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 the Agreement.

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(vii) of the Agreement provides for fees and expenses payable to the arbitrator. It reads as follows:

"The fees and expenses payable to the Arbitrators shall be as per the schedule of remuneration and expenses for Arbitrators notified by NHAI vide letter no. 11041/217/2007-Admin. DL 13th January 2010 reproduced herein below, or any amendment thereof:

[Emphasis supplied.]

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The circular for schedule of fees and expenses of the arbitrators of NHAI dated 13.01.2010 [hereinafter referred to as "the 2010 Circular"], has been reproduced in the Agreement. However, it is not necessary to set it out in full as the parties are ad idem that the present arbitral proceedings are governed by a subsequent circular of the NHAI dated 22.10.2020 [hereinafter referred to as "the 2020 Circular"].

4. As the case turns substantially on the 2020 Circular, it is reproduced in full below:

NHAI/Policy Guidelines/Legal/2020
Policy Circular No. 2.1.44 dated 22.10.2020
{Decision taken on E-Office File Comp. NO. 5693}

Sub: Revision of Fee payable to the Arbitrators in terms of the Arbitration & Conciliation (Amendment) Act, 2015 in the Contractual Disputes.

Para 3 of Policy Circular/SoP dated 01.06.2017, regarding schedule of fee mentioned in the Annexure-3, has been modified/amended with the following schedule as per 437-Minutes of EC decision dated 11/09/2020:

Note: In the event, the arbitral tribunal is a sole arbitrator, he shall be entitled to an additional amount of twenty-five per cent on the fee payable as per the table set out above.

2. The above fee is payable to each arbitrator, to be shared equally by both the parties to the arbitration and i.e. Claimant and Respondent, which is inclusive of fee of arbitrators for Claim & Counter Claims i.e. total "Sum in dispute", reading charges, declaration/publishing of award. Further, the fee of AT was being regulated as per Policy Circular of 01.06.2