Holding

A unilateral appointment of a sole arbitrator who is ineligible under Section 12(5) is void ab initio, and waiver of that ineligibility is possible only by an express written agreement after the dispute arises; absent such waiver, the award is set aside.

Summary

The appellants, a consortium formed by Bhadra International (India) Pvt. Ltd. and Novia International Consulting Aps, entered into a license agreement with the Airports Authority of India (AAI) that provided for arbitration by a sole arbitrator appointed by the AAI Chairman. After disputes arose in 2015, the AAI unilaterally appointed a sole arbitrator who, under Section 12(5) of the Arbitration and Conciliation Act, 1996, was ineligible because the Chairman fell within the Seventh Schedule categories. The arbitral tribunal proceeded, issuing a nil award in 2018, which the appellants challenged under Section 34, arguing that the appointment was void and that no express written waiver of the ineligibility existed. The Supreme Court held that unilateral appointment of an ineligible sole arbitrator is void ab initio, that waiver of Section 12(5) requires a clear written agreement after the dispute arises, and that the parties’ conduct did not constitute such a waiver. Consequently, the Court set aside the arbitral awards and allowed the appeals.

Issues considered

Whether the sole arbitrator became ineligible to be appointed under sub‑section (5) of Section 12 of the Arbitration and Conciliation Act, 1996.
Whether the parties waived the applicability of sub‑section (5) of Section 12 by their conduct, expressed or implied.
Whether the appellants could first raise an objection to the appointment of the sole arbitrator in an application under Section 34 of the Act.

Legislation cited

Arbitration and Conciliation Act, 1996s. 12, s. 12(5), s. 13, s. 14, s. 15(2), s. 16, s. 18, s. 21, s. 29A, s. 33, s. 34, s. 4

Headnote

Issue for Consideration i) Whether the sole arbitrator could be said to have become “ineligible to be appointed as an arbitrator” by virtue of sub-section (5) of s.12 of the Arbitration and Conciliation Act, 1996; ii) whether the parties could be said to have waived (5) of s.12 of the Act, 1996, by way of their conduct, either expressed or implied; iii) whether the appellants could have raised an objection to the appointment of the sole arbitrator for the first time in an application u/s.34 of the Act, 1996. Headnotes† Arbitration and

Subjects

Section 12(5) of Arbitration and Conciliation Act, 1996Seventh Schedule of the Arbitration and Conciliation Act, 1996Proviso to Section 12(5) of Arbitration and Conciliation Act, 1996Section 14 of Arbitration and Conciliation Act, 1996Section 34 of Arbitration and Conciliation Act, 1996Unilateral AppointmentDe Jure IneligibilityDoctrine of Inherent Lack of JurisdictionWaiverEqual Treatment of PartiesNeutralityImpartialityArbitratorNoticeAgreement in writingArbitration agreementSole arbitratorArbitral Tribunal

Judgment

[2026] 1 S.C.R. 30 : 2026 INSC 6

Bhadra International (India) Pvt. Ltd. & Ors.
v.
Airports Authority of India
(Civil Appeal No(s). 37-38 of 2026)
05 January 2026
[J.B. Pardiwala* and K.V. Viswanathan, JJ.]

Issue for Consideration
i) Whether the sole arbitrator could be said to have become
“ineligible to be appointed as an arbitrator” by virtue of sub-section
(5) of s.12 of the Arbitration and Conciliation Act, 1996; ii) whether
the parties could be said to have waived the applicability of
sub-section (5) of s.12 of the Act, 1996, by way of their conduct,
either expressed or implied; iii) whether the appellants could have
raised an objection to the appointment of the sole arbitrator for the
first time in an application u/s.34 of the Act, 1996.

Headnotes†
Arbitration and Conciliation Act, 1996 – s.12 and s.18 – Position
of law as regards s.12 of the Act, 1996 – Application of principle
of equal treatment of parties provided in s.18:
Held: The principle of equal treatment of parties provided in s.18 of
the Act, 1996, applies not only to the arbitral proceedings but also
to the procedure for appointment of arbitrators – Equal treatment
of the parties entails that the parties must have an equal say in
the constitution of the arbitral tribunal. [Para 123(i)]

Arbitration and Conciliation Act, 1996 – Sub-section (5) of s.12
and Seventh Schedule – When relationship falls within any of
the categories specified in the Seventh Schedule:
Held: Sub-section (5) of s.12 provides that any person whose
relationship with the parties or counsel, or the dispute, whether
direct or indirect, falls within any of the categories specified in
the Seventh Schedule would be ineligible to be appointed as an
arbitrator – Since, the ineligibility stems from the operation of law,
not only is a person having an interest in the dispute or its outcome

* Author
[2026] 1 S.C.R. 31

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

ineligible to act as an arbitrator, but appointment by such a person
would be ex facie invalid. [Para 123(ii)]

Arbitration and Conciliation Act, 1996 – Proviso to s.12(5) –
The words “an express agreement in writing” in the proviso
to s.12(5):
Held: The words “an express agreement in writing” in the proviso
to s.12(5) means that the right to object to the appointment of an
ineligible arbitrator cannot be taken away by mere implication – The
agreement referred to in the proviso must be a clear, unequivocal
written agreement. [Para 123(iii)]

Arbitration and Conciliation Act, 1996 – s.12(5) – When an
arbitrator is found to be ineligible by virtue of s.12(5) r/w. the
Seventh Schedule:
Held: When an arbitrator is found to be ineligible by virtue of
s.12(5) r/w. the Seventh Schedule, his mandate is automatically
terminated – In such circumstance, an aggrieved party may
approach the court u/s. 14 r/w. s.15 for appointment of a substitute
arbitrator – Whereas, when an award has been passed by such
an arbitrator, an aggrieved party may approach the court u/s. 34
for setting aside the award. [Para 123(iv)]

Arbitration and Conciliation Act, 1996 – s.12 – Parties vest
jurisdiction in the tribunal:
Held: In arbitration, the parties vest jurisdiction in the tribunal
by exercising their consent in furtherance of a valid arbitration
agreement – An arbitrator who lacks jurisdiction cannot make an
award on the merits – Hence, an objection to the inherent lack of
jurisdiction can be taken at any stage of the proceedings. [Para
123(v)]

Arbitration and Conciliation Act, 1996 – sub-section (5) of s.12
and Seventh Schedule – Objective of s.12:
Held: There is a conspectus of decisions of this Court which
lay down that, s.12 was amended with the objective of ensuring
independence and impartiality of arbitrators – By virtue of sub-
section (5) of s.12, any person whose relationship with the parties
or counsel, or the dispute, whether direct or indirect, falls within any
32 [2026] 1 S.C.R.

Supreme Court Reports

of the categories specified in the Seventh Schedule is rendered
ineligible to be appointed as an arbitrator. [Para 51]

Arbitration and Conciliation Act, 1996 – sub-section (5) of
s.12 – When an arbitration agreement is in violation of sub-
section (5) of s.12:
Held: When an arbitration agreement is in violation of sub-section
(5) of s.12 of the Act, 1996, the parties can neither insist on
appointment of an arbitrator in terms of the agreement nor would
any appointment so made be valid in the eyes of law. [Para 57]

Arbitration and Conciliation Act, 1996 – Unilateral appointments:
Held: Unilateral appointments are not consistent with the basic
tenet of arbitration, i.e., mutual confidence in the arbitrator – It
would not be unreasonable for a party to apprehend that an
arbitrator unilaterally appointed by the opposite party may not act
with complete impartiality. [Para 58]

Arbitration and Conciliation Act, 1996 – s.12(5) – s.12(5) and
unilateral appointment of an arbitrator:
Held: It is apposite to understand that s.12(5) does not prohibit
unilateral appointment of an arbitrator – It provides that whenever
an appointment of an arbitrator is hit by the bar u/s.12(5), the
arbitrator would be ineligible to act, irrespective of whether the
appointment was unilateral or with consent of both parties – In
such circumstances, the parties may, in the manner provided under
the proviso, waive the ineligibility. [Para 60]

Arbitration and Conciliation Act, 1996 – s.12(5) – Unilateral
appointment of a sole arbitrator is void ab initio:
Held: The unilateral appointment of a sole arbitrator is void ab
initio, and the sole arbitrator so appointed is de jure ineligible to
act as an arbitrator in terms of s.12(5) r/w. the Seventh Schedule
of the Act, 1996. [Para 68]

Arbitration and Conciliation Act, 1996 – s.21 – Clarification
regarding notice u/s.21of the Act, 1996:
Held: A notice u/s.21 of the Act, 1996, is an expression to set the
arbitration agreement into motion upon arising of disputes between
the parties – The section states that the date of commencement of
[2026] 1 S.C.R. 33

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

arbitration would be the date on which the recipient receives the
notice from the claimant that the dispute be referred to arbitration –
The notice acts as a communication that the sender is aggrieved
and seeks to invoke the arbitration agreement – It does not, by
itself, operate as consent to any appointment to be made in the
future. [Para 70]

Arbitration and Conciliation Act, 1996 – Proviso to s.12 (5) –
Essentials of the proviso to s.12(5):
Held: i) The parties can waive their right to object under sub-
section (5) of s.12; ii) The right to object under the sub-section can
be waived only subsequent to a dispute having arisen between the
parties; iii) The waiver must be in the form of an express agreement
in writing – The proviso to sub-section (5) of s.12 stipulates that
parties, after disputes have arisen, must expressly agree in
writing to waive the ineligibility of the proposed arbitrator – This
impliedly means that the parties are waiving their right to object
to the arbitrator’s ineligibility in terms of s.12(5) of the Act, 1996.
[Paras 75, 76]

Arbitration and Conciliation Act, 1996 – sub-section (5) of
s.12 – An express agreement in writing, waiving the bar under
sub-section (5) of s.12:
Held: It is only through an express agreement in writing,
waiving the bar under sub-section (5) of s.12, that the other
party can be said to have voluntarily consented to the unilateral
appointment of such an arbitrator – The proviso conveys that the
arbitrator, although ineligible to be appointed, yet can continue to
perform his functions, as it is oriented towards facilitating party
autonomy – Thus, the proviso reinforces party autonomy and
equal treatment of parties in arbitration – In other words, even
though the appointment had been made by one of the parties,
by the act of entering into an agreement in writing, the other
party expresses its consent – The manner of the agreement
prescribed by the statute demonstrates voluntariness by the
parties – The ineligibility of an arbitrator can be waived only by
an express agreement in writing – In the present case, there is
no agreement in writing, after the disputes arose, waiving the
ineligibility of the sole arbitrator or the right to object u/s.12(5)
of the Act, 1996. [Paras 81, 82, 89]
34 [2026] 1 S.C.R.

Supreme Court Reports

Arbitration and Conciliation Act, 1996 – sub-section (5) of
s.12, s.21, s.33 – What cannot be countenanced to mean
“an express agreement in writing” within the meaning of the
proviso to sub-section (5) of s.12 of the Act, 1996:
Held: A notice invoking the arbitration clause u/s.21 of the Act,
1996, a procedural order, submission of statement of claim by the
appellants, the filing an application seeking interim relief, or a reply
to an application u/s.33 of the Act, 1996, cannot be countenanced
to mean “an express agreement in writing” within the meaning of
the proviso to sub-section (5) of s.12 of the Act, 1996. [Para 96]

Arbitration and Conciliation Act, 1996 – s.12(5), s.14 – Where
a party is aggrieved by the ineligibility of an arbitrator:
Held: Where a party is aggrieved by the ineligibility of an arbitrator
u/s.12(5), it may directly approach the court u/s.14 of the Act,
1996 – There is no doubt that when an arbitrator is ineligible u/s.
12(5), i.e., he lacks inherent jurisdiction to hold the position, his
mandate stands automatically terminated, and it is not necessary
for the parties to challenge his appointment u/s.12 r/w. s.13 –
When such a challenge is made, the court is required to determine
whether the arbitrator suffers from de jure inability u/s.14(1)(a) of
the Act, 1996. [Para 102]

Arbitration and Conciliation Act, 1996 – s.14 and s.15(2) –
Terminating mandate of arbitrator and substituting arbitrator:
Held: An application u/s. 14 is made for the purpose of terminating the
mandate of the arbitrator, and, consequently, a substitute arbitrator
is appointed in terms of s.15(2) – As regards where the mandate
of the arbitrator has been terminated with the consent of both the
parties u/s. 15(1)(b), it is not required for the parties to approach
the court to seek termination of the mandate of the arbitrator,
because it has been terminated by the parties themselves – The
substitution of the arbitrator is sought because the termination of
mandate of the arbitrator does not result in the termination of arbitral
proceedings – The proceedings remain intact, only the composition
of the arbitral tribunal changes. [Paras 103, 104]

Arbitration and Conciliation Act, 1996 – s.34 – Challenge to
the ineligibility of the arbitrator after arbitral award has been
passed:
[2026] 1 S.C.R. 35

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

Held: When an award has been passed, the proceedings before the
arbitral tribunal conclude, leaving no possibility of substituting the
arbitrator at this stage – In other words, once an award is passed,
the mandate of the arbitral tribunal also arrives at a conclusion – In
such circumstances, a party aggrieved by the arbitrator’s ineligibility
may challenge the award by filing an application u/s.34 of the 1996
Act, as an award passed by an ineligible arbitrator is nullity, non-est,
or void ab initio, and against the public policy of India. [Para 109]

Arbitration and Conciliation Act, 1996 – Challenge to the
ineligibility of the arbitrator at any stage of the proceedings:
Held: A challenge to an arbitrator’s ineligibility could be raised at
any stage because an award passed in such circumstance is non-
est, i.e., it carries no enforceability or recognition in law. [Para 113]

Arbitration and Conciliation Act, 1996 – s.12(5) – Obligation
upon the arbitrator:
Held: An arbitrator is better equipped with the position of law
on appointments, more particularly, unilateral appointments –
Therefore, it becomes incumbent upon the arbitrator that upon
entering reference and at the very first hearing, to ensure from
the parties that they are willing to participate in the proceedings
and to insist upon a written agreement waiving the requirement
of s.12(5) of the Act, 1996. [Para 121]

Arbitration and Conciliation Act, 1996 – When party does not
appear despite receipt of notice:
Held: If any party does not appear despite receipt of notice, the
arbitrator shall not proceed further and shall immediately withdraw
from the arbitral proceedings – The arbitrator must, along with the
waiver agreement, record the minutes even when the parties are
cooperating – This would certainly save time and avoid multiplicity
of proceedings. [Para 122]

Case Law Cited
Dharma Prathishthanam v. Madhok Construction (P) Ltd. [2004]
Supp. 5 SCR 866 : (2005) 9 SCC 686; TRF Ltd. v. Energo
Engineering Projects Ltd. [2017] 7 SCR 409 : (2017) 8 SCC 377;
Bharat Broadband Network Ltd. v. United Telecoms Ltd. [2019] 6
SCR 97 : (2019) 5 SCC 755; Perkins Eastman Architects DPC
36 [2026] 1 S.C.R.

