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
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 ... eventuality i.e. when the arbitration clause finds foul with the amended provisions [sub-section (5) of Section 12 read with Seventh Schedule] the appointment
Section 12 read
with Seventh Schedule. Therefore, by operation of law and by amending
Section 12 and bringing on statute sub-section (5) of Section ... 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
section (1) of Section 12 of the A&C Act was substituted
and Sub-section (5) of Section 12 ... introduced in
Section 12 of the A&C Act. The said Sub-sections read as under:
"12. Grounds for challenge.--
(1) When
therefore, he is de jure ineligible to
proceed with the arbitration.
5. Section 12(1) of the Act is reproduced herein under:-
"12. Grounds ... this context, the necessity of disclosure envisaged in sub-
section (1) of Section 12 becomes important. Only when such a
disclosure is made, that
petitioners filed an Application under
Section 12 of the Arbitration and Conciliation Act, 1996 objecting to
the appointment of the learned Arbitrator on the following ... arbitrator. A reference is also made to sub-section (5)
of Section 12 which provides that notwithstanding any prior agreement
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open to the petitioner to raise its pleas in
arbitration under Sections 12 and 13 before the Arbitral
Tribunal.
8. Accordingly, I find no merit ... Section 12(1) and Section 12(5) of the Act (as
amended) are relevant and read as under:-
"12. Grounds for challenge.-(1) When
section (3) of Section 14 provides that, if under Section 14 or Section 13(3) , an arbitrator withdraws from his office, or if a party ... validity of any ground referred to in Section 14 or Section 12(3) . Sub-section (3) of Section 14 has obviously been inserted to ensure
waiver of the applicability
of the provision contained in Section 12(5) of Arbitration and Conciliation
Act, 1996. As the petitioner wants an independent Arbitrator ... waiving off the applicability of Section 12 (5) of the Arbitration and
Conciliation Act, 1996, which means they agree that disputes have arisen
which need
clause.
7. Learned counsel for the petitioner further
submitted that Section 12 of the Arbitration and Conciliation
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Downloaded ... 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
