What Happens If an Arbitrator Resigns or Dies During a DIAC Case?

A DIAC arbitrator has left. The short answer

Your case carries on with a new arbitrator. When an arbitrator in a Delhi International Arbitration Centre (DIAC) matter dies, resigns, withdraws or is removed, Rule 11.1 of the DIAC (Arbitration Proceedings) Rules, 2023 says the Chairperson appoints a substitute under the Rules. Nothing on the file disappears. The claim, the pleadings, the evidence and every order already passed stay where they are.

Rule 11.3 says that, unless otherwise directed, the reconstituted tribunal picks up from the stage the case had reached. Section 15 of the Arbitration and Conciliation Act, 1996 adds two safeguards. An order or ruling made before the change isn't invalid just because the tribunal's composition has changed. And hearings already held may be repeated if the new tribunal thinks fit. So you don't go back to zero. You may, though, have to argue for re-hearing some of it, or against.

At DIAC most substitutions are handled on the administrative side. Weeks, usually, not months. Your real work is elsewhere: checking the new arbitrator, protecting the time limit, and deciding what the newcomer needs to hear afresh. If you need help on a DIAC matter at any stage, our DIAC arbitration page explains how we work.

What the law says: Sections 14 and 15 and the DIAC Rules

Why do arbitrators leave halfway through?

Death and serious illness are the obvious reasons, and because DIAC's panel has a good number of retired judges on it, that's not a remote risk in a case that runs for two or three years. It happens. Resignation happens more often. An arbitrator may be appointed to a tribunal, commission or public office that rules out private arbitration work. A conflict may surface late. Say a company in the same group as one party instructs the arbitrator's old firm, and the arbitrator would rather step down than face a challenge. And some arbitrators resign because their diary can't take a long run of evidence dates any more.

Removal is the third way out. A party can challenge the arbitrator before DIAC under Rule 10, on justifiable doubts about independence or impartiality. If the challenge succeeds, a substitute is appointed. A party can also complain that the arbitrator is sitting on the file. No dates. An award reserved and never delivered. Time limits ignored. Rule 11.2 lets the Centre act on that once it has heard everyone in writing, and Section 14 gives the court a backstop.

Then there's the arbitrator who becomes ineligible in law. Under Section 12(5) and the Seventh Schedule, certain relationships with a party or with counsel bar a person from acting. If one of those arises during the case, the arbitrator can't carry on. Grounds and deadlines for objecting are in our guide to challenging a DIAC arbitrator.

Who picks the substitute under Section 15?

At DIAC, the Chairperson does, under Rule 11.1 and in line with the Rules. Section 15(2) of the Act points the same way. The substitute is appointed by whatever method applied to the original appointment. If DIAC picked the first arbitrator from its panel because the parties couldn't agree, the Centre picks again. It's less clear where the departing arbitrator was one side's nominee on a three-member tribunal. Write to the Secretariat as soon as the seat falls vacant and ask whether that side will be invited to nominate the replacement. Don't wait to be told.

Some arbitrations come to DIAC through a court. On a petition under Section 11, the Delhi High Court often appoints an arbitrator and directs that the case run under the aegis of DIAC. When that arbitrator leaves, can the Centre appoint the replacement, or must the parties go back to the High Court? It turns on the wording of the court's order and the Rules it applied. Read that order line by line. Twice. Our guide on how Section 11 references reach DIAC explains how such orders are usually framed.

What if the contract named one particular person as arbitrator, and that person dies? In ACC Ltd v. Global Cements Ltd (2012), the Supreme Court held that the named arbitrator's death doesn't by itself end the arbitration agreement. A substitute can be appointed, unless the clause shows the parties wanted nobody else to decide. Clauses saying only Mr X and no other shall act are rare. They do exist, though, and they change the answer. For how DIAC appoints arbitrators in the first place, see our guide to the DIAC panel and appointments.

After a DIAC arbitrator leaves: what happens, in order

1. DIAC tells the parties

   The Secretariat writes to both sides that the arbitrator has resigned, died or been removed, and cancels any listed dates. Heard about it on the grapevine first? Ask the Centre for written confirmation and the date the mandate ended.

2. The parties make any request about the appointment

   If you have a right to nominate, or want to suggest what kind of person should replace the arbitrator, write to the Centre quickly. Keep it short. Stick to facts.

3. The Chairperson appoints the substitute

   This happens under Rule 11.1. The new arbitrator gives a written disclosure under Section 12, in the Sixth Schedule form, setting out any relationship or circumstance that might affect independence or impartiality.

