The Delhi High Court has held that the stipulation in an arbitration agreement regarding the institution under whose aegis arbitration is to be conducted can be modified by mutual consent of the parties, with such modification being capable of being recorded by the Court.
Justice Sachin Datta was hearing a petition filed by Axis Finance Limited under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole arbitrator in disputes arising from a personal loan agreement. The agreement provided for arbitration, including a provision that proceedings could be administered electronically under an Online Dispute Resolution (ODR) platform.
During the proceedings, the respondents agreed to the appointment of an arbitrator but disputed the provision requiring arbitration to be administered through an ODR platform. The parties instead consented to have the arbitration conducted under the aegis of the Delhi International Arbitration Centre (DIAC).
The Court noted that the parties’ agreed modification was limited to the forum administering the arbitration, while leaving undisturbed the agreed number of arbitrators, juridical seat and governing law. Relying on the Supreme Court’s decision in Shaf Broadcast (P) Ltd. v. Doordarshan, the Court held that an arbitration agreement can be modified pro tanto by mutual consent when such consent is arrived at during the proceedings and recorded in the Court’s order.
With the parties’ consent, the Court appointed Aastha Chawla, Advocate, as the Sole Arbitrator and directed that the arbitration would take place under the aegis of and in accordance with the DIAC Rules. The parties’ rights and contentions on the underlying claims and counter-claims were left open for determination on merits.