Supreme Court Reports

& Anr. v. HSCC (India) Ltd. [2019] 17 SCR 275 : (2020) 20 SCC
760; Lombardi Engg. Ltd. v. Uttarakhand Jal Vidyut Nigam Ltd.
[2023] 12 SCR 943 : (2024) 4 SCC 341; Central Organization for
Railway Electrification v. ECI SPIR SMO MCML (JV) A Joint Venture
Company [2024] 11 SCR 2173 : (2025) 4 SCC 641 (CORE II);
HRD Corpn v. GAIL (India) Ltd. [2017] 11 SCR 857 : (2018) 12
SCC 471 – relied on.
Lion Engineering Consultants v. State of Madhya Pradesh [2018]
6 SCR 683 : (2018) 16 SCC 758; Hindustan Zinc Ltd. v. Ajmer
Vidyut Vitran Nigam Ltd. [2019] 15 SCR 113 : (2019) 17 SCC 82;
Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. &
Ors. [2018] 2 SCR 829 : (2018) 6 SCC 287; State of Punjab v.
Davinder Pal Singh Bhullar [2011] 15 SCR 540 : (2011) 14 SCC
770; Hindustan Construction Co. Ltd. v. Bihar Rajya Pul Nirman
Nigam Ltd., 2025 SCC OnLine SC 2578; Chennai Metro Rail
Ltd. v. Transtonnelstroy Afcons (JV) [2023] 14 SCR 995 : (2024)
6 SCC 211; Hira Lal Patni v. Kali Nath [1962] 2 SCR 747 : 1961
SCC OnLine SC 42; Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran
Nigam Ltd. [2019] 15 SCR 113 : (2019) 17 SCC 82 – referred to.
Kotak Mahindra Bank Ltd. v. Narendra Kumar Prajapat, 2023 SCC
OnLine Del 3148; McLeod Russel India Ltd. & Ors. v. Aditya Birla
Finance Ltd. & Ors., 2023 SCC OnLine Cal 330; Anuj Kumar v.
Franchise India Brands Ltd., 2023 SCC OnLine Del 2560; Lite
Bite Foods Pvt. Ltd. v. AAI, 2019 SCC OnLine Bom 5163; Clarke
Energy India Pvt. Ltd. v. SAS EPC Solution Pvt. Ltd. & Anr., 2021
SCC OnLine Mad 6121; Man Industries (India) Ltd. v. Indian Oil
Corporation Ltd., 2023 SCC OnLine Del 3537; Govind Singh v.
Satya Group Pvt. Ltd., 2023 SCC OnLine Del 37; Alpro Industries v.
Ambience (P) Ltd., 2025 SCC OnLine Del 8373; Bhim Bahadur v.
Vikram Singh, 2015 SCC OnLine Utt 1563 – referred to.

List of Acts
Arbitration and Conciliation Act, 1996.

List of Keywords
Section 12(5) of Arbitration and Conciliation Act, 1996; Seventh
Schedule of the Arbitration and Conciliation Act, 1996; Proviso to
Section 12(5) of Arbitration and Conciliation Act, 1996; Section 14 of
Arbitration and Conciliation Act, 1996; Section 34 of Arbitration and
Conciliation Act, 1996; Unilateral Appointment; De Jure Ineligibility;
[2026] 1 S.C.R. 37

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

Doctrine of Inherent Lack of Jurisdiction; Waiver; Equal Treatment
of Parties; Neutrality; Impartiality; Arbitrator; Notice; Agreement in
writing; Arbitration agreement; Sole arbitrator; Arbitral Tribunal.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s). 37-38
of 2026
From the Judgment and Order dated 11.02.2025 of the High Court
of Delhi at New Delhi in FAO(OS) (COMM) Nos. 23 and 24 of 2025

Appearances for Parties
Advs. for the Appellant(s):
Navin Pahwa, Ashish Mohan, Sr. Advs., Akshit Mago, Akshit
Pradhan.
Advs. for the Respondent(s):
Parag Tripathi, Sr. Adv., Sonal K Singh, Ayan De, Shivang Singh,
Anmol Adhrit, Ms. Sukanya Lal.

Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.

For the convenience of exposition, this judgment is divided into the
following parts:-

INDEX*

I. FACTUAL MATRIX ....................................................................... 3

II. JUDGMENT OF THE SINGLE JUDGE ON APPLICATION UNDER
SECTION 34 OF THE ACT, 1996 ................................................ 8

III. IMPUGNED JUDGMENT .............................................................. 9

IV. SUBMISSIONS ON BEHALF OF THE APPELLANTS ............... 11

V. SUBMISSIONS ON BEHALF OF THE RESPONDENT .............. 14

* Ed. Note: Pagination as per the original Judgment.
38 [2026] 1 S.C.R.

Supreme Court Reports

VI. ISSUES FOR CONSIDERATION ................................................. 16

VII. ANALYSIS .................................................................................... 17

i. Whether the sole arbitrator could be said to have become
“ineligible to be appointed as an arbitrator” by virtue of
sub-section (5) of Section 12 of the Act, 1996? ............... 17

a. Interplay between Equal Treatment of Parties and Party
Autonomy ......................................................................... 17

b. Scope and Application of sub-section (5) of Section 12 of
the Act, 1996 .................................................................. 21

c. Appointment of the sole arbitrator in light of sub-section
(5) of Section 12 of the Act, 1996 ................................... 26

d. De Jure inability of the arbitrator to perform his functions 35

ii. Whether the parties could be said to have waived the
applicability of sub-section (5) of Section 12 of the
Act, 1996, by way of their conduct, either expressed or
implied? ................................................................................. 40

a. Meaning and Import of the expression “express agreement
in writing” used in proviso to sub-section (5) of Section
12 of the Act, 1996 ........................................................... 41

b. “Statement of Claim” as a parameter of waiver .............. 49

c. “Extension of Time” under Section 29A of the Act, 1996
as a parameter of waiver ................................................. 50

d. “Continued Participation” as a parameter of waiver ....... 52

iii. Whether the appellants could have raised an objection
to the appointment of the sole arbitrator for the first time
in an application under Section 34 of the Act, 1996? ....... 54

a. Challenge to the ineligibility of the arbitrator during the
proceedings ...................................................................... 55

b. Challenge to the ineligibility of the arbitrator after arbitral
award has been passed .................................................. 60

c. Challenge to the ineligibility of the arbitrator at any stage
of the proceedings ........................................................... 64

VIII. CONCLUSION .............................................................................. 70
[2026] 1 S.C.R. 39

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

1. Leave granted.
2. Since the issues raised in both the captioned appeals are the same,
the parties are same, and the challenge is also to the self-same
judgment and order passed by the High Court, those were taken up
for hearing analogously and are being disposed of by this common
judgment and order.
3. These appeals arise from the common judgment and order dated
11.02.2025 passed by a Division Bench of the High Court of Delhi in
FAO(OS) (COMM) Nos. 23 and 24 of 2025 respectively (hereinafter,
the “Impugned Judgment”), by which the appeals filed by the
appellants herein under Section 37 of the Arbitration and Conciliation
Act, 1996 (for short, the “Act, 1996”) came to be dismissed thereby
affirming the order dated 19.02.2022 passed by a learned Single
Judge of the High Court in OMP (COMM) Nos. 414 and 415 of
2018 respectively under Section 34 of the Act, 1996 (hereinafter,
the “Single Judge”) dismissing the preliminary objection raised by
the appellants as regards unilateral appointment of a sole arbitrator
by the respondent.

I. FACTUAL MATRIX
4. The facts giving rise to the appeals may be summarized as under:-
i. The appellant no. 1 and appellant no. 2, viz. Bhadra International
(India) Pvt. Ltd., and Novia International Consulting Aps,
respectively executed an agreement to form a joint consortium
namely Bhadra International (India) Pvt. Ltd. and Novia
International Consulting Aps, for the purposes of undertaking
ground handling services at various airports in India. The
consortium is the appellant no. 3 before us.
ii. The respondent (Airports Authority of India) floated two tender
notices inviting tenders for appointment of an agency for
ground handling services at some airports. In response to
these notices, the appellant no. 3 emerged as the successful
bidder. Pursuant to the two notices, the parties executed two
License Agreement dated 29.11.2010 (“License Agreement”).
As per the License Agreement, the appellant no. 3 was
permitted to provide ground handling services at the specified
airports.
40 [2026] 1 S.C.R.

Supreme Court Reports

iii. The aforesaid License Agreement, more particularly, Clause 78
provided that in the event of any dispute or difference arising
out of the said license agreement the same would have to be
resolved through arbitration. The said clause read as under:-
“78. All disputes and differences, arising out of or,
in any way, touching or concerning this Agreement,
(except those the decision whereof is otherwise
hereinbefore expressly provided for or to which the
Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 and the rules framed hereunder which are
now in force or which may hereafter come in to force,
are applicable) shall be referred to the sole arbitration
of a person, to be appointed by the Chairman of the
Authority or, in case the designation of Chairman is
changed or his office is abolished, by the person, for
the time being entrusted, whether or not, in addition
to other functions, with the functions of the Chairman,
Airports Authority of India, by whatever designation
such person may be called, and, if the Arbitrator, so
appointed, is unable or unwilling to act, to the sole
arbitrations or some other person to be similarly
appointed. It will be no objection to such appointment
that the Arbitrator so appointment is a servant of
the Authority, that he had to deal with the matters to
which this Agreement relates and that in the course
of his duties, as such servant of the Authority, he
had expressed views on all or any of the matters in
dispute or differences. The award of the arbitrator, so
appointment, shall be final and binding on the Parties.
The Arbitrator may, with the consent of the parties,
enlarge, from time to time, the time for making and
publishing the award. The venue of the arbitration
shall be at New Delhi.”
(Emphasis is ours)

iv. On 23.10.2015, the Arbitration and Conciliation (Amendment)
Act, 2015 came into effect (for short, “the Amendment Act,
2015”), by which sub-section (5) was inserted into Section 12.
The provision reads thus:-
[2026] 1 S.C.R. 41

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

“[(5) Notwithstanding any prior agreement to the
contrary, any person whose relationship, with the
parties or counsel or the subject-matter of the dispute,
falls under any of the categories specified in the
Seventh Schedule shall be ineligible to be appointed
as an arbitrator:
Provided that parties may, subsequent to disputes
having arisen between them, waive the applicability of
this sub-section by an express agreement in writing.]”
v. Sometime, in the year 2015, various disputes cropped up
between the appellants and the respondent herein. Accordingly,
the appellants vide notice dated 27.11.2015 invoked the
arbitration clause and requested the respondent to appoint
an arbitrator in terms of Clause 78 of the aforesaid License
Agreement. The relevant part of the notice reads thus:-
“We also like to bring out most humbly that it is
incumbent upon the Chairman AAI to appoint the
Sole Arbitrator within a reasonable time, least we
might not be left with no recourse, but to seek a relief
under Section 11, Sub Section 6, Chapter III of the
Arbitration & Reconciliation Act 1996.”
vi. On 22.03.2016, the sole arbitrator passed the first procedural
order recording that none of the parties had any objection to
his appointment. The procedural order reads thus:-
“PROCEDURAL ORDER NO. 1
With
Minutes of, and the Directions made at, the
hearing on 22.03.2016 at 1:00 pm
[AT D-247 (Basement), Defence Colony, New
Delhi-110024]
This preliminary meeting of the Tribunal was
held D-247 (Basement), Defence Colony, New
Delhi-110024 on 22nd March, 2016 at 1:00 PM. None
of the parties have any objection to my appointment
as the Sole Arbitrator. I declare that I have no interest
42 [2026] 1 S.C.R.

Supreme Court Reports

in any of the Parties, or in the disputes referred to
the Sole Arbitrator.[…]”
(Emphasis supplied)

vii. At the joint request of the parties, two applications were filed
under Section 29A of the Act, 1966, seeking extension of time
for the completion of the proceedings. On both the occasions,
the applications were allowed by the High Court.
viii. Ultimately, the sole arbitrator passed the arbitral awards dated
30.07.2018 whereby the claims and counter-claims of the
respective parties were rejected. In effect, the arbitrator passed
a ‘Nil’ award.
ix. Aggrieved by the dismissal of its claim, the appellants challenged
the award by filing applications under Section 34 of the Act,
1996, bearing O.M.P. (COMM) Nos. 414 and 415 of 2018
respectively, before the Single Judge of the High Court.
x. Thereafter, by way of applications bearing I.A. Nos. 1834 and
1842 of 2022 respectively, the appellants sought to amend the
aforesaid applications to contend that since the arbitrator was
appointed unilaterally, the award was liable to be set aside
(“Amendment Application”).
xi. The aforesaid applications filed by the appellants came to be
rejected by the Single Judge vide order dated 24.12.2024.
xii. Being aggrieved by the aforesaid, the appellants preferred
appeals under Section 37 of the Act, 1996, bearing FAO(OS)
(COMM) Nos. 23 and 24 of 2025 respectively, seeking to
challenge the judgment and order passed by a learned Single
Judge. The said appeals came to be dismissed vide the
impugned judgment.
xiii. In such circumstances referred to above, the appellants are
here before this Court with the present appeals.

II. JUDGMENT OF THE SINGLE JUDGE ON APPLICATION
UNDER SECTION 34 OF THE ACT, 1996
5. Aggrieved by the awards passed by the sole arbitrator, the appellants
filed applications under Section 34 of the Act, 1996, raising the
[2026] 1 S.C.R. 43

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

preliminary objection that since the appointment of the sole arbitrator
was made unilaterally by the respondent, the award was liable to
be set aside.
6. The learned Single Judge held that the appointment of the arbitrator
was in accordance with the procedure agreed upon by the parties
under Clause 78 of the License Agreement. Consequently, it rejected
the challenge to the appointment of the sole arbitrator on the following
grounds:-
i. First, it observed that the sole arbitrator appointed by the
respondent did not suffer from any disqualification under the
Fifth or Seventh Schedule read with Section 12(5) of the Act,
1996. The parties themselves had agreed to the procedure
of appointment. Moreover, the appellants did not raise any
objection regarding the independence and impartiality of the
arbitrator. Accordingly, the appointment of the arbitrator could
not have been belatedly called into question.
ii. Secondly, on the issue of waiver, the learned Single Judge
observed that the proviso to Section 12(5) of the Act, 1996,
stipulates the requirement of clear and positive manifestation
of waiver in writing. It observed that mere participation in the
arbitral proceedings without raising any objection would not
constitute an express waiver in writing as per the requirement
of the proviso. However, it arrived at the conclusion that the
first procedural order passed by the sole arbitrator explicitly
recorded that parties had no objection to his appointment.
iii. Thus, according to the learned Single Judge, the appellants
could be said to have waived the applicability of Section 12(5)
by not raising an objection before the sole arbitrator in the first
procedural order.

