Former CJIs Dipak Misra, TS Thakur appointed arbitrators in ONGC-Afcons dispute

Former Chief Justices of India (CJI) Dipak Misra and TS Thakur have been appointed arbitrators in the dispute between Oil and Natural Gas Corporation (ONGC) and Afcons Gunanusa [Oil and Natural Gas Corporation Ltd v Afcons Gunanusa JV]..The Supreme Court was informed of the same by counsel for ONGC and Afcons. The bench of Justices DY Chandrachud, Sanjiv Khanna, Surya Kant noted in its order passed on September 21 that ONGC has nominated Justice Thakur as as its nominee arbitrator while while Afcons has nominated Justice Misra.The Court then asked the two arbitrators to appoint a third arbitrator as per the provisions of the Arbitration and Conciliation Act of 1996."Dr Abhishek Manu Singhvi, senior counsel appearing on behalf of the respondent states that Afcons Gunanusa JV has nominated Shri Justice Dipak Misra, former Chief Justice of India as their nominee Arbitrator. Mr K K Venugopal, Attorney General for India states that Oil and Natural Gas Corporation Ltd has nominated Shri Justice T S Thakur, former Chief Justice of India as their nominee Arbitrator. The two Arbitrators are requested to proceed to appoint the third Arbitrator in terms of the provisions of the Arbitration and Conciliation Act 1996," the Court said.The Court also noted that the parties have agreed that the venue of the arbitration shall be Delhi."The Arbitral Tribunal shall continue from the stage which was reached before the earlier tribunal. The pleadings, evidence and documents which were before the earlier Tribunal shall be transmitted to the newly constituted arbitral tribunal. The parties have agreed that the fees of the Arbitrators shall be paid in accordance with the Fourth Schedule to the Arbitration and Conciliation Act 1996" the top court further directed..The case came before the top court when ONGC sought termination of the mandate of an arbitral tribunal, and the substitution of a fresh set of arbitrators after their fee was sought to be revised.The petitioner's argument was that once the fee payable to the arbitrators was specified in the agreement between the parties, arbitrators must either accept their appointment on the terms agreed in the contract or refuse the arbitration if they are not agreeable.The Supreme Court had, in its judgment delivered on August 30, held that arbitrators do not have the power to issue binding and enforceable orders determining their own fees as such determination would violate the principles of party autonomy.The Bench had stressed that party autonomy is a cardinal principle of arbitration and the agreement constitutes the foundation of the arbitral process.The Court had concluded that there was evidently no consensus between the parties and the arbitrators regarding the fees, allowing the tribunal to continue would mean foisting a fee upon the parties and the arbitral tribunal to which they are not agreeable.The Court had, therefore, ordered the constitution of a new arbitral tribunal.The new arbitrators were appointed pursuant to that. .[Read order]