Questioning a Blanket Retrospective Application of the 2015 Amendment vis-à-vis Unilateral Appointment of Arbitrators

Periods of seeming consistency are interspersed by decisions which threaten to upend the evolving line of precedent. This applies to case law both before and after the 2015 Amendment.

The Delhi High Court is presently considering a batch of petitions which question whether the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter, “2015 Amendment”), insofar as it prohibits unilateral appointment of arbitrators, applies to arbitrations that commenced before the introduction of the aforesaid amendment, i.e., 23 October 2015 (hereinafter, “cut-off date”). The present article, both from a normative lens and using the plethora of precedent at its disposal, succinctly attempts to answer whether the bar on such appointments is traceable to the 2015 Amendment, which is of relatively recent vintage, or whether the roots of this prohibition already pervaded the scheme of the Arbitration and Conciliation Act, 1996 (hereinafter, “A&C Act, 1996”) and that they only came to be formally incorporated vide the 2015 Amendment. It cannot be gainsaid that the Supreme Court, through a series of pronouncements, has crystallised the law on unilateral appointments. Instead of delving into the same in detail, the focus of this article is confined towards dissecting a host of judgments since the enactment of the A&C Act, 1996, to answer this primary question. The salience of this question cannot be understated for it has a direct bearing on the validity of the arbitral awards that came to be passed both before and after the cut-off date. On one hand, the spirit of the 2015 Amendment calls for no one party having an undue leverage or bargaining power over the other when it comes to appointments. On the other hand, applying it to all arbitrations before its enactment risks setting the clock back on otherwise lawfully instituted arbitrations involving consensual unilateral appointments, many of which have since attained finality. It is this seemingly irreconcilable dilemma which must be resolved by striking a balance between the object of the 2015 Amendment and protecting parties who hitherto played by the rules and must not be punished by applying the 2015 Amendment retrospectively. In attempting to do so, the cut-off date becomes critical, as this article will demonstrate.

At the outset, the decision in BCCI v. Kochi Cricket (P) Ltd.¹ must be adverted to, where the Supreme Court clarified that Section 26, 2015 Amendment made it prospective in its application. Unless the parties agreed otherwise, the 2015 Amendment would not apply retrospectively. This interpretation inadvertently spawned a conundrum with respect to unilateral appointments made before and after the cut-off date. On one hand, some argue that the prohibition on unilateral appointment of arbitrators permeated through the erstwhile regime under the A&C Act, 1996 and that the same did not need any statutory confirmation. On the other hand, its express incorporation vide the 2015 Amendment raises doubts as to whether parties, who played by the prevalent rulebook and did not commit any statutory infraction, can simply be left in the lurch without any protection whatsoever. The ramifications are far-reaching, for a retrospective application, or even an interpretation that such appointments were always proscribed in spirit, means that award passed by such unilateral appointees would suddenly have no force in law.

While the decision in Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV) (CORE-II)² may have proved to be determinative as to the prospective application of this prohibition, the question was not put beyond the pale of any and all controversy. This for the reason that in the concluding paragraph, the judgment observed:

170.7. The law laid down in the present reference will apply prospectively to arbitrator appointments to be made after the date of this judgment. This direction applies to three-member Tribunals.

This stray sentence has, unfortunately, rendered moot the question of whether this prohibition applies to other compositions of Arbitral Tribunals at all, and more importantly, whether the prohibition on unilateral appointments is applicable to cases initiated before the cut-off date.

