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The Supreme Court in the matter of Bhadra International (India) Pvt. Ltd. & Ors. v. Airports Authority of India1 through its judgment dated 05.01.2026 held that mere participation in arbitral proceedings does not lead to a waiver of the disqualification under law to be appointed as an arbitrator under Section 12(5) of the A&C Act. It held that waiver of such ineligibility can arise only through an express agreement in writing between the parties after the disputes have arisen, and cannot be inferred from conduct, acquiescence, or silence. Any appointment made in violation of Section 12(5) read with the Seventh Schedule of the A&C Act is ex facie invalid, and the arbitrator's mandate stands automatically terminated by operation of law.
The Supreme Court further held that ineligibility under Section 12(5) of the A&C Act is a matter of jurisdiction and cannot be cured by participation in the proceedings. A person who is himself ineligible to act as an arbitrator is equally disqualified from appointing one. It was clarified that the proviso to Section 12(5) of the A&C Act admits of waiver only by a clear, unequivocal, and express written agreement, and any notion of deemed waiver is alien to the statutory scheme. Furthermore, an objection to the inherent lack of jurisdiction of an arbitrator may be raised at any stage i.e., pre-award or post-award since an arbitrator lacking jurisdiction cannot validly adjudicate the dispute.
Footnote
1. Civil Appeal Nos. 37-38 of 2026.
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