CS Professional · Arbitration, Mediation and Conciliation

Challenge to Award and Appeals in Arbitration

This chapter covers how an arbitrator can be challenged (Sections 12 and 13), when the mandate ends (Sections 14 and 15), and which orders can be appealed (Sections 37, 50 and 59). To solve a case, name the provision, test the facts against its conditions, and state the conclusion and the forum.

What this chapter covers

This chapter deals with what happens when something goes wrong with the tribunal or with its orders. It starts with the arbitrator: what must be disclosed before appointment, when a challenge is allowed, and how it is made. It then moves to the end of the arbitrator's role, through failure to act, withdrawal, agreement or termination of proceedings, and the appointment of a substitute.

The second half is about appeals. Section 37 lists the orders that can be appealed in domestic arbitration, and it says "and from no others". Sections 50 and 59 do the same for orders on foreign awards in Part II. Section 57, which sets the conditions for enforcing a foreign award, is the background you need to understand what an appeal from a refusal is really about.

The chapter links to the rest of the paper. Appointment, jurisdiction, interim measures, setting aside under Section 34 and enforcement all feed into it. Section 13(5) sends a failed challenge to Section 34. Section 37 lists the Section 8, 9, 16, 17 and 34 orders you studied earlier. Read it as the place where those topics meet.

The paper is written and case-based, and this chapter suits that format. Questions give facts, such as an undisclosed relationship, a 15-day deadline or a refused enforcement, and ask what the party can do and before which forum. The provisions are short and exact, so students who learn the conditions and the time limits can score reliably. Students who only remember the gist lose marks on details such as who decides a challenge, or which orders are appealable.

Challenge to Award and Appeals: topics in the order to study them

1Grounds for Challenge to an Arbitrator (Section 12)Start here because disclosure, the Fifth, Sixth and Seventh Schedules and the grounds of challenge are the base for everything that follows.
2Challenge Procedure (Section 13)Once you know the grounds, learn how a challenge is made: the agreed procedure, the 15-day default, who decides, and what follows a failure.
3Failure or Impossibility to Act and Termination of MandateThis extends the arbitrator's story from challenge to Sections 14, 15 and 32: termination, substitution and the effect on earlier hearings and orders.
4Appealable Orders (Section 37)With the tribunal-level issues clear, move to appeals in domestic arbitration, where the list of orders is closed.
5Appeals in Foreign Award Enforcement (Section 59 of Part II)Study this last and compare it with Section 37, Section 50 and Section 57, since the appeal rights are narrower.

How to prepare Challenge to Award and Appeals

Treat this chapter as a set of short rules with conditions. Learn the wording, then practise applying it to facts.

Read Sections 12, 13, 14 and 15 in the Act and underline each condition: who, when, in what form and before whom.
Make a one-page table of Section 12(1), 12(3), 12(4) and 12(5), noting what each one requires and who can use it.
Write the Section 13 sequence: agreed procedure, else written statement within fifteen days, then withdrawal, agreement or decision by the tribunal, then continuing and a Section 34 application.
Compare Sections 14 and 15, then note what Section 15(3) and 15(4) say about repeated hearings and earlier orders.
Memorise Section 37(1) and 37(2) as a list of orders, then place Sections 50 and 59 beside it to see the differences.
Solve three or four case-style questions in the format of provision, facts, conclusion and forum, and check that you cite the correct section.
Revise the list of appealable and non-appealable orders and the no-second-appeal rule one day before the exam.

Common mistakes in Challenge to Award and Appeals

Treating every ground in Section 12 as open to every party at any time.
Fix: Keep them separate: 12(3) is the general ground, 12(4) restricts challenges to your own appointee, and 12(5) makes certain persons ineligible.
Saying the Court decides a Section 13 challenge.
Fix: Under Section 13(3), the tribunal decides unless the arbitrator withdraws or the other party agrees. The Court features in Section 14(2) and in Section 34 later.
Forgetting the fifteen-day time limit or counting from the wrong point.
Fix: Say that parties may agree a procedure; failing that, fifteen days from awareness of the constitution of the tribunal or of the circumstances under Section 12(3).
Assuming a withdrawal or agreed termination admits the ground of challenge.
Fix: Quote Section 14(3): withdrawal or agreement does not imply acceptance of the validity of any ground.
Listing orders as appealable that Section 37 does not cover.
Fix: Learn the list in 37(1) and 37(2), and remember the words "and from no others".
Applying Section 37 to foreign awards.
Fix: For Part II, appeal lies only from orders refusing to refer parties to arbitration or to enforce a foreign award, under Section 50 or Section 59 as the case requires. Say which Part the facts fall under.

Last-day revision: Challenge to Award and Appeals

Section 12(1): a person approached as arbitrator must disclose in writing circumstances giving justifiable doubts, and those affecting time to finish within twelve months.
Disclosure is made in the form of the Sixth Schedule; the Fifth Schedule guides on doubts about independence or impartiality.
Section 12(3): challenge only for justifiable doubts on independence or impartiality, or lack of agreed qualifications.
Section 12(4): a party can challenge its own appointee only for reasons it learns of after the appointment.
Section 12(5): a person in the Seventh Schedule is ineligible despite any prior agreement; waiver only by express written agreement made after disputes arise.
Section 13(2): default challenge procedure is a written statement of reasons to the tribunal within fifteen days of awareness.
Section 13(3): unless the arbitrator withdraws or the other party agrees, the tribunal decides the challenge.
Section 13(4) and (5): if the challenge fails, proceedings continue and the award can be attacked under Section 34.
Section 14: mandate terminates and a substitute is appointed if the arbitrator is unable or fails to act and withdraws or the parties agree; otherwise a party may apply to the Court.
Section 15(2): a substitute is appointed under the rules that applied to the original appointment.
Section 37: appeal lies from the listed orders only; no second appeal, but the Supreme Court right remains.
Sections 50 and 59: appeal lies only from orders refusing to refer parties to arbitration or refusing to enforce a foreign award.

Challenge to Award and Appeals practice questions

Challenge to Award and Appeals: frequently asked questions

What is the time limit to challenge an arbitrator?

Parties may agree a challenge procedure. Failing that, Section 13(2) requires a written statement of reasons to the tribunal within fifteen days of becoming aware of the tribunal's constitution or of the circumstances in Section 12(3).

What happens if the challenge to an arbitrator fails?

Under Section 13(4), the tribunal continues the proceedings and makes the award. The challenging party can then apply to set aside that award under Section 34, as Section 13(5) provides.

Can the parties waive the ineligibility under Section 12(5)?

Yes, but only by an express agreement in writing made after the disputes have arisen. An agreement made earlier cannot remove the ineligibility.

Is there a second appeal under Section 37?

No. Section 37(3) bars a second appeal from an order passed in appeal, but the right to approach the Supreme Court is not taken away.

Which orders on foreign awards can be appealed?

Under Part II, an appeal lies from an order refusing to refer parties to arbitration or refusing to enforce a foreign award. Section 59 deals with this in the chapter on Geneva Convention awards, and Section 50 covers the New York Convention equivalent.