9911796707
TMI Blog2006 (3) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice of India has designated me as the person to pass appropriate orders on the applications; and, hence, the applications have been placed before me. 2. Since the issue involved in all the three applications is same, these applications can be disposed of by a common order. The petitioner in each of these applications is a joint venture of two constituents, who entered into a construction contract with the respondent - National Highways Authority of India (for short 'NHAI') 3. The first petitioner is a company incorporated/registered under the laws of the Republic of Korea, with its registered office at Seoul. Thus, it is a body corporate incorporated in a country other than India within the meaning of Section 2(f)(ii) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) A dispute with an Indian Contractor shall be finally settled by arbitration in accordance with the Arbitration and Conciliation Act, 1996, or any statutory amendment thereof. The Arbitral Tribunal shall consist of 3 Arbitrators, one Page 2609 each to be appointed by the Employer and the Contractor. The third arbitrator shall be chosen by the two arbitrators so appointed by the Parties and shall act as Presiding Arbitrator. In case of the failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the President, Indian Road Congress for the purpose of this Sub-Clause, the term "India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the obligations of the Employer, the Engineer, the Contractor and the Board shall not be altered by reason of the arbitration being conducted during the progress of the works. (v) If one of the parties fails to appoint its arbitrator in pursuance of Sub-clause (i) and (ii) above, within 30 days alter receipt of the notice of the appointment of its arbitrator by the other party, then the President of the Indian Roads Congress both in cases Foreign Contractors as well as Indian Contractors, shall appoint, the arbitrator. A certified copy of the order of the President of the Indian Roads Congress making such an appointment shall be furnished to each of the parties. (vi) Arbitration proceedings shall be held at New Delhi, India, and the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n between NHAI and us" and that the petitioner had appointed Mr. Justice A.K. Srivastava, a retired Judge of the High Court of Delhi, as their nominee arbitrator. By a letter dated 16.6.2005, the respondent-NHAI appointed Shri Bageshwar Prasad as its nominee arbitrator. Although the two arbitrators met once on 26.6.2005 for appointment of the third/Presiding Arbitrator, they were unable to agree on the choice of the presiding arbitrator. Since Justice Srivastava insisted on appointment of a retired Judge who was senior to him to which there was no response from Shri Bageshwar Prasad. On 6th July 2005, Shri Bageshwar Prasad, the nominee arbitrator of the respondent, intimated the respondent that he and Shri Justice Srivastava could not reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure. 6. Although the learned Counsel for the petitioners contended that this is a situation falling within the contemplation of Clause (c) of Section 11(6) of the Act, namely that the institution i.e. IRC failing to perform the function entrusted to it under the appointment procedure. I am not satisfied. Under the appointment procedure agreed to under Clause 67.3, each of the parties to the dispute is required to nominate its arbitrator and the third arbitrator is to be chosen by the two arbitrators appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer has been appointed by the IRC in accordance with the contract. 8. The learned Counsel for the petitioners then contended that the dispute between the parties was basically a legal issue as to the competence of the respondent to terminate the contract between the parties and that, if at all, the Presiding Arbitrator was to be appointed. S/he should be a person well-versed in law. He further contended that the IRC was a body of technical persons and the nominee of the IRC Shri E.V. Narayanan was also a technical person who was not well-versed in law. According to the counsel, the institution mentioned in Section 11(6)(c) must adhere to the statutory standards of appointing an arbitrator who is competent to handle the dispute that has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
