(IN) Bachawat: Arbitration and Conciliation

Bachawat: Arbitration and Conciliation

Justice R S Bachawat

Bachawat: Arbitration and Conciliation > Bachawat: Arbitration and Conciliation > Volume I > PART I
ARBITRATION > CHAPTER 3 COMPOSITION OF ARBITRAL TRIBUNALS

S. 10. Number of
arbitrators

(1) The parties are free to determine the number of arbitrators, provided that such number shall not be an
even number.

(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole
arbitrator.

1. UNCITRAL Model Law

This section corresponds to Section 10 of the Model Law.

Analytical Commentary on Draft Model Law

Article 10. Number of Arbitrators

(1) The parties are free to determine the number of arbitrators.

(2) Failing such determination, the number of arbitrators shall be three.

Commentary
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1. Article 10 is the first article presenting and illustrating the “two-level system” so typical of the model
law. The first provision falls in the category of articles which recognize the parties’ freedom and give
effect to their agreement, to the exclusion of any existing national law provision on the issue. The second
provision falls in the category of suppletive rules which provide those parties failing to regulate the
procedure by agreement with a set of rules for getting the arbitration started and proceeding to a final
settlement of the dispute.

2. Paragraph (1) recognizes the parties’ freedom to determine the number of arbitrators. Thus, the choice
of any number would be given effect, even in those legal systems which at present require an uneven
number. As generally stated in article 2(c), the freedom of the parties is not limited to determining the
issue themselves but includes the right to authorize a third party to make that determination.

3. For those cases where the number of arbitrators has not been determined in advance or cannot be
determined in time, paragraph (2) presents a possible delay or deadlock by supplying the number. The
number three was adopted, as in the UNCITRAL Arbitration Rules (article 5)1, in view of the fact that it
appears to be the most common number in international commercial arbitration. However, arbitrations
conducted by a sole arbitrator are also common, in particular in less complex cases. It is thought that
those parties who want only one arbitrator for the sake of saving time and costs would normally agree
thereon, with an inducement to do so added by this paragraph.

2. Scope of section

The number of arbitrators shall not be an even number [ S. 10(1)]. The clause in the arbitration agreement
providing for the appointment of two arbitrators is not inconsistent with the provisions of Section 10(1).
The court, accordingly, appointed, the third arbitrator with the consent of the parties.2

An agreement for appointment of only two arbitrators, does not become void for that reason alone. The
two appointed arbitrators can then appoint a third arbitrator to act as the presiding arbitrator. Such
appointment should preferably be made at the beginning, but this can be postponed to a later stage also,
namely, when a difference arises. Majority award will become possible and the arbitration can be saved
from becoming frustrated.3 In this case the respondent did not object to the validity of the tribunal and
presented his case before the two-member tribunal. He was not allowed to object to the award on that
ground alone. There was waiver of the right to object. The matter was placed before the Chief Justice for
suitable orders, who directed that the matter be heard by a Bench of 3 Judges who by their judgment held
that Section 10 of the Act was a derogable provision and respondents 1 & 2 not having raised any
objection to the composition of the arbitral tribunal, as provided in Section 16, they must be deemed to
have waived their right to object. The question was, therefore, answered in favour of the appellant.4 In a
recent case, the court was faced with an arbitration clause that provided for appointment of two
arbitrators and in the event of a disagreement, an umpire was to be appointed by the arbitrators. Having
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regard to the provision against an “even” number of arbitrators, the court provided for a three member
tribunal, with the third member to be selected at the outset by the two party nominated arbitrators.5 It is
relevant to note that the Court did not refer to the Three Judge Bench decision of the Supreme Court in
Narayan Prasad Lohia decision which had held this requirement to be derogable.

Section 10 is mandatory. The parties cannot derogate from the provisions of this section. Arbitral tribunal
constituted with two arbitrators only is contrary to this section.6 The arbitrators de jure will not be able to
perform their functions and their mandate can be terminated in terms of Section 14.7 This is no longer
good law subsequent to the Supreme Court decision in Narayan Prasad Lohia.8 The effect of the Lohia
decision is that, parties can now contract out of the requirement of S. 10. Thus, where parties agree that
two arbitrators be appointed, the contract was held valid as S. 10 was held to be derogable.9 The Court
has also been open to appointing a third arbitrator under S. 11 when faced with such a clause.10 Given
this, the court is not likely to interfere with the appointment of an even number of arbitrators.

