Express agreement in writing to waive unilateral appointment of Arbitrator is mandatory
The petitioner and the respondent entered into the works contract for construction of PEB Project, on 24.8.2011. The petitioner issued two Purchase Orders dated 26.8.2011 and 4.11.2011 to the respondent.
On 7.6.2017, the respondent not only invoked the arbitration but also made unilateral appointment of sole Arbitrator.
On 17.1.2019, the mandate of the Arbitrator came to an end. There was delay in filing extension application. Moreover, it was dismissed by the Commercial Court for want of jurisdiction.
Thereafter, on 21.8.2024, The High Court had extended the mandate by six months. However, the High Court observed that the objections of the petitioner in respect of unilateral appointment could be raised in sections 14 & 15 application.
The Arbitrator resumed the proceedings on 11.9.2024 and the matter was at the stage of final arguments.
In that context, it was said that once the petitioner had participated in the arbitration proceedings, it cannot object to the unilateral appointment of Arbitrator and that too, by the person who has interest in the dispute.
HELD, relying on proviso that mere participation of the parties without an unequivocal written waiver after the dispute has arisen is mandatory and I would not amount to acceptance of unilateral appointment. The unilateral appointment of the Arbitrator being void ab initio is liable to be quashed.
Judgment dated 19.3.2025 of the High Court of Delhi in O.M.P. (T) (COMM.) 107/2024 of Shakti Pump India Ltd Vs. Apex Buildsys Ltd with connected matters