Introduction of the A&C ACT, 1996: A new era

While the A&C Act, 1996 in its original form, under Sections 11—12 and 18, did govern the procedure of appointment of arbitrators to ensure their independence and impartiality, it did not address whether unilateral appointments were per se prohibited or not. Keeping potential future amendments in mind, the Supreme Court, in its decision in Thyssen Stahlunion Gmbh v. SAIL³, dealt with a provision in pari materia with Section 26(2) as introduced by the 2015 Amendment. It observed that if the application of an amended regime would lead to “inconvenient and unjust results”, it would be prudent to keep the two regimes separate. Merely because a new enactment was introduced, it observed that a party could not be denuded of rights accruing under the old regime. In fact, nothing barred parties from consciously choosing to be bound by the new regime. However, absent such consensus, a new regime could not be foisted upon the parties that had legitimately pursued proceedings under the unamended regime. This decision proves to be seminal for it forms the theoretical underpinning that undergirds the normative argument that a party cannot be made worse off by virtue of the introduction of a statutory enactment, i.e., the 2015 Amendment. In the same vein, Milkfood Ltd. v. GMC Ice Cream (P) Ltd.⁴ was a case that involved an interplay between the Arbitration Act, 1940 and the A&C Act, 1996. The Supreme Court held that since the commencement date preceded the coming into force of the A&C Act, 1996, the parties would be governed by the Arbitration Act, 1940. Since the parties did not agree to any change in procedure, the question of employing the procedure under the new regime would not arise. Ushering in a new millennium, the Supreme Court, in Datar Switchgears Ltd. v. Tata Finance Ltd.⁵, protected the freedom to contract and held when the contract conferred upon one party the right to appoint an arbitrator, the counterparty was bound by the relevant contractual provision.

Thus, the Supreme Court did allude to future amendments not having such force as to whittle and erode pre-existing contractual rights. The argument that, in recent day, is most commonly deployed is that a wholescale proscription was not being retrospectively by the 2015 Amendment, given that unilateral appointments were prohibited even under the A&C Act, 1996, as it originally stood. The dictum perhaps most frequently employed to defend this theoretical position, that unilateral appointments were always prohibited, is the pronouncement of the Supreme Court in Dharma Prathishthanam v. Madhok Construction (P) Ltd.⁶ It is important to clarify, though, that here, the Supreme Court was in seisin of a dispute under the erstwhile Arbitration Act, 1940, where one of the parties did not follow the contractually stipulated procedure. The court held that such a unilateral appointment and the consequent reference, both being bad in law, could not be cured on mere inaction on the part of the counterparty, which could not be categorised as implied consent or acquiescence to an otherwise invalid appointment. To that extent, this was a case where the dispute resolution mechanism itself was not followed. To use this decision as an authority on unilateral appointments being proscribed not just under the A&C Act, 1996, but also the Arbitration Act, 1940, may thus be an interpretive stretch.

Party autonomy broadly remained paramount in the period immediately after the enactment of the A&C Act, 1996 whereby principle of consensus ad idem undergirded the reasoning of most decisions during this period. For instance, in Indian Oil Corpn. Ltd. v. Raja Transport (P) Ltd.⁷, the Supreme Court, observed that a party signing government contracts with “full eyes and open knowledge of the said provision” was bound by the entire “package” of the arbitration agreement, which was “neither void nor unenforceable”. The A&C Act, 1996, it was opined, protected the right of government institutions/organisations to unilaterally appoint arbitrators notwithstanding the object of the A&C Act, 1996 of ensuring that Arbitral Tribunals were, independent, impartial and unbiased. No justifiable apprehension could possibly arise when such senior officer of government bodies/companies, who is appointed as an arbitrator, had nothing to do with the execution of the subject contract. It was only when the court was convinced of a justifiable apprehension of bias, such as when an arbitrator was adjudging a dispute involving his superiors, could the Supreme Court override the contractual covenant to appoint an independent arbitrator.⁸

