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An Alternative Dispute Resolution Conference in India was dedicated to one or more sessions than that with the emergence of the Online Dispute Resolution Platforms which effectively entails adjudicating small claims and disputes. Whereas these platforms and institutions will be able to facilitate the adjudication of disputes in a quick and cost-effective manner, whereby certain questions go unaddressed.
Thus, in order to address the items in the Fifth Schedule of the Arbitration and Conciliation Act 1996, several bulk of disputes related to financial institutions are being dealt the help of Online Dispute Resolution Platforms. The bulk disputes signify a situation of an individual entity along with several approaches to deal with an ODR Platform referring to a batch of similar identical disputes against several parties. In this entire process, the ODR Platforms also work in a way whereby they work towards appointing arbitrators from their panels towards assigning disputes and cases of similar kinds to the selected arbitrators who would work in terms of adjudicating the disputes.
However, in this case, we will try to understand the fact as to how the Fifth Schedule of the Arbitration Act is relevant and what it declares.
About the Fifth Schedule of the Arbitration Act
The source of the Fifth Schedule is found in Section 12 of the Arbitration Act titled the ‘Grounds for Challenge’. In that case, Section 12 (1)(a) stated that ‘where a person is being approached in connection with the possible appointment as an arbitrator, he has to submit a written disclosure, as it has been set out at the 6th Schedule setting out a direct, indirect, past or present relationship with or in the interest of the parties in relation to the subject-matter of dispute’.
Explanation 1 to Section 12 also states the grounds that have been set out in the Fifth Schedule which notes guiding to determine the existence of circumstances that in a way gives rise to justifiable doubts regarding the independence or impartiality of an arbitrator. Also, the Fifth Schedule has about 34 items that have been adopted from the International Bar Association based upon the Guidelines of Conflicts of Interest in International Arbitration. However, the IBA Guideline contains three lists which are Red, Orange, and Green.
The Red List contains both waivable and non-waivable Guidelines.
The Orange List Contains a list of situations that gives a justifiable doubt based upon an arbitrator’s impartiality or independence.
The Green List is a non-exhaustive list of specific situations where no appearance and conflict of interest exists.
The items that are relevant to the purpose of this column have been found as Items 22 and 24 of the Fifth Schedule of the Arbitration Act, where Items 22 and 24 are in Pari Materia to items 3.1.3 and 3.1.5 of the Orange List of the IBA Guidelines. However, items 22 and 24 usually fall within the subheadings and entries which reads as;
22. Where the arbitrator has been appointed as arbitrator in the past three years on two or more occasions by one of the parties or an affiliate of one of the parties.
24. As the arbitrator currently serves or might have served as an arbitrator in the past three years in another arbitration-related issue involving one or the parties of an affiliate of one of the parties.
Thus, apart from all the facts mentioned here, with respect to Item 22, it can be considered that so far as International Arbitration is considered whether through an Online Dispute Resolution Platform or otherwise, the appointment of an arbitrator goes directly by the affiliation of the party or by a neutral institution whose role stands only as a facilitator in the adjudication of a dispute. So, in the event of any institutional appointments under Item 22 of the Fifth Application, there are no further pending applications found.
Thus, looking at the overall segment of the Fifth Schedule it can be found that Items 22 and 24 of the Arbitration Act do not prohibit an ODR Platform from appointing the same arbitrator for adjudicating bulk disputes. Also, it would be quite prudent to understand how the ODR Platforms and Institutions and arbitrators being appointed disclose the facts for maintaining all sorts of ethical standards and transparency altogether.
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