POINTS TO ARGUE

• Article 15(5) of the ICC rules allows the proceedings to go on with 2 arbitrators if both
arbitrators and the parties are satisfied. As per Article 15, it is upon the discretion of the “Court”
to decide in such matters.

• Economic & time saving benefit of continuing with 2 Arbitrators

• Mobile 51 is already in cash crunch, no point in imposing the cost of another arbitrator on
them

• 2 Arbitrators can also pass a valid award, it is upon the discretion of the tribunal

• Moreover, if both the Arbitrators are good to go with the proceedings and one of the
parties is appealing for a third arbitrator then it is like questioning the integrity of the 2
arbitrators

ADR Arbitration Moot

REPLACEMENT OF AN ARBITRATOR

Article 13

1. In the event of the death or resignation of an arbitrator during the course of the arbitral

proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure

provided for in articles 6 to 9 that was applicable to the appointment or choice of the

arbitrator being replaced.

2. In the event that an arbitrator fails to act or in the event of the de jure or de facto

impossibility of his performing his functions, the procedure in respect of the challenge and

replacement of an arbitrator as provided in the preceding articles shall apply.

APPOINTMENT OF ARBITRATORS

Article 6

1. If a sole arbitrator is to be appointed, either party may propose to the other:

(a) The names of one or more persons, one of whom would serve as the sole arbitrator; and

(b) If no appointing authority has been agreed upon by the parties, the name or names of
one or more institutions or persons, one of whom would serve as appointing authority.

2. If within thirty days after receipt by a party of a proposal made in accordance with

paragraph 1 the parties have not reached agreement on the choice of a sole arbitrator, the

sole arbitrator shall be appointed by the appointing authority agreed upon by the parties. If

no appointing authority has been agreed upon by the parties, or if the appointing authority

agreed upon refuses to act or fails to appoint the arbitrator within sixty days of the receipt

of a party's request therefor, either party may request the Secretary-General of the

Permanent Court of Arbitration at The Hague to designate an appointing authority.

3. The appointing authority shall, at the request of one of the parties, appoint the sole

arbitrator as promptly as possible. In making the appointment the appointing authority shall

use the following list-procedure, unless both parties agree that the list-procedure should

not be used or unless the appointing authority determines in its discretion that the use of

the list-procedure is not appropriate for the case:

(a) At the request of one of the parties the appointing authority shall communicate to both

parties an identical list containing at least three names;

(b) Within fifteen days after the receipt of this list, each party may return the list to the

appointing authority after having deleted the name or names to which he objects and

numbered the remaining names on the list in the order of his preference;

(c) After the expiration of the above period of time the appointing authority shall appoint

the sole arbitrator from among the names approved on the lists returned to it and in

accordance with the order of preference indicated by the parties;

(d) If for any reason the appointment cannot be made according to this procedure, the

appointing authority may exercise its discretion in appointing the sole arbitrator.
4. In making the appointment, the appointing authority shall have regard to such

considerations as are likely to secure the appointment of an independent and impartial

arbitrator and shall take into account as well the advisability of appointing an arbitrator of a

nationality other than the nationalities of the parties.

Article 7

1. If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two

arbitrators thus appointed shall choose the third arbitrator who will act as the presiding

arbitrator of the tribunal.

2. If within thirty days after the receipt of a party's notification of the appointment of an

arbitrator the other party has not notified the first party of the arbitrator he has appointed:

(a) The first party may request the appointing authority previously designated by the parties

to appoint the second arbitrator; or

(b) If no such authority has been previously designated by the parties, or if the appointing

authority previously designated refuses to act or fails to appoint the arbitrator within thirty

days after receipt of a party's request therefor, the first party may request the Secretary-

General of the Permanent Court of Arbitration at The Hague to designate the appointing

authority. The first party may then request the appointing authority so designated to

appoint the second arbitrator. In either case, the appointing authority may exercise its

discretion in appointing the arbitrator. 3. If within thirty days after the appointment of the

second arbitrator the two arbitrators have not agreed on the choice of the presiding

arbitrator, the presiding arbitrator shall be appointed by an appointing authority in the

same way as a sole arbitrator would be appointed under article 6.