Impact of the 2015 Amendment

Accepting the recommendations of the 246th Law Commission Report⁹, the 2015 Amendment, by introducing Section 12(5), gave “legislative colour” to the concepts of independence and impartiality of arbitrators and fleshed out its contours. With the formal interlinkage between Section 12(5) and the Seventh Schedule being established, those falling within the schedule were rendered per se ineligible. Despite its formal incorporation, a cloud was still left hanging over arbitrations that had commenced before the cut-off date. Such doubts were compounded in the light of decisions, for instance, in Rajasthan Small Industries Corpn. Ltd. v. Ganesh Containers Movers Syndicate¹⁰, which makes for an interesting reading. Here, while the aggrieved party initially participated in arbitral proceedings, apprehending lack of independence and impartiality, it then moved an application seeking the appointment of an independent arbitrator, just before the cut-off date, which was allowed. Setting aside such an appointment, the Supreme Court held that notice under Section 21 was served was before the cut-off date. Having participated in the arbitral proceedings, the appointment could not have been challenged towards the end of the arbitration. This was a case which, while strictly governed by the earlier regime, was held to be covered by the new regime owing to the conduct of the party concerned. As argued earlier, the cut-off date thus becomes imperative in this inquiry. For the sake of clarity, this article separately analyses judgments where the commencement notice precedes and succeeds the cut-off date, to decipher whether there exists any consistency insofar as judicial precedent on the subject is concerned.

For the ease of convenience, it becomes useful to chronologically segregate decisions basis the cut-off date introduced by the 2015 Amendment and the commencement date of the arbitration concerned. This reveals the broad pattern of decisions governing unilateral appointments.

Cases where the notice invoking arbitration under Section 21 was sent before the cut-off date

Judicial reluctance, to apply the 2015 Amendment to proceedings that have commenced beforehand, was seen in S.P. Singla Constructions (P) Ltd. v. State of H.P.¹¹, where the commencement notice was sent way before the 2015 Amendment was introduced. The provisions of the 2015 Amendment were held to be inapplicable. Similarly, in Union of India v. Parmar Construction Co.¹², the Supreme Court held that the 2015 Amendment would not apply to cases where the notice under Section 21 was sent before the cut-off date. It nonetheless, in the facts of that case, did observe that the High Court concerned erred in appointing an independent arbitrator where there existed no apprehension of a lack of independence or impartiality.

Following suit, a Division Bench of the Delhi High Court, in Kamal Kumar v. MCD¹³, refused to interference with an arbitral award which was passed after the 2015 Amendment, although the arbitrator was appointed before the cut-off date. In Republic of India through Ministry of Defence v. Agusta Westland International Ltd.¹⁴, and most recently, in Prem Lata Surekha v. Chakradhari Surekha¹⁵, the Delhi High Court interpreted Section 26¹⁶, 2015 Amendment to hold that the time-limits introduced by Section 29-A would be inapplicable to arbitral proceedings where the notice under Section 21 was sent before the introduction of the 2015 Amendment. This position was reaffirmed by a coordinate Bench in Zillion Infraprojects (P) Ltd. v. Fab-Tach Works & Constructions (P) Ltd.¹⁷ and ESI Corpn. v. U.P. Rajkiya Nirman Nigam Ltd.¹⁸

Seeds of doubt, however, crept in, for instance, in the light of the decision in Vineet Dujodwala v. Phoneix ARC (P) Ltd.¹⁹, where the notice invoking arbitration was sent before the cut-off date and even the dispute was reserved for judgment before the cut-off date. The Delhi High Court held that the unilateral appointment of the arbitrator vitiated the award. In doing so, it observed that the position of such appointments being impermissible, for want of consensus ad idem, existed even before the amendment to the A&C Act, 1996. Similarly, in Supreme Infrastructure India Ltd. v. Freyssinet Memard India (P) Ltd.²⁰, both the commencement of the arbitral proceedings and the passing of the impugned award took place before the cut-off date. However, the impugned arbitral award came to be passed after the 2015 Amendment came into effect. Setting aside the award passed therein, the Delhi High Court held that even though the case pertained to a period prior to the 2015 Amendment, its rigour nonetheless applied insofar as the principle of consensus ad idem was central even to the A&C Act, 1996. Even if the counterparty did not respond to the notice invoking arbitration, the correct option was to file a petition under Section 11.

