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CS Professional · Arbitration, Mediation and Conciliation · Preparation and Execution of Arbitral Award

Kapoor Exports and the sole arbitrator signed a written agreement fixing his fees at Rs 6,00,000. Later the arbitrator withholds the award claiming the fee is inadequate and demands more. Kapoor Exports wants to apply to the Court under Section 39(2). What is the position under Section 39(3)?

Kapoor Exports cannot apply to the Court under Section 39(2), because Section 39(3) bars the application where the fees demanded were fixed by written agreement between that party and the arbitral tribunal. Here the fee of Rs 6,00,000 was fixed in writing.

  1. AKapoor Exports cannot make the application because the fees were fixed by written agreement between it and the tribunalCorrect
  2. BKapoor Exports may apply, and the tribunal has no right to be heard
  3. COnly the opposite party may apply in such a case
  4. DKapoor Exports may apply, but only with the tribunal's written consent

Explanation

Section 39(3) allows any party to apply under sub-section (2) unless the fees demanded have been fixed by written agreement between that party and the tribunal. Here a written agreement fixed the fee, so Kapoor Exports cannot use this route. The option saying the tribunal cannot be heard is wrong because the tribunal is entitled to appear and be heard on any such application.

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