Judgment · High Court

A.R.4, 5 & 6/123procedure agreed upon by the parties -(a).a party fails to act as required under thatprocedure; or(b).the parties, or the two appointedArbitrators, fail to reach an agreementexpected of them under that procedure; or(c).a person, including an institution, fails toperform any function entrusted to him or itunder that procedure, a party may request theChief Justice or any person or institutiondesignated by him to take the necessarymeasure, unless the agreement on theappointment procedure provides other meansfor securing the appointment.5.A reading of this provision shows that only in a case partyfails to act as required under the agreement procedure, the ChiefJustice or any person or institution designated by him, gets powerto take necessary measure for the appointment of an Arbitrator. This failure of the party can arise only if a demand for theappointment of Arbitrator is made and the party has failed tomake such appointment. As already seen, in Annexure-A3notices, the only demand made by the applicant was to pay theamount demanded therein and that in the event of failure, the A.R.4, 5 & 6/124applicant will be taking recourse to the provisions contained inclause 4.8.3 of the agreement. This does not amount to a demandfor appointment of an Arbitrator to say that the respondent hasfailed to act as required under the agreed procedure of anappointment of Arbitrator justifying an application under Section11(6) of the Act.6.Therefore, since there is no failure on the part of therespondents to act in terms of the agreed procedure for theappointment of arbitrator, the proper course to be adopted is todemand the appointment of Arbitrator and in the event of failure, then, to make an application under Section 11(6) of the Act. With that liberty, these applications are closed.ANTONY DOMINIC,Judgemrcs