Article 8

1. When an appointing authority is requested to appoint an arbitrator pursuant to article 6

or article 7, the party which makes the request shall send to the appointing authority a copy

of the notice of arbitration, a copy of the contract out of or in relation to which the dispute

has arisen and a copy of the arbitration agreement if it is not contained in the contract. The

appointing authority may require from either party such information as it deems necessary

to fulfil its function.

2. Where the names of one or more persons are proposed for appointment as arbitrators,

their full names, addresses and nationalities shall be indicated, together with a description

of their qualifications

May it please the honorable tribunal, I am Atal Anand, roll no. 60, from team xyz. I am counsel
no.1 appearing on behalf of mobile 51 and I will be contending with the issue that is if Mobile
51s’ arbitrator dies, can proceedings continue and, if so, in what form?

Firstly, I would like to read aloud Sec11 (6) from the arbitration and conciliation act, 1996
Where, under an appointment procedure agreed upon by the parties,— (a) a party fails to act as
required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an
agreement expected of them under that procedure; or (c) a person, including an institution, fails
to perform any function entrusted to him or it under that procedure, a party may request 1[the
Supreme Court or, as the case may be, the High Court or any person or institution designated by
such Court]to take the necessary measure, unless the agreement on the appointment procedure
provides other means for securing the appointment.

According to Shyam Telecom Ltd v Arm Limited, 2004 (3) Arb LR 146 (Del).it was found that
A harmonious reading of Sections 14 and 15 of the 1996 act prescribes that an arbitrator's
mandate can be terminated:
by the arbitrator (by recusing themselves from the arbitral tribunal);

by the parties;

by the arbitral tribunal;

by a court order;

on the death of the arbitrator; or

because of the arbitrator's physical incapacity to proceed with the mandate.(1)

Another case law- Priknit Retails Limited v Aneja Agencies, 2013 states that As such, Section
15(2) of the 1996 act it allows for arbitrators to be substituted if their mandate has been
terminated.(2)

Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed

according to the rules that were applicable to the appointment of the arbitrator being replaced.

Supreme Court in the case of Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla upheld the
judgment of the Bombay High Court appointing substituted arbitrator

The appointment of substitute arbitrators is governed by section 15 of the Arbitration and

Conciliation Act, 1996 (‘Act’) which essentially provides that when the mandate of an arbitrator
terminates, then a substitute arbitrator shall be appointed according to “the rules that were
applicable to the appointment of the arbitrator being replaced.” Section 11 sub section 6 when
there is no provision mentioned as to the appointment of new arbitrator

Hence, the counsel would like to contend that the proceeding should continue with a substitute
arbitrator as the mere death of an arbitrator could not account to terminating the entire arbitration
proceedings.
Moving on, The appointment or substitution of an arbitrator must be made in accordance with
the rules and criteria that apply to the arbitrator being replaced, as agreed by the parties to the
arbitration.

Based on the above, under existing general practice: a party to an arbitration which has been
stalled on such account may prefer to apply to have its nominee arbitrator reviewed and
subsequently appointed with the ascent of the other members of the arbitral tribunal; or the
parties' two nominee arbitrators may appoint a substitute presiding arbitrator as per the terms of
the agreement, as the case may be. In such a scenario, the newly constituted arbitral tribunal can
reopen the proceedings from any stage considered appropriate in the interest of speedy resolution
of the dispute in order to pass an appropriate award.

In ACC Limited v. Global Cements Limited, The Supreme Court held that the arbitration
agreement would survive in spite of the death of the named arbitrators since the phrase used in
the agreement was “if any dispute shall arise … at any time”. Since in the present case the
proceeding are yet to be started it would be unjust to start the proceedings without mobile 51’s
arbitrator On the other hand IF AN ARBITRATOR would have DIEd AT A PENULTIMATE
STAGE THE MAJORITY AWARD CAN STILL BE CONSIDERED RELEVANT BECAUSE
IT DOESN’T TIE THE HANDS OF JUSTICE. BUT WHEN FROM THE INITIAL
PROCEEDINGS ONE PARTY’S ARBITRATOR IS ABSENT IT CANNOT BE DONE.

Therefore, the counsel contends that the proceeding shall continue and they shall continue from
the beginning with the substituted arbitrato