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*International Arbitration

Published on January 18th, 2018 | by Olga Papadopoulou

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Independence and Impartiality of Arbitrators: Are We There Yet?

Kluwer Arbitration Blog

Independence and Impartiality of Arbitrators: Are We There Yet?

Shivani Khandekar and Divyansh Singh/November 14, 2017

It is a fundamental principle in international arbitration that every arbitrator must be and remain independent and impartial of the parties and the dispute

The issue of arbitrator independence, impartiality and neutrality has been a frequent source of contention in India. It is particularly rampant in disputes arising out of contracts executed before the amendment of the Arbitration and Conciliation Act, 1996 (‘the Act’). Pre-amendment, there was no bar on any category of person from being appointed as arbitrator and parties could (and often would) sign arbitration agreements that provided for one of their employees to be appointed as arbitrator. Contracts with government agencies, in particular, were rife with arbitration agreements specifying one of their own as arbitrator. The 2015 amendments to the Act, which came into effect on 23.10.2015, have been pro neutrality, independence and impartiality with the addition of Section 12(5) that renders any person who falls within any of the categories in Schedule 7 of the Act ineligible to act as arbitrator and Schedule 5 that lists grounds which shall guide in determining whether there exist justifiable doubts as to the independence or impartiality of an arbitrator. However, given that these amendments are only applicable prospectively, many disputes currently in the courts are governed by the pre-amendment Act…

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