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PRATEEK JALAN
National Highways Authority of India – Appellant
Versus
Ae Tollway Ltd. – Respondent
JUDGMENT
Prateek Jalan, J.
1. By way of this petition under Section 14 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as "the Act"], the petitioner- National Highways Authority of India [hereinafter referred to as "NHAI"], seeks termination of the mandate of an Arbitral Tribunal [hereinafter referred to as "the Tribunal"], which is in seisin of disputes between the parties under a Concession Agreement dated 01.09.2015, for "6 Laning of Agra to Etawah Bypass Section of NH-2 from KM 199.660 to KM 323.525 under NHDP Phase-V in the State of Uttar Pradesh" [hereinafter referred to as "the Agreement"]. The only ground urged in support of the petition is that the Tribunal has fixed its fees contrary to the Agreement between the parties.
A. Facts
2. Article 44 of the Agreement contains the provision for dispute resolution. Article 44.3 thereof provides for arbitration, in the event conciliation proceedings between the parties have not been successful. The arbitration clause contemplates a three-member arbitral tribunal, comprising of one nominee of each of the parties, and a presiding arbitrator to be chosen by the two arbitrators so nominated.
3. Article 44.3.1(vi
The main legal point established in the judgment is the importance of party autonomy in determining arbitral fees, as well as the interpretation and application of the 2020 Circular in the context of....
Section 2 (d) of the Act the Arbitral Tribunal is defined either as a sole arbitrator or a Panel of arbitrators and the language used in Sub Section (14) of Section 11 is for "determination of Fees o....
The arbitral Tribunal was entitled to fix its fee as its appointment was made by way of an ad hoc agreement between the parties.
The arbitration fees can be separately fixed for claims and counter-claims as per the provisions of the Arbitration and Conciliation Act, 1996, which is consistent with the statutory intent.
Arbitration fees must adhere strictly to the terms of the Arbitration Agreement, and unilateral alterations by the Tribunal are impermissible.
The principle of party autonomy is crucial in arbitration proceedings, and the Arbitral Tribunal cannot impose its will and wishes without reason or cause.
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