18 December 2021, Saturday

1 year ago

Applying the Perkins discourse, the respondent’s nominee as well as the chairman appointed by the court: Madras High Court

18 November 2021 | SRP Clean Enviro Engineers Pvt. Ltd. v. Commissioner, Nagercoil City Municipal Corporation | Arbitration OP (Comm. Div.) No. 106 of 2021 | Madras High Court | Senthilkumar Ramamoorthy J | 2021 SCC OnLine Mad 5864

In a concise order, Senthilkumar Ramamoorthy J of the Madras High Court has, though without referring to it, applied Perkins and the discourse generated post-Perkins, to appoint the respondent’s nominee as well as the presiding member of the 3-member tribunal. The reader may recall that the Supreme Court’s CORE 2019 SCC OnLine SC 1635 misses taking note of the clause that gave the right to the respondent to also appoint the presiding arbitrator. See our Update on CORE here.

A Concession Agreement provided that the arbitration “shall be by a panel of three arbitrators, one to be appointed by each party and the third to be appointed by the Commissioner of Municipal Corporation [the respondent].

The petitioner nominated its arbitrator and had applied to the court to constitute the tribunal. Several arguments were made resisting the referral (unlawful extension of contract, arbitrability, pendency of criminal proceedings etc.). Ramamoorthy J noted that “under the revised regime in relation to appointment of arbitrators, these are not valid grounds to reject a petition for appointment of an arbitrator.”

He noted that “although the arbitration clause provides for the appointment of a presiding arbitrator by the Commissioner of Municipal Administration, such appointment by an interested party is not in consonance with the Arbitration and Conciliation Act, 1996.”

Read the judgment here.


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