Retrospective application of Section 12(5) rejected for a pre-amendment arbitral tribunal; mandate termination refused.

Section 12(5) of the Arbitration and Conciliation Act, 1996 was held inapplicable to an arbitration commenced and tribunal constituted before the 2015 amendment, absent any agreement to apply the amendment retrospectively. The Court applied the settled principle that the amendment does not disturb ongoing pre-amendment arbitral proceedings and noted the petitioner's prior participation in the process. In the absence of material showing bias, partiality, or lack of independence, the fact that the tribunal members were officers of the respondent did not by itself invalidate the agreed appointment mechanism. The request to terminate the tribunal's mandate and appoint a fresh independent arbitrator therefore failed.

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Issues: Whether Section 12(5) of the Arbitration and Conciliation Act, 1996 could be invoked to terminate the mandate of an arbitral tribunal constituted before the 2015 amendment and to secure appointment of a fresh independent arbitrator under Sections 11 and 14.

Analysis: The dispute arose from a pre-amendment arbitration agreement and the arbitral tribunal had been constituted and had functioned long before the insertion of Section 12(5) with effect from 23.10.2015. The Court applied the settled principle that the 2015 amendment does not operate retrospectively to arbitral proceedings already commenced unless the parties agree otherwise. It also noted that the petitioner had already participated in the arbitral process and had earlier questioned the tribunal without succeeding. In the absence of material showing bias, partiality, or lack of independence, the fact that the tribunal members were officers of the respondent did not by itself invalidate the agreed appointment mechanism for this pre-amendment arbitration.

Conclusion: Section 12(5) did not apply so as to displace the existing arbitral tribunal or justify appointment of a new independent arbitrator; the request for termination of mandate failed.

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