The agreement need not specify either the number of arbitrators or their mode of appointment.11 The
validity of an arbitration agreement cannot be challenged on the ground that the exact number of
arbitrators to be appointed is not specified. There is nothing in Section 7 to indicate the requirement of
the number of arbitrators as part of the agreement. An agreement specifying an even number of
arbitrators is a valid agreement.12 If the parties fail to determine the number of arbitrators, a sole arbitrator
is to be appointed [ S. 10(2)].13 Even though the arbitral clause in the contract contained the word
‘arbitrator(s)’, where it did not specify any number of such arbitrators to be appointed, it was held that S.
10(2) requires the appointment of only a sole arbitrator in such situations.14

Where the parties had agreed to settle their disputes to arbitration under the
Arbitration and Conciliation Act, 1996 , it was held that in the absence of any
material on record to show any agreement as to the number of arbitrators, the arbitration was to be
conducted by a sole arbitrator.15

The
Arbitration Act puts no limit on the number of arbitrators or any restriction upon
mode of appointment.16 The very foundation of arbitration agreement is consent of the parties. They may
by mutual consent without recourse to the procedure prescribed by the Act and without any order of the
court change the number of arbitrators and the
constitution of the arbitral tribunal.17 A logical extension of this proposition is that
not specifying the number of arbitrators does not amount to “failing the determination” of the number of
arbitrators so as to attract Sec. 10(2). The parties can agree upon the number of arbitrators and to the
mode of appointment when the need to go in for arbitration arises.

Where the agreement contemplated that the umpire was to enter into the picture only if the two
arbitrators were divided in their opinion, the court said that, having regard to sub-s. (1) which provides
that a reference shall not be to an even number of arbitrators, the umpire was to act as the presiding
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arbitrator, participate in the proceedings and decide the matter alongwith the two arbitrators.18

If there are three parties, the agreement may provide for reference to three arbitrators.19

An agreement provided for appointment of five or seven or even more arbitrators. Section 11 contains
no provision where in such a case there is no agreed procedure for their appointment or where the parties
fail to act on the agreed procedure. The question before the court was whether in such a case the
agreement would become void. The court said that the procedure contained in S. 11 will mutatis mutandis
apply for appointment of 5 or 7 or even more arbitrators.20

Where a clause in the agreement was that if the claim exceeded a certain amount, three arbitrators would
have to be appointed. The court said that the appointment of only two arbitrators was in violation of the
agreement as also the provisions of S. 10(1).21 In such cases, where the arbitration clause contemplates
difference in the number of arbitrators, depending upon the value of the claim, the total value of all claims
must be taken into account, regardless of their merit. Thus, in a case of this type, multiple claims were
made under different heads in a claim notice. To calculate whether the threshold for appointment of three
arbitrators had been reached, the court took into account the total quantum of all such claims, including
claims for interest, irrespective of the fact that eligibility to receive interest itself was a question for
determination by the arbitrators.22

Where an agreement for reference to a single arbitrator provides that if he could not for some reasons act
as arbitrator, each party could appoint an arbitrator. The substitutional clause is attracted if the appointed
arbitrator is unfit to act, e.g., for his being a witness in the case and alleged partiality or collusion with one
of the parties.23

An agreement may provide for “disputes to be settled by arbitration in London in the usual manner,”24 or
in usual way.25 It means the way in which disputes arising out of the particular commodity or commodities
are settled in London. It may be shown by extrinsic evidence that the usual way is an arbitration by two
arbitrators who could appoint an umpire.26[Under the (Indian)
Arbitration and Conciliation Act, 1996 , the umpire has been replaced with the
third presiding arbitrator].

Where two arbitrators were appointed by the Chief Justice on the application of a party and they were
directed to appoint their third presiding arbitrator, it was held that their proceedings without the third
arbitrator were invalid, being in violation of S. 10.27
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3. Provisions of Special Acts

By-laws framed under

Securities Contracts Regulation Act, 1956 (S. 9) prevail over the provisions of
Section 10 of this Act. An award by an Arbitral Tribunal consisting of even numbers was held to be
valid.28 This decision has subsequently been doubted by another Division Bench of the Bombay High
Court on the ground that Bye-Laws of a Stock Exchange are not in the nature of “rules” made under a
statute but only have a “statutory flavour”.29 The general principle under S. 2(4) would continue to apply
in cases where there is an inconsistency between the 1996 Act and any other enactment or rules made
thereunder.

