An arbitral award can be challenged only in section 34 of the Arbitration and Conciliation
Act. Section 34 is limited to some grounds. Section 34 of the Act deals with
the “challenge to arbitral award”. The main object of the provision is to
determine whether the award has become final and binding. The use of the word
“only” in section 34 reflects the Legislature’s intention to restrict the
grounds of challenge to those stated in the section itself.
There
is no need for the court to frame issues in a section 34 application for
setting aside the award as is done in a civil suit. The burden is on the person
who makes the application to show that the award can be set aside on any of the
specified grounds in section 34. An application under section 34 is a single
issue proceedings, where the very fact that the application has been instituted
under that particular provision declares the issue involved. Any further
exercise to frame issue will only delay the proceedings. Only a party to the
arbitration proceeding can file an application for setting aside the arbitral
award under section 34 of the Act. Even
a Judge can not reappreciate evidence. Judge can not pass the order of re trial
under section 34. If trail can not be
conducted again, no witness can be introduced. If a party want to lead a new
witness, then matter shall be remanded back to same arbitrator. If matter goes
back to arbitrator, arbitrator can not give a statement as witness. Judge has
not power under section 34 to introduce additional witness. Assume if matter
goes to another forum i.e. another arbitrator, we have to be careful, if
arbitrator a give a statement , Question is in whose favour arbitrator give
evidence.
Under
section 12, Arbitrator has to give disclosure related to his relation with
parties. The arbitrator appointed by the parties or by the court must be
impartial and independent of the parties to the dispute. The Act cast a duty on
the arbitrator to declare in writing, at the time of his appointment, any
circumstance that is likely to give rise to justifiable doubts as to his
independence or impartiality. The duty to disclose any circumstance affecting
his impartiality or independence remains with the arbitrator right from the
time he is appointed, till the completion of the arbitral proceeding. The
arbitrator’s duty to disclose is continuing in nature.
If
arbitrator give statement in favour of any party, his neutrality comes under in
question. Bias vitiates the entire arbitration process and renders the entire
proceedings nugatory. In deciding the question of bias, human probabilities and
ordinary course of human conduct should be taken into consideration. An
arbitrator is partial if he through his conduct favours one party. The
partiality of an arbitrator can be either due to relationship with one of the
parties or because his conduce is such that it gives rise to justifiable doubt
in the mind of a reasonable man. It relates to existence of actual or apparent
bias.
Sub-section
(5) of section 13 provides that a challenge to an arbitrator on ground of bias
is to be decided by the arbitral tribunal and in the absence of any right to go
in appeal against the arbitrator’s decision under the Act and the Act requiring
the arbitrator to continue with the making of the award, the aggrieved party
can challenge the award by making an application under section 34 for setting
it aside. There is no specific ground provided under section 34 to maintain a challenge for setting aside of the award on the ground of bias. A court can set
aside an award on the ground of bias within the wider definition of the
expression “public policy of India.”
If
a affirmities is found in arbitral award, matter is remanded to same arbitrator
to consider the award afresh.
On
the basis of above discussion, we can say that the arbitrator can not give a
statement as witness in case where a party challenged the arbitral award/verdict
in a civil court.
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Dr.
Deepak Miglani, Email id.:- legalbuddy@gmail.com
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