A Judicial Analysis of Arbitrator Substitution and Mandate Extension under the Arbitration and Conciliation Act.


The dispute originated from a partnership deed executed between Shanklecha Constructions and Ashok Mohanraj Chhajed. Following disagreements, arbitration was invoked, leading to the appointment of a sole arbitrator. Disputes arose regarding the arbitrator's fees, particularly after the Supreme Court's clarification in Oil and Natural Gas Corporation Limited (ONGC) Vs. Afcons Gunanusa JV regarding the computation of fees for claims and counter-claims under Schedule IV of the Arbitration Act. 


Further complications arose from a third-party application filed against Shanklecha Constructions, leading to allegations of bias and procedural impropriety against the arbitrator. Consequently, both parties approached the court, Chhajed seeking only an extension of the arbitrator's mandate under Section 29-A, while Shanklecha Constructions also sought the arbitrator's substitution under Sections 14 and 29-A(6), citing de facto inability to perform functions and undue delay.

 

 

The Court's Decision:

The court's analysis centered on two key issues: the alleged unilateral increase in fees and the petitioners' claims of procedural impropriety and undue delay.

1. Fees and the ONGC Judgment:

The petitioners argued that the arbitrator had unilaterally revised her fees, violating the "tripartite agreement" established during the preliminary meeting. They emphasized the arbitrator's statement that she would cease acting if fees weren't paid. The court, however, disagreed. It interpreted the preliminary agreement as stipulating fees "as per Schedule IV," which, as clarified by the ONGC judgment, allows for separate computation for claims and counter-claims. The court concluded that the arbitrator's actions were consistent with the ONGC clarification and did not constitute a unilateral revision. Furthermore, it dismissed the petitioners' argument regarding the arbitrator's statement about non-payment, stating that allowing such a contention would enable parties to benefit from their own non-compliance.

2. Procedural Impropriety and Undue Delay:

The petitioners cited several procedural issues, including the rejection of witness summons, the handling of the third-party application, and the perceived inefficiency in managing evidence. They argued that these actions constituted de facto inability to perform functions and warranted substitution under Section 14(1)(a) and 29-A(6). The court, however, refrained from delving into the merits of these procedural decisions, emphasizing that such grievances are best addressed during a Section 34 challenge to the eventual award. It cautioned against courts interfering with arbitral proceedings during their pendency, highlighting the importance of arbitrator independence. While acknowledging the Delhi High Court's ruling in Angelique International Limited that allows for substitution due to arbitrator-attributable delay, the court found no such attributable delay in this case.

Outcome and Implications:

Ultimately, the court granted the extension of the arbitrator's mandate until December 31, 2024, but rejected the petitioners' request for substitution. The decision underscores the court's reluctance to interfere with ongoing arbitral proceedings, particularly concerning procedural matters. It reinforces the principle that challenges to procedural decisions should generally be raised after the award is issued. The case also provides clarity on the application of the ONGC judgment to arbitrator fees under Schedule IV, emphasizing that adjustments based on this clarification do not necessarily constitute unilateral revisions.

Conclusion:

This case serves as a valuable precedent for navigating disputes related to mandate extension and arbitrator substitution. It highlights the importance of adhering to established legal principles and respecting the autonomy of the arbitral process. While acknowledging the possibility of intervention in cases of demonstrable arbitrator-attributable delay, the court's decision emphasizes the need for a clear and compelling case before substituting a chosen arbitrator. The decision reinforces the balance between ensuring fairness and efficiency in arbitration while minimizing judicial intervention during the process.


  Arbitration and Conciliation Act, 1996