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7. Learned counsel for the petitioner further submitted that Section 12 of the Arbitration and Conciliation Act, 1996 has been amended with the objective to induce neutrality of arbitrators viz. their independence and impartiality. The amended provision is enacted to identify the circumstances which give rise to justifiable doubts about the independence or impartiality of the arbitrator. If any of those circumstances as mentioned there exists, it will give rise to justifiable apprehension of bias. The fifth schedule of the Act enumerates the grounds which may give rise to justifiable doubts of this nature. Likewise, seventh schedule mentions those circumstances which would attract the provisions of subsection 5 of section 12 and nullify and prior agreement to the contrary. If an arbitrator is an employee, a consultant, an advisor or has any past or present business relationship with a party, he is rendered ineligible to act as an arbitrator. Likewise, a person is treated as incompetent to perform the role of arbitrator, who is a manager, director or part of the management or has a single controlling influence in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. Likewise, persons who regularly advise the appointing party or affiliate of the appointing party are incapacitated. In view of the above, clause 17.9 of the Agreement is invalid. In view of the invalidity of clause 17.9, the dispute cannot be adjudicated by appointment of arbitrators as contemplated therein, but the arbitrators would have to be independently appointed and the process adopted by the petitioner is appropriate and legal.

8. The other decisions relied upon by the Respondent, in the cases of S.P. Singla Constructions (P) Ltd. V/s. Delhi metro Rail Corporation Limited - 2017 SCC OnLine Del 10689 and BCL Secure Premises (P) Ltd. V/s. Metro Railway - 2017 SCC OnLine Cal 9449 are before the law laid down in the Perkins case, which has taken further, the principals of neutrality of arbitrators and their independence and impartiality.

9. The Respondent has further submitted that its autonomy as to appointment of the Arbitrators, has to be respected. In this context, it is submitted that party autonomy cannot be exercised in disregard of the principles of impartiality and independence. The spirit of amending Section 12 is to provide for neutrality of arbitrators if an arbitration clause is found to be contrary to this spirit, appointment of arbitrators beyond the arbitration agreement is permissible and the Respondent cannot insist for appointment of arbitrators in terms of the arbitration agreement. The mere fact that the parties may have agreed to an unfair arbitration agreement, is not reason enough, for such a party to be compelled to submit itself to arbitration, before an arbitral tribunal which may not inspire confidence and where neutrality is not assured or visible. The instant case is the case where giving a go-by to the agreed arbitration clause is fully justified. In the circumstances, nomination by the Petitioner of its nominee arbitrator was fully justified and in accordance with law. The very decision in the case of Voestalpine relied upon by the Respondent, notes the recommendations of the Law Commission on the issue of neutrality of arbitrators to the effect that the principals of impartiality and independence cannot be disregarded at any stage of the proceedings and that it would be incongruous to say that party autonomy can be exercised in disregard of these principles even if the same has been agreed prior to the dispute having arisen. The Hon'ble Supreme Court in the said case of Voestalpine itself noted and observed that in a number of judgments the courts have appointed arbitrators giving a go-by to the agreed arbitration clause.

23. The Court has infact to bear in mind the provision of Arbitration Act in which Section 12 read with schedule 5 and schedule 7 would clearly indicate that the arbitration clause will have to be in consonance therewith. The judgment of the Supreme Court in case of Perkins Eastman Architects DPC (supra) would clearly indicate that the clause which permits one party to even restrict the other party's choice for arbitrators would not be applicable and the parties will have to abide by the provision of law, as it is amended and in the instant case the notice for arbitration is after the amendment and therefore the same will have to be taken into consideration.