The Delhi High Court has recently reaffirmed that under Section 12(5) of the Arbitration and Conciliation Act, 1996, any waiver of an arbitrator’s ineligibility must be made through an express agreement in writing, executed after the constitution of the arbitral tribunal. This decision underscores that mere participation in arbitration proceedings does not amount to such a waiver.

In the case of Govind Singh v. M/s Satya Group Pvt. Ltd. & Anr., the court observed that the arbitrator was unilaterally appointed by the respondent without any written agreement from the appellant consenting to this appointment post-dispute. Despite the appellant’s participation in the proceedings, the court held that this did not constitute a waiver of the right to object under Section 12(5) .

This ruling aligns with the Supreme Court’s stance in Bharat Broadband Network Ltd. v. United Telecoms Ltd., where it was clarified that any waiver of an arbitrator’s ineligibility must be explicit and in writing, and cannot be inferred from a party’s conduct .

Furthermore, the Delhi High Court has consistently held that even actions such as filing applications under Section 29(A) of the Act, which pertains to extending the arbitrator’s mandate, do not amount to an express waiver in writing of the right to challenge the arbitrator’s ineligibility .

These decisions reinforce the importance of adhering to the statutory requirements for waiving objections to an arbitrator’s appointment, emphasizing that such waivers must be clear, unequivocal, and documented in writing after the dispute has arisen.

Sources