The Challenge Procedure

In one line

Section 13 gives the parties freedom to agree a challenge procedure, supplies a default of fifteen days and a decision by the tribunal itself, and then makes an unsuccessful challenge wait for the award; section 14 is the different route for an arbitrator who has become unable to act.

Section 13: the challenge procedure

13(1): subject to sub-section (4), the parties are FREE TO AGREE ON A PROCEDURE for challenging an arbitrator.

13(2): failing such agreement, a party who intends to challenge shall, WITHIN FIFTEEN DAYS after becoming aware of the CONSTITUTION of the arbitral tribunal, or after becoming aware of any circumstances referred to in section 12(3), send a WRITTEN STATEMENT OF THE REASONS for the challenge TO THE ARBITRAL TRIBUNAL.

13(3): unless the arbitrator challenged WITHDRAWS from his office, or the OTHER PARTY AGREES to the challenge, THE ARBITRAL TRIBUNAL SHALL DECIDE ON THE CHALLENGE.

13(4): if a challenge under any agreed procedure or under sub-section (2) is NOT SUCCESSFUL, the arbitral tribunal SHALL CONTINUE THE ARBITRAL PROCEEDINGS AND MAKE AN ARBITRAL AWARD.

13(5): where an award is made under sub-section (4), the party challenging the arbitrator MAY MAKE AN APPLICATION FOR SETTING ASIDE THAT AWARD IN ACCORDANCE WITH SECTION 34.

13(6): where an award is set aside on such an application, THE COURT MAY DECIDE WHETHER THE ARBITRATOR WHO IS CHALLENGED IS ENTITLED TO ANY FEES.

The three features worth naming

The challenged arbitrator decides his own challenge. That looks uncomfortable, and it is defended on the ground that the alternative, an immediate reference to court, would let any party stop an arbitration at will. The tribunal decides, the arbitration continues, and the court comes in once, at the end.

There is no interlocutory remedy. A rejected challenge is not appealable under section 37, and the challenging party must wait for the award and attack it under section 34.

The fifteen-day period runs from KNOWLEDGE, not from appointment, and it runs afresh from the day the party learns of the circumstances, which matters where a relationship is disclosed late under section 12(2).

Section 14: failure or impossibility to act

14(1): THE MANDATE OF AN ARBITRATOR SHALL TERMINATE AND HE SHALL BE SUBSTITUTED BY ANOTHER ARBITRATOR, IF:

(a) he becomes DE JURE OR DE FACTO UNABLE TO PERFORM HIS FUNCTIONS, or for other reasons FAILS TO ACT WITHOUT UNDUE DELAY; and

(b) he WITHDRAWS from his office or the PARTIES AGREE to the termination of his mandate.

The words "and he shall be substituted by another arbitrator" were substituted by the 2015 amendment, which made the consequence of termination explicit.

14(2): if a CONTROVERSY REMAINS concerning any of the grounds in clause (a), a party may, unless otherwise agreed, APPLY TO THE COURT TO DECIDE ON THE TERMINATION OF THE MANDATE.