Published by: Madhav Goswami

College: GLA University, Mathura.

Introduction:

The Indian Judiciary is overburdened and has a slow pace in disposing cases. As per the

statistical reports around 1.65 Lakh cases are pending in every High Court of the country and

more than 2.6 Crore cases are pending in lower and subordinate judiciary of the country

respectively. As a consequence of the same there is an urging need of disposing of the cases in

reasonable time with a faster and effective mechanism. Therefore, Arbitration and Conciliation

Act, 1996 (26 of 1996) was passed with a view of disposing-off the cases effectively within a

period of stipulated time. It promotes Arbitration as an alternate dispute resolution mechanism

in India. It emerged out as a successful attempt to reduce the burden on Indian Courts as well.

Business entities usually incorporates Arbitration Clauses in any agreement or contract that

they enter into with another entity or sign a separate agreement for the same altogether.

The Supreme Court of India has embarked the independence and impartiality of an arbitrator

which is the essential foundation of arbitration along with a fundamental principle of Natural

Justice. In view of the same, Section 12 was also incorporated which lays down certain

specified grounds on which the competency of an arbitrator can be challenged.

Moreover, the 2015 amendment to the said act has further added Seventh Schedule which lays

down additional criterions on which an arbitrator’s impartiality and independence can be

challenged simultaneously.

Grounds for arduous the appointment of an Arbitrator: –

 Section 12(1) of the Arbitration and Conciliation Act, 1996 states that; “When a person

is proceed towards in connection with his probable appointment as an arbitrator, he is

required to disclose in writing, any circumstances:-

 Such as existence of either direct or indirect;

 Any Past or Present Relationship;

 With or attentiveness in any of the parties;

 Relationship with subject-matter of the dispute;

 Or Any Financial, Business, Professional or other kind of relationship

 Which gives rise to the justifiable doubts as to his independence or impartiality and also

likely to affect his capability in order to allot sufficient time to the arbitration. On the

other hand, in particular his ability to complete the entire arbitration within a period of

stipulated time i.e., a period of twelve months.

 Furthermore, the grounds stated in the Fifth Schedule of the above-mentioned act

provides an exhaustive list which also helps in determining the existence of

circumstances that are likely to give birth to justifiable or reasonable doubts as to the

independence or impartiality of an arbitrator.

 Moreover, Section 12(2) of the Arbitration and Conciliation Act, 1996 makes

compulsory for an appointed arbitrator to disclose all such above mentioned

circumstances through form provided in the Sixth Schedule of the said act respectively.

When an Arbitrator can be challenged: –

 According Section 12(3) of the Arbitration and Conciliation Act, 1996 an arbitrator can

be challenged in the situations stated below:-

 Existence of certain circumstances which give rise to justifiable doubts as to his

independence or impartiality; or

 Where he doesn’t possess the qualifications agreed to by the parties respectively.

 Section 13 of the above-mentioned act provides the challenge procedure in the case as

referred to Section 12 of the Arbitration and Conciliation Act, 1996.

Section 12(5) of the Arbitration and Conciliation Act, 1996 was inserted through 2015

amendment which states the following:-

 “Notwithstanding any prior agreement to the contrary, any person whose

relationship, with the parties, or counsel or the subject-matter of the dispute, falls

under any of the categories specified in the Seventh Schedule shall be ineligible to be

appointed as an arbitrator.”

 The Amendment made in the year 2015 to the Arbitration and Conciliation Act, 1996

provides the Seventh Schedule which lays down the additional criterions on which the

competency of an arbitrator can be challenged. The said schedule of the above-

mentioned act consists of 34 entries in total falling which an arbitrator can be

challenged.

Fifth Schedule of Arbitration and Conciliation Act, 1996: –

 The Fifth Schedule of the Arbitration and Conciliation Act, 1996 consists of certain

kinds of relations which might give rise to justifiable doubts to the competency of an

arbitrator and are stated as follows: –

 Relationship with Parties involved in the dispute;

 Relationship with Counsel;

 Relationship to the dispute;

 Any sort of interest in the subject-matter of the dispute;

 Any past involvement in the dispute;

 Relationship with co-arbitrator’s (if exist);

 Other circumstances.

Seventh Schedule of the Arbitration and Conciliation Act, 1996:-

 The Seventh Schedule was inserted in the above-mentioned act through an amendment

made in the year 2015 which covers most of the grounds laid down in Fifth Schedule

of the said act along with certain additional criterions. This list is not exhaustive like

Fifth Schedule, but acts as a bar to appointment of an arbitrator in any dispute

respectively.

 The Seventh Schedule covers following grounds: –

 Arbitrator’s relationship with the parties involved in the dispute;

 Arbitrator’s relationship with the Counsel;

 Arbitrator’s any sort of interest in the dispute;

 Other Circumstances.

Conclusion:-

 The 2015 Amendment done in Arbitration and Conciliation Act, 1996 targets to

promote free, fair, impartial and independent arbitration in India with a view to provide

transparency and reliability on the same.

 Section 12 was regarded of utmost importance in light of the new amendment made in

the year 2015 and seeks to make arbitration a more and reasonable legal recourse or

legal remedy then relying upon the Indian Courts and also aims to reduce the burden of

cases from the Judiciary simultaneously.

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