Delhi HC – Recusal of entire Arbitral Tribunal Is Not Termination of Arbit
Judgment dated 16.10.2026 of the High Court of Delhi in ARB.P. 241/2026 of National Highways Authority of India Vs. M S IRB Westcoast Tollway LTD and others
Originally, the Arbitral Tribunal of three Members was constituted in October, 2024. The said Tribunal had recused from arbitration on account of disagreement on arbitral fees. The Tribunal stood terminated vide Procedural Order dated 16.7.2025. Thus, there was no Arbitral Tribunal in existence after 16.7.2025.
However, section 11(6) Petition for appointment of Presiding Arbitrator to complete constitution of Arbitral Tribunal was filed.
During the pendency of said petition, the petitioner filed application before the erstwhile Arbitral Tribunal to recall its earlier order dated 16.7.2025.
The parties had nominated their respective nominee Arbitrators.
The only vacancy remaining is that of the presiding arbitrator. The respondents resist the petition on a single ground. It is contended that the petition is not maintainable because the arbitral proceedings before the Arbitral Tribunal originally constituted in October 2024 (erstwhile Arbitral Tribunal) stood terminated by the Procedural Order No. 6 dated 16.07.2025, circulated via email dated 21.07.2025 (hereinafter referred to as ‘Procedural Order No. 6 dated 16.07.2025’), whereby all three members of that Tribunal recused themselves. It is contended that the same tantamounts to termination under Section 32(2)(c) of the A&C Act and that in terms of the judgment of the Supreme Court in Harshbir Singh Pannu & Anr. v. Jaswinder Singh, 2025 SCC OnLine SC 2742, the only remedy of a party aggrieved by an order of termination is to seek recall of that order before the same Tribunal and failing that, to approach the Court under Section 14(2) of the A&C Act. 3. As such, it is submitted by the Respondents that a fresh petition under Section 11 is barred.
The question that arises is, therefore, as follows: “when the Members of an arbitral tribunal recuse themselves from a reference on account of a disagreement with one of the parties as to the quantum of their fees, without passing any order under Section 32 of the A&C Act, would the reference itself stand terminated [so as to attract the consequences set out in Harshbir Singh Pannu (supra)] or would the same merely occasion a vacancy in the office of each arbitrator, to be filled in by substitution under Section 15(2) of the A&C Act.
It also makes no difference that all the three members of the Arbitral Tribunal recused simultaneously. The A&C Act nowhere contemplates that plurality of withdrawals produces a consequence different from a singular withdrawal. It is notable that the A&C Act defines Arbitral Tribunal to mean Page 32 of 38 ARB. P. 241/2026 “a sole arbitrator or a panel of arbitrators”. The A&C Act contains no provision for “recall” of a recusal/withdrawal order and also no provision empowering a Court to compel an arbitrator who has withdrawn, to resume office. The same would also be wholly illogical. Thus, for instance, in a hypothetical situation where members of an arbitral tribunal recuse on account of being unequipped to deal with a particular/technical subject matter, it would be wholly incongruous if the parties were required to seek “recall”, from the very arbitrators who had recused. The same is clearly not contemplated by the A&C Act. Moreover, there is no logic to treat simultaneous withdrawal of members of an arbitral tribunal any differently from an individual or sequential withdrawal of all its members. The use of the singular in Section 14(1) and 15(1) of the A&C Act reflects only that withdrawal is, inherently, an act of the individual arbitrator/s who choose to withdraw from office. 70. Had the erstwhile Arbitral Tribunal intended to terminate the proceedings on the ground that the continuation of arbitral proceedings had become impossible, it would have done so.
