Unilateral Appointment of Arbitrator – Waiver of Section 12(5) Must Be In Writing

Judgment dated 15.10.2026 of the High Court of Delhi in FAO (OS) (COMM) No.140 of 2023 of M/s Telecommunications Consultants India Ltd   Vs.  M/s Vista Information Systems Private Limited

Disputes arose between the parties regarding the release of amounts payable under the agreement. Clause 6 of the agreement provides for resolution of disputes through arbitration by a sole arbitrator appointed by the Chairman and Managing Director (CMD) of TCIL and in the eventuality of the parties failing to agree on the sole arbitrator, the appointment shall be made by the International Centre for Alternative Dispute Resolution (for short ‘ICADR’), New Delhi.

The appellant appointed Sole Arbitrator in the arbitration initiated by the respondent.  The Award dated 1.7.2019 was confirmed in section 34 petition.

The appellant raised the objection of unilateral appointment for the first time in section 37 appeal.

The issue to be determined is whether after the dispute arose was there an express waiver in writing by the parties that the provisions of Section 12(5) of the Act shall not apply.

There is no prescribed form of waiver agreement in writing but it can be inferred by implication or by conduct.

It is not the case set up by the respondent that TCIL expressly agreed in writing to waive the applicability of Section 12(5) of the Act. The waiver has to be express and cannot be construed or inferred by relying on the fact that the appellant appointed the arbitrator.