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What goes around, comes around: The 2015 amendment on appointment of arbitrators in India

While Perkins’ ratio is in line with the best international practices, it has not conclusively settled the question of unilateral appointments and other appointment mechanisms which do not share the powers equally. It is undeniable that the fundamental premise of arbitration is the mutual faith reposed on the arbitrators and unilateral appointments may threaten this very base. In fact, in a country like India which is just finding its feet as an arbitration-friendly jurisdiction, it is all the more critical to guard arbitrators from such apprehensions of bias. However, given the unique nature of arbitration clauses, it is difficult to contemplate a judgment which fits all possible scenarios of unilateral appointments.

Therefore, if the assumption of perceived predisposition towards the appointing party must be crystallized, the legislature has to step-in aid and amend the Act accordingly. In this regard, one can refer to the French Code of Civil Procedure which in Article 1453 codifies that arbitrators have to be appointed mutually or by the court.  It is the lack of this clarity that has opened a window of challenges and the only plausible cure could be the legislature’s steadfastness.

Source: Barandbench

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