III. IMPUGNED JUDGMENT
7. Feeling aggrieved and dissatisfied with the order passed by the
learned Single Judge dismissing the preliminary objection in so far
as the appointment of the sole arbitrator, the appellants preferred
appeals under Section 37 of the Act, 1996.
8. The High Court, in its impugned judgment, held that the appointment of
the sole arbitrator was not unilateral, as the respondent had proceeded
44 [2026] 1 S.C.R.

Supreme Court Reports

to appoint arbitrator only pursuant to the written request made by
the appellants. Therefore, it could not be said that the appellants
had not consented to the appointment. The High Court further noted
that the sole arbitrator had expressly obtained the consent of the
parties, and at no point of time the appellants asserted that their
consent was incorrectly recorded or that they had not consented.
9. The High Court observed that the appellants continued to participate
in the arbitral proceedings without raising any objection. It also
observed that the challenge to the jurisdiction of the arbitrator was
not raised in the first instance but rather made belatedly through the
Amendment Application.
10. The appellants had argued before the High Court that prior to the
insertion of sub-section (5) they had no occasion to challenge the
appointment of the sole arbitrator. Such a challenge, according to
them, could have been raised only after the introduction of sub-
section (5) of Section 12. However, the High Court held that it was
immaterial as to when the amendment was introduced. The High
Court took the view that, the appellants by their conduct could be
said to have submitted to the jurisdiction of the sole arbitrator.
11. In the aforesaid context, the High Court observed the fact that the
appellants had called upon the respondent to appoint an arbitrator, the
sole arbitrator was accordingly appointed, and having unequivocally
consented to the arbitral proceedings had no bearing on the insertion
of the provision through an amendment. It was further observed that
even after the introduction of sub-section (5), the arbitral proceedings
continued for more than two years, still the appellants did not, at
any stage, raise an objection.
12. Lastly, the High Court observed that the case of the appellants cannot
be equated with cases in which an objection to the appointment of
the arbitrator have been raised throughout the proceedings, or at
every stage.

IV. SUBMISSIONS ON BEHALF OF THE APPELLANTS
13. Mr. Navin Pahwa, the learned Senior Counsel appearing for the
appellants would argue that the sole arbitrator was ineligible to act
as an arbitrator as he was unilaterally appointed by the Chairman of
the respondent. Such an appointment was void ab initio and non-est
in law, and therefore, the arbitral awards would be a nullity. He relied
[2026] 1 S.C.R. 45

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

on the decision of this Court in Bharat Broadband Network Ltd. v.
United Telecoms Ltd., reported in (2019) 5 SCC 755, to submit
that an appointment made by an ineligible person is void ab initio.
14. In the same breath, Mr. Pahwa submitted that since the appointment
of the arbitrator was void, the proceedings conducted pursuant to
such appointment would also be a nullity. As a result, the awards
passed by the sole arbitrator would also be contrary to the public
policy of India, and thus, liable to be set aside.
15. He further submitted that where the right to appoint a sole arbitrator
rests solely with one party, that party’s choice would inevitably carry
an element of exclusivity in determining the course of the arbitration.
To fortify his submission, he relied on the decision of this Court in
TRF Ltd. v. Energo Engineering Projects Ltd., reported in (2017)
8 SCC 377. He submitted that a Managing Director, ineligible to act
as an arbitrator under Section 12(5) read with Seventh Schedule of
the Act, 1996, could not have appointed an arbitrator or nominate
any other person to be an arbitrator.
16. He highlighted that this Court has affirmed the decision in TRF (supra)
in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd.,
reported in (2020) 20 SCC 760. In the present case, the Chairman of
the respondent was ineligible to act as an arbitrator by virtue of Items
1, 5, and 12 of the Seventh Schedule respectively. Consequently,
any arbitrator appointed by such an ineligible person would be, by
operation of law, equally ineligible to act as an arbitrator.
17. It was further submitted that an objection to the unilateral appointment
may be raised at any stage, including for the first time in Section 34
proceedings. He added that the appellants by participating in the
proceedings did not waive their right to raise an objection in terms of
the proviso to Section 12(5) of the Act, 1996. To fortify his submission,
he relied on the decision in Lion Engineering Consultants v. State
of Madhya Pradesh, reported in (2018) 16 SCC 758, Hindustan
Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., reported in (2019) 17
SCC 82, Kotak Mahindra Bank Ltd. v. Narendra Kumar Prajapat,
reported in 2023 SCC OnLine Del 3148 respectively.
18. Mr. Pahwa further submitted that the proviso to Section 12(5) makes
it limpid that ineligibility of an arbitrator could only be waived by
an “express agreement in writing” between the parties, and such
an agreement must be entered into after disputes have arisen. To
46 [2026] 1 S.C.R.

Supreme Court Reports

make good his case, Mr. Pahwa placed reliance on the decisions of
this Court in Bharat Broadband (supra) and Central Organization
for Railway Electrification v. ECI SPIR SMO MCML (JV) A Joint
Venture Company, reported in (2025) 4 SCC 641 (“CORE II”).
19. He would submit that the law requires a conscious waiver, reduced
into writing and signed by both parties. In this regard, he submitted
that mere participation in proceedings, filing of statement of claim,
silence, or not objecting to the appointment is insufficient to constitute
a waiver. In the present case, the notice of invocation of arbitration,
or not objecting in the first procedural order, or participating in the
proceedings, or filing application under Sections 17 or 29A respectively
would not amount to an “express agreement in writing”.
20. In such circumstances referred to above, the learned Senior Counsel
appearing for the appellants-claimants would submit that there being
merit in his appeals, the same may be allowed and the impugned
judgment passed by the High Court may be set aside.

V. SUBMISSIONS ON BEHALF OF THE RESPONDENT
21. Mr. Parag Tripathi, the learned Senior Counsel appearing for the
respondent would submit that no error, not to speak of any error
of law, could be said to have been committed by the High Court in
passing the impugned judgment.
22. Mr. Tripathi submitted that the limited question that falls for the
consideration of this Court is whether the present case falls within
the proviso to Section 12(5) of the Act, 1996. In other words, whether
there was a waiver by an “express agreement in writing”.
23. He submitted that the first procedural order recording the consent of
the appellants would constitute an “express agreement in writing” as
per the proviso as it was subsequent to the dispute arising between
the parties. Mr. Tripathi emphasized that the provision does not
provide a format for an “express agreement”. He added that in so
far as proposal or acceptance of any promise is made in words, the
promise is said to be express. To make good this submission, he
relied on the decision in the case of Bharat Broadband (supra).
24. It was further submitted that no objection/consent of the appellants
recorded in the first procedural order acts as an acknowledgment in
writing with respect to the qualifications as well as the appointment
[2026] 1 S.C.R. 47

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

of the sole arbitrator. The appellants had also filed their statement of
claim before the sole arbitrator. This is suggestive of the fact that the
appellants in explicit terms had submitted to the jurisdiction of the sole
arbitrator, and agreed to get the dispute resolved by the sole arbitrator.
25. Mr. Tripathi relied on McLeod Russel India Ltd. & Ors. v. Aditya
Birla Finance Ltd. & Ors., reported in 2023 SCC OnLine Cal 330,
and Anuj Kumar v. Franchise India Brands Ltd., reported in 2023
SCC OnLine Del 2560, to submit that the contents of pleadings or
communication constitute an express agreement in writing, and the
decision in Anuj Kumar (supra) is not in conflict with the decision
of this Court in Bharat Broadband (supra).
26. Mr. Tripathi further submitted that although sub-section (5) of Section
12 read with Seventh Schedule of the Act, 1996 was introduced
during the pendency of the arbitral proceedings, yet the appellants
chose not to raise an objection to the appointment of the sole
arbitrator. Accordingly, he submitted that the appellants did not
raise any objection as to the constitution, appointment, jurisdiction,
independence or impartiality of the sole arbitrator under Sections 13,
14, or 16 of the Act, 1996, respectively throughout the proceedings.
27. He added that the appellants raised the objection to the appointment
of the sole arbitration only by way of an amendment to the Section
34 application. The appellants did so as an afterthought, more than
three years after filing the said application.
28. In such circumstances referred to above, the learned Senior Counsel
prayed that there being no merit in the appeals, the same may be
dismissed.

VI. ISSUES FOR CONSIDERATION
29. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
fall for our consideration:-
i. Whether the sole arbitrator could be said to have become
“ineligible to be appointed as an arbitrator” by virtue of sub-
section (5) of Section 12 of the Act, 1996?
ii. Whether the parties could be said to have waived the applicability
of sub-section (5) of Section 12 of the Act, 1996, by way of
their conduct, either expressed or implied?
48 [2026] 1 S.C.R.

Supreme Court Reports

iii. Whether the appellants could have raised an objection to
the appointment of the sole arbitrator for the first time in an
application under Section 34 of the Act, 1996?

VII. ANALYSIS

i. Whether the sole arbitrator could be said to have become
“ineligible to be appointed as an arbitrator” by virtue of
sub-section (5) of Section 12 of the Act, 1996?
30. It was submitted on behalf of the appellants herein that the sole
arbitrator appointed by the Chairman of the respondent was ineligible
to act as an arbitrator as he was appointed unilaterally. Further, such
an appointment was void ab initio and non-est in law.
31. On the aforesaid issue, the High Court, in its impugned judgment,
held that the appointment of the sole arbitrator was not unilateral,
as the respondents had proceeded to appoint the arbitrator only
pursuant to the written request of the appellants. Therefore, the
notice invoking arbitration operated as the appellants’ consent to
the appointment of the arbitrator.

a. Interplay between Equal Treatment of Parties and Party
Autonomy
32. In order to address this issue, we shall first look into Section 18 of
the Act, 1996. It reads thus:-
“18. Equal treatment of parties.—The parties shall be
treated with equality and each party shall be given a full
opportunity to present this case.”
33. Section 18 outlines two principles: first, equal treatment of parties;
and secondly, right to a fair hearing. The principle of equal treatment
of parties applies not only to the arbitral proceedings, but also to
the procedure for appointment of arbitrators. The section casts a
responsibility on the arbitrator to act impartially, objectively, and without
bias, and also on the parties to adhere to standards of fairness. The
principle of ‘equal treatment of the parties’ means that the parties
must have the possibility of participating in the constitution of the
arbitral tribunal on equal terms.
34. Equal participation of the parties in the process of appointment of
arbitrators entails that the contracting parties have an equal say in the
[2026] 1 S.C.R. 49

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

constitution of the arbitral tribunal. Such participation eliminates the
likelihood of challenges to the arbitrator at a later stage. It is needless
to say that independence and impartiality in arbitral proceedings would
be served only when the parties participate equally at all stages.
35. It would be apposite to refer to the following observations of P.S.
Narasimha, J., in CORE II (supra):-
“Distinct duties of arbitrators and arbitrating parties
231. There are two distinct obligations. The first is the
obligation of the parties to the agreement, and the second
is the neutrality and objectivity that an arbitrator must
maintain. The obligations on the parties to the arbitration
agreement to constitute an independent and impartial
Arbitral Tribunal is distinct from the objectivity and
impartiality that an arbitrator(s) must himself maintain. The
foundation of the former is within the statutory framework,
coupled with certain public policy considerations. The latter
is simply the duty to act judicially, it is not superimposed
by any statute or public policy, but arises because of the
very nature of the calling i.e. to judge what is right and
what is wrong.[…]”
(Emphasis supplied)

36. The principle of equal treatment of parties is not new to the arbitration
regime in India. It has long been recognised that equal participation in
the constitution of the arbitral tribunal is integral in ensuring impartiality
and preserving fairness of the arbitral process. Even prior to the
Amendment Act, 2015, this Court in Dharma Prathishthanam v.
Madhok Construction (P) Ltd., reported in (2005) 9 SCC 686,
held that a unilateral appointment, without the consent of the other
party is illegal and alien to law. The relevant observations read thus:-
“12. On a plain reading of the several provisions referred
to hereinabove, we are clearly of the opinion that the
procedure followed and the methodology adopted by the
respondent is wholly unknown to law and the appointment
of the sole arbitrator Shri Swami Dayal, the reference of
disputes to such arbitrator and the ex parte proceedings
and award given by the arbitrator are all void ab initio and
50 [2026] 1 S.C.R.

Supreme Court Reports

hence nullity, liable to be ignored. In case of arbitration
without the intervention of the court, the parties must
rigorously stick to the agreement entered into between
the two. If the arbitration clause names an arbitrator as
the one already agreed upon, the appointment of an
arbitrator poses no difficulty. If the arbitration clause does
not name an arbitrator but provides for the manner in
which the arbitrator is to be chosen and appointed, then
the parties are bound to act accordingly. If the parties do
not agree then arises the complication which has to be
resolved by reference to the provisions of the Act. One
party cannot usurp the jurisdiction of the court and proceed
to act unilaterally. A unilateral appointment and a unilateral
reference — both will be illegal. It may make a difference
if in respect of a unilateral appointment and reference the
other party submits to the jurisdiction of the arbitrator and
waives its rights which it has under the agreement, then
the arbitrator may proceed with the reference and the
party submitting to his jurisdiction and participating in the
proceedings before him may later on be precluded and
estopped from raising any objection in that regard.[…]”
(Emphasis supplied)

37. What flows from the aforesaid is that the principle of equal treatment
of parties which has always formed part of the Act, 1996, has been
articulated with greater clarity and precision by the legislature through
the Amendment Act, 2015. The Amendment Act, 2015, just crystallizes
what was previously implicit. It makes the statutory guarantee of equal
treatment in the process of appointment of the arbitrator explicit.
38. One another good reason to hold the aforesaid is that, although
Section 11(2) of the Act, 1996, stipulates that the parties are free to
agree on a procedure for appointing the arbitrator or arbitrators, yet
this freedom is not unbridled. The exercise of party autonomy must
operate within the framework of the Act, 1996. In case of conflict,
mandatory provisions of the Act, 1996, prevail over the arbitration
agreement.
39. The principle of party autonomy does not obliterate the principle of
equal treatment of the parties, either in the procedure for appointment
[2026] 1 S.C.R. 51

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

of arbitrators or in the arbitral proceedings. The exercise of party
autonomy has to be in consonance with the principles of equal
treatment of parties, which impliedly include the independence and
impartiality of arbitrators.

b. Scope and Application of sub-section (5) of Section 12 of
the Act, 1996
40. The Amendment Act, 2015, was introduced with the objective
of ensuring neutrality of an arbitrator when he is approached in
connection with a possible appointment. Therefore, with a view
to inculcate the principles of independence and impartiality, the
Amendment Act, 2015, brought amendments, inter alia, to Section 12
of the Act, 1996. The amended section reads thus:-
“12. Grounds for challenge.—4 [(1) When a person is
approached in connection with his possible appointment
as an arbitrator, he shall disclose in writing any
circumstances,—
(a) such as the existence either direct or indirect, of any
past or present relationship with or interest in any of the
parties or in relation to the subject-matter in dispute,
whether financial, business, professional or other kind,
which is likely to give rise to justifiable doubts as to his
independence or impartiality; and
(b) which are likely to affect his ability to devote sufficient
time to the arbitration and in particular his ability to complete
the entire arbitration within a period of twelve months.
Explanation1.—The grounds stated in the Fifth Schedule
shall guide in determining whether circumstances exist
which give rise to justifiable doubts as to the independence
or impartiality of an arbitrator.
Explanation 2.—The disclosure shall be made by such
person in the form specified in the Sixth Schedule.]
(2) An arbitrator, from the time of his appointment and
throughout the arbitral proceedings, shall, without delay,
disclose to the parties in writing any circumstances
referred to in sub-section (1) unless they have already
been informed of them by him.
52 [2026] 1 S.C.R.

