Skip to main content

Arbitrators and their appointment

     ARBITRATORS AND THEIR APPOINTMENT 


Arbitrators are the main person in the Arbitration proceeding, on whose hand the decision making power is in. He has his own powers as such of the Judges. But unlike judges, the parties of arbitration can appoint their own arbitrators or arbitral institutions. Section 10 and 11 of the Arbitration and Conciliation Act, 1996 deals with the Number of arbitrators that should be appointed and the procedure for the appointment of Arbitrators. The parties have no limit in the fixation of the arbitrators, but it cannot be in even numbers. If the parties are fail to fix the number then the Arbitral Tribunal will appoint one Arbitrator which is mandatory and basic. If the parties decided to appoint three arbitrators then each party will appoint one arbitrator and they (the 2 arbitrators) will appoint the third arbitrator who is in common. Under the Old Arbitration Act 1940, the third Arbitrator so appointed was named as ‘Umpire’ but under the present Act, the third Arbitrator is called the ‘Presiding Arbitrator’. The third arbitrators should be appointed within 30 days by the 2 arbitrators. 


Appointment of Arbitrators: 

Section 11 of this Act deals with the procedure to appoint Arbitrators. The Arbitrator can belong to any nation, but they must be with the consent of both the parties. When it comes to the International disputes the Arbitrator must not belong to the nationality of both the parties. For Example, If there is any problem between India and China, then the arbitrator cannot belong to both the nation and he should be the citizen of some other country. The parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators. In arbitration with a sole Arbitrator, if the parties fail to agree on the Arbitrator within 30 days from receipt of a request of a party, by the Chief Justice of any person or institution designated by him. If a party fail to act as required or the Arbitrators fail to do their duties or if the institution does not perform the functions then under such circumstances, the party may request the Chief Justice or any person or institution designated by him to take the necessary measure. Any decision by the Chief justice is the final one. The Chief Justice in appointing an Arbitrator must have due regard to any qualification required of the Arbitrator by the agreement of the parties and other considerations as are likely to secure the appointment of an Independent and impartial Arbitrator. 

CASE LAWS: 

MTC ltd., Vs. Starlite Industries India Ltd., AIR  1997

It was held that the Chief Justice will make the appointment only on receipt of request for this purpose from a party and not otherwise. 


Northern Sanitation Vs. Hotel Corporation of India, AIR 1990

It was provided by the arbitration clause that each party will have a right to appoint Arbitrator but unfortunately the Arbitrators appointed by them were held guilty of misconduct and hence it was held that they exhausted their right to appoint Arbitrators and the Court could appoint Arbitrator. 
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more