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Report No. 176

2.9.2 Now we shall advert to certain other aspects under section 12.

So far as sec. 12(1) is concerned, it is said that the "circumstances" which the arbitrator is to disclose are those which he considers relevant so as to raise a justifiable doubt as to his independence or impartiality. After all, the circumstances are mostly within his personal knowledge and unless there is an obligation to disclose all relevant facts, without limiting them to those which, in his view,. can raise justifiable doubts, there is likelihood of an unfair adjudication. In other words, sec. 12(1) can be made a little more specific as in the ICC Rules. The earlier ICC Rules required the arbitrator to disclose:

"Whether there exists any past or present relationship , direct or indirect, with any of the parties or any of their counsel, whether financial, professional, social or other kind."

Business or professional relationship or connection with subject matter of arbitration or its outcome or prior connection with some dispute have been treated as important matter to be disclosed by the arbitrators. It would, therefore, be appropriate to remove the vagueness in Section 12 by adding some words in section 12(1). After such addition, the substituted section 12 (1) will read as follows:

"(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances, such as the existence of any past or present relationship, either direct or indirect, with any of the parties or any of their counsel, whether financial, business, professional, social or other kind or in relation to the subject matter in dispute, which are likely to give rise to justifiable doubts as to his independence or impartiality."



The Arbitration and Conciliation (Amendment) Bill, 2001 Back




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