Supreme Court Reports

(3) An arbitrator may be challenged only if—
(a) circumstances exist that give rise to justifiable doubts
as to his independence or impartiality, or
(b) he does not possess the qualifications agreed to by
the parties.
(4) A party may challenge an arbitrator appointed by him,
or in whose appointment he has participated, only for
reasons of which he becomes aware after the appointment
has been made.
[(5) Notwithstanding any prior agreement to the contrary,
any person whose relationship, with the parties or counsel
or the subject-matter of the dispute, falls under any of the
categories specified in the Seventh Schedule shall be
ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having
arisen between them, waive the applicability of this sub-
section by an express agreement in writing.]”
41. Sub-section (1) of Section 12 stipulates that when a person is
approached to be an arbitrator, he must disclose in writing any
circumstance which may fall under clauses (a) and (b) of sub-
section (1) respectively. Clause (a) relates to circumstances that may
give rise to justifiable doubts as to his independence or impartiality.
Whereas, clause (b) relates to disclosures about the person’s ability
to devote sufficient time to the arbitration and to complete the
proceedings within the prescribed time period.
42. For disclosure under clause (a), the Fifth Schedule, consisting of 34
items, is of aid. The items enumerated in the Fifth Schedule provides
for the circumstances that may give rise to justifiable doubts about
an arbitrator’s independence or impartiality after appointment.
43. While the information required to be disclosed under clause (b) is
personal to the individual and could be disclosed only by him. The
disclosure has to be made in the form specified in the Sixth Schedule,
and has to be made by all proposed arbitrators. It is noteworthy
to mention that sub-section (1) comes into application prior to the
appointment of a person as an arbitrator.
[2026] 1 S.C.R. 53

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

44. Sub-section (2) of Section 12 states that from the appointment of
the arbitrator and throughout the arbitral proceedings, the arbitrator
must, without delay, disclose in writing any circumstance referred to
in sub-section (1) that arises after his appointment. However, if the
arbitrator has already informed the parties of the said circumstance
earlier, he is not required to make a disclosure again.
45. Sub-section (3) of Section 12 lays down two grounds for challenge
to appointment of an arbitrator: first, if any circumstances exist that
give rise to justifiable doubts about an arbitrator’s independence
or impartiality. Secondly, if the arbitrator does not possess the
qualifications agreed to by the parties. Sub-section (4) prescribes a
caution. It states that a challenge to the appointment of an arbitrator
could be maintained only on the grounds that were not disclosed
during or after the appointment.
46. Sub-section (5) of Section 12 states that any person whose
relationship with the parties or counsel, or the subject-matter of the
dispute, falls under any of the grounds mentioned in the Seventh
Schedule would be ineligible to be appointed as an arbitrator. It
invalidates any prior agreement to the contrary, i.e., an agreement
providing for appointment of an arbitrator who would become ineligible
on the application of sub-section (5). The proviso to the sub-section
provides that after dispute arises between the parties, they may
waive the applicability of this provision by entering into an express
agreement in writing.
47. The Seventh Schedule lists 19 items, which also form part of the 34
items of the Fifth Schedule. In other words, the Seventh Schedule
is a subset of the Fifth Schedule. It is the duty of an arbitrator to
keep in mind the items enlisted in the Fifth Schedule and make
a disclosure in accordance with the Sixth Schedule. Out of the
said 34 items, the legislature has placed 19 items in the Seventh
Schedule which make an arbitrator ineligible for appointment.
We clarify with a view to obviate any confusion that the Seventh
Schedule applies irrespective of whether the appointment has
been made unilaterally.
48. If any entry in the Seventh Schedule is attracted, the consequences
under Section 12(5) follow. In such circumstances, the disclosure
made by the arbitrator does not save the mandate of the arbitrator,
and an agreement referred to in the proviso assumes importance.
54 [2026] 1 S.C.R.

Supreme Court Reports

We shall discuss the scope and application of the sub-section (5),
as well as its proviso, in more detail in the latter part of this
judgment.
49. We may now proceed to address the aforesaid issue. There have
been submissions by the parties on the applicability of the Amendment
Act, 2015, to the present case as the parties executed the License
Agreement in 2010. Section 26 of the Amendment Act, 2015, makes
it limpid that the Amendment Act, 2015, would apply to arbitral
proceedings commenced on or after 23.10.2015. It is a well settled
position of law that in the absence of any contrary stipulation in the
agreement, arbitral proceedings commence when a notice invoking
arbitration is received by the respondent. [See: Board of Control
for Cricket in India v. Kochi Cricket Pvt. Ltd. & Ors., (2018) 6
SCC 287]
50. In the present case, the parties have not agreed to a different
commencement date. As a sequitur, the date of commencement of
the arbitral proceedings was 27.11.2015, i.e., when the notice invoking
arbitration was received by the respondent. Thus, the Amendment
Act, 2015, more particularly, sub-section (5) of Section 12 of the Act,
1996, would apply to the matter at hand.

c. Appointment of the sole arbitrator in light of sub-section (5)
of Section 12 of the Act, 1996
51. There is a conspectus of decisions of this Court which lay down
that, Section 12 was amended with the objective of ensuring
independence and impartiality of arbitrators. By virtue of sub-
section (5) of Section 12, any person whose relationship with the
parties or counsel, or the dispute, whether direct or indirect, falls
within any of the categories specified in the Seventh Schedule is
rendered ineligible to be appointed as an arbitrator. We need not
discuss all the decisions, but rather intend to refer and rely upon
only a few of them.
52. In TRF (supra), the arbitration agreement stated that any dispute
or difference between the parties in connection with the agreement
shall be referred to the sole arbitration of the Managing Director or
his nominee. The issue before this Court was whether the Managing
Director, after becoming ineligible by operation of law, is still eligible
to nominate an arbitrator.
[2026] 1 S.C.R. 55

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

In this context, a three Judge Bench of this Court categorically held
that if any person falls under any of the categories mentioned in
the Seventh Schedule, he would be ineligible to be appointed as
an arbitrator. In the facts of the case, it was held that the Managing
Director, by virtue of sub-section (5) of Section 12, acquired the
disqualification under the Seventh Schedule. Thus, as he became
ineligible by operation of law to act as an arbitrator, he could not
have nominated another person as an arbitrator. The relevant
observations read thus:-
“54. In such a context, the fulcrum of the controversy
would be, can an ineligible arbitrator, like the Managing
Director, nominate an arbitrator, who may be otherwise
eligible and a respectable person. As stated earlier, we
are neither concerned with the objectivity nor the individual
respectability. We are only concerned with the authority
or the power of the Managing Director. By our analysis,
we are obligated to arrive at the conclusion that once the
arbitrator has become ineligible by operation of law, he
cannot nominate another as an arbitrator. The arbitrator
becomes ineligible as per prescription contained in Section
12(5) of the Act. It is inconceivable in law that person who
is statutorily ineligible can nominate a person. Needless to
say, once the infrastructure collapses, the superstructure
is bound to collapse. One cannot have a building without
the plinth. Or to put it differently, once the identity of the
Managing Director as the sole arbitrator is lost, the power
to nominate someone else as an arbitrator is obliterated.
Therefore, the view expressed by the High Court is not
sustainable and we say so.”
(Emphasis supplied)

53. In a similar fact situation wherein the arbitration agreement empowered
the Chairman and Managing Director of the respondent to appoint
a sole arbitrator, the issue before this Court in Bharat Broadband
(supra) was whether the CMD, after becoming ineligible by operation
of law, is still eligible to appoint an arbitrator.
The Court held that where a person falls within any of the categories
set out in the Seventh Schedule, which could be by virtue of a
56 [2026] 1 S.C.R.

Supreme Court Reports

relationship with the parties, or their counsel, or the subject-matter of
the dispute, such a person becomes ineligible to be appointed as an
arbitrator. The ineligibility could be removed after dispute has arisen,
and only if the parties waive the applicability of the provision by an
“express agreement in writing”. The arbitrator becomes de jure unable
to perform his function as he falls within the categories mentioned in
the Seventh Schedule. The relevant observations read thus:-
“15. Section 12(5), on the other hand, is a new provision
which relates to the de jure inability of an arbitrator to
act as such. Under this provision, any prior agreement to
the contrary is wiped out by the non obstante clause in
Section 12(5) the moment any person whose relationship
with the parties or the counsel or the subject-matter of
the dispute falls under the Seventh Schedule. The sub-
section then declares that such person shall be “ineligible”
to be appointed as arbitrator. The only way in which
this ineligibility can be removed is by the proviso, which
again is a special provision which states that parties
may, subsequent to disputes having arisen between
them, waive the applicability of Section 12(5) by an
express agreement in writing. What is clear, therefore, is
that where, under any agreement between the parties,
a person falls within any of the categories set out in the
Seventh Schedule, he is, as a matter of law, ineligible to
be appointed as an arbitrator. The only way in which this
ineligibility can be removed, again, in law, is that parties
may after disputes have arisen between them, waive the
applicability of this sub-section by an “express agreement
in writing”. Obviously, the “express agreement in writing”
has reference to a person who is interdicted by the Seventh
Schedule, but who is stated by parties (after the disputes
have arisen between them) to be a person in whom they
have faith notwithstanding the fact that such person is
interdicted by the Seventh Schedule.”
(Emphasis supplied)

54. We may also look into the decision of this Court in Perkins Eastman
(supra), where the arbitration clause empowered the Chairman and
Managing Director of the respondent to appoint a sole arbitrator.
[2026] 1 S.C.R. 57

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

Following TRF (supra), this Court held that the Managing Director
was incompetent to appoint the sole arbitrator because he would be
deemed to have an interest in the outcome of the dispute. Since,
the ineligibility stems from the operation of law, not only is a person
having an interest in the dispute or its outcome ineligible to act as
an arbitrator, but appointment by such a person would be ex facie
invalid. The relevant observations read thus:-
“20. We thus have two categories of cases. The first,
similar to the one dealt with in TRF Ltd. [TRF Ltd. v. Energo
Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC
(Civ) 72] where the Managing Director himself is named
as an arbitrator with an additional power to appoint any
other person as an arbitrator. In the second category, the
Managing Director is not to act as an arbitrator himself
but is empowered or authorised to appoint any other
person of his choice or discretion as an arbitrator. If, in
the first category of cases, the Managing Director was
found incompetent, it was because of the interest that
he would be said to be having in the outcome or result
of the dispute. The element of invalidity would thus be
directly relatable to and arise from the interest that he
would be having in such outcome or decision. If that be
the test, similar invalidity would always arise and spring
even in the second category of cases. If the interest that
he has in the outcome of the dispute, is taken to be the
basis for the possibility of bias, it will always be present
irrespective of whether the matter stands under the first
or second category of cases. We are conscious that if
such deduction is drawn from the decision of this Court
in TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd.,
(2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72] , all cases
having clauses similar to that with which we are presently
concerned, a party to the agreement would be disentitled
to make any appointment of an arbitrator on its own and
it would always be available to argue that a party or an
official or an authority having interest in the dispute would
be disentitled to make appointment of an arbitrator.
21. But, in our view that has to be the logical deduction
from TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd.,
58 [2026] 1 S.C.R.

Supreme Court Reports

(2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72] Para 50 of
the decision shows that this Court was concerned with
the issue, “whether the Managing Director, after becoming
ineligible by operation of law, is he still eligible to nominate
an arbitrator” The ineligibility referred to therein, was as a
result of operation of law, in that a person having an interest
in the dispute or in the outcome or decision thereof, must
not only be ineligible to act as an arbitrator but must also
not be eligible to appoint anyone else as an arbitrator and
that such person cannot and should not have any role in
charting out any course to the dispute resolution by having
the power to appoint an arbitrator. The next sentences
in the paragraph, further show that cases where both
the parties could nominate respective arbitrators of their
choice were found to be completely a different situation.
The reason is clear that whatever advantage a party may
derive by nominating an arbitrator of its choice would get
counter-balanced by equal power with the other party. But,
in a case where only one party has a right to appoint a
sole arbitrator, its choice will always have an element of
exclusivity in determining or charting the course for dispute
resolution. Naturally, the person who has an interest in the
outcome or decision of the dispute must not have the power
to appoint a sole arbitrator. That has to be taken as the
essence of the amendments brought in by the Arbitration
and Conciliation (Amendment) Act, 2015 (3 of 2016) and
recognised by the decision of this Court in TRF Ltd. [TRF
Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377 :
(2017) 4 SCC (Civ) 72]”
(Emphasis supplied)

55. The Bombay High Court, in Lite Bite Foods Pvt. Ltd. v. AAI, reported
in 2019 SCC OnLine Bom 5163, dealt with a submission similar
to the one arising from Clause 75 of the License Agreement before
us. It was contended that only when an employee of the respondent
is the named arbitrator does such person become ineligible to act,
and equally ineligible to nominate another arbitrator.
The Court held that the embargo under sub-section (5) of Section 12
is against granting any single party a unilateral or one-sided authority
[2026] 1 S.C.R. 59

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

in constituting the arbitral tribunal. We are in complete agreement
with the observations of G. S. Patel, J., that, “The guiding principle
is neutrality, independence, fairness and transparency even in the
arbitral-forum selection process”. The relevant observations read thus:-
“23. The present case may not be within the confines
of TRF Ltd., i.e. the tender approving authority is not
both arbitrator and, if disqualified, the sole repository of
arbitrator-appointing power. He is only the latter. But that
now matters at all. Perkins Eastman clearly holds the field
and it covers a situation precisely such as the present
one where AAI — and only AAI — has the exclusive
right of appointed (not merely nominating) an arbitrator.
The question is not, as Ms. Munim would have it, the
perceived bias or impartiality of the arbitrator. He may well
be an unknown entity. The question is of one-sidedness
in the arbitral tribunal appointment procedure itself. This
is the destination to which Perkins Eastman takes us for
it requires that there be neutrality in the dispute resolution
process throughout. If I might be permitted a license, in
my reading of it, what Perkins Eastman says is this :
that you cannot have an impartial arbitration free from all
justifiable doubt if the manner in which the arbitral tribunal
is constituted itself is beset by justifiable doubt.”
xxx
25. Ms. Munim’s last submission is that the only prohibition
is against a named person being the arbitrator or
empowered to appoint an arbitrator. This is clearly incorrect.
The interdiction runs against any one party being given
unilateral or one-sided power in the matter of constitution
of the arbitral tribunal.”
(Emphasis supplied)

56. The phrase “operation of law” mentioned in the aforesaid decisions
covers the Act, 1996, as well as the Constitution of India and any
other Central of State law. In Lombardi Engg. Ltd. v. Uttarakhand
Jal Vidyut Nigam Ltd., reported in (2024) 4 SCC 341, where one of
us, J.B. Pardiwala, J., speaking for the Bench held that an arbitration
agreement has to comply with the requirements of (i) Section 7 of
60 [2026] 1 S.C.R.

