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Delhi High Court Appoints Sole Arbitrator, Holds RailTel 's Panel Not 'Broad-Based' as Required by Law

New Delhi: In a significant ruling on the appointment of arbitrators in disputes involving public sector undertakings, the Delhi High Court has intervened to appoint a Sole Arbitrator, finding that the panel of arbitrators maintained by RailTel Corporation of India Ltd. was not "broad-based" as mandated by the Supreme Court.

Justice Dinesh KumarSharma , presiding over a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, appointed Mr. Justice Kurian Joseph , a Former Judge of the Supreme Court of India, as the Sole Arbitrator to adjudicate the disputes between the petitioner and RailTel . The arbitration will be conducted under the aegis of the Delhi International Arbitration Centre (DIAC).

Background of the Dispute

The case arose from disputes concerning work performed and payments due under a Letter of Acceptance (LOA) dated 20.06.2016 between the petitioner and RailTel . The petitioner invoked arbitration, and while RailTel acknowledged the existence of a dispute and agreed in principle to arbitration, the parties failed to agree on the appointment of an arbitrator.

The core of the disagreement lay in the appointment mechanism. The contract clause (4.6.4.3) stipulated that for disputes above Rs. 10 lakh (the present claim being approximately Rs. 9.66 Crore), an arbitral council was to be appointed. However, RailTel proposed the appointment of a Sole Arbitrator by the CMD/ RailTel from a panel maintained by the corporation.

Arguments Presented

The petitioner contended that the CMD of RailTel , having an interest in the dispute or its outcome, was ineligible not only to act as an arbitrator but also as the appointing authority. Relying on the Supreme Court judgment in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Limited , the petitioner argued that a unilateral appointment by one party, or by someone with a vested interest, is impermissible under the law.

The respondent, RailTel , argued that it maintained a broad panel of arbitrators due to the technical nature of disputes in PSUs like RailTel . They submitted that the petitioner was given an opportunity to choose from this panel and that such a panel-based appointment was not biased. RailTel relied upon the Supreme Court judgments in Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation Limited and Central Organisation for Railway Electrification (CORE) v. ECI- SPIC-SMO-MCML (JV) to support the validity of appointment from a panel.

Court's Analysis and Key Principles

Justice Sharma examined the contract clause 4.6.4.3, noting that while it provided for an arbitral council for disputes above Rs. 10 lakh, RailTel 's email proposed a Sole Arbitrator from their panel. The court then scrutinized the panel itself, observing that it primarily consisted of senior retired government officials, mostly technical persons, with only one person from a legal background whose experience was not detailed.

The judgment delved into the legal principles governing arbitrator appointments from panels, particularly in the context of PSUs. The court heavily relied on the Supreme Court's ruling in Voestalpine Schienen Gmbh , which established the requirement for such panels to be "broad-based" to ensure impartiality and independence. The Voestalpine judgment emphasized including engineers from the private sector, persons with legal backgrounds (judges, lawyers), and experts from fields like accountancy, rather than limiting panels solely to serving or retired government/PSU personnel.

The court also referred to the 'counter-balancing' principle discussed in judgments like Steelman and Margo Networks (P) Ltd. v. Railtel Corpn. of India Ltd. , another Coordinate Bench decision involving RailTel . The court clarified that the CORE judgment, relied upon by RailTel , did not override the principles laid down in Voestalpine or Perkins . CORE upheld the validity of panel-based appointments in principle , but it did not exempt such panels from the requirement of being genuinely broad-based and ensuring counter-balancing as per Voestalpine and Perkins .

Quoting from Margo Networks , the court reiterated:

"CORE does not in any manner overrule Voestalpine (supra) or narrow down the scope thereof... in an appointment procedure involving appointment from a panel made by one of the contracting parties, it is mandatory for the panel to be sufficiently broad based, in conformity with the principle laid down in Voestalpine (supra), failing which, it would be incumbent on the Court, while exercising jurisdiction under Section 11, to constitute an independent and impartial Arbitral Tribunal as mandated in TRF (supra) and Perkins (supra)."

The court also referenced SMS Ltd. vs Rail Vikas Nigam Limited , where even a panel of 37 names was deemed not broad-based for lacking sufficient diversity in background (legal, accountancy, etc.) and being heavily skewed towards railway/PSU officials.

Finding on Panel Validity

Applying these principles, Justice Sharma concluded that the panel proposed by RailTel in the present case could not be termed "broad-based." The limited inclusion of persons from non-technical and non-government backgrounds meant it failed the neutrality test required by the Supreme Court precedents.

The Decision

Since the respondent's proposed appointment procedure and panel did not meet the legal requirements for ensuring an independent and impartial tribunal, the court found it incumbent to exercise its power under Section 11(6) of the Act.

Justice Dinesh KumarSharma disposed of the petition by: 1. Referring the disputes to an arbitral tribunal. 2. Appointing Mr. Justice Kurian Joseph , Former Judge of the Supreme Court of India, as the Sole Arbitrator. 3. Directing the arbitration to be held under the aegis of the Delhi International Arbitration Centre (DIAC), with fees as per DIAC Schedule. 4. Requesting the Arbitrator to furnish a declaration under Section 12 of the Act. 5. Leaving all rights and contentions of the parties, including arbitrability and preliminary objections, open for the arbitrator to decide.

This judgment reinforces the judiciary's role in ensuring that arbitration appointment mechanisms, especially those involving state entities and panel systems, strictly comply with the principles of independence and impartiality as interpreted by the Supreme Court, particularly the "broad-based" panel requirement.