Public Sector Undertakings and Multiple Appointments of Arbitrators: Mapping the Duty of Disclosure

This paper assesses the practice of Public Sector Undertakings appointing the same arbitrator in multiple arbitrations. While notable safeguards have been placed in PSU-party arbitrations, even with the onset of the 2015 Amendment and the consequent case laws there are still certain grey areas in the de facto administration of PSU-party arbitration. Even though Courts recognize the ‘apprehension of bias’ principle, it is not harnessed in instances such as this. This is seen as the Indian Supreme Court tackled the question of multiple appointments in HRD Corporation v. Gail, however, while the court focused on a ‘commonsensical approach’ in interpreting the clauses of the Fifth Schedule of the Arbitration Act, 1996 to eliminate the existence of circumstances leading to justifiable grounds, the reasoning did not reflect the arbitrator’s duty to disclose the circumstances that propelled an apprehension of bias. In context of the recent UK Supreme Court judgement of Halliburton v. Chubb, it is argued that the provisions of Section 12 of the Act and the Schedules should not be interpreted technically and the apprehension of bias that affects the overall credibility of the arbitration procedure should be the guiding principle in disclosure requirements. In situations where one party has a higher degree of bargaining power there must be consciousness to preserve the purpose of credibility and overall fairness.