Supreme Court Reports

the Act, 1996; (ii) any other provisions of the Act, 1996, and Central/
State law; (iii) Constitution of India. We may refer to the following
observations for the benefit of exposition:-
“79.5. In State of A.P. v. P. Laxmi Devi [State of A.P. v. P.
Laxmi Devi, (2008) 4 SCC 720] , this Court observed :
(SCC p. 737, paras 33-34)
“33. According to Kelson, in every country there is a
hierarchy of legal norms, headed by what he calls as
the “grundnorm”. If a legal norm in a higher layer of
this hierarchy conflicts with a legal norm in a lower
layer the former will prevail…
34. In India the grundnorm is the Indian Constitution,…”
80. Thus, in the context of the arbitration agreement, the
layers of the Grundnorm as per Kelsen’s theory would be
in the following hierarchy:
(i) Constitution of India, 1950;
(ii) Arbitration and Conciliation Act, 1996 & any other
Central/State law;
(iii) Arbitration agreement entered into by the parties in light
of Section 7 of the Arbitration and Conciliation Act, 1996.
81. Thus, the arbitration agreement, has to comply with
the requirements of the following and cannot fall foul of:
(i) Section 7 of the Arbitration and Conciliation Act;
(ii) any other provisions of the Arbitration and Conciliation
Act, 1996 & Central/State Law;
(iii) Constitution of India, 1950.”
(Emphasis supplied)

57. When an arbitration agreement is in violation of sub-section (5)
of Section 12 of the Act, 1996, the parties can neither insist on
appointment of an arbitrator in terms of the agreement nor would
any appointment so made be valid in the eyes of law.
58. Unilateral appointments are not consistent with the basic tenet of
arbitration, i.e., mutual confidence in the arbitrator. It would not be
[2026] 1 S.C.R. 61

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

unreasonable for a party to apprehend that an arbitrator unilaterally
appointed by the opposite party may not act with complete impartiality.
59. The test to determine bias is not actual proof of bias but reasonable
apprehension of bias. The moment this apprehension takes birth
in the mind of a party, the trust in the arbitral proceedings dies. A
Constitution Bench of this Court in CORE II (supra), wherein one of
us, J. B. Pardiwala, J., was a part of the Bench, laid down the test
for real likelihood of bias. It reads thus:-
“(b) Real likelihood of bias
92. The nemo judex rule may be applicable where
a Judge’s conduct or circumstances give rise to an
apprehension of bias. In such situations, the Judge does
not have a financial or cause-based interest in the outcome
of the dispute but provides benefit to a party by failing
to be neutral and impartial. The determination of bias
does not depend upon actual proof of bias but whether
there is a real possibility of bias based on the facts and
circumstances.
xxx
(iv) Indian approach to the bias test
103. This Court has consistently adopted the real likelihood
test to determine bias. [Rattan Lal Sharma v. Hari Ram
(Co-Education) Higher Secondary School, (1993) 4 SCC
10, para 11 : 1993 SCC (L&S) 1106] In Manak Lal v. Prem
Chand Singhvi [Manak Lal v. Prem Chand Singhvi, 1957
SCC OnLine SC 10, para 4] , P.B. Gajendragadkar, J.
(as the learned Chief Justice then was) observed that
the test to determine bias is whether a litigant could
reasonably apprehend that a bias attributable to a member
of the tribunal might have operated against him in the
final decision. In S. Parthasarathi v. State of A.P. [S.
Parthasarathi v. State of A.P., (1974) 3 SCC 459, para
14 : 1973 SCC (Cri) 580 : 1973 SCC (L&S) 580] , K.K.
Mathew, J. observed that the test of likelihood of bias is
based on the reasonable apprehension of a reasonable
man fully cognizant of the facts. The learned Judge further
observed that the question of whether the real likelihood
62 [2026] 1 S.C.R.

Supreme Court Reports

of bias exists is to be determined on the probabilities to
be inferred from the objective circumstances by a court
or based on impressions that might reasonably be left on
the minds of the aggrieved party or the public at large.
[S. Parthasarathi, (1974) 3 SCC 459, p. 465, para 16.
It was observed:“16. The tests of “real likelihood” and
“reasonable suspicion” are really inconsistent with each
other. We think that the reviewing authority must make a
determination on the basis of the whole evidence before
it, whether a reasonable man would in the circumstances
infer that there is real likelihood of bias.[…].”
(Emphasis supplied)

60. It is apposite to understand that Section 12(5) does not prohibit
unilateral appointment of an arbitrator. It provides that whenever an
appointment of an arbitrator is hit by the bar under Section 12(5),
the arbitrator would be ineligible to act, irrespective of whether the
appointment was unilateral or with consent of both parties. In such
circumstances, the parties may, in the manner provided under the
proviso, waive the ineligibility. We shall discuss the scope and
application of the proviso in more detail in the latter part of this
judgment.

d. De Jure inability of the arbitrator to perform his functions
61. In the aforesaid context, it would be apposite to briefly explain what
constitutes as de jure ineligibility under Section 12(5). The expression
de jure denotes a condition rooted in strict compliance with the
requirements of law. De jure inability refers to a situation in which an
arbitrator is legally incapable of performing his functions and is, by
operation of law, barred from continuing in office. Such inability strikes
at the very root of the arbitrator’s authority to act, thereby affecting
his inherent capacity to discharge his functions as an arbitrator. It
is this legal incapacity, arising from statutory disqualifications, that
results in the termination of the “mandate of an arbitrator” under
Section 14(1)(a) of the Act, 1996.
62. De jure inability referred to under Section 14(1)(a) may arise from
the provisions of the Act, 1996, or from any other existing law that
renders an arbitrator legally incapable of performing his functions. As
regards de jure ineligibility, it flows from sub-section (5) of Section 12
[2026] 1 S.C.R. 63

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

read with the Seventh Schedule, which disqualifies certain persons
from being appointed or continuing as arbitrators.
63. In other words, the ineligibility under Section 12(5) precedes de jure
inability under Section 14(1)(a). In other words, de jure ineligibility is
the specie and de jure inability is the genus. To put this in context,
de jure inability is determined when an aggrieved party is able to
indicate that the circumstances under the Seventh Schedule have
been met.
64. It would be worthwhile to refer to the observations made by this
Court in HRD Corpn v. GAIL (India) Ltd., reported in (2018) 12
SCC 471. It was observed thus:-
“12. After the 2016 Amendment Act, a dichotomy is made
by the Act between persons who become “ineligible” to be
appointed as arbitrators, and persons about whom justifiable
doubts exist as to their independence or impartiality. Since
ineligibility goes to the root of the appointment, Section
12(5) read with the Seventh Schedule makes it clear that
if the arbitrator falls in any one of the categories specified
in the Seventh Schedule, he becomes “ineligible” to act
as arbitrator. Once he becomes ineligible, it is clear that,
under Section 14(1)(a), he then becomes de jure unable to
perform his functions inasmuch as, in law, he is regarded
as “ineligible”.[…]”
(Emphasis supplied)

65. The Madras High Court in Clarke Energy India Pvt. Ltd. v. SAS
EPC Solution Pvt. Ltd. & Anr., reported in 2021 SCC OnLine Mad
6121, observed thus:-
“22. Turning to de jure inability to perform functions, it
should be noted at the threshold that the expression is not
defined in the Arbitration Act. The word ‘de jure’ in Latin
means “as a matter of law”. It has been defined in Black’s
Law Dictionary, 11 Edition (2019), as “existing by right or
according to law”. Thus, it appears that the expression de
jure applies undoubtedly to legal disability. One illustration
of legal disability would be if the arbitrator is ineligible in
terms of the Seventh Schedule. This was expressly dealt
with by the Hon’ble Supreme Court in HRD Corporation as
64 [2026] 1 S.C.R.

Supreme Court Reports

well as Bharat Broadband.[…] However, ineligibility is
only one illustration of de jure inability to function. It is
conceivable that an arbitrator may be afflicted by some
form of cognitive impairment. If such cognitive impairment is
serious enough to lead to an inference that such arbitrator
is not of sound mind, whether on account of schizophrenia,
Alzheimer’s disease or the like, as understood in the
Indian Contract Act, 1872, it would result in de jure inability
to function even if the arbitrator concerned declines to
withdraw. Less serious forms of cognitive impairment, such
as bipolar disorder and the like, may, on the other hand,
may pose greater challenges. Besides, an arbitrator may
be adjudged insolvent after entering upon reference. By
relying upon the applicable insolvency statute, it could be
contended with a fair measure of justification that he is de
jure unable to function.”
(Emphasis supplied)

66. It would be apposite to refer to the relevant Items under the head
“Arbitrator’s relationship with the parties or counsel” in the Seventh
Schedule of the Act, 1996, for the purpose of matter at hand. It
reads thus:-
“THE SEVENTH SCHEDULE
[See section 12(5)]
Arbitrator’s relationship with the parties or counsel
1. The arbitrator is an employee, consultant, advisor or
has any other past or present business relationship with
a party.
2. The arbitrator currently represents or advises one of
the parties or an affiliate of one of the parties.
xxx
5. The arbitrator is a manager, director or part of the
management, or has a similar controlling influence, in
an affiliate of one of the parties if the affiliate is directly
involved in the matters in dispute in the arbitration.
xxx
[2026] 1 S.C.R. 65

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

12. The arbitrator is a manager, director or part of the
management, or has a similar controlling influence in one
of the parties.
13. The arbitrator has a significant financial interest in one
of the parties or the outcome of the case. […]”
67. From the above exposition of law, the Chairman of the respondent
was wholly ineligible to appoint an arbitrator. The Items 1, 2, 5, 12,
and 13 of the Seventh Schedule respectively, clearly attach to the
Chairman of the respondent. Once the Chairman is rendered ineligible
by operation of law, he cannot nominate or appoint another person
as an arbitrator. To illustrate, one who cannot sit on a chair himself
cannot authorise another to sit on it either.
68. We are in complete agreement that the present case is squarely
covered by the decisions of this Court in Perkins Eastman (supra) and
Bharat Broadband (supra) respectively. The unilateral appointment of
a sole arbitrator is void ab initio, and the sole arbitrator so appointed
is de jure ineligible to act as an arbitrator in terms of Section 12(5)
read with the Seventh Schedule of the Act, 1996.
69. Thus, we have no hesitation in saying that its High Court, in the
impugned judgment, committed an error in holding that the appointment
was not unilateral merely because the respondent proceeded to
appoint the sole arbitrator pursuant to notice invoking arbitration.
70. We would like to clarify that a notice under Section 21 of the Act,
1996, is an expression to set the arbitration agreement into motion
upon arising of disputes between the parties. The section states that
the date of commencement of arbitration would be the date on which
the recipient receives the notice from the claimant that the dispute be
referred to arbitration. The notice acts as a communication that the
sender is aggrieved and seeks to invoke the arbitration agreement.
It does not, by itself, operate as consent to any appointment to be
made in the future.

ii. Whether the parties could be said to have waived the
applicability of sub-section (5) of Section 12 of the Act,
1996, by way of their conduct, either expressed or implied?
71. It was submitted on behalf of the appellants herein that the appellants
never waived their right to object in terms of the proviso to Section
66 [2026] 1 S.C.R.

Supreme Court Reports

12(5) of the Act, 1996. The proviso to Section 12(5) requires that
the ineligibility of an arbitrator could only be waived by an “express
agreement in writing” between the parties, and such agreement must
be entered into after the dispute has arisen. It was further canvassed
by the appellants that no agreement was executed, signed, or even
contemplated by the parties to this effect after the dispute arose.
72. In this regard, the respondent vociferously submitted that the present
case falls within the proviso to Section 12(5). To indicate the same,
instances like recording of “no objection” in the first procedural
order, submission of statement of claim, the joint request to extend
the mandate under Section 29A, and continued participation in the
proceedings, were highlighted to submit that the appellants had
waived their right to object. The procedural order constitutes an
“express agreement in writing” and satisfies the requirement under
the proviso to Section 12(5) of the Act, 1996. At the cost of repetition,
the procedural order reads thus:-
“PROCEDURAL ORDER NO. 1
With
Minutes of, and the Directions made at, the hearing on
22.03.2016 at 1:00 pm
[AT D-247 (Basement), Defence Colony, New Delhi-110024]
This preliminary meeting of the Tribunal was held D-247
(Basement), Defence Colony, New Delhi-110024 on
22nd March, 2016 at 1:00 PM. None of the parties have
any objection to my appointment as the Sole Arbitrator. I
declare that I have no interest in any of the Parties, or in
the disputes referred to the Sole Arbitrator.[…]”
(Emphasis supplied)

73. On the aforesaid issue, the High Court, in its impugned judgment,
observed that the sole arbitrator obtained the consent of the parties
for the purpose of continuing to arbitrate in the form of the procedural
order. What weighed with the High Court was that the appellants
participated in the proceedings, which continued for over two years,
and did not they invoke Section 12(5), or object against the jurisdiction
of the arbitrator at any stage.
[2026] 1 S.C.R. 67

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

a. Meaning and Import of the expression “express agreement
in writing” used in proviso to sub-section (5) of Section
12 of the Act, 1996
74. Sub-section (5) of Section 12 of the Act, 1996, reads thus:-
“[(5) Notwithstanding any prior agreement to the contrary,
any person whose relationship, with the parties or counsel
or the subject-matter of the dispute, falls under any of the
categories specified in the Seventh Schedule shall be
ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having
arisen between them, waive the applicability of this sub-
section by an express agreement in writing.]”
75. The essentials of the proviso to Section 12(5) are:-
i. The parties can waive their right to object under sub-section
(5) of Section 12;
ii. The right to object under the sub-section can be waived only
subsequent to a dispute having arisen between the parties;
iii. The waiver must be in the form of an express agreement in
writing.
76. The proviso to sub-section (5) of Section 12 stipulates that parties,
after disputes have arisen, must expressly agree in writing to waive
the ineligibility of the proposed arbitrator. This impliedly means that
the parties are waiving their right to object to the arbitrator’s ineligibility
in terms of Section 12(5) of the Act, 1996.
77. Waiver means the intentional giving up of a right. It involves a
conscious decision to abandon an existing legal right, benefit, claim,
or privilege that a party would otherwise have been entitled to. It
amounts to an agreement not to enforce that right. A waiver can
occur only when the person making it is fully aware of the right in
question and, with complete knowledge, chooses to give it up. [See:
State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770]
78. What flows from the aforesaid is when a right exists, i.e., the right to
object to the appointment of an ineligible arbitrator in terms of Section
12(5), such a right cannot be taken away by mere implication. For
a party to be deprived of this right by way of waiver, there must be
68 [2026] 1 S.C.R.

