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Report No. 76

3.29. Section 8A (New.- Death of arbitrator appointed by court or incapacity etc.-

When the court appoints an arbitrator under section 8, and the arbitrator dies, there is no provision in the Act for the appointment of another arbitrator by the court in his place. This has been described1 as a lacuna in the Act. Neither section 8(1)(b) nor section 9 nor section 12 would cover such a situation, and the court has no inherent power to appoint an arbitrator.2 In our opinion, the position would improve if a clarification is made on the subject. The cases of incapacity, neglect and refusal to act should also be covered. We, therefore, recommend the insertion of a new section as follows:-

"8A. Neglect by or death of arbitrator or umpire appointed by court.-Where the court has a power to appoint an arbitrator or umpire under any provision of this Act or of any arbitration agreement, and the arbitrator or umpire so appointed by the court neglects or refuses to act, or is incapable of acting or dies, the court may supply the vacancy."

1. Hindustan Flashlight Manufacturing Co. Ltd. v. Great American Insurance Co. Ltd., AIR 1963 Cal 149 (151), para. 2 (P.C. Mallick, J.).

2. See also Bharat Construction Co. Ltd. v. Union of India, AIR 1954 Cal 606.

Arbitration Act, 1940 Back

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