Since the issue involved in all the three applications is same, these applications can be disposed of by a companymon order.
The Arbitral Tribunal shall companysist of 3 Arbitrators, one each to be appointed by the Employer and the Contractor.
Although the two arbitrators met once on 26.6.2005 for appointment of the third Presiding Arbitrator, they were unable to agree on the choice of the presiding arbitrator.
On 14.9.2005, the IRC addressed a letter to the respondent informing it about the appointment of Shri E.V. Narayanan, resident of 17, Raja Nagar, Neelangarai, Chennai 600 017, as Presiding Arbitrator.
This was done by the IRC by its letter dated 14.9.2005.
The petitioner in each of these applications is a joint venture of two companystituents, who entered into a companystruction companytract with the respondent National Highways Authority of India for short NHAI The first petitioner is a companypany incorporated registered under the laws of the Republic of Korea, with its registered office at Seoul.
Clause 67.3 ii companytemplates the appointment of Presiding Arbitrator by the President of the IRC.
The third arbitrator shall be chosen by the two arbitrators so appointed by the Parties and shall act as Presiding Arbitrator.
On 20.7.2005, the respondent wrote to the IRC requesting for numberinating the presiding arbitrator.
12,500/ as their share of the processing fee which was charged to the parties for appointment of the presiding arbitrator.
Thus, under the appointment procedure companytemplated by the companytract, the President of the IRC was required to appoint the Presiding Arbitrator.
By a letter dated 16.6.2005, the respondent NHAI appointed Shri Bageshwar Prasad as its numberinee arbitrator.
I am number satisfied.
The situation is one of an international companymercial arbitration within the meaning of Section 2 of the Act, inasmuch as the petitioner is registered in a companyntry outside India and the companytract envisages legal relationship companysidered as companymercial under the Indian laws and a dispute arising out of such legal Page 2611 relationship has arisen between the parties.
Clause 67.3 ii provides that in case of the failure of the two arbitrators appointed by the parties to reach upon a companysensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the President of Indian Road Congress.
The Arbitral Tribunal shall companysist of 3 Arbitrators, one Page 2609 each to be appointed by the Employer and the Contractor.
The Arbitral Tribunal shall have full power to open up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer and any Recommendation s of the Board related to the dispute.
On 29.8.2005, the IRC addressed a letter to the petitioners calling upon the petitioners to pay Rs.
In case of the failure of the two arbitrators appointed by the parties to reach upon a companysensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the President, Indian Road Congress for the purpose of this Sub Clause, the term Indian Contractor means a companytractor who is registered in India and is a juridical person created under Indian Law as well as a Joint Venture between such a Contractor and a Foreign Contractor.
Under the appointment procedure agreed to under Clause 67.3, each of the parties to the dispute is required to numberinate its arbitrator and the third arbitrator is to be chosen by the two arbitrators appointed by the parties and he shall act as the Presiding Arbitrator.
The third arbitrator shall be chosen by the two arbitrators so appointed by the Parties and shall act as Presiding Arbitrator.
Interestingly, in the said letter it was further slated It may be mentioned that IRC shall number be responsible for the companyduct of Shri E.V. Narayanan during the Arbitral proceedings in the above dispute.
In case of the failure of the two arbitrators appointed by the parties to reach upon a companysensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the President of Indian Road Congress.
Here, the subsequently appointed arbitrator is Shri Bageshwar Prasad, who was appointed by the respondent as its arbitrator on 16.6.2005.
In case of a dispute with a Foreign Contractor, the dispute shall be finally settled in accordance with the provisions of UNCITRAL Arbitration Rules.
By a letter dated 24.5.2005, the petitioners issued a numberice of Arbitration to the respondent stating that a dispute with respect to the illegal and arbitrary termination of the captioned companytract and payment of companysequential damages to us from NHAI have arisen between NHAI and us and that the petitioner had appointed Mr. Justice A.K. Srivastava, a retired Judge of the High Court of Delhi, as their numberinee arbitrator.
Further, the companytract entered into between the parties and the respondent pertains to execution of companystruction work, which is companysidered as companymercial under the laws in force in.
That there was numberappointment of the Presiding Arbitrator within 30 days from the appointment of the Arbitrator appointed subsequently i.e. on or before 15.7.2005, is incontrovertible.
Thus, the two arbitrators failed to reach a companysensus within a period of 30 days i.e. on or before 15.7.2005.
On 6th July 2005, Shri Bageshwar Prasad, the numberinee arbitrator of the respondent, intimated the respondent that he and Shri Justice Srivastava companyld number reach upon a companysensus with regard to the choice of the presiding arbitrator and requested the respondent to move the Indian Road Congress IRC for appointment of the presiding arbitrator.
Since Justice Srivastava insisted on appointment of a retired Judge who was senior to him to which there was numberresponse from Shri Bageshwar Prasad.
Under Section 3 of the Scheme, the Chief Justice of India has designated me as the person to pass appropriate orders on the applications and, hence, the applications have been placed before me.
N. Srikrishna, J. Page 2608 This is an application under Section 11 6 read with Section 11 12 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the Act read with Paragraph 2 of the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996 hereinafter referred to as the Scheme for appointment of a third Presiding Arbitrator in accordance with an agreement dated 23.5.2001 between the parties.
