- (1.) A works contract No.3AAA dated 20th December, 2000 was executed by and between the petitioner and the Municipal Corporation of Greater Mumbai (respondent No.1 herein) for execution of city tunnel rehabilitation works for the purposes of transporting the city's sewage. Disputes and differences having arisen between the parties under the said contract, the petitioner invoked the arbitration clause contained therein and by letter, dated 24th February, 2014, nominated one Shri R.G. Kulkarni as its Arbitrator. By the said communication, the petitioner called upon the respondent No.1 to appoint its Arbitrator within 30 days of the receipt of the aforesaid letter/notice.
(2.) The arbitration clause in the agreement between the parties would require to be specifically noticed and, therefore, is being extracted herein below: JUDGEMENT_86_LAWS(SC)1_2015_1.html
(3.) A reading of the aforesaid clause of the agreement would go to show that after one of the parties thereto invokes the arbitration clause; appoints its arbitrator and thereafter give notice to the other party to appoint its arbitrator, if the same is not done within 30 days or if the two arbitrators appointed by both sides fail to nominate a third arbitrator, the matter is to be referred to the International Centre for Alternative Dispute Resolution in India (for short "ICADR"). For appointment of the Arbitrator on behalf of one of the parties who has failed to so act or for appointment of the third arbitrator, as may be, ICADR is governed by certain norms contained in Rules 5 and 35 of the ICADR Rules, 1996 governing the procedure for appointment of Arbitrators. The same rules may be usefully extracted herein below: 5. Appointment of arbitrators.- (1) Unless otherwise agreed by the parties, a person of any nationality may be an arbitrator. (2) Where the arbitration agreement provides that each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the presiding arbitrator, and-(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the appointed arbitrators fail to agree on the presiding arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the ICADR. (3) In an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree, the appointment shall be made, upon request of a party, by the ICADR. (4) A decision by the ICADR on a matter entrusted to it by sub-rule (2) or sub rule (3) will be final and binding on the parties. (5) Upon receipt of a request under sub-rule (2) or sub-rule (3), the ICADR will- (a) make the appointment as promptly as possible, (b) follow the procedure specified in rule 35, (c) have regard to- (i) any qualifications required of the arbitrator by the agreement of the parties (ii) such considerations as are likely to secure the appointment of an independent and impartial arbitrator; and (iii) in the case of appointment of a sole or presiding arbitrator in an international commercial arbitration, the advisability of appointing a person of a nationality other than the nationalities of the parties. 35. Services as appointing authority.- (1) On receipt of a request to appoint an arbitrator in pursuant of rule 5(2) or 5(3), the ICADR will follow the following procedure- (i) the ICADR will communicate to each party a list containing the names, addresses, nationalities and a description of qualifications and experience of at least three individuals from the panel of arbitrators; (ii) within thirty days following the receipt of the list, a party may delete any name to which he objects and after re-numbering the names in the order of his preference, return the list to the ICADR; (iii) on receipt of the list returned by the party, the ICADR will appoint the arbitrator from the list taking into account the order of preference indicated by the parties; (iv) if for any reason the appointment cannot be made according to the procedure specified in clauses (i) to (iii), the ICADR may appoint the arbitrator from the panel of arbitrators. (2) In appointing an arbitrator the ICADR will have regard to the matters referred to in rule 5(5)(c) and will carefully consider the nature of the dispute in order to include in the list, persons having appropriate professional or businiess experience,language ability and nationality. (3) All appointments on behalf of the ICADR will be made by the Secretary-General and in his absence by such member of the Governing Council as is designated by the Chairperson: Provided that where the Secretary- General is to be appointed as the arbitrator, the appointment will be made by the Chairperson.;