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Section 29 of the Arbitration and Conciliation Act, 1996: Decision Making by Panel of Arbitrators

Section 29 of the Arbitration and Conciliation Act, 1996 lays down how decisions are made when an arbitral tribunal consists of more than one arbitrator. Unless the parties agree otherwise, decisions must be made by a majority of all members of the tribunal. Procedural questions may, however, be decided by the presiding arbitrator when the required authority has been given.

What is Section 29 of the Arbitration and Conciliation Act, 1996?

Section 29 governs decision making by a panel of arbitrators. It applies where an arbitral tribunal has more than one member and establishes the default rule for collective decision making.

Text of Section 29 - Decision Making by Panel of Arbitrators

Official text: Arbitration and Conciliation Act, 1996 - India Code

Section 29(1): Majority Decision by the Tribunal

Section 29(1) provides the default rule that, in arbitral proceedings involving more than one arbitrator, a decision of the tribunal is to be made by a majority of all its members.

The words "unless otherwise agreed by the parties" preserve party autonomy. The parties may agree upon a different method of decision making, subject to the applicable law and the terms governing the arbitration.

Meaning of "Majority of All Its Members"

The statutory expression refers to a majority of the full membership of the arbitral tribunal. For example, where the tribunal consists of three arbitrators, the ordinary majority is two arbitrators.

This rule ensures that a decision of a multi-member tribunal represents the view of the required majority rather than the unilateral view of one member.

Section 29(2): Procedural Decisions by the Presiding Arbitrator

Section 29(2) creates a limited exception to the majority rule. Questions of procedure may be decided by the presiding arbitrator where the presiding arbitrator has been authorised either by:

• the parties to the arbitration; or
• all members of the arbitral tribunal.

The provision is confined to questions of procedure. It does not state that the presiding arbitrator may, merely by virtue of that office, decide substantive issues or the merits of the dispute alone.

Who is the Presiding Arbitrator?

In a multi-member arbitral tribunal, the presiding arbitrator is the member who chairs or presides over the tribunal. The manner of appointment depends on the arbitration agreement and the appointment provisions of the Arbitration and Conciliation Act, 1996.

Section 29(2) gives the presiding arbitrator a specific procedural role only where the necessary authorisation exists.

What are Questions of Procedure?

Questions of procedure concern the manner in which the arbitral proceedings are conducted rather than the substantive determination of the parties' rights and liabilities. Depending on the circumstances and the authority granted, procedural matters may concern scheduling, filing arrangements, hearing management or similar conduct-of-proceedings issues.

Whether a particular issue is procedural or substantive depends on its nature and context. Section 29(2) should therefore be applied with attention to the scope of the authority actually granted to the presiding arbitrator.

Party Autonomy under Section 29

Section 29 reflects the broader principle of party autonomy in arbitration. Sub-section (1) expressly permits the parties to agree on a decision-making arrangement different from the statutory default. Sub-section (2) also allows the parties to authorise the presiding arbitrator to decide procedural questions.

Relationship with Section 28 and Section 31

Section 28 determines the rules applicable to the substance of the dispute, while Section 29 determines how a multi-member tribunal reaches its decisions.

The decision-making rule under Section 29 also operates within the broader statutory framework governing the making and form of arbitral awards.

Key Points to Remember

• Section 29 applies to arbitral tribunals with more than one arbitrator.
• The default rule is decision by a majority of all tribunal members.
• The parties may agree on a different decision-making arrangement.
• A presiding arbitrator may decide procedural questions only when properly authorised.
• Authorisation may come from the parties or from all members of the tribunal.
• Section 29(2) concerns procedural questions and does not itself confer unilateral power over substantive decisions.

Statutory text checked against the current India Code publication of the Arbitration and Conciliation Act, 1996.