Arbitration- Bias among arbitrators in govt contracts

1. in govt contracts the standard form has a arb clause that stipulates that the arbitrator is a
nominee of the authority. the nominee in many cases has been a person with direct
linkages with the authority or the dispute. in certain cases the head of the department or
other associated officals have been appointed.
2. Sec 11 of the arb regarding who can be an arbitrator does not prohibit such agreements.
the only bar is the consent under Sec 13 of the contracts act. Govt contractors have no
alternative but to agree to such terms to undertake works of such nature.
3. actual bias- where there is a direct linkage between the arbitrator and the person
appointing him
4. apparent bias- it arises from the behavior or the conduct of the person.
5. The act creates a legal duty that the arbitrator disclose any circumstance that that gave
rise to gave rise to justifiaable doubts regarding the the independence or impartiality of
the arbitrator. moreover in such situation the arbitral tribunal can rule on its competence .
the party is usually unwilling to challenge out of fear of adverse ruling in the future if his
challenge fails.
6. In BSNL vs Motorola India1 , the arbitration agreement contained a bar on objections
being raised by the respondent, regarding the appointment of an arbitrator. The arbitrator
in this situation was a nominee of the appellant, BSNL.
7. In Bipromasz Bipron Trading SA vs Bharat Electronics Limited, 2 the foreign appellant
realized, after a dispute arose, that the arbitration clause created a situation where the
arbitrator could be inimical to their interests. The arbitration clause stated that the
arbitrator would be the Managing Director or his nominee. The managing director of the
respondent was also the officer responsible for executing the project. The appellants
argued that there would be an apprehension of bias throughout the proceedings .The court
held that in normal circumstances the court would have to enforce the terms of the
arbitration agreement, however, presence of a conflict of interests meant that the court
would have the power to appoint the arbitrator.
8. In Union of India vs Singh Builders Syndicate3 , there was a dispute between the railways
and a contractor. The contractor made a request for arbitration in 1999. Clause 64 of the
relevant general terms and conditions of contract stipulated that two serving Gazetted
railway officers would be appointed as arbitrators. The appellants kept trying to defer the
commencement of arbitration proceedings by transferring the arbitrators. The Bombay
High Court appointed a retired judge as the arbitrator. The Railways challenged the order
of the High Court and approached the Supreme Court. The court upheld the decision of
the High Court. It highlighted how the appellants had converted the arbitration process
into a farce, by appointing officers who were due for a transfer as arbitrators and delaying
the proceedings for ten years. The court observed that the appointment of officers as
arbitrators created "considerable resistance from the other party, when disputes arise."
Therefore, it was recommended that such clauses be phased out.
9.

1 AIR 2009 SC 357

2 (2012) 6 SCC 384
3 2010 (3) ALT 2 (SC)
Duties and responsibilities of a director

Sec 311 CrPc

 SLP from Cal HC - Dying declaration recorded by the Investigating officer, but not
brought to attention of court after charges were filed or even when interrogated
 Section 311 of the Code is one of many such provisions of the Code which strengthen the
arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is
couched in very wide terms.
 It empowers the court at any stage of any inquiry, trial or other proceedings under the
Code to summon any person as a witness or examine any person in attendance, though
not summoned as witness or recall and re-examine already examined witness.
 The second part of the Section uses the word 'shall'. It says that the court shall summon
and examine or recall or re-examine any such person if his evidence appears to it to be
essential to the just decision of the case. The words 'essential to the just decision of the
case' are the key words.
 The court must form an opinion that for the just decision of the case recall or re-
examination of the witness is necessary. Since the power is wide it's exercise has to be
done with circumspection. It is trite that wider the power greater is the responsibility on
the courts which exercise it.
 The exercise of this power cannot be untrammeled and arbitrary but must be only guided
by the object of arriving at a just decision of the case. It should not cause prejudice to the
accused. It should not permit the prosecution to fill-up the lacuna.
 Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case
depends on facts and circumstances of each case. In all cases it is likely to be argued that
the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is
for the court to consider all the circumstances and decide whether the prayer for recall is
genuine.

 Mohanlal Soni is followed in all subsequent judgments. In Mohanlal Soni this Court
was considered the scope of Section 540 of the Code of Criminal Procedure, 1898 ( the
old code) which is similar to Section 311 of the Code. This Court observed that it is a
cardinal rule in the law of evidence that the best available evidence should be brought
before the court to prove a fact or the points in issue.
Sec 1138 evidence act
 Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-
examine a witness as regards information tendered in evidence by him during his initial
examination in chief, and the scope of this provision stands enlarged by Section 146 of
the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his
veracity.
 Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that
it is impossible for the witness to explain or elaborate upon any doubts as regards the
same, in the absence of questions put to him with respect to the circumstances which
indicate that the version of events provided by him, is not fit to be believed, and the
witness himself, is unworthy of credit.
 Thus, if a party intends to impeach a witness, he must provide adequate opportunity to
the witness in the witness box, to give a full and proper explanation. The same is essential
to ensure fair play and fairness in dealing with witnesses.
 Order of re-examination is also prescribed calling for such a witness so desired for such
re-examination. Therefore, a reading of Section 311 Cr.P.C. and Section 138 Evidence
Act, insofar as it comes to the question of a criminal trial, the order of re-examination at
the desire of any person under Section 138, will have to necessarily be in consonance
with the prescription contained in Section 311 Cr.P.C.
 It is, therefore, imperative that the invocation of Section 311 Cr.P.C. and its application in
a particular case can be ordered by the Court, only by bearing in mind the object and
purport of the said provision, namely, for achieving a just decision of the case as noted by
us earlier. The power vested under the said provision is made available to any Court at
any stage in any inquiry or trial or other proceeding initiated under the Code for the
purpose of summoning any person as a witness or for examining any person in
attendance, even though not summoned as witness or to recall or re-examine any person
already examined.
 Insofar as recalling and re-examination of any person already examined, the Court must
necessarily consider and
ensure that such recall and re-examination of any person,
appears in the view of the Court to be essential for the just
decision of the case. Therefore, the paramount requirement is just decision and for that
purpose the essentiality of a person tobe recalled and re-examined has to be ascertained.
To put it differently, while such a widest power is invested with the Court,it is needless to
state that exercise of such power should be made judicially and also with extreme care
and caution