4. One member Tribunal [ S. 10(2)]

If there is no agreement about the number of arbitrators, sub-s. (2) comes into play and it says that the
tribunal shall consist of a sole arbitrator. Where the agreement provided for two arbitrations and one
umpire, but because of its expensiveness, the parties consented to a sole arbitrator, the appointing
authority conceded to the parties, request.30

S. 10(2) is the default rule which applies if the determination under S. 10(1) fails. A cursory reading of Ss.
10(1) and 10(2) reveals that in case an even number of arbitrators have been agreed upon by the parties
then “the arbitral tribunal shall consist of a sole arbitrator.” This position has been accepted in numerous
decisions, and can be said to be settled.31 S. 10(2) would also be attracted where the
32
agreement does not specify the number of arbitrators at all. The following observations of Panta J of the
Supreme Court highlight the concerns of the court when faced with a request for appointing a three
member tribunal in such cases33 —

“A composition of the arbitral tribunal comprising three arbitrators, in my considered opinion, is not necessary or expedient nor it can
be said to be fair and reasonable in the larger interests of the parties because such an order may lead to burdening the parties to bear
extra amounts of money in prosecuting the arbitral proceedings which as per the objectives of the Act are less expensive and more
efficacious remedy to the parties to settle their disputes.”

All these cases, except one34, did not consider the impact of the Supreme Court's decision in Narayan
Prasad Lohia where S. 10(1) was held to be a derogable provision.35 It appears however that the position
above is unaffected by the Lohia case since the ratio in Lohia is inapplicable in a situation as above.
Though Narayan Prasad Lohia's case36 has allowed the possibility of appointing an even number of
arbitrators, the case arose in the context of a post-award situation where the two arbitrators, one
appointed by each party, had given an award which was challenged on the grounds that the
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constitution of the arbitral tribunal violated S. 10(1). It was held that the parties, by
participating in the proceedings, had waived their rights to object. The case does not talk of the
applicability of S. 10(2) at all. Therefore, it does not affect the rules applicable to appointment of
arbitrators when there has been a derogation from the requirements under S. 10(1). It appears that S.
10(2) would continue to apply in such cases.

5. Singular includes plural

Where the provision in an Orissa Government contract was that the dispute, if any, would be referred to
an arbitrator, it was held that the dispute being referable to the Orissa Arbitration Tribunal and though it
was composed of three arbitrators, the reference was valid. The court said that the expression “an
arbitrator” was not to be interpreted in a vacuum, but in the light of the other provisions of the
agreement. The expression must include the Orissa Arbitration Tribunal.37

Further Suggested Reading (Number of Arbitrators)

1. Rajindar Sachar, “Some Aspects on Arbitration Law”, 2002 (5) SCALE Jour 1.

2. Ravi Singhania, “Arbitration - Derogable and Non-Derogable Provisions”, 14(1) I.C.C.L.R. 1 (2003).

APPOINTMENT OF ARBITRATORS

Section 11 of the Arbitration and Conciliation Act, 1996 replaces Section 8 of the
1940 Act.38 The power of the parties to constitute an arbitral tribunal and that of the court to do so have
been stated in the same section.

1. For text of UNCITRAL Arbitration rules, see Appendix 48.

2. B.T. Patil & Sons Belgaum (Construction) Pvt. Ltd. v. Konkan Railway Corpn. Ltd., (1998) 1 Mah. LJ 502 (Bom)
: 1998 Supp Arb LR 189.
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3. Narayan Prasad Lohia v. Nikunj Kumar Lohia,

(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

4. Narayan Prasad Lohia v. Nikunj Kumar Lohia,

(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

5. Groupe Chimique Tunisien SA v. Southern Petrochemicals Industries Corpn. Ltd.,

(2006) 2 Arb LR 435 , 441 :
AIR 2006 SC 2422 [
LNINDORD 2006 SC 1 ]:
(2006) 2 RAJ 634 :
(2006) 5 SCC 275 [
LNINDORD 2006 SC 1 ].

6. Unit Head, National Jute Manufacturers Corpn. Ltd. v. Saroj Agarwal,

(2008) 1 Arb LR 629 , 636 :
AIR 2008 Pat. 25 : (2008) 2 RAJ 565 : (2008) 1 AIR Jhr. R. 1019, arbitral tribunal appointed by
court consisting of two arbitrators is violative of S. 10, and consequent award can be challenged.

