respondent to file
such statement of defence as having been forfeited in case of failure of the
respondent to communicate his statement of defence in accordance with sub-
section (1) of Section 23.
Sec. 2(9) provides that a claim would include a counter claim.

In the case of Juggilal Kamalapat v. General Fibre Dealers Ltd., AIR 1955 Cal 354 the Division Bench
stated the principles governing the arbitrator's right to proceed ex parte were:
(1) If a party to an arbitration agreement had failed to appear at one of the sittings, the arbitrator
could not or, at least ought not to, proceed ex parte against him at that sitting.
(2) Where non-appearance was accidental or casual, the arbitrator should ordinarily proceed in the
ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting
party.
(3) If, on the other hand, it appears that the defaulting party had absented himself, for defeating the
object of the reference, the arbitrator should issue a notice that he intended at specified time
and place to proceed with the reference and that if the party concerned did not attend he would
proceed in his absence.
(4) But if after making such peremptory appointment issuing such a notice the arbitrator did not in
fact proceed ex parte on the day fixed, but fixed another subsequent date, he could not proceed
ex parte on such subsequent date, unless he issued a similar notice in respect of that date as well.
(5) If he issued a similar notice and the party concerned did not appear, an award made ex parte
would be in order.
But, if he did not issue such notice on the second occasion but nevertheless proceeded ex parte, the
award would be liable to be set aside in spite of a notice of peremptory hearing having been given
in respect of the earlier date, subject however to the condition that prejudice was caused to the
party against whom the ex parte order was made. But this duty to give notice of the intention to
proceed ex parte was not an absolute one. Where a party by its conduct had made his position
clear that he would not attend in any event then the formality need not be followed. Bearing the
aforesaid principles, in this case, it appears that from the previous conduct of the petitioner there
was no evidence that the petitioner would not attend the arbitration proceedings. On the other
hand, the petitioner had in fact, attended the previous arbitration sitting and had suggested that a
date might be fixed after the second week of June when he would attend.

 This principle adopted by Calcutta High Court in Juggilal Kamlapat v. General Fibre
Dealers Ltd. AIR 1955 Calcutta 354(DB) held that if a party fails to attend the
arbitration hearing on the due date and time, the arbitrator is at liberty to proceed
ex parte, though it is advisable, but not compulsory, that he should give that party
notice of his intention to proceed ex parte, if he is absent in the next hearing.
 Once an arbitrator makes known his intention to proceed ex parte and it is duly
noted by the parties, the act of a party in not putting up an appearance on the next
date fixed, would empower the arbitrator to proceed ex parte and such an act of
the arbitrator does not amount to misconduct as held in Dalmia Cement (Bharat)
Ltd. v. Advance Commercial Co. Ltd. (Del). Since provisions of CPC is not strictly
applicable in arbitration proceedings, even if one party is absent and arbitral
tribunal declared him ex parte, if the case is not finished on that day and the case is
only adjourned without deciding the case, both sides can appear in the next
adjournment date.
 The meaning of the expression 'ex parte' has been considered by the Supreme Court
in Sangram Singh v. Election Tribunal Kotah AIR 1955 SC 425 at 431. Referring to the
judgment of Wallace, J. in Venkatasubbiah v. Lakshminarasimham AIR 1925
Madras Kvm ARBP304.14 1274, the Apex Court opined that 'ex parte' only means in
the absence of other party. In an ex parte proceedings, the Court can proceed with
the case if one party is absent without sufficient cause and due notice, as if that
party is present.

