Kerala High Court: In an arbitration request arising out of a deadlock between party nominated arbitrators regarding appointment of a third arbitrator, a Single Judge Bench of S. Manu, J., held that the presiding arbitrator has no noteworthy superior role compared to other arbitrators except in matters of procedure. Accordingly, the Court directed the Kerala High Court Arbitration Centre to nominate a former Judge from its panel as the third arbitrator, clarifying that the technical aspects can be addressed by seeking expert assistance.
The Court observed that,
“Addressing a stalemate in the constitution of an Arbitral Tribunal arising out of a construction dispute, the Kerala High Court held that there is no legal requirement mandating that the presiding arbitrator must be a technical expert merely because the dispute involves technical issues.”
Background
The dispute arose from a contract of construction for a hospital building which contained an arbitration clause providing for conciliation followed by arbitration. In the absence of consensus on a sole arbitrator, the clause contemplated a three-Member Tribunal with each party nominating one arbitrator and the 2 arbitrators appointing a third presiding arbitrator.
Upon invocation of arbitration, disagreement arose regarding the appointment of a sole arbitrator, leading to earlier proceedings wherein the Court directed that a panel of 3 arbitrators shall be constituted and nominated an Engineer suggested by the petitioner as also a learned former Chief Justice of this Court suggested by the respondent. It was further directed that the said 2 arbitrators shall decide and appoint the third arbitrator. Subsequently the Engineer-arbitrator nominated expressed inability to bear the burden of being a member of the panel, necessitating substitution. Despite discussions, the 2 arbitrators differed as the Engineer nominated insisted that the third arbitrator should be an Engineer, while the former Chief Justice took the view that the presiding arbitrator should be a former Chief Justice of a High Court or a retired Judge of the Supreme Court. This divergence led to the present arbitration request.
The petitioner’s counsel stated that the dispute pertained to construction and contended that technical knowledge was essential as every significant point was factual in nature. It was submitted that the presence of a former Chief Justice was sufficient to address the legal aspects. It was argued that Judges had no technical expertise to resolve and decide disputes involving technical intricacies. On the other hand, the respondent’s counsel submitted that the petitioner had initially suggested a former Judge as the sole arbitrator, thereby contradicting its present stance that only a technically trained mind can adjudicate the dispute. It was argued that the disputes involved serious legal issues in addition to technical aspects.
In reply, the petitioner contended that under Section 29, Arbitration and Conciliation Act, 1996 (A&C Act), the presiding arbitrator has no special role except in procedural matters, and therefore no prejudice would be caused to any of the parties and there will not be any impropriety or illegality even if an Engineer was nominated as the third arbitrator.
Also Read: Supreme Court sets aside Bombay HC judgment, limits judicial scrutiny at Section 11 stage
Analysis
The Court highlighted that it is clear from the arbitration clause that the third arbitrator nominated by the 2 arbitrators chosen by the parties shall preside over the Tribunal. The Court agreed that the presiding arbitrator has no noteworthy superior role compared to the other arbitrators, except in the matter of deciding questions of procedure, provided he is authorised by the parties or all the members of the Tribunal in that regard.
The Court relied on NHAI v. Bumihiway DDB Ltd. (JV), (2006) 10 SCC 763, wherein it was observed that it cannot be insisted that, when a member of the Arbitral Tribunal is a retired Chief Justice, the presiding arbitrator should be at least a retired Chief Justice or a retired Judge with considerable experience.
The Court noted that although the petitioner emphasised the technical nature of the disputes, it had initially opted for a retired Judge as sole arbitrator. The Court further observed that the Engineer-arbitrator initially nominated could not be treated as respondent’s agent, and hence his suggestion to nominate a retired Judge of this Court or of the Telangana High Court could not bind the respondent. The technically qualified arbitrator initially nominated was also of the view that the third member should also be a former Judge. Under these circumstances, the Court emphasised that a former Judge can be nominated as the third arbitrator, and that the apprehension of the petitioner that highly technical issues and disputes will crop up for determination by the Tribunal can be addressed by leaving it open to the Arbitral Tribunal to seek assistance of suitable experts, if required.
Accordingly, the Court held that a former Judge can be nominated as the third arbitrator and the apprehension of the petitioner that highly technical issues and disputes will crop up for determination by the Tribunal can be addressed by leaving it open to the Arbitral Tribunal to seek assistance of suitable experts.
Also Read: Retrospective Application of the 2015 Amendment and Unilateral Appointment of Arbitrators
Decision
The Court directed the Kerala High Court Arbitration Centre to nominate a former Judge from its panel as the third arbitrator. The Court further clarified that all prior directions governing the arbitration would continue to operate.
[Ambica Praveesh v. BMH Care Hospital Ltd., AR No. 12 of 2026, decided on 12-6-2026]
Advocates who appeared in this case:
For the Petitioner: K. Latha, Lalitha A., Gayathri Narendranath, B.G. Bhaskar, Advocates.
For the Respondent: Anil Sebastian Pulickel, Santhosh Mathew (SR.), Arun Thomas, Veena Raveendran, Karthika Maria, Shinto Mathew Abraham, Leah Rachel Ninan, Mathew Nevin Thomas, Karthik Rajagopal, Kurian Antony Mathew, Aparnna S., Noel Ninan Ninan, Adeen Nazar, Arun Joseph Mathew, Rohan Mathew, Advocates.
Buy Arbitration and Conciliation Act, 1996 HERE
