190430 ELP Arbitration Weekly Update

This week, we analyze the decision of the Bombay High Court in Tech Mahindra Ltd. v. Tata Communications Transformation Services Ltd. The maintainability of an application under section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”) for the appointment of an arbitrator (“Application”) was challenged before the Bombay High Court (“Court”) on the ground that the provisions of the Act would be inapplicable as the arbitration agreement provided for the appointment procedure to be in accordance with the UNCITRAL Rules.The issue which arose for consideration before the Court was whether it could be designated as the “appointing authority” for appointment of the arbitrator. Upon examining the facts, the Court inter alia concluded as follows:

• the Court can be the “appointing authority” in terms of the UNCITRAL Rules and the arbitration agreement between the parties
• the respondent had an opportunity to propose an “appointing authority” at the time of filing its response to the Notice of Arbitration
• the respondent never objected to the applicant designating the Court as the appointing authority
• the Application is maintainable under section 11 of the Act

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