Law: Arbitration Act (X of 1940)

Section: 5,9,8,11

  Arbitration Act (X of 1940)-------   ------ Ss. 8, 9, 5 & 11-Appointment of substitute of previously appointed arbitrator-Provision of S. 8 applicable only in case of agreement under which arbitrators are appointed by consent of both parties-Agreement under which each party to appoint its own arbitrator-Attracts provision of S. 9-Appointment of new arbitrator under S. 9-Recourse to Court not necessary-Provision of S. S, no bar to appointment of arbitrator in terms of S. 9(a)-Justification for appointment under S. 9(a)--Death, incapacity, refusal or omission to act should be satisfactorily established-"Neglecting to act" different from "acting negligently"-Arbitrator acting negligently and causing delay-Remedy lies in applying to Court for his removal under S. 11 (1) or for leave under S. S to revoke his authority.   Both sections 8 and 9 of the Arbitration Act, 1940 provide that a substitute can be appointed by a certain party in the place of an arbitrator who neglects to act. If the party who is to concur in such an appointment or is to appoint such a substitute, fails, in terms of the section, to do so, then under section 8(2), recourse is to be taken to the Court but under section 9(b) the opposite-party may appoint his own arbitrator to act as the sole arbitrator. In other words, recourse to the Court is not required under section 9. Secondly the words: "by consent of the parties", which occur in section 8 (1) (a) and the words "notice to concur" which occur after clause (c) of that subsection, unmistakably indicate that the section applies to those arbitration agreements under which arbitrators are appointed by the consent of both the parties. On the other hand, section 9 applies to those of such agreements under which two arbitrators are appointed and one of them is to be appointed by each party. This is cleat from the opening part of the action.   If in a case section 9 of the Act is applicable then section 5 of the Act does not come in the way of the appointment, in terms of section 9 (a), of an arbitrator as a substitute to the previously appointed arbitrator. The reason is that section…