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But, the counter argument is that, if the majority get
constituted on any issue, then why parties will get the award
set aside? If there would have been a third (or any number of
odd) arbitrator, whether he would disturb the majority? It’s
possible that he could have been dissenting arbitrator. He
would not have disturbed the majority. Also, in S.11, it is not
expressly mentioned that the appointed arbitrators will
appoint the third arbitrator at the beginning of the
proceedings. It means they may call him at a later stage. With
the passage of time they may realise that they may not agree
on a point and majority may not be constituted at a later point
of time, they may appoint the third arbitrator. If they realise
that majority may be constituted, why they should appoint the
third arbitrator. Will it not be wastage of time to set aside the
arbitral award on technical ground that it has been passed by
an arbitral tribunal consisting of even number of arbitrators,
even when the majority formed? It will certainly be a wastage
of time, a violation of basic notion of justice and morality, and
hence, a violation of public policy of India.
It will be far better if we interpret S.10 in the light of
S.11, which give freedom to the parties for the appointment of
arbitrators. Not only it will be a purposive interpretation, but it
will also support the object of the Act, i.e. to allow minimum
court intervention, to strengthen the arbitral tribunal, and to
enhance the party autonomy. If parties agree on even number
of arbitrators, there is no need to set aside the arbitral award
on the technical ground. Let’s not take S.10 as mandatory
provision. Let’s take S.10 as derogable provision.
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The Supreme Court in Narayan Prasad Lohia v. Nikunj
Kumar Lohia and others, AIR 2002, SC 1139 with the help of
following 3 grounds held that S.10 is a derogable provision :-
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Nature of the order under s.11(6)
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Konkan Railway Corporation Ltd. v. M/s. Mehul
Construction Co., AIR 2000 SC 28212
2
Paranjape, Dr. N.V., Law Relating To Arbitration and Conciliation in India, 7 th Edition, 2016; Central Law
Agency, 155
3
Ibid, 156
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SBP & Co. v. Patel Engineering Ltd.,(2005)8 SCC 6184
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(ii) Whether the party approaching is a party to the
agreement or not.
As only party to the agreement can invoke the arbitration
clause, if the approaching party is not a party to the
arbitration agreement, it cannot invoke the arbitration
clause. The Court cannot appoint an arbitrator on the
request of a non-party. Hence, the determination of the
status of the approaching party is a jurisdictional question
of law.
The claim should be a live one. The Court has to decide the
question whether the claim was a dead one in the sense that
the parties have already settled their matters.5
5
Singh, Dr. Avtar, Law of Arbitration and Conciliation including Alternative Dispute Resolutions Systems, Tenth
Edition,2013; Eastern Book Company, 133-134
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Changes in Court’s Power to appoint arbitrator(s) under
6
Paranjape, Dr. N.V., Law Relating To Arbitration and Conciliation in India, 7 th Edition, 2016; Central Law
Agency, 158-159
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