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1. The petitioner a Company registered under the laws of the State of Texas, USA having its principal office at 1459, Minetta, Houston, Texas 77035, has filed the present petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ―the Act‖) for appointment of a substitute arbitrator as per Rule 11(12) read with Rule 10 of the ICADR rules in place of Late Mr. Justice N.N. Goswamy (Retd) in Arb. P. No.33/2007 - ICADR and Arb. P. No.38/2010- ICADR and also praying that the remaining members of the said Tribunal be allowed to continue in office.

4. It is averred in the petition, that on 01.04.1999 the petitioner and the respondent entered into an agreement (hereinafter referred to as the agreement) for sale and supply of entire quantity of HDPE Wax by the respondent to the petitioner that shall be produced at the former's HDPE/LLDPE at its abovementioned Petro Chemical Complex at Pata. Article 14 of agreement contained the arbitration clause. Certain disputes have arisen between the parties on price fixation and are pending final resolution by arbitration. Further, it is stated that in the case being Arb. P. No.33 of 2007-ICADR for price fixation for the period of 13.07.2007 to 12.07.2010 the supplies of HDPE wax to the petitioner have been made at the interim prices determined by the arbitral tribunal. For fixing the price for the subsequent period of three years that is from 13.07.2010 to 12.07.2013, in the case being Arb. P. No.38 of 2010 the same arbitrators namely Mr. Justice Avadh Behari Rohatgi (Retd.) as the presiding arbitrator, Mr. Justice J.K. Mehra (Retd.) the arbitrator nominated by the petitioner and Mr. Justice N.N. Goswamy (Retd.) arbitrator nominated by the respondent, were constituted as a new tribunal under the ICADR Rules. Unfortunately, during the pendency of the arbitral proceedings of the said case, Mr. Justice N.N. Goswamy (Retd.) passed away, thereafter, by its letter dated 09.03.2011 the ICADR informed the petitioner that both the parties herein, that is the petitioner and the respondent are required to appoint their respective arbitrators and the arbitrators so appointed would then appoint the presiding officer so as to constitute a new arbitral tribunal to adjudicate upon the disputes between the parties.

5. It is stated by the petitioner that the stand taken by the ICADR in its letter dated 09.03.2011 was contrary to the ICADR rules and thus the petitioner sent a letter dated 16.03.2011 to ICADR wherein the petitioner mentioned that neither did the presiding officer nor petitioner's nominee vacate their office. Therefore, in the present case, appointment of only the substituted arbitrator is warranted and not the appointment of the fresh tribunal.

6. In the letter dated 22.03.2011, ICADR refused to accept the submission of the petitioner asked for the appointment of a fresh Tribunal. Thereafter, the petitioner sent another letter to ICADR wherein it drew ICADRS attention to Rule 10. But ICADR on 01.04.2011 refuted the contentions of the petitioner again in its letter and subsequent to the said letter, the respondent nominated the name of Mr. Justice Anil Dev Singh,(Retd), A former Chief Justice of Rajasthan High Court as its nominee.

9. It is also stated that admittedly, the petitioner and the respondent have both appointed their respective nominee arbitrators and in terms of Section 11 (9) of the Act the two arbitrators have to appoint the third arbitrator further, the agreement between the parties provides under the Article 14 thereof that in the event of any disputes between the parties, the arbitration shall be under aegis of International Centre of Alternative Dispute Resolution, New Delhi. Rule 5 of the ICADR Rules which provides for appointment of arbitrators is in pari materia with Section 11 (9) of the Act. Rule 5 of the ICADR Rules reads as follows:-