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IN THE HIGH COURT OF DELHI
Suresh Kumar Kait, J.
Afcons Sener LNG Construction Projects Private Limited - Appellant
Versus
Western Concessions Pvt. Ltd. - Respondent
O.M.P. (T) (COMM.) 35 of 2021
Decided On : 06-09-2021
| Table of Content |
|---|
| 1. appointment of arbitrator under arbitration act (Para 1 , 2) |
| 2. arguments regarding appointment of substitute arbitrator (Para 3 , 4 , 5) |
| 3. consensus on arbitrator appointment (Para 6) |
| 4. appointment and fee structure for arbitrator (Para 7 , 8 , 9) |
| 5. disposal of the petition (Para 10) |
1. The present petition has been preferred by the petitioner seeking appointment of a substituted Arbitrator under the provisions of Section 15(2) r/w Sections 14 and 11(6) of the Arbitration and Conciliation Act, 1996.
2. For adjudicating disputes between the parties under the Engineering Procurement and Construction Contract for the LNG Regasification Terminal - No. HGPL-EPC-00001 dated 12.03.2015, an Arbitral Tribunal consisting of Mr. Justice B.P. Singh (Retd.), Late Mr. Justice Surinder Singh Nijjar (Retd.), and Mr. Justice Mukul Mudgal (Retd.) was constituted on 23 October 2018. Pertinently, appointment of late Mr. Justice Nijjar was appointed by this Court in ARB.P. 339 of 2018 on account of failure on the part of respondent to nominate an Arbitrator in terms of Clause 38 of the aforesaid contract. However, after conclusion of the final hearing, Mr. Justice Surinder Singh Nijjar (Retd.) passed away on 26.03.2021.
3. Learned counsel for petitioner submits that after demise of Mr. Justice Surinder Singh Nijjar (Retd.), another Arbitrator has to be appointed in this case.
4. At the hearing, learned counsel for petitioner has submitted that after demise of Mr. Justice Surinder Singh Nijjar (Retd.), respondent vide its e-mail dated 28.03.2021 sought appointment of Mr. Justice M.L.Varma (Retd.) as substitute Arbitrator, whereas respondent's right to nominate/appoint Arbitrator stood forfeited after appointment of Mr. Justice Surinder Singh Nijjar (Retd.) in ARB.P. 339 of 2018 by this Court.
5. The present petition has been vehemently opposed by learned senior counsel appearing on behalf of the respondent while submitting that appointment of Mr. Justice M.L. Varma (Retd.) as substitute Arbitrator has to be made in terms of Clause-38.6.6 of the Contract.
6. Today, during the course of hearing, learned senior counsel appearing on behalf of both the sides have arrived at a consensus that instead of unilateral nomination, this Court may appoint a substituted Arbitrator in the present case.
7. Accordingly, Mr. Justice (Retd.) Rajiv Sahai Endlaw (Mobile: 9717495002) is appointed substituted Arbitrator in the present case.
8. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996.
9. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration.
10. With aforesaid directions, the present petition is accordingly disposed of.
Upon the demise of an appointed Arbitrator, the court may appoint a substitute, affirming that the right of the opposing party to nominate ceases and statutory compliance is essential before arbitrat....
A substituted arbitrator can be appointed under the Arbitration and Conciliation Act, 1996, following the demise of the previous arbitrator without objection from the parties involved.
The court allows appointment of a substituted Arbitrator without restarting proceedings, ensuring continuity after the original Arbitrator's demise.
The main legal point established is the court's authority to appoint a substituted Arbitrator under the provisions of the Arbitration and Conciliation Act, 1996 following the demise of the previous A....
Point of law : Arbitration Agreement – Death of Arbitrator – On death of arbitrator another arbitration appointed.
Proper proceedings under the Arbitration and Conciliation Act can include substitution of an arbitrator when a nominated arbitrator returns the reference.
Section 11 of the Arbitration and Conciliation Act, 1996 does not provide for the substitution or termination of the mandate of an arbitrator, and cannot be invoked to substitute an arbitrator appoin....
The necessity to appoint a new Arbitrator is confirmed under Sections 14 and 15 of the Arbitration and Conciliation Act, recognizing the continuation of the arbitration process post-demise of the ori....
The court has the authority to appoint a substitute arbitrator if the original arbitrator passes away, allowing for the continuation of arbitration proceedings.
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