For constituting a reasonable opportunity, the following conditions are required to be observed:
(1) Each party must have notice that the hearing is to take place.
(2) Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses.
(3) Each party must have the opportunity to be present throughout the hearing.
(4) Each party must have a reasonable opportunity to present evidence and argument in support of his own case.
(5) Each party must have a reasonable opportunity to test his opponent's case by cross-examining his witnesses, presenting rebutting evidence and
addressing oral argument.
(6) The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument."
18. Indisputably, the arbitrators would in law neglect their duty if they do not listen to one party who might be interested either in controverting or who
is legally entitled to controvert the claim of the party approaching them. Similarly, the person who is to be affected by the evidence ought to be
present to hear it so that he would be able to meet and answer it. The arbitrator is ordinarily free from the fetters of procedural law but that does
not make him free from the fundamental principles of justice. Though the arbitrator may not strictly follow the rules and procedures as observed
by the civil court but at the same time it would not imply that the arbitrary tribunal can ignore or circumvent the principles of natural justice and
fair procedure. The omission in giving notice to a party before proceeding ex- party is a serious irregularity in the procedure and amounts to
misconduct. It is a salutary principle of natural justice that nobody should be condemned unheard.
19. In Halsbury's Laws of England, Fourth Edition, Vol. 2 Page 590, page 306 it has been stated as under:
"Where the arbitrator proposes to proceed with the reference notwithstanding the absence if one of the parties, it is advisable that he should give that
party distinct notice of his intention to do so. If reasonable excuse for not attending the appointment can be shown, the court will set aside an
award made by an arbitrator who has proceeded ex parte."
20. In Russell on Arbitration, Nineteenth Edition, page 271 the following passage appears.
" Notice of intention to proceed ex parte- In general, the arbitrator is not justified in proceeding ex parte, without giving the party absenting himself,
due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator's intention clearly,
otherwise the award may be set aside. An ordinary appointment for a meeting with the addition of the word" "Peremptory" marked on it is,
however, sufficient.
If the arbitrator declines to proceed on the first failure to attend a peremptory appointment, and gives another appointment, he is not authorised to
proceed ex-parte at the second meeting, unless the appointment for it was also marked "peremptory" or contained a similar intimation of his
intention."
24. As already discussed above, the arbitral tribunal has acted in utter haste in rushing through the arbitration proceedings without affording proper and
adequate opportunity to the appellant in presenting its case, we, therefore, feel that the interest of justice will be best served if we refer the
matter again to a sole arbitrator to adjudicate the disputes between the parties afresh after giving due opportunity to both the parties.

(1) Unless otherwise agreed by the parties, the arbitral tribunal
may—
(a) appoint one or more experts to report to it on specific issues to
be determined by the arbitral tribunal, and
(b) require a party to give the expert any relevant information or to
produce, or to provide access to, any relevant documents, goods
or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or
if the arbitral tribunal considers it necessary, the expert shall,
after delivery of his written or oral report, participate in an oral
hearing where the parties have the opportunity to put questions
to him and to present expert witnesses in order to testify on the
points at issue.
(3) Unless otherwise agreed by the parties, the expert shall, on the
request of a party, make available to that party for examination
all documents, goods or other property in the possession of the
expert with which he was provided in order to prepare his report.

 HCL v. Union of India, 2019

(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court
for assistance in taking evidence.
(2) The application shall specify—
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular,— (i) the name and address of any person to be heard as
witness or expert witness and a statement of the subject-matter of the testimony required; (ii)
the description of any document to be produced or property to be inspected.
(3) The Court may, within its competence and according to its rules on taking evidence, execute the
request by ordering that the evidence be provided directly to the arbitral tribunal.
(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses
as it may issue in suits tried before it.
(5) Persons failing to attend in accordance with such process, or making any other default, or refusing
to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of
arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by
order of the Court on the representation of the arbitral tribunal as they would incur for the like
offences in suits tried before the Court.
(6) In this section the expression “Processes” includes summonses and commissions for the
examination of witnesses and summonses to produce documents.
 Section 27 provides for Court assistance in taking evidence. Under Section 27(5), if any person fails
to attend in accordance with such process issued by the Court under Section 27(1) or commits any
other default or refuses to give their evidence or guilty of any contempt to the arbitral tribunal
during the conduct of arbitral proceedings, such person shall be subject to the like disadvantages,
penalties and punishments by order of the Court on the representation of the arbitral tribunal as
they would incur for the like offences in suits tried before the Court.

(1) Where the place of arbitration is situate in India,—
(a) in an arbitration other than an international commercial arbitration, the
arbitral tribunal shall decide the dispute submitted to arbitration in
accordance with the substantive law for the time being in force in India;
(b) in international commercial arbitration,—
(i) the arbitral tribunal shall decide the dispute in accordance with the
rules of law designated by the parties as applicable to the substance of
the dispute;
(ii) any designation by the parties of the law or legal system of a given
country shall be construed, unless otherwise expressed, as directly
referring to the substantive law of that country and not to its conflict of
laws rules;
(iii) failing any designation of the law under clause (a) by the parties, the
arbitral tribunal shall apply the rules of law it considers to be
appropriate given all the circumstances surrounding the dispute.
(2) The arbitral tribunal shall decide ex aequo et bono or as amiable
compositeur only if the parties have expressly authorised it to do so.
(3) While deciding and making an award, the arbitral tribunal shall, in all
cases, take into account the terms of the contract and trade usages
applicable to the transaction.

