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2019 (11) TMI 371 - SC - Indian LawsAppointment of an Arbitrator on behalf of Respondent No. 1, Doordarshan, in an international commercial arbitration - Section 11 of the Arbitration Conciliation Act, 1996 - HELD THAT - Disputes arose between the parties, which led to the invocation of the arbitration clause on 14.01.2019 by the Petitioner Company. The Petitioner Company nominated its arbitrator on 28.02.2019 in terms of the agreement. However, Respondent No. 1 Doordarshan failed to nominate an arbitrator. Consequently, the Petitioner Company has filed the present Application under Section 11 of the Arbitration Conciliation Act, 1996 seeking appointment of an Arbitrator by the Court on behalf of Respondent No. 1 Doordarshan. Even though the arbitration agreement provides for a Three member arbitral tribunal, the Counsel for all the parties at the time of hearing, requested for the appointment of a Sole Arbitrator in modification of the arbitration clause stipulating a threemember tribunal, to adjudicate the disputes. Accordingly, with the consent of the Counsel for the parties, we appoint Mr. Justice (Retd.) A. M. Sapre, Former Judge, Supreme Court of India as the Sole Arbitrator subject to the declarations being made under Section 12 of the Arbitration and Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the period of 12 months. The learned Arbitrator is requested to complete the proceedings within the timelimit specified under Section 29A.
Issues:
1. Application under Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of an Arbitrator. 2. Interpretation of the arbitration clause in the contract. 3. Failure of Respondent No. 1 to nominate an arbitrator. 4. Modification of the arbitration clause for appointment of a Sole Arbitrator. 5. Appointment of Mr. Justice (Retd.) A. M. Sapre as the Sole Arbitrator. 6. Seat of arbitration and location for conducting the arbitration. 7. Payment of fees to the Arbitrator. 8. Directions for the proceedings and appearance before the Arbitrator. Analysis: 1. The Petitioner filed an Application under Section 11 of the Arbitration & Conciliation Act, 1996, seeking the appointment of an Arbitrator on behalf of Respondent No. 1, Doordarshan, in an international commercial arbitration. 2. The Contract between the Petitioner-Company and Respondent No. 2 with Respondent No. 1-Doordarshan contained an arbitration clause specifying the procedure for arbitration in case of disputes. The clause mandated a three-member arbitral tribunal and the application of the Arbitration and Conciliation Act, 1996. 3. Disputes arose between the parties, leading to the invocation of the arbitration clause by the Petitioner. The Petitioner nominated its arbitrator as per the agreement, but Respondent No. 1 failed to nominate an arbitrator, prompting the Petitioner to seek court intervention for the appointment of an Arbitrator on behalf of Respondent No. 1. 4. Despite the clause specifying a three-member arbitral tribunal, all parties' counsels requested the appointment of a Sole Arbitrator. Consequently, Mr. Justice (Retd.) A. M. Sapre, a former Judge of the Supreme Court of India, was appointed as the Sole Arbitrator with the consent of all parties. 5. The appointment of the Sole Arbitrator was subject to the declarations under Section 12 of the Arbitration and Conciliation Act, 1996, ensuring independence, impartiality, and the ability to complete the arbitration within 12 months as specified in Section 29A. 6. The Seat of arbitration was determined to be New Delhi, India, as specified in the arbitration clause, and the arbitration proceedings were directed to be conducted at that location. 7. The Sole Arbitrator was to be remunerated in accordance with the Fourth Schedule of the Arbitration and Conciliation Act, 1996, as amended. 8. The parties were directed to appear before the appointed Arbitrator on a specified date, and the Order was concluded with directions for the proceedings and appearance before the Arbitrator.
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