When disagreeing parties are not satisfied with the judgement passed by the Court via litigation, Alternative Dispute Resolution (ADR) comes in play to save the day[i]. ADR is an external dispute resolution method which is used to settle disputes between two parties or more, with the help of a third party. It has a wide range of dispute resolution processes and techniques. The main components of ADR are: MEDIATION, CONCILIATION and ARBITRATION.
Arbitration is a method by which a dispute is settled by an independent third party. It is a private dispute resolution procedure in place of litigation and the decision of the Arbitrator is binding upon the disagreeing parties.
WHO IS AN ARBITRATOR?[ii]
An arbitrator is an independent third party, who acts as the “decision-maker” in the dispute between two or more parties. It is the job of the arbitrator to review the evidences, testimonies, facts and background of the dispute presented by the obligated parties and to interpret and apply the applicable rules and laws, thereby issuing a decision in order to resolve the dispute.
WHO CAN BE APPOINTED AS AN ARBITRATOR?
The Arbitration And Conciliation Act, 1996 does not enumerate any specific qualifications needed for the appointment of an arbitrator.[iii] However, certain qualities and attribute are needed to be present in an arbitrator. Some of them are:
- The person should be competent. He/ She should be a major (i.e., 18 years old or more) and that person should be of sound mind.[iv]
- The competent person should not have any charges or criminal or civil matter.
- The competent person is chosen by a panel of experts who appoints an arbitrator who has a fair understanding of the matter.
- The person should have a fair sense of judgment, professionalism and impartiality.
- The person should be acquired with task management skills and technical and legal education qualifications.
APPOINTMENT OF ARBITRATOR:
In India, the provision for the appointment of arbitrator is present in the CHAPTER III (Composition of arbitral tribunal) of The Arbitration and Conciliation Act, 1996. Section 10 and 11 of this Act deals with the appointment of the arbitrator(s).
Section 10 of this Act deals with the number of arbitrators that is to be appointed for solving a dispute. The parties are free to determine the number of arbitrators, given that the number shall not be even. If the parties fail to comply with given clause and fail to appoint an arbitrator, the arbitral tribunal shall consist of a sole arbitrator.[v]
Section 11 of this Act deals with the requirements and procedure for the appointment of an arbitrator.[vi] The following qualifications must be met for the appointment of the arbitrator:
- A person of any nationality may be an arbitrator, unless otherwise is agreed by the parties.
- The parties are free to choose the procedure for appointing the arbitrator(s). A party may request the Supreme Court or the High Court or any institution or person designated by such Court, to take necessary steps in cases where, the party or parties fail to act as required according to the appointment procedure agreed upon by the parties; or if the parties, or the two appointed arbitrators, fail to reach an agreement; or if a person or institution fails to perform any function assigned to him under that procedure, unless other means for securing the appointment is already mentioned in the agreement on the appointment procedure.
- If they fail in agreement in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator as the presiding arbitrator. If a party fails to appoint an arbitrator within thirty days from receipt of a request from the other party to do so, or if the two appointed arbitrators fail to appoint a presiding arbitrator within thirty days, or in case of a sole arbitrator, if the parties fail to agree on the arbitrator, the Supreme Court or the High Court or any institution or person designated by such Court shall make the appointment, only upon the request by a party.
- In case of appointment of a sole or third arbitrator in an International Commercial Arbitration, any arbitrator of a nationality other than the nationalities of the parties may be appointed by the Supreme Court or any institution or person designated by such Court.
CONCLUSION:
It can be concluded that Arbitration being a part of the ADR method is an extremely valuable and efficient method for settling the disputes among the parties. Hence, the appointment of an arbitrator plays a crucial role and can be a turning point in the dispute settlement.
SOURCES:
[i] WIKIPEDIA, https://www.wikipedia.org/ (last visited Nov 3, 2021).
[ii] WIPO (WORLD INTELLECTUAL PROPERTY ORGANIZATION) https://www.wipo.int/portal/en/index.html (last visited on Nov 3, 2021).
[iii] Anil Satyagraha, Arbitrator – Qualifications, Appointment, Powers, Duties & Liabilities, LAWYERSCLUBINDIA, (NOV 5,2021, 7:00PM),https://www.lawyersclubindia.com/?_gl=1*5mt211*_ga*aFNHNzE1WUo2SlZIcE9laUY3eVc3SXpDSVM3YVo0eks0Wm44bDVjaVVsU2hiejVacUozRlBCZlc1RHhwRkZDTA..
[iv] Rachit Garg, Essential qualities an arbitrator must have, IPLEADERS, (NOV 5, 2021, 7:05 PM), https://blog.ipleaders.in/
[v] The Arbitration And Conciliation Act, 1996, §10.
[vi] The Arbitration And Conciliation Act, 1996, §11.
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