 Section 28 (1) of the Act provides that the where the
place of arbitration is situate in India, in an
arbitration other than an international commercial
arbitration, the arbitral tribunal shall decide the
dispute submitted to arbitration in accordance with
the substantive law for the time being in force in
India.
 Section 28(3) provides that in all cases the arbitral
tribunal shall decide in accordance with the terms of
the contract and shall take into account the trade
usages applicable to the transaction.
 Section 28 of the Act is amended in 2015. Sub-
section (3) of Section 28 is substituted which provides
that the arbitral tribunal shall, in all cases, take into
account the terms of the contract and trade usages
applicable to the transaction

An Indian Company, National Thermal Power Corporation (NTPC) entered into two contracts with foreign company, Singer
Company, for the supply of equipment, erection and commissioning of certain works in India. The general terms and
conditions of contract incorporated in the agreements state:
“The laws applicable to this contract shall be the laws in force in India. The courts of Delhi shall have exclusive
jurisdiction in all matters arising under this contract”.
The terms of the contracts include also a clause for submission of disputes for arbitration wherein the place of arbitration
was left to the choice of the arbitrators. The parties had contractually chosen rules of the International Chambers of
commerce (ICC) for conduct of arbitration.
In compliance with their agreed terms the parties submitted themselves for arbitration conducted by ICC in London,
having been chosen by the ICC arbitrators as the venue. The award was made in London as an interim award in
respect of contracts entered into between NTPC and Singer Company. The contract was governed by Indian Law,
entered into in India for its performance solely in India. The only meaningful foreign element present in the facts is
the venue of arbitration.
NTPC had filed an application under the provisions of the Arbitration Act., 1940 before the Delhi High Court to set aside
the interim award made in London by a tribunal constituted by ICC. The same was dismissed by riding that:
“The award was not governed by the Arbitration Act. 1940. The arbitration agreement on which the award was made
was not governed by the law of India, the award fell within the ambit of the Foreign Awards (Recognition and
Enforcement) Act., 196l. London being the seat of arbitration, English Courts alone had jurisdiction to set aside the
award, and the Delhi High Court had no jurisdiction to entertain the application filed under the Arbitration Act”.
As against this ruling NTPC appealed to the Supreme Court.
The point for consideration was whether the award in question was governed by the provisions of the Arbitration Act, and
as such became relevant for the courts in India only for the purposes of recognition and enforcement as the statute
indicated.
The court discussed the whole concept of proper law of contract. This court also considered at length the proper law of
arbitration. After a thorough analysis of the doctrine of proper law of contract on the basis of the leading case law
and juristic writing. the court summarised the current legal position thus: –
“Proper law is thus the law which the parties have expressly or impliedly chosen, or which is imputed to them by reason
of its closest and most intimate connection with the contract It must, however. be clarified that the expression
‘proper law’ refers to the substantive principles of the domestic law of the chosen system and not to its conflict of
laws rules. The law of contract is not affected by the doctrine of renvoi.”
According to the court, in the present cast the parties have satisfied the above stated rule in as much as they have clearly
and categorically stipulated that their contract, made in India to be performed in India, was to be governed by the
laws in force in India and the courts in India were to have exclusive jurisdiction in all matters arising under their
contract. The Supreme Court thereafter, examined the law of arbitration in two aspects namely,
(i) the law governing the arbitration agreement i.e. its proper law and
(ii) the court has clearly distinguished the law of arbitration in term of substantive and procedural aspects.

For the purpose of the present case such an approach was essential since the parties had never expressed their intention
to choose London as the arbitral tribunal: but at the time they had stipulated that the arbitration would be
conducted in accordance with ICC rules and accordingly London was chosen by the arbitral tribunal constituted by
the International Court of Arbitration of ICC as the place of arbitration. The court pointed out that the parties were
free under ICC rules to determine the law which the arbitrator shall apply to the merits of the dispute and in the
absence of any stipulation by the parties to the applicable law; the arbitrators may apply the law designated as the
proper law by the rules of conflict. However, the court expressed the view, that these self contained and self
regulating ICC rules are subject to the over riding powers of the appropriate national courts.
In the context of the two propositions pertaining to arbitration, stated earlier, the court observed that the proper law of
arbitration agreement is normally the same as the proper law of the contract… .
The parties have the freedom to choose the law governing an international commercial arbitration agreement. They may
choose the substantive law governing the arbitration agreement as well as the procedural law governing the conduct
of the arbitration… the arbitration proceedings are conducted, in the absence of any agreement to the contrary in
accordance with the law of country in which the arbitration is held.
In the opinion of the court an award is foreign not merely because it is made in the territory of a foreign state, but
because it is made in such territory on an arbitration agreement not governed by the law of India. Accordingly it said
that an award made in pursuance of an arbitration agreement governed by the law of India though rendered outside
India, was not treated in India as a foreign award.
In the final analysis, the Supreme Court agreed with the tribunals ruling that the substantive law of the contract is Indian
law and the laws of England governed procedural matters in the arbitration. On the facts of the case the apex court
ruled that the award in question is an Indian award or a domestic award under the Indian Arbitration Act, although
the dispute as with a foreigner and the arbitration itself was conducted and the award was made in a foreign state.
The other relevant factors that the court took into consideration were parties had expressly chosen the Indian law as the
applicable law to the contract, courts of Delhi to have exclusive jurisdiction “in all matters arising under this
contract”, agreement was executed in Delhi. the contract to be performed in India, the form of agreement closely
related to the system of law in India, various Indian enactments were specifically mentioned in the agreement as
applicable and the arbitration agreement was contained in one of the clauses of the contract and not in a separate
agreement. The governing rule of the contract being Indian law, arbitration agreement also would necessarily be
governed by Indian law excepting the procedural aspects of the arbitration which, due to the fact of being conducted
in a foreign country would be governed by the law of that country i.e. the law of England in the instant case.
In the result, the Supreme Court set aside the impugned judgement of the Delhi High Court and allowed the present
appeal.

