Impermissibility Of Hedging: Reserving The Right To Challenge Unilateral Appointment Of An Arbitrator Under Section 34 Of The A&C Act, 1996

Advocate Obhirup Ghosh, Senior Associate, AKS Partners Delhi

ABSTRACT

Should a Party be allowed to challenge an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 on the ground that the arbitrator was appointed unilaterally, even though the aggrieved party participated in the arbitration without protest, while being aware of such unilateral appointment? If the party is allowed to do so, then it may become a modus operandi for parties to reserve its right to challenge a unilateral appointment and decide whether to raise this challenge before the Court on the basis of whether the award has been given in its favour or against it. This may lead to a situation wherein the parties are allowed to legally hedge its chances of succeeding in an arbitration. The present article analyses whether such reservation of right should be deemed acceptable.