Arbitration Law
Mode of Citation- ILC-2017-SC-ARB-....
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Arbitration Law
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Arbitration Law
Mode of Citation- ILC-2017-SC-ARB-....
Judgement Subject Index/Important Decision/Topic

ILC-2015-SC-ARB-Oct-3

Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla

Head Note

The Arbitration and Conciliation Act, 1996  - Section 15 (2) , The Code of Civil Procedure, 1908  - Section 89

Substitute Arbitrator - Appointment of - There is nothing in clause 8 of the consent terms to show that the resignation of appointed Arbitrator a retired Judge of the Supreme would lead to that vacancy not being supplied - All that the parties have done by the said clause is to agree to refer their disputes to the arbitration of an independent retired Judge belonging to the higher Judiciary - There is no personal qualification of the appointed Arbitrator who has resigned that is required to decide the dispute between the parties - In fact that Arbitrator belongs to a pool of independent retired High Court and Supreme Court Judges, from which it is always open to the appointing authority to choose a substitute arbitrator - Clause 8 in the present case cannot be construed to either expressly or by necessary implication exclude the appointment of a substitute arbitrator.

The Arbitration and Conciliation Act, 1996  - Section 15 (2) , The Code of Civil Procedure, 1908  - Section 89

Substitute arbitrator - Appointment of - Whenever parties agree for mediation, and even name a specific arbitrator with no specific provision for appointment of another arbitrator on the recusal/withdrawal of the said arbitrator, the said omission is made up by Section 15(2) of the Act and unless arbitration agreement between the parties provides a categorical prohibition or debarment in resolving a question or dispute or difference between the parties by a substitute arbitrator in case of death or the named arbitrator or non-availability of the said arbitrator - Courts have the power to appoint substitute arbitrator, which power is given by Section 15(2) of the Act as this provision is to be given liberal interpretation so as to apply to all possible circumstances under which the mandate of the earlier arbitrator may be terminated.

The Arbitration and Conciliation Act, 1996  - Section 15 (2) , The Code of Civil Procedure, 1908  - Section 89

Substitute Arbitrator - Consent terms - Appointment of Arbitrator - Substitute arbitrator - Appointment of -Section 89 of the CPC specifically provides that a Court hearing a suit may formulate terms of settlement between the parties and may either settle the same or refer the same for settlement by conciliation, judicial settlement, mediation or arbitration -Following the mandate of Section 89, the Bombay High Court disposed of the suit between the parties by recording the settlement between the parties in clauses 1 to 7 of the consent terms and by referring the remaining disputes to arbitration - It is the Bombay High Court that was the appointing authority which had in fact appointed a retired Judge of the Supreme Court as arbitrator in terms of clause 8 of the consent terms - Bombay High Court applied its mind to the consent terms as a whole and appointed arbitrator for the disputes that were left to be resolved by the parties - The said appointing authority has been approached by the respondent for appointment of a substitute arbitrator, which was then done by the impugned judgment - This would therefore be "according to the rules that were applicable to the appointment of the arbitrator being replaced" in accordance with Section 15(2) of the Act - High Court correctly appointed another independent retired Judge as substitute arbitrator in terms of Section 15(2) of the Arbitration Act, 1996.

The Arbitration and Conciliation Act, 1996  - Principles of Interpretation

Purposive Interpretation - Purposive interpretation is based on three components: language, purpose, and discretion - Language shapes the range of semantic possibilities within which the interpreter acts as a linguist - Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities - The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.

The Arbitration and Conciliation Act, 1996  - Interpretation of statute

Purposive interpretation - Held that statutory interpretation of a provision is never static but is always dynamic - Though literal rule of interpretation, till some time ago, was treated as the 'golden rule', it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity - If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced.

Topic(s)-Substitute Arbitrator - Appointment







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