The Supreme Court in the case of Huawei Technologies Co.
Ltd. V. Sterlite Technologies Ltd. 2015 SCC Online SC 785, has
re-iterated the procedure for the appointment of arbitrator in the
event of recusal of the presiding arbitrator.
The Petitioner in this case filed an application under Section
11(6) of the Arbitration and Conciliation Act, 1996, seeking
appointment of a Sole Arbitrator in accordance with the arbitration
agreement contained in clause 22.3 of the Supply Contract between
Clause 22.3: "All disputes...... shall be
referred to arbitration in accordance with the Indian Conciliation
and Arbitration Act, 1996 and conducted by a single arbitrator to
be appointed by the Parties by mutual consent."
On 09.04.2007, the parties entered into a Contract for the
supply, installation, testing, commissioning of Broadband Access
Network. Subsequently, disputes arose between the parties regarding
payments amounting to USD 13,390,000. The Petitioner invoked the
arbitration agreement and appointed Justice S.K Dubey as the sole
arbitrator. Thereafter, the Respondent objected to the appointment
of Justice S.K Dubey who, therefore, recused himself as the sole
arbitrator. In light of these circumstances, the Petitioner then
approached the Court for
appointment of an arbitrator under Section 11(6) of the
The Court refused to intervene in this matter holding that the
application under Section 11(6) of the Act should have been filed
as Section 15(2) of the Act is applicable in this case. That is,
where the mandate of an arbitrator terminates, a substitute
arbitrator is required to be appointed according to the rules that
were applicable to the appointment of the arbitrator who is
replaced. Thus, the parties should explore the possibility of
naming an arbitrator by mutual consent before filing an application
under Section 11(6).
The Court recognised the eventual possibility of this matter
once again being referred to Court under Section 11(6), but opined
that the correct procedure should be followed. Thus, that Parties
are required to make an attempt to appoint a substitute arbitrator
under the rules agreed between them, before approaching the Court
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