Dicey & Morris in The conflict of Laws, 11th edn., Vol. II ('Dicey') refer to the 'proper law of a contract' thus :
"Rule 180 - The term 'proper law of a contract' means the system of law by which the parties intended the contract to
be governed or, where their intention is neither expressed nor to be inferred from the circumstances, the system of
law with which the transaction has its closest and most real connection." (pages 1161-62) The expression 'proper law
of a contract' refers to the legal system by which the parties to the contract intended their contract to be governed.
If their intention is expressly stated or if it can be clearly inferred from the contract itself or its surrounding
circumstances, such intention determines the proper law of the contract. In the words of Lord Herchell, L.C. :
"...In this case, as in all such cases, the whole of the contract must be looked at, and the contract must be regulated by
the intention of the parties as appearing from the contract. It is perfectly competent to those who, under such
circumstances as I have indicated, are entering into a contract, to indicate by the terms which they employ which
system of law they intend to be applied to the construction of the contract, and to the determination of the rights
arising out of the contract".
Hamlyn & Co. v. Talisker Distillery, (1891-4) All E.R. 849 at 852.
Where, however, the intention of the parties is not expressly stated and no inference about it can be drawn, their
intention as such has no relevance. In that even, the courts endeavour to impute an intention by identifying the legal
system with which the transaction has its closest and most real connection.
The expressed intention of the parties is generally decisive in determining the proper law of the contract. The only
limitation on this rule is that the intention of the parties must be expressed bona fide and it should not be opposed to
public policy. In the words of Lord Wright :-
".....where there is an express statement by the parties of their intention to select the law of the contract, it is
difficult to see ____________________________________________________________ Rule 180 is further elucidated
by Dicey in the sub- rules. Sub-rule (1) reads :- Sub-rule (1) - When the intention of the parties to a contract,as to the
law governing the contract, is expressed in words, this expressed intention, in general, determines the proper law of
the contract.”what qualifications are possible, provided the intention expressed is bona fide and legal, and provided
there is no reason for avoiding the choice on the ground of public policy........"

Sec. 29. Decision making by panel of arbitrators
(1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a
majority of all its members.
(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by
the presiding arbitrator.
Sec. 29A.Time limit for arbitral award
“(1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from
the date of completion of pleadings under sub-section (4) of section 23:
Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavour may be made to
dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be
entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the
arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period:
Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons
attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such
delay.
“Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said
application:
Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.”.
(5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause
and on such terms and conditions as may be imposed by the Court.
(6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of
the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and
material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the
previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the
matter within a period of sixty days from the date of service of notice on the opposite party.

 Sub-section (1) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides
that the award shall be made within a period of twelve months from the date of
completion of pleadings.
 Sub-section (2) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides
that if the award is made within a period of six months from the date the arbitral
tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive
such amount of additional fees as the parties may agree.
 Sub-section(3) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides
that the parties may, by consent, extend the period specified in sub-section (1) for
making award for a further period not exceeding six months.
 Subsection (4) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides
that if the award is not made within the period specified in sub-section (1) or the
extended period specified under sub-section (3), the mandate of the arbitrator(s)
shall terminate unless the Court has, either prior to or after the expiry of the period
so specified, extended the period.
 If the Court finds that the proceedings have been delayed for the reasons
attributable to the arbitral tribunal, then, the Court may pass an order for
reduction of fees of arbitrator(s) by not exceeding five per cent for each month of
such delay. Also, the mandate of the arbitrator shall continue till the disposal of the
said application. The arbitrator shall be given an opportunity of being heard before
the fees is reduced
 Sub-section(5) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides
that the extension may be granted only for sufficient cause and on such terms and
conditions as may be imposed by the Court. Pleadings have to be filed within six
months from the date the arbitrator or all the arbitrators, as the case may be,
received notice, in writing, of their appointment as per Section 23(4) of the
Arbitration Act.