7. Ashalata S. Lahoti v. Hiralal Liladhar, (1999) 1 Mah. LJ 352 :

(1999) 3 Arb LR 62 .

8. Narayan Prasad Lohia v. Nikunj Kumar Lohia,

(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381 :
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ]followed in Sara International Ltd. v. Arab Shipping Co. (P)
Ltd.,
(2009) 3 Arb LR 81 [
LNIND 2009 DEL 2071 ], 97 (Del), clause requiring arbitration by two arbitrators is not ipso facto
void nor is it against public policy.

9. Sara International Ltd. v. Arab Shipping Co. (P) Ltd.,

(2009) 3 Arb LR 81 [
LNIND 2009 DEL 2071 ], 97 (Del)following Narayan Prasad Lohia v. Nikunj Kumar
Lohia,
(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
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(2002) 1 RAJ 381 :

(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

10. Groupe Chimique Tunisien SA v. Southern Petrochemicals Industries Corpn. Ltd.,

(2006) 2 Arb LR 435 , 441 :
AIR 2006 SC 2422 [
LNINDORD 2006 SC 1 ]:
(2006) 2 RAJ 634 :
(2006) 5 SCC 275 [
LNINDORD 2006 SC 1 ] . See also Ranwa Construction Co. v. Administrator, Pant
Krishi Bhavan,
(2006) 1 Arb LR 207 , 213 :
AIR 2006 RAJ 70 : (2006) 2 RAJ 472 :
(2006) 1 RAJ 679 :
(2005) 4 WLC 498 , agreement provided for a panel of four arbitrators, court opined that even if
clause is held violative of S. 10, intention to arbitrate is severable and can be effectuated through S. 11.

11. Sat Pat Anand v. R.K. Ahuja,

AIR 1973 PH 197 .

12. MMTC Ltd. v. Sterlite Industries (India) Ltd.,

(1996) 2 Arb LR 705 , 709 :
AIR 1997 SC 605 [
LNIND 1996 SC 1888 ]; Satya Kailash Chandra Sahu v. Vidharbha Distillers,
AIR 1998 Bom 210 [
LNIND 1997 BOM 1322 ]; Steel Authority of India Ltd. v. Rana Construction,
(2003) 4 RAJ 464 (Ori) : 2000 Supp Arb LR 539, appointment of two arbitrators, by the court
without providing anything in the order for appointment of third arbitrator held, order improper.

13. Para 1 of the First Schedule to the 1940 Act read as follows :
“Unless otherwise expressly provided, the reference shall be to a sole arbitrator”. See Villa Denizcilik
Sanayi Ve Ticaret As v. Longen S.A.,
(1998) 1 QB 195 (Comml. Ct.) : (1998) 1 Lloyd's 195; Sri Venkateswara Construction Co. v. Union of
India,
AIR 2001 AP 284 [
LNIND 2001 AP 129 ]:
(2001) 3 RAJ 172 , the provision in a Government contract was for even number of arbitrators,
namely 2, the court held that the Arbitral Tribunal was to consist of a sole arbitrator. Ashalata S. Lahoti v. Hiralal L. Tiladhar,
(1999) 2 RAJ 384 :
(1999) 1 Bom LR 241 (Bom), in the instance case, the composition of the arbitral tribunal was of
two members and consequently it was contrary to S. 10 of the Act as the parties could not derogate from its provisions. Atul R. Shah v.
Vrijlal Lalloobhai & Co.,
(2000) 2 RAJ 14 :
AIR 1999 Bom 67 [
LNIND 1998 BOM 957 ]:
(1999) 1 Arb LR 54 , the fact that the Arbitral Tribunal was not properly constituted and that no
objection was raised by the petitioner before the tribunal could not confer valid jurisdiction on the tribunal, its
constitution being in contravention of S. 10.

14. Sime Darby Engineering SDN BHD v. Engineers India Ltd.,

(2009) 3 Arb LR 220 , 226- 227 :
(2009) 3 RAJ 590 :
(2009) 7 SCC 647 [
LNIND 2009 SC 863 ] :
(2009) 3 CCC 359 relying on Mustill & Boyd On Arbitration, 2nd edn, 1989 at p.
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174 “an arbitration agreement calls for a reference to a single arbitrator, either if it contains an express stipulation to that effect, or if it is
silent as to the mode of arbitration; and Russell on Arbitration, 23rd ed. (2007), p. 129, para 4–035, “where no choice [as to the number
of arbitrators] is made, the law presumes a reference to a tribunal consisting of a sole arbitrator”.

15. Braithwaite & Co. v. Central Organisation for Modernisation of Workshops,

(2008) 2 Arb LR 136 :
(2008) 5 RAJ 156 (Del).

16. Abdul Shakur v. Muhammad Yusuf, ILR 43 All 456 :

AIR 1921 All 64 .

17. Sheikh v. Kankinarah Co., 38 CWN 638 :

AIR 1924 Cal 695 ; Abdul Shakur v. Muhammad Yusuf, ILR 43 All 456 :
AIR 1921 All 64 ; Sime Darby Engineering SDN BHD v. Engineers India Ltd., (2009) 3 Arb LR 220,
226- 227 :
(2009) 3 RAJ 590 :
(2009) 7 SCC 647 [
LNIND 2009 SC 863 ] :
(2009) 3 CCC 359 , per Ak Ganguly J “parties have freedom to change the number of arbitrators
even after the contract has been entered and by mutual consent the parties may amend the contract”.

18. J.L. Prasad v. G.M. Southern Rlys., Chennai,

(2002) 4 RAJ 437 (Kar).

19. Farrar v. Cooper, 44 Ch. D 323; Bonain v. Neaw,

(1910) 1 Ch 323 ; In Re, v. Baboldas Khemchand,
AIR 1921 Bom 185 .

20. Narayan Prasad Lohia v. Nikunj Kumar Lohia, 2002 AIR (SC) 1139 : (2002) 1 RAJ 381 :
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ] :
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 3 SCC 585 :
(2002) 2 JT 222 :
(2002) 2 Scale 232 :
(2002) 2 SLT 144 :
(2002) 2 Supreme 69 :
(2002) 2 SCJ 126 : (2002) 3 SRJ 543 :
(2002) 1 Arb LR 493 (SC).

21. B.T. Patil & Sons P. Ltd. v. Konkan Rly. Corpn. Ltd.,
(2000) 1 RAJ 74 :
(1998) 1 Bom LR 744 (Bom).

22. Glencore International AG v. Hindustan Ltd., Zinc

(2005) 3 Arb LR 145 , 149 :
(2005) 4 RAJ 75 :
(2005) 3 RAJ 455 ; Prabhubhai S. Rathod v. Union of India,
(2007) 1 RAJ 160 (Bom), in construction of the total claim, the interest component would also have
to be taken into account; Deepak Kumar Bansal v. Union of India,
(2009) 2 Arb LR 50 , 54 :
(2009) 2 RAJ 1 :
(2009) 3 SCC 223 [
LNIND 2009 SC 373 ] :
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(2009) 1 CCC 344 , where threshold itself is related to the quantum of work done, the total quantum
of work, including any additional work arising out of the same contract, must be taken as the basis for determining the threshold.

23. Budhu Lal v. Jaganath, 1949 All LJ 559 :

AIR (1949) All 70 .

24. Sheikh v. Kankinarah Co., 38 CWN 638 :

AIR 1924 Cal 665 .

25. Bright v. Gibson,

(1916) 32 TLR 533 ; Naumann v. Nathan, (1930) 37 Lloyd's Rep 249.

26. Serimdglio v. Thornett and Fchr.,

(1924) 131 LT 174 .

27. Harish Chinnubhai Shah v. Rajesh Prabhakar Jhaveri,

(2004) 2 RAJ 179 (Bom).

28. Stock Exchange, Mumbai v. Vinay Bubna,

AIR 1999 Bom 266 [
LNIND 1999 BOM 116 ](DB) :
(1999) 4 RAJ 557 : 1999 Supp Arb LR 32; Managing Committee, Governing Body of R.K. Arya College
Nawanshakar v. B.S. Ganga,
1977 Lab IC 1812 (P&H) was relied on.

29. Dowell Leasing & Finance Ltd. v. Radheshyam B Khandelwal,

(2008) 1 Arb LR 512 :
(2008) 4 RAJ 101 :
(2008) 1 Bom CR 768 [
LNIND 2007 BOM 950 ] (Bom-DB)relying on Bombay Stock Exchange v. Jaya I
Shah,
AIR 2004 SC 55 [
LNIND 2003 SC 904 ]:
(2004) 1 SCC 160 [
LNIND 2003 SC 904 ] : (2003) 117 Comp Cases 595.