4. Check the disclosure, and object in time if you must

   Read it the day it lands. Under Rule 10, a challenge has to be made within fourteen days of the notice of appointment, or of learning the grounds. It goes with a processing deposit, which comes back if the challenge succeeds.

5. The new tribunal reads in and holds a procedural hearing

   DIAC sends the substitute the file: pleadings, documents, transcripts, procedural orders. A first hearing, usually online, settles how things go from here.

6. The parties argue over what, if anything, gets repeated

   Section 15(3) leaves it to the tribunal. The usual asks are recalling a witness whose credibility matters, or hearing final arguments again. Put in a short written note with reasons.

7. The case goes on to the award

   The tribunal picks the timetable back up, adjusted for the gap. Watch the Section 29A deadline the whole way through.

Does everything start again from scratch?

No. Some of it may be repeated, though. At DIAC the starting point is Rule 11.3. Proceedings resume from the stage already reached, unless otherwise directed. Section 15(4) protects earlier orders. A ruling on jurisdiction, a Section 17 interim order, an order allowing an amendment, a decision on producing documents: all stay in force. The new arbitrator needn't revisit them just because a different person now sits in the chair.

Whether hearings are repeated is a matter of discretion under Section 15(3). Where the evidence was mainly documentary and the transcripts are complete and agreed, there's usually little point. It's different when the case hangs on which witness to believe. Think of an oral promise to extend a delivery date, or what was said at a site meeting in Manesar. A party can fairly ask for that witness to be recalled so the new arbitrator can judge credibility first-hand. Tribunals tend to allow a limited recall. A full re-run, rarely.

Final arguments are another matter. If the arbitrator left after hearing arguments but before the award, the substitute will nearly always want to hear them again. Arguments are what connect the evidence to the issues. Budget for that sitting. In Advocate B.K. Singh's experience, the most useful thing you can give a new arbitrator is a fresh, short note of the evidence on each issue, with page references to the transcript. The old submissions won't do.

When the arbitrator leaves, and what usually follows

The arbitrator dies or resigns after reserving the award

This is the worst version. Everyone has done everything, and you're just waiting for the result. But an unsigned award isn't an award. Section 31 requires it to be in writing and signed, and a draft lying on the arbitrator's desk has no legal effect at all. The substitute has to decide the case personally. In practice that means reading the record and hearing arguments again.

If the arbitrator resigned rather than died, ask the Centre whether any of the work done (a summary of the evidence prepared by the tribunal, for instance) can be shared with the parties. Usually it can't stand in for the new arbitrator's own consideration of the record, and in our view it's far safer to carry on as if nothing had ever been written.

An arbitrator who sits on a reserved award for months and then resigns may have pushed the case past the Section 29A deadline. Check the dates the moment the resignation is announced. If expiry is near, ask the other side to agree the six-month extension under Section 29A(3), or file in court for an extension straight away. Don't wait for the new arbitrator.

The Section 29A clock keeps running

A new arbitrator doesn't reset the time limit. Section 29A wants the award within twelve months of the completion of pleadings. The parties can agree six months more. After that, only the court can extend. Two months to find a substitute, then two more for reading in and a re-hearing, can swallow a big slice of the time left. The extension procedure is set out in our guide to the Section 29A time limit at DIAC.

The court can substitute arbitrators too. When someone applies for an extension under Section 29A(5), the court may replace one or all of the arbitrators under Section 29A(6), particularly where the arbitrator caused the delay. The case then continues from where it stood, on what's already on record, and the new tribunal counts as a continuation of the old one. In Rohan Builders (India) Pvt Ltd v. Berger Paints India Ltd (2024), the Supreme Court held that an extension application can be filed even after the period has run out. That takes some of the panic away. File late, though, and you'll still face argument about it.

For a Delhi-seated DIAC arbitration of commercial value, the extension petition goes to whichever court has jurisdiction over the arbitration. Above the district court's limit, that's the Commercial Division of the Delhi High Court. Below it, the district Commercial Court. The district limit has stood at Rs 2 crore, and raising it has been under consideration. Check the current figure before you file.

Vetting the new arbitrator: disclosure and objections

Every new arbitrator must disclose in writing anything likely to raise justifiable doubts about independence or impartiality, in the Sixth Schedule form. Section 12(5) and the Seventh Schedule list relationships that disqualify a person outright, such as being a party's employee, consultant or adviser. The parties can waive that, but only by an express written agreement made after the dispute arose. The Fifth Schedule lists other circumstances that may raise doubts.

Don't just read the disclosure. Check it against your own records. Has the new arbitrator acted for or against your group companies? The other side's group? The lawyers on either side? If something's off, Rule 10 of the 2023 Rules needs a written challenge to DIAC within fourteen days of the notice of appointment, or of learning the facts. Give reasons, and pay the processing deposit, which is refunded if you win. Section 13 of the Act has its own fifteen-day window. Act fast. A party that carries on without objecting may be treated as having waived the point.