 Sub-section(5) of Section 29-A of the Arbitration and Conciliation Act, 1996 provides that the
extension may be granted only for sufficient cause and on such terms 55 and conditions as may be
imposed by the Court. Pleadings have to be filed within six months from the date the arbitrator or
all the arbitrators, as the case may be, received notice, in writing, of their appointment as per
Section 23(4) of the Arbitration Act.
 By 2019 Amendment, Sub-Section 1(a) of the Section 29-A is substituted by the words “the award
in matters other than international commercial arbitration shall be made by the arbitral tribunal
within a period of twelve months from the date of completion of pleadings under sub-section (4)
of Section 23. The award in the matter of international commercial arbitration may be made as
expeditiously as possible and endeavour may be made to dispose of the matter within a period of
twelve months from the date of completion of pleadings under sub-section (4) of Section 23.
 In Section 29-A, proviso is inserted in Sub-Section (4) that where an application under sub-section
(5) of Section 11 is pending, the mandate of the arbitrator shall be continued till the disposal of
the said application for extension of time.
 Delhi High Court in the case of Shapoorji Pallonji & Co. Pvt. Ltd. Vs. Jindal India Thermal Power
Limited, OMP (Misc.) (Comm.) 512/2019 delivered on 23rd January 2020 has held that the
amended Section 23(4) and 29(A) of the Arbitration Act inserted by 2015 Amendment being
procedural law, would not apply to pending arbitrations as on the date of the amendment.
 Bombay High Court in the case of Sanjay R. Dhote & Anr. Vs. Karla Farms & Ors. delivered on 4th
April 2018 in Commercial Arbitration (L) No.323 of 2018 has held that even if the arbitral
proceedings are terminated under Section 29-A(4) of the Arbitration and Conciliation Act, 1996,
arbitration agreement which is entered into between the parties does not come to an end.
 Bombay High Court in the case of FCA India Automobiles Pvt. Ltd. Vs. Torque Motor Cars Pvt. Ltd.
& Anr.- 2018 SCCOnline Bom 4371 has held that the application under Section 29-A(4) can be made
not only before expiry of the period prescribed under Section 29-A(1) and before expiry of period
of six months extension agreed by and between the parties but may also be made after expiry of
such extended period

(1) Notwithstanding anything contained in this Act, the parties to an arbitration agreement, may, at
any stage either before or at the time of appointment of the arbitral tribunal, agree in writing to
have their dispute resolved by fast track procedure specified in sub-section (3).
(2) The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track
procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be
chosen by the parties.
(3) The arbitral tribunal shall follow the following procedure while conducting arbitration
proceedings under sub-section (1):—
(a) The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and
submissions filed by the parties without any oral hearing;
(b) The arbitral tribunal shall have power to call for any further information or clarification from
the parties in addition to the pleadings and documents filed by them;
(c) An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal
considers it necessary to have oral hearing for clarifying certain issues;
(d) The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and
adopt such procedure as deemed appropriate for expeditious disposal of the case.
(4) The award under this section shall be made within a period of six months from the date the
arbitral tribunal enters upon the reference.
(5) If the award is not made within the period specified in sub-section (4), the provisions of sub-
sections (3) to (9) of section 29A shall apply to the proceedings.
(6) The fees payable to the arbitrator and the manner of payment of the fees shall be such as may
be agreed between the arbitrator and the parties.

 30. Settlement.—
 (1) It is not incompatible with an arbitration agreement for
an arbitral tribunal to encourage settlement of the dispute
and, with the agreement of the parties, the arbitral
tribunal may use mediation, conciliation or other
procedures at any time during the arbitral proceedings to
encourage settlement.
 (2) If, during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the settlement
in the form of an arbitral award on agreed terms.
 (3) An arbitral award on agreed terms shall be made in
accordance with section 31 and shall state that it is an
arbitral award.
 (4) An arbitral award on agreed terms shall have the same
status and effect as any other arbitral award on the
substance of the dispute

 Consent award is an arbitral award(Harendra
Mehta v. Mukesh H. Mehta)
 An arbitral award on agreed terms will be
final
 What will happen where during arbitral
proceedings settlement is reached?
(terminate , sec. 31)

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