Should Arbitrator Be Made A Party In Petitions Under S 34/37 Arbitration Act?

Before we come to this query, it is important to read the Supreme Court judgment in Jogendrasinhgji Vikaysinhji vs State Of Gujarat, (2015) 9 SCC 1 especially the following observations: Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High court without the Court or the Presiding Officer being impleaded as a party.

The authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties.

This judgment has not decided whether an Arbitrator should be party in a petition filed before a Civil Court to set aside the award? The Madras High Court, in Kothari Industrial Corporation Ltd. v. M/S Southern Petrochemicals Industries, had criticized the practice of impleading arbitrators or arbitral tribunals when there is no need to do so. “Often, arbitrators are embarrassed upon receipt of notice. It is only in a rare case when a personal allegation is made against an arbitrator may such arbitrator be impleaded. Just as in case of a revision or an appeal the lower forum or the Judge manning the lower forum is not impleaded as a party, in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996, the arbitrator or the members of the arbitral tribunal are utterly unnecessary parties unless specific personal allegations are levelled against them that would require such persons to answer the allegations.”, the court said.

In exercise of the powers conferred by Section 82 of the Arbitration Act, the Madras High Court has made Madras High Court (Arbitration) Rules, 2020. In Rule 5 thereof, it is stated thus: (iii) Subject to sub-rule (iv), the sole arbitrator or arbitrators constituting the Arbitral Tribunal shall not be added as respondent or respondents. However, the petitioner shall give the names and the addresses for services of the sole arbitrator or all the arbitrators constituting the arbitral tribunal. (iv) Where allegations (including but not limited to proceedings under Section 14 and clause (i) of explanation 1 of sub-section 2 (b) of Section 34) are made against one or more arbitrators, all the arbitrators shall be made respondents.

However, Rule 4(c) of The High Court of Karnataka Arbitration (Proceedings Before the Courts) Rules, 2001 provides that the arbitrator who made such award shall also be joined as respondent to the application. It is not clear whether this requirement still remains so or not.

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