At first blush, the decision in Bharat Forge Ltd. v. Tarsem Jain²¹ also seems to follow this trend. Here, the Delhi High Court encountered a situation where a party objected to the unilateral appointment of an arbitrator on several occasions before the cut-off date. Yet, the appointment was made unilaterally by the other party. Striking down the said appointment, reliance was placed on the decision in H.S. Bedi v. STCI Finance Ltd.²², wherein the court clarified that unilateral appointments would be invalid even in situations where one party arbitrarily imposed a condition upon the other that in the absence of a response to the notice invoking arbitration, such unilateral appointment would be deemed consented to. Here, it is to be noted, the clause in question only allowed one party to request for an appointment but did not permit a unilateral appointment in contravention with Section 11(4), A&C Act, 1996. The proceedings conducted by the arbitrator were thus held to be a nullity. Unequivocally rejecting the invocation of the concept of deemed consent, the court reiterated the settled position that express consent was a sine qua non for the protection of neutrality and impartiality in arbitrations. This position remained unaffected even in situations where the aggrieved party participated in arbitration proceedings, did not challenge the order passed under Section 16, or failed to take recourse to Section 11(6) or Section 14 after the arbitrator concerned upheld his jurisdiction.²³

Furthermore, the decisions in Bharat Broadband Network Ltd. v. United Telecoms Ltd.²⁴ (hereinafter, “Bharat Broadband”) and D.K. Gupta v. Renu Munjal²⁵ (hereinafter, “D.K. Gupta”) are distinguishable. Bharat Broadband involved a case where a person, ineligible under Schedule V, nominated an arbitrator. Such appointment and the consequent award were held to be void ab initio. On the other hand, the appointment in D.K. Gupta case was upheld because the contract itself gave a choice to one of the parties to appoint an arbitrator. Without any prohibition under the A&C Act, 1996, the challenge to ineligibility could not be belatedly raised when the aggrieved party participated in arbitral proceedings till the fag end.

The situation is also entirely different where parties consciously agreed to be governed by future amendments. For instance, in Jagdish Chand Gupta v. Union of India²⁶, the Delhi High Court witnessed an arbitration clause referring disputes to arbitration under the A&C Act, 1996, as amended by the 2015 Amendment. With such a clear stipulation, the notice under Section 21 was the constitution of the Arbitral Tribunal preceded the cut-off date. The award was passed after the 2015 Amendment. Going by the implied intent of both parties to be governed by the amended regime, the award passed by a unilaterally appointed arbitrator was set aside. In doing so, the Court observed that the contention, that the parties would be governed by the unamended A&C Act, 1996, could not accepted. Importantly, here, the court relied upon the dispute resolution clause itself to hold that the 2015 Amendment was applicable. This judgment, again, turned on the interpretation of the arbitration clause in question.

Moreover, the most recent pronouncement of the Delhi High Court in Avneet Soni v. Kavita Agarwal²⁷ (hereinafter, “Avneet Soni”) offers some clarity. The notice under Section 21, the commencement of arbitration proceedings, and the impugned award, all pre-dated the introduction of the 2015 Amendment. The court observed that the legality of the alleged unilateral appointment had to be viewed from the un-amended lens. The dispute in question was held to be unaffected by substantive amendments, including the prohibition on unilateral appointments. The date of commencement of arbitral proceedings was thus viewed as determinative. The Court went to the extent of mentioning that the coordinate Bench in Vineet Dujodwala case overlooked the consistent legal position with respect to the interpretation of Section 26, 2015 Amendment. Ultimately enforcing the decree against the judgment-debtor, it rejected the challenge to the arbitrator’s appointment.

Despite a seeming cleavage of opinion emerging in the aforesaid dicta, the same must be analysed in the peculiar facts and circumstances of each case. It cannot, as a general rule, be therefore observed that courts freely applied the 2015 Amendment to cases where the commencement notice was sent before the cut-off date. The consistent application of the 2015 Amendment becomes, beyond the pale of any controversy, clear in the next segment involving cases where the commencement notice was sent after the introduction of the 2015 Amendment.

