Arbitration and Conciliation Act, 1996
Section 13 of the Arbitration Act: Challenge Procedure for an Arbitrator
Section 13 of the Arbitration and Conciliation Act, 1996 lays down the procedure for challenging an arbitrator. It allows parties to agree on their own challenge procedure and provides a statutory default procedure where no such agreement exists.
Meaning and purpose of Section 13
Section 13 provides the procedural mechanism for a challenge to an arbitrator. The substantive grounds for challenge are primarily found in Section 12 of the Arbitration and Conciliation Act, 1996. Section 13 explains how and when those grounds are to be raised.
The section follows the principle of party autonomy by first allowing the parties to agree on a challenge procedure. If there is no such agreement, Section 13(2) supplies the default statutory procedure.
- Section 13(1): parties may agree on a procedure for challenging an arbitrator, subject to Section 13(4).
- Section 13(2): in the absence of an agreed procedure, a written challenge must be sent within fifteen days.
- Section 13(3): if the arbitrator does not withdraw and the other party does not agree, the arbitral tribunal decides the challenge.
- Section 13(4): an unsuccessful challenge does not stop the arbitration; the tribunal continues and makes an award.
- Section 13(5): after the award, the challenging party may seek to set aside the award under Section 34.
- Section 13(6): if the award is set aside, the Court may decide whether the challenged arbitrator is entitled to fees.
Challenge procedure under Section 13
| Stage | What Section 13 provides |
|---|---|
| Agreed procedure | The parties may agree on their own procedure for challenging an arbitrator, subject to subsection (4). |
| No agreed procedure | The statutory procedure under Section 13(2) applies. |
| Time limit | The written challenge must be sent within fifteen days after the relevant knowledge specified in Section 13(2). |
| Decision on challenge | If the challenged arbitrator does not withdraw and the other party does not agree, the arbitral tribunal decides the challenge. |
| Challenge rejected | The tribunal continues the proceedings and makes the arbitral award. |
| Post-award remedy | The challenging party may apply to set aside the award in accordance with Section 34. |
Section 13 - Challenge procedure
(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.
(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.
(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.
(6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.
When does the fifteen-day period begin?
Under Section 13(2), the fifteen-day period is linked to the party becoming aware of either the constitution of the arbitral tribunal or circumstances referred to in Section 12(3). The provision therefore makes prompt action important once the relevant facts are known.
The written statement should identify the reasons for the challenge with sufficient clarity for the tribunal and the other party to understand the objection. Section 13 itself does not prescribe a separate statutory form for this written statement.
What happens if the challenge is unsuccessful?
An unsuccessful challenge under Section 13 does not automatically terminate the arbitral proceedings. Section 13(4) directs the arbitral tribunal to continue the proceedings and make an arbitral award.
After the award is made, Section 13(5) permits the challenging party to make an application for setting aside the award in accordance with Section 34. Section 13 therefore ordinarily postpones court review of an unsuccessful challenge until the award stage.
If the award is set aside on such an application, Section 13(6) authorizes the Court to decide whether the challenged arbitrator is entitled to fees.