HOW DO YOU REMOVE AN ARBITRATOR ?

Section 11 Of The Arbitration And Conciliation Act, 1996, Provides For The Provision Related To The Appointment Of Arbitrators For An Arbitration Method. It Provides For Numerous  Course Of Action Which Parties To A Dispute Could Follow In Order To Appoint The Their Respective Arbitrators.

Section 12(3) Of The Arbitration And Conciliation (Amendment) Act, 2015 Provides  Conditions Where An Arbitrator Could Be Challenged. These Circumstances Include That The Conditions Which Lead To Justifiable Doubts As To The Independence Or Impartiality Of The Arbitrator Or If Does Not Possess Necessary Qualifications Which Were Agreed To By The Parties Previously.

The Article Explains About Such Circumstances As To Where The Appointment Of An Arbitrator Could Be Challenged-

• Fifth Schedule To The Act (Annexure-A) Includes A List Of Grounds Leading To Justifiable Doubts About  The Independence Or Impartiality Of The Arbitrator So Appointed. 
• Seventh Schedule To The Act (Annexure-B) Provides The Necessary Grounds Leading To Which A Person Shall Be Declared As Ineligible To Be Appointed As An Arbitrator. 
• Section 12(5) Provides That In Case The Relationship Of The Arbitrator Appointed, Deals With Parties Or Counsel Of The Dispute Or Subject-Matter Of The Dispute, It They Fall Under Any Of The Categories Which Have Been Provided Under The Seventh Schedule, In Such A Situation, The Arbitrator Would Be Held As Ineligible To Be Appointed As An Arbitrator, Irrespective Of The Fact That Any Prior Agreement Was Made To The Contrary. However, The Parties Could Waive Such Provision In Writing After A Dispute Has Arose Between Them.

Procedure To Challenge An Arbitrator:

• Section 13 Of The Act Provides For The Liberty Of The Parties To Agree On Such  Procedure For Challenging An Arbitrator. In Case The Parties Are Unable To Come To An Agreement To Decide Upon The Matter Of Challenging The Arbitrator, The Party Intending To Challenge The  Arbitrator Must, Within A Period Of Fifteen Days After Becoming Aware Of The Arbitral Tribunal Or After Being Aware  Of The Circumstances Leading To Justifiable Doubts About The  Independence Or Impartiality Of The Arbitrator Or If He Does Not Has  The Necessary Qualifications As Have Been Agreed To By The Parties, Then Such Party Must Send A Written Statement Of The Necessary Reasons To Challenge The Appointment Of The Arbitral Tribunal. 
• Arbitral Tribunal Would Have To Decide Upon The Challenge So Raised, In Case The Arbitrator Has Not Withdrawn From His Office Or In Case The Opposite Party Has Not Agreed To Such Objection. 
• In Case Of Failure Of Challenge, The Arbitral Tribunal Would Then Continue With The Proceedings Of The Arbitration And Finally Giving The Arbitral Award. After Passing Such Award, The Party Which Challenged The Arbitrator Could File An Application For Setting Aside The Award So Passed As Per  Section 34 Of The Act And If The Award So Passed Is Set Aside On Such An Application, The Court Could Also Decide On The Matter If The Arbitrator Being Challenged Is Entitled To His Fees Or Not.

Termination Of The Mandate By An Arbitrator As Well As The Substitution Of An Arbitrator:

• Section 14 Of The Act Provides That A Mandate Of An Arbitrator Could Be Terminated And He Would Be Substituted By Another Arbitrator, In Case-

• The Arbitrator Has Become Unable To Perform His Functions  De Jure Or De Facto, Or For Any Other Reason Has Failed To Act Without An Undue Delay; And
• If The Arbitrator Has  Withdrawn From His Office Or If The Parties Have Agreed To  Termination Of The Mandate Of The Arbitrator.

• Section 15 Offers Additional Circumstances Based On  Which Mandate Of An Arbitrator Could Be Terminated. These Shall Include-

• The Arbitrator Has Withdrawn From The Office For Any Reason; Or
• As A Result Of The Agreement Of The Parties.

• It Must Be Further Provided That When  The Mandate Of An Arbitrator Has Been Terminated, A Substitute Arbitrator Is Required To Be Appointed. Similar Rules Must Be Followed When  Appointing Such Substitute Arbitrator Which Were Applicable When Appointing  The Previous Arbitrator.
• After An Arbitrator Is Replaced, Any Hearing Which Was Previously Held Could Be Repeated At  Discretion Of The Arbitral Tribunal, Unless The Parties Have Agreed To The Contrary. 
• It Must Be Noted That An Order Or Ruling Passed By The Arbitral Tribunal Prior To The Replacement Of The Arbitrator Will Not Be Invalid Per Se, Just Because A Change Has Been Made To The Composition Of The Arbitral Tribunal, Unless The Parties Have Decided Otherwise.

Arbitrators Could Be Referred To As Third-Party Individuals Who  Shall Verify The Evidence, Ensure The Application Of Law  For Matter Being Dealt By Them, And Decide Upon The Outcomes Of The Arbitration Dispute Independent Of Any Other Authority. 

The Act Of 1996  Provided For The Termination Of Arbitrators Under Certain Conditions. In Order To Have A Better Understanding Of The Provisions Mentioned Above And To Have A Legal Opinion Over Any Issue Related To Adr, To Talk To A Lawyer Or Seek Free Legal Advice Online, You May Contact Us At Lead India.