Cases where the notice invoking arbitration under Section 21 was sent after the cut-off date

In Voestalpine Schienen GmbH v. DMRC²⁸ (hereinafter, “Voestalpine”), the Supreme Court emphasised that the object of the 2015 Amendment was to induce neutrality of arbitrators. It also observed that even before the 2015 Amendment was enacted, courts bypassed the agreed arbitration clause to secure the appointment of independent and impartial arbitrators. The Supreme Court ultimately held that merely because the arbitrator was a retired government employee or officer would not per se render him/her ineligible.

This observation, regarding the situation before the 2015 Amendment, is of course general in nature. In any case, CORE-II²⁹ has disagreed with the decision in Voestalpine to the extent that while they encouraged the constitution of a broad-based panel of arbitrators, the moment one party has to select from a curated list of arbitrators, the same acts as a fetter to their otherwise unrestricted right of appointment and results in an ineffective counterbalance. CORE-II, in expressing its limited disagreement with Voestalpine when it came to three-member Arbitral Tribunals, nonetheless sought to protect the inter-partes commercial bargain and observed that:

169. …giving retrospective effect to the law laid down in the present case may possibly lead to the nullification of innumerable completed and ongoing arbitration proceedings involving three-member Tribunals.³⁰

In TRF Ltd. v. Energo Engg. Projects Ltd.³¹, a three-Judge Bench held a person, who himself is ineligible to be appointed as an arbitrator by operation of law, cannot appoint another arbitrator.³² Even in Aravali Power Co. (P) Ltd. v. Era Infra Engg. Ltd.³³, the Supreme rejected a challenge to the arbitrator’s “ineligibility”, and in doing so, applied the 2015 Amendment since the aggrieved party did not challenge the appointment within time and in terms of the specified procedure, and in fact, partook in the arbitration proceedings. Lastly, in the seminal judgment in Perkins Eastman Architects DPC v. HSCC (India) Ltd.³⁴ (hereinafter, “Perkins”), the Supreme Court, in evolving the counterbalancing test, observed that “where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution” and that the essence of the 2015 Amendment was that such person “who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator”.

The decision in Perkins case effectively nullified a potential post appointment waiver by an ex ante striking down of the arbitration clause concerned that allowed a disqualified employee from replacing the substitute arbitrator. It thus clear that waivers cannot thus validate an appointment which is otherwise barred by the 2015 Amendment.

However, it is also worth noting that in his partly concurring and partly dissenting judgment in CORE-II case³⁵, Justice Hrishikesh Roy was of the view that the judgments in TRF Ltd. case, Aravali Power case and Perkins case only prohibited ineligible arbitrators under Section 12(5) from proceeding further. The power of the authority concerned in question could not, it was argued, be absurdly read to bring in a wholesale prohibition on unilateral appointments altogether, which the A&C Act, 1996 never contemplated. An attempt has, basis the same, been made that these judgments pertained only to ineligibility of the appointing authority and did not proscribe such appointments. However, drawing such a distinction would tantamount to disregarding the plethora of judgments discussed above which demonstrate, in no uncertain terms, that the creation of any unequal power dynamic whereby any party has an advantage vis-à-vis appointments, cannot possibly be countenanced.

In fact, in Ellora Paper Mills Ltd. v. State of M.P.³⁶, the Supreme Court dealt with a case where although the Arbitral Tribunal was constituted way back in 2001, but no effective steps were taken in the arbitration proceedings all the way till 2017 due to certain pending legal proceedings. Nonetheless, treating the effective commencement period as one that occurred post the 2015 Amendment, the Supreme Court held that the members of the Arbitral Tribunal were ineligible under Section 12(5) read with the Seventh Schedule.