Supreme Court Reports

a conscious and unequivocal expression of intent to relinquish it.
Needless to say, for a waiver to be valid, it is necessary that the actor
demonstrates the intention to act, and for an act to be intentional,
the actor must understand the act and its consequences.
79. The expression “express agreement in writing” demonstrates a
deliberate and informed act that although a party is fully aware of
the arbitrator’s ineligibility, yet it chooses to forego the right to object
against the appointment of such an arbitrator. The requirement of
an express agreement in writing has been introduced as it reflects
awareness and a conscious intention to waive the right to object
under sub-section (5) of Section 12. A clear manifestation of the
expression of waiver assumes greater importance in light of the fact
that the parties are overcoming a restriction imposed by law.
80. It is in the same breath we say that appointment of an arbitrator
with the consent of both parties is the general rule, while unilateral
appointment is an exception. When one party appoints an arbitrator
unilaterally, even if its own consent is implicit, the consent of the
opposite party stands compromised, and the choice of the former
is effectively imposed upon the latter.
81. It is only through an express agreement in writing, waiving the bar
under sub-section (5) of Section 12, that the other party can be
said to have voluntarily consented to the unilateral appointment of
such an arbitrator. The proviso conveys that the arbitrator, although
ineligible to be appointed, yet can continue to perform his functions,
as it is oriented towards facilitating party autonomy. Thus, the
proviso reinforces party autonomy and equal treatment of parties
in arbitration.
82. In other words, even though the appointment had been made by one
of the parties, by the act of entering into an agreement in writing,
the other party expresses its consent. The manner of the agreement
prescribed by the statute demonstrates voluntariness by the parties.
83. In a case of unilateral appointment, the waiver mentioned in the
proviso is an indication of party autonomy in two ways: first, that the
parties, by entering into an agreement, are waiving the bar under
Section 12(5). Secondly, by the act of entering into an agreement, the
parties, more particularly, the non-consenting party, are expressing
their consent for appointment of the proposed arbitrator.
[2026] 1 S.C.R. 69

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

84. Undoubtedly, the statute does not prescribe a format for the
agreement. However, the absence of a prescribed format cannot
be construed to mean that the waiver may be inferred impliedly or
through conduct. We say so because the legislature has consciously
prefaced the term “agreement” with the word “express” and followed
it with the phrase “in writing”. This semantics denote the intention
of the legislature that the waiver under the proviso to Section 12(5)
must be made only through an express and written manifestation
of intention.
85. The conscious use of the prefatory expression also serves to
differentiate such waiver from ‘deemed waiver’ as stipulated under
Section 4 of the Act, 1996. We must be mindful of the fact that if the
legislature intended that waiver under Section 12(5) could similarly
arise by implication or conduct as mentioned under Section 4, it
would have refrained from introducing a heightened and mandatory
requirement, more particularly, in light of the rigours of the Seventh
Schedule. The statutory design therefore makes it evident that the
bar under Section 12(5) can be removed only by a clear, unequivocal,
and written agreement executed after the dispute has arisen, and
not by any form of tacit acceptance or procedural participation.
86. The mandate of an express agreement in writing in the present case
may looked at from one another angle. The unilateral appointment of
an arbitrator is assessed from the viewpoint of the parties. However,
when the parties later execute an express written agreement waiving
the ineligibility of the proposed arbitrator, the position gets altered.
Such written waiver supplies the very consent that was previously
missing, thereby placing the appointment on the same footing as
a mutually agreed appointment and addresses concerns regarding
neutrality and fairness.
87. In Bharat Broadband (supra), this Court categorically held that the
expression “express agreement in writing” refers to an agreement
made in words and cannot be inferred by conduct. The word “express”
denotes that the agreement must be entered into with complete
knowledge that although the proposed arbitrator is ineligible to be
appointed as an arbitrator, yet they express their confidence in him
to continue as the arbitrator. The relevant observations read thus:-
“20. This then brings us to the applicability of the proviso
to Section 12(5) on the facts of this case. Unlike Section
70 [2026] 1 S.C.R.

Supreme Court Reports

4 of the Act which deals with deemed waiver of the
right to object by conduct, the proviso to Section 12(5)
will only apply if subsequent to disputes having arisen
between the parties, the parties waive the applicability of
sub-section (5) of Section 12 by an express agreement
in writing. For this reason, the argument based on the
analogy of Section 7 of the Act must also be rejected.
Section 7 deals with arbitration agreements that must be
in writing, and then explains that such agreements may
be contained in documents which provide a record of such
agreements. On the other hand, Section 12(5) refers to an
“express agreement in writing”. The expression “express
agreement in writing” refers to an agreement made in
words as opposed to an agreement which is to be inferred
by conduct. Here, Section 9 of the Contract Act, 1872
becomes important. It states:
“9. Promises, express and implied.—Insofar as the
proposal or acceptance of any promise is made in
words, the promise is said to be express. Insofar as
such proposal or acceptance is made otherwise than
in words, the promise is said to be implied.”
It is thus necessary that there be an “express” agreement
in writing. This agreement must be an agreement by which
both parties, with full knowledge of the fact that Shri Khan
is ineligible to be appointed as an arbitrator, still go ahead
and say that they have full faith and confidence in him to
continue as such. The facts of the present case disclose
no such express agreement. The appointment letter which
is relied upon by the High Court as indicating an express
agreement on the facts of the case is dated 17-1-2017.
On this date, the Managing Director of the appellant was
certainly not aware that Shri Khan could not be appointed by
him as Section 12(5) read with the Seventh Schedule only
went to the invalidity of the appointment of the Managing
Director himself as an arbitrator. Shri Khan’s invalid
appointment only became clear after the declaration of the
law by the Supreme Court in TRF Ltd. [TRF Ltd. v. Energo
Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC
(Civ) 72] which, as we have seen hereinabove, was only on
[2026] 1 S.C.R. 71

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

3-7-2017. After this date, far from there being an express
agreement between the parties as to the validity of Shri
Khan’s appointment, the appellant filed an application on
7-10-2017 before the sole arbitrator, bringing the arbitrator’s
attention to the judgment in TRF Ltd. [TRF Ltd. v. Energo
Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC
(Civ) 72] and asking him to declare that he has become de
jure incapable of acting as an arbitrator. Equally, the fact
that a statement of claim may have been filed before
the arbitrator, would not mean that there is an express
agreement in words which would make it clear that both
parties wish Shri Khan to continue as arbitrator despite
being ineligible to act as such. This being the case, the
impugned judgment is not correct when it applies Section 4,
Section 7, Section 12(4), Section 13(2) and Section 16(2)
of the Act to the facts of the present case, and goes on
to state that the appellant cannot be allowed to raise the
issue of eligibility of an arbitrator, having itself appointed
the arbitrator. The judgment under appeal is also incorrect
in stating that there is an express waiver in writing from
the fact that an appointment letter has been issued by the
appellant, and a statement of claim has been filed by the
respondent before the arbitrator. The moment the appellant
came to know that Shri Khan’s appointment itself would
be invalid, it filed an application before the sole arbitrator
for termination of his mandate.”
(Emphasis supplied)

88. In CORE II (supra), this Court underscored the rationale behind the
first two essentials of the proviso. It reads thus:-
“121. An objection to the bias of an adjudicator can
be waived. [Supreme Court Advocates-on-Record
Assn. v. Union of India, (2016) 5 SCC 808, para 30 : (2016)
3 SCC (Civ) 492 : (2016) 3 SCC (Cri) 173 : (2016) 2 SCC
(L&S) 253] A waiver is an intentional relinquishment of
a right by a party or an agreement not to assert a right.
[State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14
SCC 770, para 41 : (2012) 4 SCC (Civ) 1034 : (2012) 4
SCC (Cri) 496 : (2014) 1 SCC (L&S) 208] The Arbitration
72 [2026] 1 S.C.R.

Supreme Court Reports

Act allows parties to waive the application of Section 12(5)
by an express agreement after the disputes have arisen.
However, the waiver is subject to two factors. First, the
parties can only waive the applicability of Section 12(5) after
the dispute has arisen. This allows parties to determine
whether they will be required or necessitated to draw
upon the services of specific individuals as arbitrators to
decide upon specific issues. To this effect, Explanation 3
to the Seventh Schedule recognises that certain kinds of
arbitration such as maritime or commodities arbitration
may require the parties to draw upon a small, specialised
pool. [ “Explanation 3.—For the removal of doubts, it is
clarified that it may be the practice in certain specific kinds
of arbitration, such as maritime or commodities arbitration,
to draw arbitrators from a small, specialised pool. If in such
fields it is the custom and practice for parties frequently,
to appoint the same arbitrator in different cases, this is
a relevant fact to be taken into account while applying
the rules set out above.”] The second requirement of the
proviso to Section 12(5) is that parties must consciously
abandon their existing legal right through an express
agreement. Thus, the Arbitration Act reinforces the
autonomy of parties by allowing them to override the
limitations of independence and impartiality by an express
agreement in that regard.”
(Emphasis supplied)

89. What can be discerned from the above discussion is that the
ineligibility of an arbitrator can be waived only by an express
agreement in writing. In the present case, there is no agreement in
writing, after the disputes arose, waiving the ineligibility of the sole
arbitrator or the right to object under Section 12(5) of the Act, 1996.
90. The conduct of the parties is inconsequential and does not constitute
a valid waiver under the proviso. The requirement of the waiver to
be made expressly in the form of agreement in writing ensures that
parties are not divested of their right to object inadvertently or by
procedural happenstance.
91. We are not impressed by the aforesaid submission of the respondent
for all the reasons stated above. The following decisions of this
[2026] 1 S.C.R. 73

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

Court and the High Court of Delhi respectively deal with the all
the factual submissions made by the respondent to submit that
the present case falls within the proviso to Section 12(5) of the
Act, 1996.

b. “Statement of Claim” as a parameter of waiver
92. One another submission that was canvassed on behalf of the
respondent herein is that the appellants participated in the arbitral
proceedings by submitting their statement of claim wherein it was
stated that they submit to the jurisdiction of the arbitrator. The
observations of this Court in paragraph 20 of Bharat Broadband
(supra) squarely cover this issue. It was held that filing a statement
of claim cannot be equated to an “express agreement in writing” in
terms of proviso to Section 12(5).

c. “Extension of Time” under Section 29A of the Act, 1996 as
a parameter of waiver
93. Recently, in Hindustan Construction Co. Ltd. v. Bihar Rajya
Pul Nirman Nigam Ltd., reported in 2025 SCC OnLine SC 2578,
wherein one of us, J. B. Pardiwala, J., was a part of the Bench, held
that Section 29A amounts to a valid waiver under Section 4, save in
cases of statutory ineligibility under Section 12(5) of the Act, 1996.
The relevant observations read thus:-
“13.8. In the present case, the respondents had ample
opportunity to object. Instead, both parties jointly moved
for extension under Section 29A, not once but thrice. This
leads directly to the interplay between Sections 4, 12(5)
and 29A.
13.9. Section 29A empowers courts to extend the mandate
of an arbitral tribunal, either on a party’s application or
upon sufficient cause. Its object is to prevent termination
of proceedings by efflux of time and to ensure continuity.
A joint application under Section 29A stands on a distinct
footing from ordinary acts of participation such as filing
pleadings. When both parties jointly seek an extension,
they signify continued consent and confidence in the
tribunal. Under Section 29A(5), even a single party may
apply; the other is free to oppose. The Court may, in its
74 [2026] 1 S.C.R.

