Legal Agreements

Rule Of Repugnancy and Appointment of Arbitrator Under the Indian Arbitration Regime

calendar26 May, 2023
timeReading Time: 4 Minutes
Rule Of Repugnancy and Appointment of Arbitrator Under the Indian Arbitration Regime

Arbitration has emerged as a popular alternative dispute resolution mechanism in India due to its efficiency, flexibility, and enforceability of awards. The Indian Arbitration and Conciliation Act, 1996 (the “Act”) governs arbitration proceedings in the country. One crucial aspect of arbitration is the appointment of an arbitrator, and this process is subject to the rule of repugnancy. In this blog post, we will explore the rule of repugnancy and its significance in the appointment of arbitrators under the Indian arbitration regime.

The Rule of Repugnancy under the Indian Arbitration and Conciliation Act, 1996 is an important legal principle that addresses conflicts between the provisions of the Act and any other laws in force. It determines the precedence of the Act over conflicting laws, thereby ensuring uniformity and consistency in the application of arbitration laws throughout the country.

Understanding The Rule of Repugnancy:

The Rule of Repugnancy is derived from Article 254 of the Constitution of India. According to this article, if there is a conflict between a central law and a state law on matters that fall under the concurrent jurisdiction[1] of both the central and state governments, the central law prevails to the extent of the inconsistency.

The Indian Arbitration and Conciliation Act, 1996 is a central law that governs arbitration proceedings in India. However, states in India also have the power to enact their own laws related to arbitration. In cases where a state law contradicts the provisions of the central law, the Rule of Repugnancy comes into play.

Application Of The Rule of Repugnancy in The Indian Arbitration and Conciliation Act:

In the context of the Indian Arbitration and Conciliation Act, the Rule of Repugnancy is particularly relevant to the appointment of arbitrators. The Act provides for various mechanisms for the appointment of arbitrators, including the agreement of the parties and the intervention of the courts.

Section 11 of the Act deals with the appointment of arbitrators by the courts. It empowers the Supreme Court and the High Courts to appoint arbitrators when the parties fail to agree on the appointment or when the agreed procedure fails.

If a state law attempts to govern the appointment of arbitrators in a manner that is inconsistent with the provisions of the Act, the Rule of Repugnancy comes into effect. In such cases, the Act prevails, and the provisions of the state law are rendered inoperative to the extent of the inconsistency.

Rule Of Repugnancy and Appointment of Arbitrators:

The Rule of Repugnancy becomes relevant when there is a conflict between the provisions of the Act and any other law relating to the appointment of arbitrators. In such cases, the Act prevails over inconsistent laws, ensuring uniformity and consistency in the appointment process.

For example, if a state law attempts to govern the appointment of arbitrators in a manner inconsistent with the provisions of the Act, such provisions would be considered repugnant to the Act. The provisions of the state law would be rendered inoperative to the extent of the inconsistency, and the appointment of arbitrators would be governed by the provisions of the Act.

Appointment Of Arbitrator

The appointment of an arbitrator is a crucial step in the arbitration process under the Indian Arbitration and Conciliation Act, 1996 (the “Act”). The Act provides a framework for the appointment of arbitrators, emphasizing party autonomy while also providing mechanisms for intervention by the courts when necessary.

Appointment by Agreement: Under the Act, the parties to a dispute have the freedom to determine the procedure for appointing arbitrators. They can include specific provisions regarding the number of arbitrators, their qualifications, and the process of appointment in their arbitration agreement.

If the parties have agreed on a specific method for appointment, they must follow that procedure. The Act recognizes and upholds the principle of party autonomy, ensuring that the parties’ intentions are given effect in the appointment process.

Appointment by the Parties’ Agreement: If the parties fail to agree on the procedure for appointing arbitrators, the Act provides default provisions. In such cases, the following rules apply:

Appointment by the Parties: The parties may agree to mutually appoint a sole arbitrator or a panel of arbitrators.

Appointment by a Designated Institution: The parties may agree to submit the appointment to a designated arbitral institution. The institution, in accordance with its rules, will appoint the arbitrator(s).

Appointment by the Court: If the parties are unable to agree on the appointment procedure or if the agreed procedure fails, either party can apply to the relevant court for assistance. In India, this would typically be the Supreme Court or the High Court, depending on the nature and value of the dispute.

Appointment By the Court: Section 11 Of the Act Deals with The Appointment of Arbitrators by The Courts. It Empowers the Courts to Intervene and Appoint Arbitrators in The Following Circumstances:

  • Failure to Agree on Appointment: If the parties are unable to agree on the appointment of an arbitrator within the agreed timeframe, a party can approach the court for the appointment.
  • Challenge to an Arbitrator: If a party challenges the appointment of an arbitrator, either because of bias, lack of qualifications, or any other reason specified in the Act, the court can decide on the challenge and make a fresh appointment if necessary.
  • Failure of the Agreed Appointment Procedure: If the agreed procedure for appointing an arbitrator fails, the court can step in and make the appointment.

The courts exercise their power of appointment based on the principles of impartiality, independence, and qualifications of the arbitrator.

Significance Of the Rule of Repugnancy:

The Rule of Repugnancy plays a crucial role in maintaining the uniformity and consistency of the Indian arbitration regime. It ensures that conflicting state laws do not undermine or override the provisions of the central law, thereby promoting a harmonious and integrated arbitration framework across the country.

By upholding the supremacy of the central law, the Rule of Repugnancy provides certainty and clarity to parties involved in the arbitration. It prevents confusion and conflicting interpretations that may arise due to the coexistence of state laws and the Act. This principle safeguards the integrity of the arbitration process and reinforces the credibility and enforceability of arbitration awards in India.

Conclusion:

The rule of repugnancy is a vital principle in the Indian arbitration regime. It acts as a safeguard to maintain consistency and uniformity in the appointment of arbitrators. By upholding the supremacy of the Act over inconsistent state laws, the rule of repugnancy ensures that arbitration proceedings in India are conducted in a fair and efficient manner. It provides certainty and clarity to parties involved in arbitration, thereby enhancing the overall effectiveness of the dispute resolution mechanism in the country.

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