The Supreme Court of India (“Court”)
in Huawei Technologies Company Limited v. Sterlite Technologies Limited while
determining the scope of section 11(6) of the Arbitration and Conciliation Act,
1996 (“Act”) has held as follows: “Clause 22.3 of the Supply
Contract contemplates appointment of a sole arbitrator by the parties by mutual
consent. In a situation where the original arbitrator i.e. Shri Justice S.K.
Dubey had recused himself the substitute or new arbitrator is required to be
appointed according to the rules that were applicable to the appointment of the
original arbitrator.”
The Court while coming to above
conclusion referred to the ratio of Yashwith Constructions Private Limited v.
Simplex Concrete Piles India Limited & Anr. (2006) 6 SCC 204 which is as
follows: “The term ‘rules’ appearing in section 15(2) of the Act has been
understood to be referring to the provisions for appointment contained in the
arbitration agreement or any rules of any institution under which the disputes
are to be referred to arbitration.”
In light of the above, it is
established law that where an arbitral tribunal or a sole arbitrator recuses
itself/ himself from the arbitral proceedings, the appointment procedure as
provided in the arbitration agreement shall be followed for the appointment of
the arbitral tribunal/ sole arbitrator and an application under section 11(6)
of the Act shall only be filed after exhausting the process as provided under
the arbitration agreement.
A copy of the said judgement
dated September 04, 2015 is classified non reportable and was
published on the website hosted on the domain http://supremecourtofindia.nic.in/
