Delhi High Court Allows Plea For Appointment Of Sole Arbitrator After Withdrawal Of Claim From International Court Of Arbitration
The Delhi High Court recently allowed an application seeking appointment of sole arbitrator under the Arbitration and Conciliation Act, 1996 after the claimant allegedly exhausted its remedy by approaching the International Court of Arbitration of the International Chamber of Commerce (ICC).As the Respondent party submitted that disputes are arbitrable and it has no objection if this...
The Delhi High Court recently allowed an application seeking appointment of sole arbitrator under the Arbitration and Conciliation Act, 1996 after the claimant allegedly exhausted its remedy by approaching the International Court of Arbitration of the International Chamber of Commerce (ICC).
As the Respondent party submitted that disputes are arbitrable and it has no objection if this Court appoints an Arbitrator, Justice Suresh Kumar Kait allowed the application filed under Sections 11(6) and 10(2) of the Act.
The order stated,
"the present petition is allowed. Accordingly, Mr. Justice (Retd.) T.S. Thakur, former Chief Justice of India (Mobile: 8800309969) is appointed sole Arbitrator to adjudicate the dispute between the parties."
The petition was filed by a Consortium of two companies against a Public Sector Undertaking.
It was the Petitioner's case that they were granted contractual rights to undertake a mining project for extraction of coal in Kapuria, Jharkhand in 2011. However, disputes arose over performance of respective obligations of Parties concerning payment of letters of credit by Respondent and non-fulfillment of Detailed Project Report and exploration related obligations by Petitioner.
According to the Respondent, the Respondent communicated Notice for Cancellation of Contract dated 20.7.2020 giving Petitioner 15 days to make its submission on its default.
Petitioner initiated arbitration before the International Chamber of Commerce (ICC) under Clause 4.1.31.2 of the Contract on 18.12.2020. The ICC demanded payments from all parties for proceeding with the arbitration. Following issues over compliance of such payments, the arbitration before the ICC was withdrawn.
Subsequently, the Petitioner initiated a fresh attempt for arbitration by initiating communication to the Respondent for appointment of arbitrator on 29.9.2021. As the Respondent did not respond to such request, the present petition was filed.
Advocate Amit Sharma, Counsel for the Respondent, argued that since the Petitioner had exhausted its arbitral remedy under the contract, the present petition ought to be rejected.
The Bench, after confirming with the Respondent for court-appointed arbitrator, allowed the petition stating that the dispute is arbitrable.
The ratio that comes from this ruling is that post exhaustion of alternate arbitral remedy before the ICC vide contractual stipulation for such arbitration, the parties to the contract are open to explore further arbitration remedy under the Arbitration & Conciliation Act, 1996.
Case Title: AMR-BBB Consortium v. Bharat Coking Coal Ltd; ARB.P. 1247/2021
Citation: 2022 LiveLaw (Del) 19
Click Here To Read/Download Judgment