The Bench of Justice DY Chandrachud, Sanjiv Khanna, and Surya Kant has nominated Fortmer Justice TS Takhur as Nominee arbitrator for ONGC and Former Justice Dipak Misra has been nominated as nominee arbitrator for Afcons and asked both the arbitrators to appoint a third arbitrator as per the provisions of Arbitration and Conciliation Act, 1996.

The three judges bench held that "Dr. Abhishek Manu Singhvi, senior counsel appearing on behalf of the respondent states that Afcons Gunanusa JV has nominated Shri Justice Dipak Misra, former Chief Justice of India as their nominee Arbitrator. Mr. K K Venugopal, Attorney General for India states that Oil and Natural Gas Corporation Ltd has nominated Shri Justice T S Thakur, former Chief Justice of India as their nominee Arbitrator. The two Arbitrators are requested to proceed to appoint the third Arbitrator in terms of the provisions of the Arbitration and Conciliation Act 1996,"

While the place of hearing would be Delhi as agreed by both the parties, the Bench further held that "The Arbitral Tribunal shall continue from the stage which was reached before the earlier tribunal. The pleadings, evidence, and documents which were before the earlier Tribunal shall be transmitted to the newly constituted arbitral tribunal."

"The parties have agreed that the fees of the Arbitrators shall be paid in accordance with the Fourth Schedule to the Arbitration and Conciliation Act 1996", the Bench held further.

Justice Misra Retired as Chief Justice of India on 02nd October, 2018 whereas Justice TS Takhur retired as Chief Justice of India on 04th January, 2017. 

In its judgment dated 30th August, the Supreme Court held that arbitrators do not have the power to issue binding and enforceable orders determining their own fees as such determination would violate the principles of party autonomy.

The facts of the case as held by the supreme Court are "NTPC and Afcons-Shetty and Company Private LimitedJV8 , entered into a contract for the construction of a ―desilting arrangement package for Koldam Hydro Electric Power (Package-3) Project‖. When disputes arose between the parties, Afcons-Shetty invoked arbitration for a claim of about Rs 37 crores. An arbitral tribunal was to be constituted in terms of Clause 67.3 of the contract. Both parties nominated their arbitrators – NTPC nominated Shri Krishna Mohan Singh and Afcons-Shetty nominated Shri Santanu Basu Rai Chaudhuri. When the nominated arbitrators failed to appoint a presiding arbitrator, Afcons-Shetty approached the Delhi High Court under Section 11 of the Arbitration Act9, which then appointed Justice Manmohan Sarin as the presiding arbitrator on 21 May 2018 with the consent of parties."

Case Details:-

Arbitration Petition (Civil) No. 05 of 2022
Oil and Natural Gas Corporation Ltd. .... Petitioner

Versus
Afcons Gunanusa JV .... Respondent

Real Complete Judgment Dated 30.08.2022:-

https://main.sci.gov.in/supremecourt/2021/28254/28254_2021_2_1501_37867_Judgement_30-Aug-2022.pdf

Read the Complete order dated 21.09.2022:-

https://main.sci.gov.in/supremecourt/2021/28254/28254_2021_2_301_38535_Order_21-Sep-2022.pdf