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/