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2.12 On 23.11.2016, HRD filed an application under Section 12 and 13 of the Act read with the ICADR Arbitration Rules, 1996 praying that the mandate of Justice Tejinder Singh Doabia as an arbitrator, be terminated.

Subsequently, on 24.11.2016 during the course of hearing of HRD‟s application under Section 12 of the Act, a copy of the letter of disclosure dated 24.11.2016 furnished by Justice K.K. Lahoti (Retired), as also a copy of the letter of disclosure dated 31.10.2016 furnished by Justice Tejinder Singh Doabia (Retired) were handed over to HRD's counsel.

4. HRD has moved the present petitions, being OMP(T)(Comm) 22/2017, seeking termination of the mandate of Justice Tejinder Singh Doabia (Retired) and OMP(T)(Comm) 23/2017 for seeking termination of the mandate of Justice K.K. Lahoti (Retired).

Submissions in support of termination of the mandate of Justice Tejinder Singh Doabia (Retired)

5. Mr Nigam, learned senior counsel appearing for HRD contended that there were justifiable grounds to give rise to doubts as to the independence and impartiality of the arbitrator. He referred to the Fifth Schedule to the Act and submitted that the grounds referred to at serial nos. 15 and 16 clearly applied in respect of the arbitrator and, therefore, by virtue of Section 12(1) of the Act, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (hereafter „the Amendment Act‟), it was clear that there were justifiable grounds to doubt the independence and impartiality of the arbitrator. Further, it was contended that the relationship of the arbitrator to the dispute rendered him ineligible for being appointed as an arbitrator. He also referred to grounds mentioned at serial nos. 22 and 24 of the Fifth Schedule and submitted that Justice Doabia had been appointed as an arbitrator on more than one occasion by GAIL and, therefore, HRD was justified in doubting his impartiality.

Explanation 1.--The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.

Explanation 2.--The disclosure shall be made by such person in the form specified in the Sixth Schedule."

28. It is at once seen that the scope of the disclosure required under Section 12(1) of the Act has been expanded. The circumstances which may give rise to justifiable doubts as to the independence or an impartiality of the arbitrator have been illustratively indicated in Section 12(1)(a) of the Act. In addition, an arbitrator is also required to now disclose whether he has ability to devote sufficient time to arbitration [Section 12(1)(b)]. Explanations 1 and 2 have also been introduced to Section 12(1) of the Act. Explanation 1 indicates that the grounds stated in the Fifth Schedule to the Act would serve as a guide in determining whether the circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. As indicated in the 246th Report of the Law Commission of India -which is the basis of the amendments introduced by the Amendment Act - the Fifth Schedule (referred to as Fourth Schedule in the report of the Commission) has been drawn from the Red and Orange lists of the International Bar Association (IBA) Guidelines on Conflict of Interest in International Arbitration. Thus, the scope of the disclosure and the grounds which may give rise to justifiable doubts as to independence and impartiality of the arbitrator have been specifically illustrated. However, this does not change the basic scheme of Sections 12 and 13 of the Act. In other words, any challenge laid to an arbitrator on the grounds that there are circumstances that give rise to justifiable doubts as to his independence or impartiality or his qualifications, is required to be adjudicated before the arbitral tribunal and if such a challenge is rejected, the unsuccessful party has to await the delivery of the award.