30. Abdul Gafaar v. Sri Jaichandlal Ashok Kumar & Co. Pvt. Ltd.,
(2000) 2 Arb LR 651 (SC) :
(2000) 3 RAJ 160 :
(2000) 8 JT 152 :
(2000) 7 SLT 141 :
(2000) 7 Supreme 75 (2); Marine Container Services (South) Pvt. Ltd. v. Atma Steels Ltd.,
(2001) 1 RAJ 284 (Del), as per the arbitration clause, reference of disputes/differences to be made
to two arbitrators, one to be nominated by each parties, failure on the part of the respondent to respond the letter written by the
petitioner for appointment of arbitrator, sole arbitrator to be appointed in view of Section 10.

31. Rapti Contractors v. Reliance Energy Ltd.,

(2009) 2 Arb LR 9 , 13 (Del) ; Dr. Deepashree v. Sultan Chand & Sons,
(2008) 4 Arb LR 94 :
(2009) 2 RAJ 576 (Del); Wipro Finance Ltd. v. Sandplast India Ltd.,
(2006) 3 RAJ 524 :
(2006) 129 DLT 608 (Del); Marine Container Services (South) Pvt. Ltd. v. Atma Steels Ltd.,
(2001) 1 Arb LR 341 (Del); Ashok Engineering Co. v. General Manager, South Central Railway,
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(2001) 2 ALT 449 ; North East Securities Ltd. v. Sri Nageswara Chemicals and Drugs Pvt. Ltd.,
(2001) 1 Arb LR 70 (AP).

32. Citibank N.A. v. TLC Marketing PLC,

(2007) 4 Arb LR 1 :
AIR 2008 SC 118 [
LNIND 2007 SC 1164 ]:
(2007) 4 RAJ 387 :
(2008) 1 SCC 481 [
LNIND 2007 SC 1164 ], parties had failed to determine the number of arbitrators as per S. 10(1)
and therefore S. 10(2) of the Act was held fully attracted.

33. Citibank N.A. v. TLC Marketing PLC,

(2007) 4 Arb LR 1 , 8 :
AIR 2008 SC 118 [
LNIND 2007 SC 1164 ]:
(2007) 4 RAJ 387 :
(2008) 1 SCC 481 [
LNIND 2007 SC 1164 ].

34. Dr. Deepashree v. Sultan Chand & Sons,

(2008) 4 Arb LR 94 :
(2009) 2 RAJ 576 (Del)distinguishing Narayan Prasad Lohia v. Nikunj Kumar Lohia,
(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381 :
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

35. Narayan Prasad Lohia v. Nikunj Kumar Lohia,

(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381 :
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

36. Narayan Prasad Lohia v. Nikunj Kumar Lohia,

(2002) 1 Arb LR 493 :
AIR 2002 SC 1139 [
LNIND 2002 SC 135 ]:
(2002) 3 SCC 572 [
LNIND 2002 SC 135 ] :
(2002) 1 RAJ 381 :
(2002) 1 SCR 1136 [
LNIND 2002 SC 135 ].

37. Gayatri Projects Ltd. v. State of Orissa,

(2004) 2 RAJ 696 (Ori).

38. The provisions in the 1940 Act were as follows :

S. 8. Power of Court to appoint arbitrator or umpire.—(1) In any of the following cases—

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(a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by
consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appointments; or
(b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration
agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may
be, do not supply the vacancy; or
(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him;

any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the
appointment or appointments or in supplying the vacancy.
(2) If the appointment is not made within fifteen clear days after service of the said notice, the Court may, on the
application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or
arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had
been appointed by consent of all parties.
STATE AMENDMENT
Uttar Pradesh—Amendment of Section 8.—In Section 8 of Act 10 of 1940 in sub-section (1), in
clause (b), for the words “and the parties or the arbitrators, as the case may be, do not supply the vacancy” the words “and as the case
may be, the parties or the arbitrators do not supply, or the person designated does not under sub-section (3) of Section 4 supply, the
vacancy” shall be substituted—U.P. Act 57 of 1976, S. 16, (w.e.f. 1–1–1977) :
(1997) 2 Arb LR 492 .

End of Document