Equally, don't object just because you can. A failed challenge can bring costs under Rule 10. And a tribunal challenged without any basis may not warm to the challenger, however professional it is. For independence objections outside DIAC, the team at arbitrationlawyer.in handles them in ad hoc and other institutional matters.

And the fees you've already paid?

The outgoing arbitrator is generally paid for work actually done, assessed under the DIAC (Administrative Costs and Arbitrators' Fees) Rules, 2018 and the Centre's practice. The substitute is paid out of the deposits for the work that remains. Will you have to deposit more? That depends on the stage, the schedule, and how the Centre splits the fee. Ask the Secretariat for a written statement so you know where your money is.

If the arbitrator was removed for not doing the job, or resigned after a long delay, you can ask the Centre to take that conduct into account when it apportions the fee. A court extending time under Section 29A(4) can also cut the arbitrator's fees, by up to five percent for every month of delay the tribunal caused. Neither is automatic. For fee scales and deposits in general, see our guide on what DIAC arbitration costs.

Time and cost points when a DIAC tribunal is reconstituted

What to put in the file for the new arbitrator

• DIAC's letter confirming the vacancy, and its letter appointing the substitute
• The arbitration clause, and the order or letter that appointed the original arbitrator
• The pleadings, indexed: claim, defence, counter claim, replies and any amendments
• Every procedural order, with a one-page note of what each one decided
• The transcript or recorded deposition of each witness, checked to make sure nothing's missing
• The exhibited documents, carrying the exhibit marks used in evidence
• Any Section 17 interim orders, and whether they've been complied with
• The written submissions filed earlier, plus a fresh short note of issues with evidence references
• The date pleadings closed and the Section 29A deadline, with any extension already agreed or granted
• Fee receipts and DIAC's latest statement of deposits

When does a court come into it?

Most DIAC substitutions never see a courtroom. Few need to. Suppose one side says the arbitrator can no longer act, or is failing to act without undue delay, and the other side (or the arbitrator) disagrees. Either party can then ask the court under Section 14(2) to decide whether the mandate has ended. If it has, a substitute is appointed under Section 15.

You may also need a court where the original method can't produce a substitute. A court-appointed arbitrator leaves, say, and the court's order doesn't let the Centre replace him or her. Or a party that has the right to nominate simply won't. The usual route then is a petition under Section 11, read with Section 15(2). In Delhi, commercial arbitration petitions go to the Commercial Division of the High Court or the district Commercial Court, depending on value and on which court had jurisdiction.

Don't run to court first. If the arbitrator is merely slow, write to DIAC and ask it to look into the delay under Rule 11.2. It's quicker and cheaper. The court will want to know you tried it.

Mistakes to avoid when your DIAC arbitrator is replaced

• Forgetting the time limit. A substitution doesn't stop the Section 29A clock. Agree an extension, or go to court, while there's still time.
• Skipping the new disclosure. The fourteen-day window under Rule 10 runs from notice or knowledge. Object late and you may be treated as having waived it.
• Demanding that everything be heard again. Blanket requests rarely work and they burn time. Point to the one witness, or the one issue, where credibility really matters.
• Thinking the old draft award counts. It doesn't. Only a signed award is an award, and the substitute decides fresh.
• Going to court before writing to DIAC. With a slow arbitrator, the Centre's Rule 11.2 route comes first.
• Handing over a mess. If the new arbitrator has to piece the case together from scattered emails and loose PDFs, it'll take longer. Things may get misread, too.

Your DIAC arbitrator has gone: what to do this week

Ask DIAC to confirm the vacancy in writing, and how the substitute will be appointed. Work out when pleadings closed and when the Section 29A deadline falls. If the margin is thin, write to the other side proposing a six-month extension. Have a right to nominate? Draw up a shortlist and check every name for conflicts.

Next, get the file ready for the new arbitrator. That means indexed pleadings, transcripts, exhibits and orders, plus a short note of the issues and where the evidence on each one sits. Decide now whether there's a witness you really need recalled, and why. Advocate B.K. Singh usually asks clients to settle that within days of the vacancy. A recall request made at the first hearing is far easier to grant than one made after the new timetable is fixed. Our DIAC arbitration services page explains how we take over or support a pending DIAC matter.

Want your DIAC file, the substitute's disclosure or your time-limit position checked? Or an update on the law on reconstituted tribunals? Send your papers to Advocate B.K. Singh's team through the contact page.