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9. Ms. Mishra, learned counsel for the respondent-Contractor submitted that in view of Section 12 of the Arbitration and Conciliation (Amendment) Act, 2015, if the arbitrator is an employee/advisor or has any past or present business relation or being the Manager/Director then he cannot be appointed as an arbitrator and not qualified to decide the dispute and therefore, the High Court has rightly appointed the fresh independent arbitrator. It was submitted that the disqualification of the person to hold the post of an arbitrator as enumerated in Seventh Schedule of Arbitration and Conciliation (Amendment) Act, 2015 is a legal right conferred upon the respondent-Contractor and there cannot be any promissory estoppel against the statute by alleging that in the agreement dated 28.01.2000, the respondent agreed that the dispute and differences shall be referred to the Managing Director himself or his nominee for the sole arbitration. Placing reliance upon Union of India and Others v. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52, it was contended that when there is failure on the part of the arbitral tribunal to act and unable to perform its functions, it is open to a party to the arbitration proceedings to approach the court for termination of the mandate of the arbitrator and seek appointment of the substitute arbitrator. The learned counsel for the respondent further submitted that in the present case, since for a long period of about ten years, no award has been passed and that the arbitrators were kept on changing for one reason or other, the respondent was justified in approaching the High Court for substitution or appointment of fresh arbitrator. It was submitted that only after the respondent approached the High Court, the proceedings were accelerated and award came to be passed.

 When by virtue of arbitration agreement Clause 4.20.1 of Schedule-4 (General Conditions), parties have  agreed that the dispute, differences between the parties to be resolved by the Managing Director or his nominee, whether the High Court was right in deviating from the terms of the agreement between the parties and appointing an independent Arbitrator?

 Whether by virtue of Section 12 of the Arbitration and Conciliation (Amendment) Act, 2015, the Chairman- cum-Managing Director has become ineligible to act as the arbitrator?

Whether by virtue of Section 12 of the Amendment Act, the Managing Director has become ineligible to act:-

23. After the amendment to the Arbitration and Conciliation Act, 2015, Section 12(5) prohibits the employee of one of the parties from being an arbitrator. In the present case, the agreement between the parties was entered into on 28.01.2000 and the arbitration proceedings commenced way back in 2009 and thus, the respondent cannot invoke Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015. As per Section 26 of the Act, the provisions of the amended Act 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree.