This post is in continuation of the last post (Part 1 - https://www.arbitrationcorporatelawreview.com/post/termination-of-an-arbitrator-s-mandate-on-failure-to-issue-an-award-in-a-time-bound-manner-fair-or) .
SECTION 29A: OPENING UP A PANDORA’S BOX
The termination of the arbitrator’s mandate by statutory prescription in the form of Section 29A seems to have unfair consequences in certain circumstances. This unfairness arises from the interaction between the one-size-fits-all mandatory limit under Section 29A and the associated deprivation of the volition of parties to decide a time limit. Simply put, the one-size-fits-all approach precludes the possibility of the parties having a say in deciding the time limit, leading to disputes of different natures being subjected to a similar timeframe even when the complexities involved vary. As noted in the Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism (“Srikrishna Report”) in India, the time limit imposed by Section 29A deprives parties of “the autonomy […] to decide time limits according to the size, nature and complexity of the case”. An appropriate duration, on the other hand, would need to consider factors such as the “number and complexity of the issues, the need for (and complexity of) discovery or disclosure, the length of any hearing, the urgency with which it needs to be concluded, as well as the parties', tribunal's and counsels' calendars”. As a corollary, in cases where the time limit does not align with the complexity of the issue, proceedings may be prematurely terminated. Such premature termination would entail a significant loss of time and resources of the parties, and could potentially lead to a violation of the principles of natural justice. The violation of principles of natural justice would be a consequence of pronouncement of award without affording the parties adequate opportunity of being heard. Accordingly, the time limit may not necessarily expedite proceedings; instead, it may give rise to disputes arising from convoluted proceedings.
These disputes may fall under the nature specified in Section 34(2)(a)(iii), wherein a party can approach courts seeking the setting aside of the award on the grounds of being “unable to present his case”. It is pertinent to note that premature termination by itself may not be an absolute qualification to constitute an inability to present the case. Rather, it is the broad wording, along with the lack of meaning attributed to the phrase “unable to present his case”, that opens the scope for invoking Section 34(2)(a)(iii) in cases of premature termination. Court rulings on applications under Section 34(2)(a)(iii) are subject to appeal.
A substantial period of time is likely to be expended in determining the factual matrix of the case and disposing of the appeals. This prolonged process would extend the time period for dispute resolution, thereby defeating the entire purpose for which Section 29A was introduced. Regardless of the outcome of the case, the protracted legal battle following the convoluted arbitral proceedings would be unfair due to the increased costs and time in attempting to resolve the dispute. However, this should not be inferred as advocating for the elimination of the time limit requirement entirely. Instead, the one-size-fits-all approach under Section 29A needs to be replaced by a nuanced time limit regime.
Is Party Autonomy the Way Forward?
Considering the unfair position underlying the statutory specification of the time limit and the stripping away of the parties’ ability to decide on the time limit, the party autonomy principle seems to be an attractive proposition. Interestingly, Section 29A does not provide for termination of the arbitrator’s mandate solely through the provision itself. Rather, parties can stipulate a time period in their arbitration agreement if they feel the necessity. Such a time limit would essentially bind the arbitrator. In circumstances where the time limit for completing the proceedings is not adhered to, the arbitrator’s mandate would be terminated. However, it is not difficult to envisage a situation where setting the time limit becomes difficult owing to one of the parties trying to avoid arbitration altogether. Furthermore, as noted by the 176th LCI Report, it is also possible that parties would engage in dilatory tactics. To put things into perspective further, an average ad hoc arbitration in the Indian context with a tribunal comprising of retired high court or supreme court judges takes about 4 to 5 years “merely for the completion of trial”.[[i]] As matter-of-fact parties deliberately try to delay the process by taking unnecessary adjournments in arbitral proceedings. From the lens of deliberate attempts to delay the arbitral proceedings, the legislative intent behind Section 29A pertains to the prevention of arbitral proceedings from being “dragged into near perpetuity”, thereby preventing the problem of backlogs of tribunals.[[ii]] While this introduction of time limit through Section 29A appears to be a well-intentioned step, it is the one-size-fits-all time limit regime that results in unfairness.
Arbitrators Fault as a Ground for Termination of Mandate
Notwithstanding the aforementioned delay caused due to parties, in certain circumstances, the reason for the delay in arbitration proceedings may rest with the arbitrator. Before delving further, it is relevant to note the instructive nature of Section 14 and 29A given their common basis on termination of arbitrator’s mandate. This is despite the fact that Section 14 is more arbitrator specific in contrast to Section 29A. This is because Section 14 overtly emphasizes on the faults on the part of an arbitrator as grounds for termination of mandate. Specifically, Section 14(1)(a) mandates the termination of an arbitrator’s mandate, if “he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay”. In simple terms, Section 29A, with the exception of the proviso to Section 29A(4), does not solely attribute the inability to issue an award on time to the arbitrator’s fault. Although the failure to deliver the award on time can lead to termination, the delay might be caused by the actions of the involved parties rather than solely the arbitrator.
While it is more difficult to determine what constitutes a “de jure or de facto inability to perform the functions”, it is feasible to determine what constitutes undue delay by an arbitrator. Before delving further, it is to be noted that the judicial pronouncements regarding what constitutes inability have tended to conflate undue delay with the inability to perform functions.[iii] However, in HRD Corporation (Marcus Oil and Chemical Division) v. GAIL (INDIA) Limited, the Supreme Court (SC) rightly pointed out that the grounds for the inability to perform the functions can be evinced from Section 12(5) read with Seventh Schedule of the A&C Act. According to the SC, the meaning of inability could be derived from the ‘ineligibility’ to act. The basis for the SC’s proposition was the Arbitration and Conciliation (Amendment) Act, 2015. According to thethe SC, the 2015 Amendment Act makes a distinction between persons “who become ineligible to be appointed as arbitrators”, and persons about whom justifiable doubt existed as to their independence. Since ‘ineligibility’ strikes as the root of an appointment, Section 12(5) read with the Seventh Schedule meant that a person becomes ineligible to act as an arbitrator. It is this ineligibility that the arbitrator was de jure unable to perform his functions “inasmuch as, in law, he is regarded as ineligible”. On the other hand, undue delay does not necessarily imply that the arbitrator is ineligible to act. However, what constitutes undue delay has been subject of conflicting opinion. The reason behind the indecisiveness is owing to the interpretative issues surrounding Section 29A and Section 14. Nonetheless, the Delhi High Court decision in Angelique International Limited v. SSJV Projects Private Limited[[iv]], using the principle of ‘expressio unius este xclusio alterius’, ruled that the failure to pronounce an award within the stipulated time would amount to undue delay. In contrast, Section 14 was to be invoked not on the expiry of the time limit specified in Section 29A but on the grounds of de jure or de facto inability to perform the functions.
Notwithstanding the distinction between inability and undue delay in pronouncing the award, by prescribing for termination of the mandate, Section 29A and Section 14 seek to prevent the unfairness associated with protracted arbitral proceedings. Moreover, the provisions try to ensure that there is greater accountability in arbitrators bringing “discipline and accountability in lawyers as well as litigants”. However, the intention behind the introduction of the provisions, especially Section 29A, does not necessarily mean that the outcome of the arbitral process is a fair outcome for parties.
Taking the Problem into Account: A Nuanced Time Limit Regime
Notwithstanding the aforementioned well-intentioned introduction of Sec 29A, the arguments against rendering pronouncement of awards time-bound hold valid. The ‘complexity of the issue’ problem subsists in an overarching time limit regime. A possible solution lies in framing guidelines to provide time slabs for deciding matters. The time slabs would essentially try to capture the complexity of the issue. The said complexity can be factored on volume of records, number of witnesses, number of sub-issues that need to be considered, and the stakes involved for the parties. Notably, the time slabs should not be fixated akin to the time limit. Rather, the average time taken for issues of a particular kind to be arbitrated can be used as a baseline. The baseline would help in taking care of the problems that are concomitant with the fixation of a rigid time limit andwould make the time slabs flexible and sensitive to the complexity of the issue.
Here, it is not difficult to envisage a situation where the pronouncement of an award in a simpler dispute would take more time due to the baseline. To remedy such a situation, legislative intervention through the insertion of a new provision can be a way forward. Such provision could provide for the making of an application to the court which refers to the dispute for arbitration. Such an application can be made by either or both parties. The application would seek an expedited award pronouncement vis-à-vis the baseline. Put simply, courts would have the power to make exceptions where the dispute is simple in nature and would require less time for the pronouncement of an award. While the provision would increase judicial oversight, it is necessary given the need for expeditious and efficient resolution of simpler disputes.
The fixation of time limits through Section 29A is well-intentioned. However, the consequences resulting from Section 29A do not do justice to the intention. The termination of an arbitrator’s mandate upon failure to pronounce the award on time can be unfair in specific circumstances. The fact that such unfairness can be detrimental to the parties necessitates a nuanced specification of time limits. It is this subtle specification that would make the arbitration process fairer for the parties to an arbitration.
[[i]] Basur, supra note 3 at 67.
[[iii]] Union of India and Others v. Uttar Pradesh State Bridge Corporation Limited, (2015) 2 SCC 52.
[[iv]] Angelique International Limited v. SSJV Projects Private Limited, (2018) SCC OnLine Del 8287.
(*) Rohit Dalai is a Penultimate year law student at National Law School of India University, Bangalore. He has a keen interest in reading, writing and researching on the developments related to the area of alternate dispute resolution mechanism. For any discussion related to the article, he can be contacted via email, firstname.lastname@example.org.