In this article, the author has described the qualification and appointment norms for an Arbitrator. Hence, answering Who can be an arbitrator!
What is Arbitration?
Arbitration is the most preferred form of alternative dispute resolution. In a court proceeding, the judges play a significant role in delivering justice, the same is in an arbitration proceeding. The arbitrators play important role in accomplishing the aim of arbitration (Resolving dispute). An eminent arbitrator should act fair in deciding the case and granting justice to the parties. He must comply with the Principles of Natural Justice. Section 11 of the Arbitration and Conciliation Act, 1996 defines the appointment of arbitrators. It also mentions who can be an arbitrator?
Who is an Arbitrator?
In arbitration, an arbitrator is the presiding officer. The Cambridge dictionary defines an arbitrator as
A person who has been officially chosen to make a decision between two people or groups who do not agree.
Cambridge Dictionary
In an arbitration proceeding, he plays an important role in deciding the case. An arbitrator is an independent third-party entity. They hear the pieces of evidence, apply the law and decide the result of the arbitration proceedings.
Who can be an Arbitrator?
A person who is of sound mind can be appointed as an arbitrator. The nationality of an arbitrator is not specifically restricted. Hence, the arbitrator may be of any nationality. This is as per Section 11 of the Arbitration and Conciliation Act, 1996 (“The Act”). Furthermore, the parties are free to choose the arbitrator and determine the arbitrator’s qualifications.
A person to become an arbitrator must qualify the following conditions:
- He can be a judge.
- He can be an advocate; or
- He can be a chartered accountant; or
- He can be a maritime expert.
- He can be an executive; or
- He can be an engineer; or
- He can be a businessman;
Some arbitral institutions which conducts international arbitration, have included foreigners for being arbitrators. This was to enable the foreign parties to appoint arbitrators of other nationalities whom they consider more appropriate.
What norms should an Arbitrator abide by?
There are various norms that an arbitrator must abide by.
- A person who is of the general reputation of accountability, integrity. He shall be capable of applying objectivity in arriving at a settlement of disputes.
- An arbitrator should be impartial and neutral. He must avoid entering into any associations which has a tendency to affect the impartiality. The arbitrator must avoid circumstances which might create a reasonable appearance of partiality or bias among the parties.
- The arbitrator must not incorporate himself in any legal proceedings. He should refrain from any potential conflict related to the disputes which he shall arbitrate.
- He must not engage in any private discussions or conversations with the parties related to the dispute.
- The arbitrator must not accept any illegal gratifications.
For any disputes which come before him, he must be capable of suggesting, recommending or writing a reasonable and enforceable arbitral award.
How is an Arbitrator appointed?
The number of arbitrators to be appointed is stated in Section 10 of the Act. It states that the parties are free to decide the number of arbitrators, however, the number should not be even. For the appointment of an arbitrator, the parties are free to decide the procedure. In case the parties fail to decide or agree on the appointment of arbitrators, they must refer to the agreement.
If the agreement states that three arbitrators are to be appointed for arbitration, each party must choose one. Among the two appointed arbitrators must jointly appoint an arbitrator for the proceeding, who shall act as a presiding arbitrator.
It might so happen that only one arbitrator is present. There might not be an arbitration agreement. In that case, this is the procedure of the appointment of the arbitrator. The parties must decide the arbitrator within 30 days from the day of receipt by one party’s request from the other party for his decision. Else the Chief Justice or his designate appoints the same, as mentioned under section 17 (2) and 17 (5).
While considering the application for the appointment of an arbitrator, the Court should confine to the examination of the arbitration agreement.
What are the powers of an Arbitrator?
The arbitrator also has the power to appoint an expert, unless otherwise agreed by the parties for his advice under section 26 under the 2021 Act. An expert, appointed by the concerned party, is to examine them and their documents, goods or property. With the help of the same, he can prepare his report.
CONCLUSION
The above-mentioned qualifications describe who can become an arbitrator. It includes a piece of brief information about the appointment and power. The Arbitration and Conciliation (Amendment) Act, 2021 has eradicated the Schedule VIII of the Arbitration and Conciliation Act, 2019. It was replaced with Section 43J. It states that “The qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by the regulations“.
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