Though in the context of determining the eligibility of arbitrators under Section 12(5), 2015 Amendment, the Delhi High Court, in Proddatur Cable TV Digi Services v. Siti Cable Network Ltd.³⁷, an argument was raised that the 2015 Amendment would not apply since the arbitration agreement was entered into before the cut-off date. Categorically rejecting the same, the court observed that the date of commencement of arbitration, i.e., sending of the notice under Section 21, was the relevant date. The notice under Section 21, being the determining factor, has also received the imprimatur of the Supreme Court in its recent decision in Adavya Projects (P) Ltd. v. Vishal Structurals (P) Ltd.³⁸ Most recently, the applicability of the 2015 Amendment to cases where the notice under Section 21 was received after the cut-off date, was affirmed in Bhadra International (India) (P) Ltd. v. AAI³⁹. In fact, where the doubts as to the independence and impartiality of arbitrators arise pursuant to the procedure agreed to between the parties, the Delhi High Court has allowed petitions under Section 11 and has appointed arbitrators.⁴⁰ No inter partes agreement can stand in the way of the statutory bar of Section 12(5) read with the Seventh Schedule.⁴¹

Confusion has arisen on account of observations made by the Delhi High Court, for instance, in S.K. Builders v. CLS Construction (P) Ltd.⁴² Of course, the prohibition on unilateral appointments introduced by the 2015 Amendment was interpreted with full vigour. Nonetheless, deeming unilateral arbitrations as an “oxymoron”, the Delhi High Court observed that such appointments were “completely proscribed” and that consent constituted the raison d’être of the arbitral process. It can be safely inferred that consensus ad idem, which in the ordinary sense would give full effect to the contract entered into between the parties concerned, could not mean that one party was given the contractual right to appoint an arbitrator or even give a list of arbitrators to choose from. The court held that when the contractual provision concerned itself contemplated appointment by mutual consent, the absence of “positive consent” rendered such appointments “ex-facie illegal”. This position was reiterated in ABL Biotechnologies Ltd. v. Technology Development Board⁴³, where the Delhi High Court observed that the bar on unilateral appointments applied even with respect to arbitrations which commenced prior to the introduction of the 2015 Amendment.

Nonetheless, the position that emerges from the aforesaid slew of decisions, is that the 2015 Amendment will apply with full force where the effective commencement notice was sent after the introduction of the 2015 Amendment. To that extent, the cut-off date, yet again, preserved the balance between protecting parties under the old regime and duly applying the 2015 Amendment where the effective arbitration commenced subsequent to the cut-off date.

Conclusion

The position, when it comes to the application of this prohibition on unilateral appointments, thus has a chequered judicial history. Periods of seeming consistency are interspersed by decisions which threaten to upend the evolving line of precedent. This applies to case law both before and after the 2015 Amendment. The law, as enunciated in CORE-II case⁴⁴, makes it clear: Ex ante ineligibility must be nipped in the bud and cannot be cured either by agreements or even subsequent waivers. In other words, acquiescence cannot cure an appointment that is hit by the 2015 Amendment. The question, however, is whether this prohibition can be applied retrospectively. Even in the context of jurisprudence under Section 34, A&C Act, 1996, the positions both before and after the 2015 Amendment have been analysed to observe that the 2015 Amendment cannot be retrospectively applied so as to take away accrued, substantive rights. Any other reading would be logically fallacious for it unfairly would apply the new substantive law to an old regime.⁴⁵

The strand of opinion favouring preservation of party autonomy is of the view that the same comes under threat when a legislation absolutely bars unilateral appointment clauses. It is argued that such embargoes do not necessarily guarantee fairness, given that a unilateral power by itself cannot be the reason for a complete invalidation. A middle ground may therefore be reached by looking at the nature of the clause in question. If a unilateral power is exercised such that non-independent arbitrator/s are appointed, then such clauses should not be struck down.⁴⁶ However, such theoretical musings do not shake the law as settled in CORE-II case. The lens of analysis must, therefore, reconcile with the foundational premise of such clauses, by themselves, being invalid.

It is in this context that the cut-off date must be the benchmark to assess whether arbitral appointments fall afoul of the law of the land or not. To alleviate legitimate fears of eroding party autonomy, on the one hand, substantive rights emanating from arbitrations commencing before the cut-off date ought to be protected. On the other hand, where the commencement notice does not pre-date the 2015 Amendment, such appointments must ipso facto be declared invalid. Any resultant rights, must therefore, necessarily fall in the face of this proscription. This offers a simple way to protect party autonomy as also the statutory objects of ensuring the appointment of independence and impartial arbitrators.