Arbitration fees under ICA Rules must be calculated separately for claims and counter-claims, as clarified by the court's interpretation of the rules, reaffirming the Arbitral Tribunal's authority.

JUDGMENT

Sanjeev Narula, J. (Oral): The present petition under Section 39(2) of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act"] is directed against the order dated 17th June, 2021 passed by the Arbitral Tribunal appointed under the Rules of Domestic Commercial Arbitration & Conciliation of the Indian Council of Arbitration ("ICA"), as amended w.e.f. 1st April, 2016 [hereinafter, "ICA Rules"].

THE FACTS

2.1. The Petitioner - M/s McNally Bharat Engineering Company Limited [hereinafter, "McNally"] is the lead contractor of a consortium comprising of itself and M/s Southern Cooling Tower Private Limited. Respondent No. 1 - Steel Authority of India Ltd. [hereinafter, "SAIL"] awarded a contract dated 22nd September 2012 for the setting-up of an external pump water system for mills and fire water pump houses at SAIL's Steel Plant at Bhilai to the consortium led by McNally [hereinafter, the "Contract"]. This Contract contains the arbitration agreement as provided under Clause 9.2 which reads as under:

"9.2 Arbitration of contracts shall be governed by the Rules of Indian Council of Arbitration (ICA)". The venue shall be New Delhi.

During the pendency of the Conciliation or Arbitration proceedings both the parties (i.e. the Contractor and the Employer) shall continue to perform their contractual obligations.

The arbitral tribunal shall give reasons for its award. The tribunal shall apportion the cost of arbitration between the parties, the award rendered in any arbitration hereunder shall be final and binding upon the parties. The parties agree that neither party shall have any right to commence or maintain any suit or legal proceeding concerning any dispute under this agreement unitl the dispute has been determined in accordance with the arbitration proceeding provided for herein and then only to enforce or facilitate the execution of an award rendered in such arbitration.

The court of Durg, Chattisgarh, India (with exclusion of all other courts) shall have exclusive jurisdiction over all matter of dispute."

2.2. When disputes arose between the parties over delays in completion of the project, SAIL terminated the Contract on 20th May, 2016 and invoked the afore-noted Clause - which provides that arbitration shall be governed by ICA Rules. Consequently, Respondent No. 2 - Indian Council of Arbitration [hereinafter, "ICA"] constituted a three-member Arbitral Tribunal on 18th June, 2019 - comprising of retired Justice T.S. Thakur (Presiding Arbitrator), retired Justice B.D. Ahmed and Dr. Vinod Kumar Agarwal. The parties are presently in arbitration before the said Arbitral Tribunal, wherein SAIL is the Claimant and McNally is the Counter-claimant.

2.3. On SAIL's claims of Rs. 192,62,03,027.82, the ICA demanded arbitrators' fee and ICA's administrative expenses of Rs. 68,73,500/-from each party. McNally's consortium did not deposit its share of the said fee, and eventually, as per ICA Rules, the entire fee on the claim amount was deposited by SAIL. Thereafter, McNally's consortium lodged its counter-claim(s) of Rs. 82,32,92,390 (including interest payable from the date of termination, to September, 2020), on which ICA vide email dated 19th February 2021, demanded that the parties make separate payments towards the Arbitrators' fee as well as administrative expenses.

2.4. McNally's consortium vide email dated 11th March 2021 disputed the said demand made by ICA - contending that the Arbitrator's fee as well as ICA's administrative expenses were to be calculated on the aggregate value of the claims and counte