Supreme Court Reports

discretion, extend the mandate with or without substituting
the arbitrator.
13.10. Thus, when a party joins in seeking extension under
Section 29A despite having the opportunity to object or
seek termination, it signifies a higher degree of consent.
However, such consent cannot be equated with an express
written waiver under Section 12(5). The statutory language
is categorical: only an express written post-dispute waiver
can cure Seventh Schedule ineligibility.”
(Emphasis supplied)

94. In Man Industries (India) Ltd. v. Indian Oil Corporation Ltd.,
reported in 2023 SCC OnLine Del 3537, the petitioner had filed
two applications under Section 29A of the Act, 1996, seeking an
extension of time for completion of the arbitral proceedings. The
respondent therein had contended that filing of an application under
Section 29A would satisfy the requirement of the proviso to Section
12(5), and that the ineligibility attached to the sole arbitrator would
thereby stand removed. The Court observed thus:-
“11. He submits that in the present case, the petitioner
has never challenged the eligibility of the learned Sole
Arbitrator to adjudicate on the disputes between the
parties. He submits that, in fact, the learned Arbitrator was
appointed at the request of the petitioner. The learned
Arbitrator before entering upon the reference submitted
his disclosure as required under Section 12 of the Act.
The petitioner never raised any objection to the eligibility
of the learned Sole Arbitrator. Thereafter, the petitioner, in
fact, twice filed applications under Section 29A of the Act
seeking extension of the mandate of the learned Arbitrator.
He submits that the filing of the application under Section
29A of the Act by the petitioner would, in fact, satisfy the
Proviso to Section 12(5) of the Act and the ineligibility, if at
all, attached to the learned Sole Arbitrator would be waived.
xxx
22. In view of the above authorities, there can be no doubt
that the learned Arbitrator appointed by the respondent
was de jure ineligible to act as such. The petitioner by its
[2026] 1 S.C.R. 75

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

participation in the arbitration proceedings or by its filing of
applications under Section 29A of the Act seeking extension
of the mandate of the learned Arbitrator, cannot be said to
have waived the ineligibility of the learned Arbitrator under
Section 12(5) of the Act, and, therefore, the Arbitral Award
passed by the learned Arbitrator is invalid.”
(Emphasis supplied)

d. “Continued Participation” as a parameter of waiver
95. In Govind Singh v. Satya Group Pvt. Ltd., reported in 2023 SCC
OnLine Del 37, the contention before the Delhi High Court was that
the appellant therein by its conduct had waived its right to object to the
unilateral appointment of the sole arbitrator. The Court categorically
held that it is not necessary to even examine whether the appellant
had raised an objection. Even if the appellant had participated in
the proceedings without raising any objection, it cannot be said that
he had waived his right under Section 12(5) of the Act, 1996. The
relevant observations read thus:-
“19. The contention that the appellant by its conduct has
waived its right to object to the appointment of the learned
Arbitrator is also without merit. The question whether a party
can, by its conduct, waive its right under Section 12(5) of
the A&C Act is no longer res integra. The Supreme Court
in the case of Bharat Broadband Network Limited v. United
Telecoms Limited : (2019) 5 SCC 755 had explained that
any waiver under Section 12(5) of the A&C Act would
be valid only if it is by an express agreement in writing.
There is no scope for imputing any implied waiver of the
rights under Section 12(5) of the A&C Act by conduct or
otherwise.[…]
20. Thus, it is not necessary to examine the question
whether the appellant had raised an objection to the
appointment of the learned Arbitrator. Even if it is
assumed that the appellant had participated in the
arbitral proceedings without raising any objection to the
appointment of the learned Arbitrator, it is not open to
hold that he had waived his right under Section 12(5) of
76 [2026] 1 S.C.R.

Supreme Court Reports

the A&C Act. Although it is not material, the record does
indicate that the appellant had objected to the appointment
of respondent no. 2 as an arbitrator.”
(Emphasis supplied)

96. The net effect of the aforesaid is that a notice invoking the arbitration
clause under Section 21 of the Act, 1996, a procedural order,
submission of statement of claim by the appellants, the filing an
application seeking interim relief, or a reply to an application under
Section 33 of the Act, 1996, cannot be countenanced to mean “an
express agreement in writing” within the meaning of the proviso to
sub-section (5) of Section 12 of the Act, 1996.
97. One could argue that a miscreant party may participate in the
arbitral proceedings up to the passing of the award, despite having
full knowledge of the arbitrator’s ineligibility. While after an adverse
award is rendered, such a party may then seek to challenge it with
a view to having it set aside. Such an apprehension is reasonable,
however, to obviate the possibility of such misuse, the party making
unilateral appointment must endeavour to enter into an express
written agreement as stipulated in the proviso to Section 12(5), so
as to safeguard the proceedings from being rendered futile.
98. Thus, all the High Court decisions taking a contrary view to the
present judgment would stand overruled.

iii. Whether the appellants could have raised an objection to
the appointment of the sole arbitrator for the first time in
an application under Section 34 of the Act, 1996?
99. It was submitted by the appellants that an objection in relation to de
jure ineligibility of the sole arbitrator could be raised at any stage,
including for the first time in proceedings under Section 34 of the
Act, 1996. In this regard reliance was placed on Section 34(2)(b)
which empowers the court to set aside an award if “the Court finds
that” it is in conflict with the public policy of India. Therefore, even
if the objection to unilateral appointment is not raised by a party,
the Court may itself declare an award to be null and void due to
unilateral appointment of the arbitrator in terms of Section 34(2)(b).
100. On the contrary, the respondent submitted that since the appellants
did not raise any objection to the constitution, appointment or
[2026] 1 S.C.R. 77

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

jurisdiction of the sole arbitrator under Sections 13 or 14 of the Act,
1996, respectively, during the pendency of the arbitration, they are
barred from raising it under an application under Section 34.
101. On the aforesaid issue, the High Court held that the present case
cannot be equated with cases in which an objection to the appointment
of the arbitrator has been raised throughout the proceedings, or at
every stage. Further, even after sub-section (5) of Section 12 was
introduced in the statute, the appellants did not approach the court
under Section 14 of the Act, 1996, challenging the jurisdiction of
the arbitrator. Thus, the challenge to the appointment of the sole
arbitrator was clearly an “afterthought”.

a. Challenge to the ineligibility of the arbitrator during the
proceedings
102. The law in this regard is fairly settled. Where a party is aggrieved
by the ineligibility of an arbitrator under Section 12(5), it may directly
approach the court under Section 14 of the Act, 1996. There is no
doubt that when an arbitrator is ineligible under Section 12(5), i.e.,
he lacks inherent jurisdiction to hold the position, his mandate stands
automatically terminated, and it is not necessary for the parties to
challenge his appointment under Section 12 read with Section 13.
When such a challenge is made, the court is required to determine
whether the arbitrator suffers from de jure inability under Section
14(1)(a) of the Act, 1996.
103. An application under Section 14 is made for the purpose of terminating
the mandate of the arbitrator, and, consequently, a substitute arbitrator
is appointed in terms of Section 15(2). As regards where the mandate
of the arbitrator has been terminated with the consent of both the
parties under Section 15(1)(b), it is not required for the parties to
approach the court to seek termination of the mandate of the arbitrator,
because it has been terminated by the parties themselves.
104. It is apposite to understand that in a case of ineligibility of the arbitrator,
the substitution of the arbitrator is sought because the termination of
mandate of the arbitrator does not result in the termination of arbitral
proceedings. The proceedings remain intact, only the composition
of the arbitral tribunal changes. The termination of mandate of
the arbitrator is distinguishable from the termination of the arbitral
proceedings and of the arbitral tribunal as well. By substitution of
78 [2026] 1 S.C.R.

Supreme Court Reports

the arbitrator, the proceedings would commence from thereon and
save the parties from initiating fresh proceedings.
105. In HRD (supra), it was held that once an arbitrator becomes ineligible
to act as an arbitrator, he is rendered de jure incapable of performing
his functions. In such circumstances, it is not necessary for the
parties to approach the arbitral tribunal under Section 13, for an
arbitrator who is de jure ineligible lacks the inherent jurisdiction to
proceed any further. In such a case, an application under Section
14(2) must be filed before the court for termination of the mandate
of the arbitrator. The relevant observations read thus:-
“12. […] Once he becomes ineligible, it is clear that,
under Section 14(1)(a), he then becomes de jure unable
to perform his functions inasmuch as, in law, he is
regarded as “ineligible”. In order to determine whether an
arbitrator is de jure unable to perform his functions, it is
not necessary to go to the Arbitral Tribunal under Section
13. Since such a person would lack inherent jurisdiction
to proceed any further, an application may be filed under
Section 14(2) to the Court to decide on the termination of
his/her mandate on this ground. As opposed to this, in a
challenge where grounds stated in the Fifth Schedule are
disclosed, which give rise to justifiable doubts as to the
arbitrator’s independence or impartiality, such doubts as
to independence or impartiality have to be determined as
a matter of fact in the facts of the particular challenge by
the Arbitral Tribunal under Section 13. If a challenge is not
successful, and the Arbitral Tribunal decides that there are
no justifiable doubts as to the independence or impartiality
of the arbitrator/arbitrators, the Tribunal must then continue
the arbitral proceedings under Section 13(4) and make
an award. It is only after such award is made, that the
party challenging the arbitrator’s appointment on grounds
contained in the Fifth Schedule may make an application
for setting aside the arbitral award in accordance with
Section 34 on the aforesaid grounds.[…].”
(Emphasis supplied)

106. We may refer with profit to the decision of this Court in Bharat
Broadband (supra), wherein it was observed that when a person
[2026] 1 S.C.R. 79

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

becomes “ineligible” to be appointed as an arbitrator, the challenge
to such appointment does not lie before the arbitrator himself. It
was further observed that an appointment hit by Section 12(5)
attracts Section 14(1)(a), as the arbitrator becomes de jure unable
to perform his functions. As a result, the mandate of the arbitrator
stands terminated. The relevant observations read thus:-
“17. […] However, where such person becomes “ineligible”
to be appointed as an arbitrator, there is no question of
challenge to such arbitrator, before such arbitrator. In
such a case i.e. a case which falls under Section 12(5),
Section 14(1)(a) of the Act gets attracted inasmuch as
the arbitrator becomes, as a matter of law (i.e. de jure),
unable to perform his functions under Section 12(5), being
ineligible to be appointed as an arbitrator. This being
so, his mandate automatically terminates, and he shall
then be substituted by another arbitrator under Section
14(1) itself. It is only if a controversy occurs concerning
whether he has become de jure unable to perform his
functions as such, that a party has to apply to the Court
to decide on the termination of the mandate, unless
otherwise agreed by the parties. Thus, in all Section 12(5)
cases, there is no challenge procedure to be availed of.
If an arbitrator continues as such, being de jure unable
to perform his functions, as he falls within any of the
categories mentioned in Section 12(5), read with the
Seventh Schedule, a party may apply to the Court, which
will then decide on whether his mandate has terminated.
Questions which may typically arise under Section 14
may be as to whether such person falls within any of
the categories mentioned in the Seventh Schedule, or
whether there is a waiver as provided in the proviso to
Section 12(5) of the Act.[…].”
(Emphasis supplied)

107. In Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV),
reported in (2024) 6 SCC 211, this Court held that a party aggrieved
by the ineligibility of an arbitrator may approach the court under
Section 14(1)(a) of the Act, 1996. The relevant observations read
thus:-
80 [2026] 1 S.C.R.

Supreme Court Reports

“29. At this stage it would be crucial to notice that the Court
made a differentiation. It stated, firstly, that a disclosure
in writing about circumstances likely to give justifiable
doubts is to be made, at the stage of appointment, and
then stated that the disclosure can be challenged under
Sections 12(1) to 12(4) read with Section 13. The Court
however underlined that in the next category where the
person became ineligible to be appointed as arbitrator,
there was no need for a challenge to be laid before the
arbitrator. In such circumstances outlined in Section 12(5),
the party aggrieved could directly approach the court under
Section 14(1)(a). It was further underlined that in all cases
under Section 12(5), there is no challenge procedure to be
availed of and that if the arbitrator continues at such, the
ground of being unable to perform his function since he
falls in any of the categories enumerated in the Seventh
Schedule, the party concerned may apply to the court.
xxx
33. The decisions in HRD [HRD Corpn. v. GAIL, (2018)
12 SCC 471 : (2018) 5 SCC (Civ) 401] and Bharat
Broadband [Bharat Broadband Network Ltd. v. United
Telecoms Ltd., (2019) 5 SCC 755 : (2019) 3 SCC (Civ)
1] are unequivocal and to the effect that the issue of bias
should be raised before the same Tribunal at the earliest
opportunity. The advertence of the time-limit of 15 days is
nothing but a statutory incorporation of that idea. However,
when the grounds enumerated in the Seventh Schedule
occur or are brought to the notice of one party unless
such party expressly waives its objections, it is ipso facto
sufficient for that party, to say that the Tribunal’s mandate
is automatically terminated. The party aggrieved then can
go ahead and challenge the Tribunal’s continuation with
the proceedings under Section 14.”
(Emphasis supplied)

108. The Constitution Bench in CORE II (supra) affirmed the aforementioned
decisions and reiterated that the ineligibility of a person to act as an
arbitrator is a matter of law and goes to the root of the appointment.
[2026] 1 S.C.R. 81

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

Thus, when an arbitrator is de jure unable to perform his function,
his mandate would be automatically terminated under Section 14(1)
(a), and the parties would be within their rights to apply to the court
under Section 14(2) for termination of the arbitrator’s mandate and
appointment of a substituted arbitrator.

b. Challenge to the ineligibility of the arbitrator after arbitral
award has been passed
109. When an award has been passed, the proceedings before the
arbitral tribunal conclude, leaving no possibility of substituting the
arbitrator at this stage. In other words, once an award is passed,
the mandate of the arbitral tribunal also arrives at a conclusion. In
such circumstances, a party aggrieved by the arbitrator’s ineligibility
may challenge the award by filing an application under Section 34
of the 1996 Act, as an award passed by an ineligible arbitrator is
nullity, non-est, or void ab initio, and against the public policy of India.
110. Even where an interim award has been passed, it is liable to be set
aside, as it is not capable of being enforced. The fate of an interim
award and that of an arbitral award, in this regard, is identical. In
either circumstance, the parties would be required to initiate fresh
arbitration proceedings as per law. In Alpro Industries v. Ambience
(P) Ltd., reported in 2025 SCC OnLine Del 8373, the petitioner
assailed an interim award under Section 34 on the primary ground
of unilateral appointment. The Court observed thus:-
“41.⁠ ⁠In light of the findings in Mahavir Prasad (supra) and
my findings that the unilateral appointment of the Sole
Arbitrator in the present case is invalid and there has
been no express waiver in writing in terms of the proviso
to clause 12(5) of the Act, the Impugned Interim Award
is liable to be set aside. Consequently, the issue raised
by the respondents as to whether the Impugned Interim
Award constitutes an ‘interim award’ or not would not be
relevant. The Court cannot permit continuation of arbitral
proceedings before an Arbitral Tribunal which would be a
nullity and cannot result into an enforceable award. Hence,
I do not deem it necessary to go into the merits of the
challenge to the Impugned Interim Award.”
(Emphasis supplied)
82 [2026] 1 S.C.R.

