Participation In Arbitral Proceedings Does Not Constitute Waiver Of Right To Challenge Appointment Of Ineligible Arbitrator: Delhi HC

[17 February 2022] The Delhi High Court recently terminated the mandate of a sole arbitrator appointed unilaterally at the instance of one of the contracting parties.
Justice Vikram Bakhru held that the mere fact that the petitioner did not object to the appointment at the material time and participated in the arbitral proceedings, would not stand in the way of terminating the mandate of such an arbitrator, for the reason that the appointment was made by a person ineligible to be appointed as an arbitrator.
Reliance was placed on Bharat Broadband Network Limited v. United Telecoms Limited, where it was held that appointment of arbitrator by a person who himself is ineligible to be an arbitrator as per Section 12(5) of the Arbitration and Conciliation Act 1996 is void ab initio.
Section 12(5) provides that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties, or counsel, falls within any of the categories specified in the Seventh Schedule, shall be ineligible to be appointed as an arbitrator.
The Court further clarified that Section 4 of the Arbitration Act, which deals with the deemed waiver of the right to object by conduct, would have no application in this case. It held,
“The language of the proviso to Section 12(5) of the A&C Act makes it amply clear that any waiver is required to be made by an agreement in writing and that too, after the disputes have arisen. This is a distinct departure from the language of Section 4 of the A&C Act. Thus, the contention that the petitioner has waived its right to object to the appointment of the learned Arbitrator, cannot be accepted.”