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Arbitral Award – Validity – Challenge to the unilateral appointment of Arbitrator

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The work orders for completion of the road were given to the respondent in pursuance of MOU dated 10.9.2007 with the Petitioner.  However, due to defaults, the said contract was terminated on 31.1.2013.  

On 11.10.2017, the petitioner invoked arbitration and simultaneously appointed Arbitrator as per clause 19 of MOU which authorized Chairman / MD to appoint arbitrator.  On 17.12.2021, the Award was passed.

Surprisingly, the petitioner challenged the said award in Section 34 Petition since it has gone against it,  primarily on the ground that the Arbitrator appointed by it was de jure ineligible as per Section 12(5) of the AA.   Concept of deemed waiver of right to object by conduct under Section 4 of the AA does not apply to a situation under Section 12(5) which requires express waiver in writing subsequent to the disputes having arisen between the parties.

Judgment dated 9.4.2024 of the Delhi High Court in OMP (COMM) No.311 of 2022 of Telecommunication Consultants India Ltd  Vs. Shivaa Trading

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