Supreme Court Reports

111. An award passed by an arbitrator who is found to be ineligible cannot
be enforced. In CORE II (supra), a Constitution Bench of this Court
held that the concept of “public policy of India” and “fundamental
policy of Indian law” means complying with statues and judicial
precedents, and principles of natural justice. It was categorically held
that “the most basic notions of morality and justice” mentioned in
the Explanation 1 to Section 34(b) includes bias. The observations
of this Court in paragraphs 163 and 164 respectively reproduced
hereinbelow squarely apply to the facts of the present case. The
relevant extract has been reproduced thus:-
“158. Section 34(2)(b) specifically provides that an arbitral
award may be set aside if the court finds that the arbitral
award conflicts with the public policy of India. The provision
further clarifies “public policy of India” to only mean that
: (i) the making of the award was induced or affected by
fraud or corruption or was in violation of Section 75 or
Section 81; (ii) it is in contravention with the fundamental
policy of Indian law; or (iii) it is in conflict with the most
basic notions of morality or justice.
159. This Court has construed the expression “public
policy of India” appearing under Section 34 to mean the
“fundamental policy of Indian law”. [Ssangyong Engg. &
Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131, para
34 : (2020) 2 SCC (Civ) 213; NHAI v. P. Nagaraju, (2022)
15 SCC 1 : (2024) 2 SCC (Civ) 414, para 39] The concept
of “fundamental policy of Indian law” has been held to
cover compliance with statutes and judicial precedents,
adopting a judicial approach, and compliance with the
principles of natural justice. [MMTC Ltd. v. Vedanta Ltd.,
(2019) 4 SCC 163, para 11 : (2019) 2 SCC (Civ) 293] In
OPG Power Generation (India) (P) Ltd. v. Enexio Power
Cooling Solutions (India) (P) Ltd. [OPG Power Generation
(India) (P) Ltd. v. Enexio Power Cooling Solutions (India)
(P) Ltd., (2025) 2 SCC 417 : (2025) 1 SCC (Civ) 54] ,
this Court explained the concept of “fundamental policy of
Indian law” thus : (SCC pp. 467-68, paras 55-56)
“55. … The expression “in contravention with the
fundamental policy of Indian law” by use of the word
[2026] 1 S.C.R. 83

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

“fundamental” before the phrase “policy of Indian law”
makes the expression narrower in its application than
the phrase “in contravention with the policy of Indian
law”, which means mere contravention of law is not
enough to make an award vulnerable. To bring the
contravention within the fold of fundamental policy
of Indian law, the award must contravene all or any
of such fundamental principles that provide a basis
for administration of justice and enforcement of law
in this country.
56. Without intending to exhaustively enumerate
instances of such contravention, by way of illustration,
it could be said that
(a) violation of the principles of natural justice;
(b) disregarding orders of superior courts in India
or the binding effect of the judgment of a superior
court; and
(c) violating law of India linked to public good or
public interest, are considered contravention of the
fundamental policy of Indian law.”
160. In Avitel Post Studioz Ltd. v. HSBC PI Holdings
(Mauritius) Ltd. [Avitel Post Studioz Ltd. v. HSBC PI
Holdings (Mauritius) Ltd., (2024) 7 SCC 197, para 34 :
(2024) 3 SCC (Civ) 780] , this Court held that the most
basic notions of morality and justice under the concept of
“public policy” will include bias.
161. […] As a corollary, Section 34 places a responsibility on
the Arbitral Tribunals to ensure that the arbitral proceedings
are consistent with the fundamental policy of Indian law.
[Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1, pp.
69-70, para 70:“70. Arbitrators, like the courts, are equally
bound to resolve and decide disputes in accordance with
the public policy of the law. Possibility of failure to abide by
public policy consideration in a legislation, which otherwise
does not expressly or by necessary implication exclude
arbitration, cannot form the basis to overwrite and nullify the
arbitration agreement. This would be contrary to and defeat
84 [2026] 1 S.C.R.

Supreme Court Reports

the legislative intent reflected in the public policy objective
behind the Arbitration Act. Arbitration has considerable
advantages as it gives freedom to the parties to choose
an arbitrator of their choice, and it is informal,flexible and
quick. Simplicity, informality and expedition are hallmarks
of arbitration. Arbitrators are required to be impartial and
independent, adhere to natural justice, and follow a fair
and just procedure. Arbitrators are normally experts in
the subject and perform their tasks by referring to facts,
evidence, and relevant case law.”]
xxx
163. The possibility of bias is real in situations where
an arbitration clause allows a government company to
unilaterally appoint a sole arbitrator or control the majority
of the arbitrators. Since the Government has control over
the Arbitral Tribunal, it can chart the course of the arbitration
proceedings to the prejudice of the other party. Resultantly,
unilateral appointment clauses fail to provide an effective
substitute for judicial proceedings in India. Further, a
unilateral appointment clause is inherently exclusionary
and violates the principle of equal treatment of parties
and procedural equality.
164. Unilateral appointment clauses in a public-private
contract fail to provide the minimum level of integrity
required in authorities performing quasi-judicial functions
such as Arbitral Tribunals. Therefore, a unilateral
appointment clause is against the principle of arbitration,
that is, impartial resolution of disputes between parties.
It also violates the nemo judex rule which constitutes
the public policy of India in the context of arbitration.
Therefore, unilateral appointment clauses in public-private
contracts are violative of Article 14 of the Constitution for
being arbitrary in addition to being violative of the equality
principle under the Arbitration Act.”
(Emphasis supplied)
112. What emerges from the foregoing is that the appellants were well
within their right to challenge the ineligibility of the sole arbitrator in
an application under Section 34 of the Act, 1996.
[2026] 1 S.C.R. 85

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

c. Challenge to the ineligibility of the arbitrator at any stage
of the proceedings
113. A challenge to an arbitrator’s ineligibility could be raised at any stage
because an award passed in such circumstance is non-est, i.e., it
carries no enforceability or recognition in law. We say so because
an arbitrator does not possess the jurisdiction to pass an award. In
arbitration, the parties vest the jurisdiction in the tribunal by virtue of a
valid arbitration agreement and an appointment made in accordance
with the provisions of the Act, 1996. This jurisdiction is grounded in
the consent of the parties as explained in the foregoing paragraphs
of this judgment.
114. In this context, jurisdiction means the authority of an arbitral tribunal
to render a decision affecting the merits of the case. An arbitrator
who lacks jurisdiction cannot make an award on the merits. With a
view to dispel any doubt and lend clarity, we deem it appropriate to
observe that the jurisdiction of the arbitral tribunal is distinct from
the admissibility of the dispute, i.e., the arbitrability of the claims.
115. A question pertaining to the jurisdiction of the arbitral tribunal arises
when the tribunal is fundamentally incompetent to render any decision
at all. In other words, a question of jurisdiction pertains to the ability
of the tribunal to hear a case, whereas questions of admissibility
presuppose that the tribunal has jurisdiction. An award passed by an
arbitrator who does not have jurisdiction strikes at the very authority
of the arbitrator.
116. This Court, in catena of decisions, has held that the validity of a
decree can be challenged even in execution proceedings if the
court passing such decree lacked subject-matter jurisdiction over
the dispute. As a decree passed by a court without jurisdiction goes
to the root of the matter. Any decision passed by a court lacking
jurisdiction would be coram non judice, since a court cannot give
itself jurisdiction. No act of the parties can cure an inherent lack
of jurisdiction.
117. In Hira Lal Patni v. Kali Nath, reported in 1961 SCC OnLine SC
42, this Court held that competence of a court to decide a case
goes to the root of the matter, and incompetency results in inherent
lack of jurisdiction. As a result, a decision rendered by a court that
lacks jurisdiction is a nullity. The relevant observations read thus:-
86 [2026] 1 S.C.R.

Supreme Court Reports

“4. […] The validity of a decree can be challenged in
execution proceedings only on the ground that the court
which passed the decree was lacking in inherent jurisdiction
in the sense that it could not have seisin of the case because
the subject-matter was wholly foreign to its jurisdiction or
that the defendant was dead at the time the suit had been
instituted or decree passed, or some such other ground
which could have the effect of rendering the court entirely
lacking in jurisdiction in respect of the subject-matter of the
suit or over the parties to it. But in the instant case there
was no such inherent lack of jurisdiction. The decision
of the Privy Council in the case of Ledgard v. Bull [13
Indian Appeals 134] is an authority for the proposition
that consent or waiver can cure defect of jurisdiction but
cannot cure inherent lack of jurisdiction. In that case, the
suit had been instituted in the Court of the Subordinate
Judge, who was incompetent to try it. By consent of the
parties, the case was transferred to the Court of the District
Judge for convenience of trial. It was laid down by the
Privy Council that as the court in which the suit had been
originally instituted was entirely lacking in jurisdiction, in the
sense that it was incompetent to try it, whatever happened
subsequently was null and void because consent of parties
could not operate to confer jurisdiction on a court which
was incompetent to try the suit. […] It is well settled that the
objection as to local jurisdiction of a court does not stand
on the same footing as an objection to the competence
of a court to try a case. Competence of a court to try a
case goes to the very root of the jurisdiction, and where
it is lacking, it is a case of inherent lack of jurisdiction. On
the other hand, an objection as to the local jurisdiction of
a court can be waived and this principle has been given
a statutory recognition by enactments like Section 21 of
the Code of Civil Procedure.[…]”
(Emphasis supplied)

118. We may look into the decision of this Court in Hindustan Zinc
Ltd. v. Ajmer Vidyut Vitran Nigam Ltd., reported in (2019) 17
SCC 82. The submission canvassed before this Court was that an
objection to jurisdiction could not have been raised in a proceeding
[2026] 1 S.C.R. 87

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

under Section 37 of the Act, 1996, once the parties had consented
to arbitration. In the said decision it was held that an objection to
the inherent lack of jurisdiction can be taken at any stage and also
in collateral proceedings. Furthermore, that a decree passed without
jurisdiction is a nullity. The relevant observations read thus:-
“17. We are of the view that it is settled law that if there is
an inherent lack of jurisdiction, the plea can be taken up
at any stage and also in collateral proceedings. This was
held by this Court in Kiran Singh v. Chaman Paswan [Kiran
Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954
SC 340] as follows : (SCR p. 121 : AIR p. 342, para 6)
“6. … It is a fundamental principle well-established that
a decree passed by a court without jurisdiction is a
nullity, and that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction, whether
it is pecuniary or territorial, or whether it is in respect
of the subject-matter of the action, strikes at the very
authority of the Court to pass any decree, and such
a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be
determined only on the application of general principles
governing the matter, there can be no doubt that the
District Court of Monghyr was coram non judice, and
that its judgment and decree would be nullities.”
18. Therefore, it is a little difficult to countenance Shri
Vaidyanathan’s argument that having consented, the
respondent cannot now turn around and challenge the
very appointment of the arbitrator as being invalid and
without jurisdiction.”
(Emphasis supplied)

119. In Bhim Bahadur v. Vikram Singh, reported in 2015 SCC OnLine
Utt 1563, when the issue before the High Court was whether the
subject land therein was agricultural or abadi in nature. The Court
held that the matter had to be referred to a revenue court under the
Uttar Pradesh Zamindari Abolition & Land Reforms Act. The relevant
observations read thus:-
88 [2026] 1 S.C.R.

Supreme Court Reports

“11. In this regard, the law is well established to the
effect that competency of the jurisdiction or the lack of
the same in a particular Court cannot be determined by
either of the parties through their pleadings, viz., the Court
having jurisdiction under the law to decide a particular
issue cannot be kept away from deciding the same on
the basis of averments made by the parties and, in the
same manner, the jurisdiction cannot be conferred on a
particular Court on the basis of pleadings and admission
thereof to decide a particular issue wherefor the law does
not confer jurisdiction to the Court.”
(Emphasis supplied)

120. All that we are trying to convey is that, in civil law, the law itself
confers subject-matter jurisdiction on specific courts. For instance, a
suit seeking a declaration on the validity of marriage before the Civil
Court is not maintainable, as such disputes fall within the exclusive
jurisdiction of the Family Court. Similarly, in arbitration, the consent of
parties confers subject-matter jurisdiction, i.e., the authority to decide
the dispute. When an arbitral tribunal is unilaterally constituted, such
consent is absent, thereby divesting the tribunal of subject-matter
jurisdiction. The Act, 1996, does not recognize the conferral of
jurisdiction on an arbitral tribunal without the consent of the parties.
By entering into an express agreement in writing as per the proviso
to Section 12(5), the parties not only waive the ineligibility of the
proposed arbitrator but also consent to his appointment.
121. Before we part, we deem it fit to observe that an arbitrator is better
equipped with the position of law on appointments, more particularly,
unilateral appointments. Therefore, it becomes incumbent upon the
arbitrator that upon entering reference and at the very first hearing,
to ensure from the parties that they are willing to participate in the
proceedings and to insist upon a written agreement waiving the
requirement of Section 12(5) of the Act, 1996.
122. Further, in such circumstances referred to above, if any party does
not appear despite receipt of notice, the arbitrator shall not proceed
further and shall immediately withdraw from the arbitral proceedings.
The arbitrator must, along with the waiver agreement, record the
minutes even when the parties are cooperating. This would certainly
save time and avoid multiplicity of proceedings.
[2026] 1 S.C.R. 89

Bhadra International (India) Pvt. Ltd. & Ors. v.
Airports Authority of India

VIII. CONCLUSION
123. A conspectus of the aforesaid detailed discussion on the position of
law as regards Section 12 of the Act, 1996, is as follows:-
i. The principle of equal treatment of parties provided in Section
18 of the Act, 1996, applies not only to the arbitral proceedings
but also to the procedure for appointment of arbitrators. Equal
treatment of the parties entails that the parties must have an
equal say in the constitution of the arbitral tribunal.
ii. Sub-section (5) of Section 12 provides that any person whose
relationship with the parties or counsel, or the dispute, whether
direct or indirect, falls within any of the categories specified in
the Seventh Schedule would be ineligible to be appointed as
an arbitrator. Since, the ineligibility stems from the operation
of law, not only is a person having an interest in the dispute or
its outcome ineligible to act as an arbitrator, but appointment
by such a person would be ex facie invalid.
iii. The words “an express agreement in writing” in the proviso to
Section 12(5) means that the right to object to the appointment
of an ineligible arbitrator cannot be taken away by mere
implication. The agreement referred to in the proviso must be
a clear, unequivocal written agreement.
iv. When an arbitrator is found to be ineligible by virtue of
Section 12(5) read with the Seventh Schedule, his mandate is
automatically terminated. In such circumstance, an aggrieved
party may approach the court under Section 14 read with
Section 15 for appointment of a substitute arbitrator. Whereas,
when an award has been passed by such an arbitrator, an
aggrieved party may approach the court under Section 34 for
setting aside the award.
v. In arbitration, the parties vest jurisdiction in the tribunal by
exercising their consent in furtherance of a valid arbitration
agreement. An arbitrator who lacks jurisdiction cannot make an
award on the merits. Hence, an objection to the inherent lack
of jurisdiction can be taken at any stage of the proceedings.
124. For all the foregoing reasons, we have reached the conclusion
that the High Court committed an egregious error in passing the
90 [2026] 1 S.C.R.

Supreme Court Reports

impugned judgment. We are left with no other option but to set
aside the impugned judgment. As a result, the arbitral awards dated
30.07.2018 passed by the sole arbitrator are also set aside.
125. It would be open to the parties to initiate fresh arbitration proceedings
in accordance with law.
126. In the result, the appeals succeed and are hereby allowed. Pending
applications, if any, shall stand disposed of.

Result of the case: Appeals allowed.

†
Headnotes prepared by: Ankit Gyan