conflict post- appointment.
II.A. b. Waiving the Disqualification - section 12(5) :
18. Section 12 (5) nullifies any agreement made between the parties before ... appointment of the arbitrator
is also contrary to section 12(4) of the Act. Under section 12(4) , a party may
challenge an arbitrator
terms of
Section 12(2) of the Act, and the Seventh Schedule in terms of sub-
Section 5 of Section 12(5) .
56. The first ... section (5) of Section 12 read with Seventh
Schedule to the Act and therefore the disqualification under Sub-section (5)
of Section 12 read with
parties may waive off the applicability of sub-
Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 if they
agree for such waiver ... between the parties,
subject to obtaining his declaration/consent under Section 12 of the Arbitration
and Conciliation Act, 1996.
(SABYASACHI BHATTACHARYYA
named
arbitrator in view of the provisions of Section 12 of the Arbitration and
2
Conciliation Act, 1996 , it would only be appropriate ... between the parties, subject to obtaining his
declaration/consent under Section 12 of the Arbitration and Conciliation Act,
1996.
(SABYASACHI BHATTACHARYYA
Court in TRF Limited."
Emphasis Added
Therefore, the proscription under Section 12(5) read with Schedule
VII of the Act was extended to persons ... very
threshold of the initiation of the arbitration proceedings. However,
the proviso to Section 12(5) of the Act allows for waiver but
clarifies that
writing as mandated
by Section 12(1) of the Act is sine qua non. The counsel
further argued that Section 12 ... under the said section
was provided for in Sections 12 , 13 and 14 of the Act subject to
restriction in Section
accompany an application under Section 11 , sub-sections (4),
(5) or (6) of the 1996 Act.
12. Clause 7 of the same also provides ... between the parties, subject to obtaining his
consent/declaration under Section 12 of the Arbitration and
Conciliation Act, 1996. It is, however, made clear that
validity of the arbitration
agreement, and then simply refer the matter to arbitration just
because the arbitration clause is valid. Had this been the intent ... applications under Section 11 of the
Arbitration Act is concerned, it is clear that the demand for
arbitration in the present case was made
Section 11 of the 1996 Act.
42. Hence, applying all the relevant yardsticks, the seat of arbitration and,
consequently, the subject-matter of the arbitration ... subject to obtaining declaration/consent
from the proposed Arbitrator under Section 12 of the Arbitration and
Conciliation Act, 1996.
( Sabyasachi Bhattacharyya
falling within the
purview of the arbitration clause, ought to be referred to arbitration
under Section 11 of the 1996 Act, as there does ... disputes
between the parties, subject to obtaining her consent under Section
12 of the Arbitration and Conciliation Act, 1996.
( Sabyasachi Bhattacharyya
