Challenge
Guest
(Querist) 14 February 2014
This query is : Resolved
1. Can an arbitrator fix his
own fee.
2. If one of the parties does not pay fee, how can an arbitrator recover such fee.
3. If on challenge by one party, arbitrator decides that his appointment is not valid as per agreement, will he be entitled to fee for hearings done by him.
Sri Vijayan.A
(Expert) 14 February 2014
1. Yes, Arbitrator can fix his fee
2. He can ask the other party to pay the same and award it as costs
3. If he decides, it is invalid, where is the question of question of hearings? and the fee?
Guest
(Expert) 14 February 2014
Academic query
Guest
(Querist) 14 February 2014
DHINGRA JI, THESE PROBLEMS HAVE PRACTICALLY COME IN A CASE.
RESPECTED SRI VIJAYAN. A JI, WITH RESPECT TO POINT 3 OF YOU '3. If he decides, it is invalid, where is the question of question of hearings? and the fee?' THREE HEARINGS HAVE ALREADY TAKEN PLACE AND CASE IS FIXED FOR FINAL ARGUMENTS BEFORE THE ARBITRATOR FOR RULING ON HIS OWN JURISDICTION IN THE CASE.
WHAT ABOUT FEE FOR THOSE HEARINGS?
Pradeep MK
(Expert) 14 February 2014
Yes Arbitrator can fix the fee. Please refer S. 31(8) of the Arbitration & conciliation Act(ACT)
Arbitrator has lien on the arbitral Award under S. 39 of the ACT.
Even if the arbitrator decides that his appointment is invalid he is entitled for the fees for the hearings held
Sri Vijayan.A
(Expert) 14 February 2014
Dear Sandeep,
It is at the discretion of Arbitrator.
Normally speaking, it is not so nice to get fee for invalid hearings.
The first question of Arbitration is to verify the jurisdiction.
If the arbitration has become invalid, it may be converted into or considered as conciliation
Then the conciliator is free to fix his fee for conciliation.
Guest
(Querist) 15 February 2014
Thanks Pradeep ji and Vijayan ji. In fact Arbitrator was appointed by the Claimant as per the agreement and before filing statement of defence,opposite party filed applications under sections 16 as well as 12, which are under disposal by the Arbitrator. Whether Fees for those hearings will become due even if arbitrator rules in favour of the opposite party filing such applications, which means arbitrator's appointment will be null and void.
Sri Vijayan.A
(Expert) 15 February 2014
From the description above, what I understood is
1. Claimant appointed Arbitrator.
2. After hearing both sides, Arbitrator passed award in favour of Respondent
3. The expectations of the claimant is defeated.
In this circumstance, one cannot say that the appointment of Arbitrator and his award is valid and binding both the parties.
The claimant has to pay the fee; otherwise the respondent can pay it and get it reimbursed from the claimant as costs.
Guest
(Expert) 15 February 2014
Mr. Sandeep,
I am not fond of terming any query as academic without any solid reason.
You should understand that pecific problem needs specific solution based on case related facts, not casual answers to casual query. Your general queries have no relevance unless appropriate information about the events of case are stated.
If you really have a practical problem with appointment of arbitrator, you need to give information on the following points, otherwise your query is nothing except that of academic nature:
1) Whether the problem relates you in any manner?
2) Whether you are the arbitrator?
3) Whether the appointment of the arbitrator was in terms of some existing agreement between both the parties?
4) Whether the appointment of the arbitrator was objected by the concerned party about the invalidity of his appointment?
5) Whether you are the claimant, who appointed the arbitrator, or the opposite party of the case?
6) Whether the fee was not specified and notified already before the appointment of the arbitrator?
7) If the fee was notified, whether the party objecting to the fee, had raised any objection on the amount of fee before the start of arbitration proceedings?
V R SHROFF
(Expert) 16 February 2014
Agree with the expert PS Dhingra ji.
Guest
(Querist) 16 February 2014
While Shri Dhingra has given sold reason from his side (although same can be countered) for terming the query as Academic, other three experts namely S/Shri Goyal/Kumar/Shroff have dumped the query as Academic by simply agreeing with Shri Dhingra. They are expected to give their own reasons for the same so that a genuine query is not discouraged to be raised.
My above query is absolutely genuine. Those Experts are prayed to ignore the query,who, instead of resolving it, simply term it as Academic query and in the process discourage other experts like S/Shri Vijayan/Pradeep to help the querists.
V R SHROFF
(Expert) 16 February 2014
in absence of providing facts of ur QUERY , it is correctly termed AQ
Guest
(Querist) 16 February 2014
What more facts are required Shroff Ji?
Facts given above are reiterated below:
Arbitrator was appointed by the Claimant as per the agreement and before filing statement of defence,opposite party filed applications under sections 16 as well as 12, which are under disposal by the Arbitrator. Whether Fees for those hearings will become due even if arbitrator rules in favour of the opposite party filing such applications, which means arbitrator's appointment will be null and void.
V R SHROFF
(Expert) 16 February 2014
I RESTRICTED MY COMMENTS TO AQ..ONLY.
Guest
(Querist) 16 February 2014
SHROFF JI/GOYAL JI/KUMAR JI I AGAIN REQUEST YOU TO INFORM WHAT MORE FACTS ARE REQUIRED ABOUT THE CASE FOR ADVICE.
prabhakar singh
(Expert) 16 February 2014
Section 31(8) clearly empowers the arbitrator to fix his fees with the consent of both the parties. The intention of the Legislature appears to be that independent arbitrators may not like to act as arbitrators, if they are not empowered to fix their own fees. If the words 'other considerations' are to be construed as giving power to the Chief Justice or his designate to fix the fees of the arbitrator, then the very intention of the Legislature will be defeated. It is one of the cardinal principles of statutory interpretation that an interpretation, which has the effect of destroying the plain intention of the Legislature, has to be avoided, if possible.(2000(3) RAJ 481 (AP)Union of India Vs P Jeevanandam
prabhakar singh
(Expert) 16 February 2014
In my view to decide over jurisdiction is an act of arbitrator for which fees can be demanded even if arbitrator holds not to have jurisdiction but the same should go as cost on party claiming jurisdiction in him.
Guest
(Querist) 16 February 2014
THANKS PRABHAKAR JI.
ARBITRATOR HAS ALREADY FIXED PER HEARING FEE TO BE SHARED EQUALLY BY THE PARTIES AND CLAIMANT HAS PAID HIS SHARE. THE OPPOSITE PARTY HAS NOT YET PAID ANY THING AND WAITING FOR DECISION OF THE ARBITRATOR ON THEIR APPLICAIONS UNDER SECTION 16 AND 12 ABOUT ARBITRATOR'S JURISDICTION. WHETHER ARBITRATOR WILL BE ENTITLED TO FEES FROM THE OPPOSITE PARTY EVEN IF HE RULES THAT HE HAS NO JURISDICTION.
Guest
(Querist) 16 February 2014
I AM HIGHLY GRATEFUL TO YOU FOR VALUABLE ADVICE PRABHAKAR JI.
prabhakar singh
(Expert) 16 February 2014
Many many thanks dear!
I have already clarified over your doubt in my preceding posts.
To me, entire cost in that case should be imposed on claimant.
