Arbitration Weekly Round Up: 4th March to 11th March 2024

Delhi High Court Section 42 A&C | Delhi High Court Terminates Arbitrator's Mandate Who Disclosed Award Prematurely To Party During Proceedings Case Title: Kamladityya Construction Pvt Ltd Vs Union Of India Citation: 2024 LiveLaw (Del) 259 The Delhi High Court single bench of Justice Jasmeet Singh terminated mandate of an arbitrator who disclosed the award prematurely and revealed details about several claims during the hearing of the arbitral proceedings to the party. The bench held that Section 42 of the Arbitration and Conciliation Act, 1996 mandates for strictest confidentiality in arbitration proceedings and the Award itself. After considering the report submitted by DIAC, the High Court noted that during the hearing, the Arbitrator was dictating the Award in the hearing room. This dictation was being typed by the P.A. on a desktop computer, which was mirrored on a large display in the room, as per general practice. Upon the arrival of the parties and their counsel, the Arbitrator initiated discussions about the mandate of the Tribunal. Simultaneously, the P.A. minimized the computer screen on which the Award was being typed, ensuring that the parties were not able to see the ongoing process. The DIAC, however, clarified that due to the enclosed space and confidentiality reasons, staff beyond the barest minimum required were not present in the room. The High Court noted that the Centre could not comment on any formal or informal discussions between the parties and the Arbitrator during that time. Multiple Arbitration Before Different Arbitral Tribunals Is Counterproductive And Should Be Avoided: Delhi High Court Case Title: Sterlite Technologies Ltd. Vs Bharat Sanchar Nigam Limited Citation: 2024 LiveLaw (Del) 260 The Delhi High Court single bench of Justice Prathiba M Singh held that multiple arbitrations before different Arbitral Tribunals in respect of the same contract is counterproductive and ought to be avoided. The bench held that it is incumbent on the parties to disclose such information to the court when approaching for appointment of arbitrator under Section 11(6) of the Arbitration & Conciliation Act, 1996. The High Court referred to the case of Gammon India Ltd. & Anr. v. NHAI, 2020:DHC:2144, and noted that it an important to avert the potential pitfalls associated with multiple arbitrations before distinct Arbitral Tribunals concerning the same contract. The High Court emphasized the counterproductivity of such a scenario and stressed the importance of avoiding conflicting and irreconcilable findings. Delhi High Court Imposes Costs Of Rs.1 Lakh On Indian Oil For Taking Inconsistent Stance In Section 34 A&C Petition Case Title: M/S. Fiberfill Engineers Through Its Partner Mr. Rishabh Kishore Vs M/S. Indian Oil Corporation Limited Through Dy. General Manager (Engg.) Citation: 2024 LiveLaw (Del) 261 The Delhi High Court single bench of Justice Prateek Jalan set aside an arbitral award noting that the Indian Oil Corporation Limited failed to present evidence before the Arbitrator, thereby, making it impossible to adjudicate the contention raised regarding payment of dues. The bench imposed a substantial costs of Rs.1 lakh on the Indian Oil for taking unjustifiable contrary stands at various points in the proceedings. The High Court noted a contradiction in the Respondent's stance before the Arbitrator. Despite claiming that No Due Certificates were signed by the Petitioner, it noted that the Respondent failed to produce those certificates. Regarding the inconsistency of documents presented in arbitration proceedings, it highlighted the Respondent's inability to correlate certificates with specific work orders or match them with payments. It noted that the No Due Certificates were made prior to any payment by the Respondent. It held that there were no certificates issued after payment. Non Filing Of Arbitral Award Along Section 34 Is A Fatal Defect, Makes Filing Non-Est: Delhi High Court Dismisses Section 34 Petition Case Title: Union Of India Vs NCC Limited Citation: 2024 LiveLaw (Del) 262 The Delhi High Court single bench of Justice Prateek Jalan held that non filing of the arbitral award along with the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 is a fatal defect, making such filing as non-est. The bench held that the absence of a copy of the award renders it impossible to appreciate the grounds for seeking to set aside the award. The High Court referred to the decision of its Division Bench, particularly the case of Oil & Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & Ors. [FAO(OS)(COMM) 324/2019, dated 09.01.2023]. In this case, it was explicitly stated that non-filing of the award constitutes a fatal defect. The High Court emphasized the necessity for an application under Section...

Arbitration Weekly Round Up: 4th March to 11th March 2024

Rajesh Kumar

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