By S&S Co. Advocates & Solicitors · Published 27 August 2026 · Informational content, not legal advice. See our disclaimer
Why Independence and Impartiality Matter So Much in Arbitration
Because an arbitral award is generally reviewable only on narrow, limited grounds, the integrity of the tribunal itself carries outsized importance. Section 12 of the Arbitration and Conciliation Act, 1996, substantially strengthened by the 2015 amendment, is the primary statutory mechanism for ensuring an arbitrator is, and appears to be, independent and impartial before and during the arbitration.
The Disclosure Obligation
Section 12(1) requires a prospective arbitrator, before accepting appointment, to disclose in writing any circumstances likely to give rise to justifiable doubts as to independence or impartiality, using the categories set out in the Sixth Schedule as a disclosure form, and having regard to the illustrative circumstances listed in the Fifth Schedule (based on the IBA Guidelines on Conflicts of Interest in International Arbitration). This is a continuing obligation: an arbitrator must disclose such circumstances not only at the outset but throughout the arbitration, as and when they arise.
Two Different Thresholds: Fifth Schedule vs Seventh Schedule
The Act draws an important distinction between two categories of conflict. Circumstances falling within the Seventh Schedule create an automatic, ineligibility-triggering bar under Section 12(5): a person with such a relationship (for example, certain categories of close relationship with a party, or being an employee or consultant of a party) is simply ineligible to be appointed, and this can only be waived by an express agreement in writing made after the dispute has arisen. By contrast, circumstances falling within the Fifth Schedule require disclosure and give rise to a challenge only if a reasonable, fair-minded third person would conclude there is a real, and not merely fanciful or theoretical, likelihood of bias.
How the Challenge Procedure Works
A challenge under Section 12(3), read with Section 13, is first raised before the arbitral tribunal itself (including, where relevant, before the challenged arbitrator, unless the parties have agreed on a different procedure such as an institution's own challenge mechanism). If the tribunal rejects the challenge, the arbitration continues and the challenging party's remedy is to raise the objection again in a subsequent application to set aside the award under Section 34, rather than approaching a court directly and immediately to remove the arbitrator mid-proceeding: a deliberate design choice to prevent challenge procedures from being used to stall arbitrations.
Frequently Asked Questions
What is the difference between the Fifth and Seventh Schedules?
The Seventh Schedule lists relationships that create an automatic statutory ineligibility under Section 12(5), waivable only by express written agreement after the dispute arises; the Fifth Schedule lists circumstances requiring disclosure, which support a successful challenge only if they would raise a real apprehension of bias in the eyes of a reasonable, fair-minded person.
Can the parties waive a Seventh Schedule disqualification?
Yes, but only through an express agreement in writing, made after the dispute in question has arisen: a general waiver in the original contract, before any dispute exists, is not sufficient.
If the tribunal rejects my Section 12 challenge, can I go straight to court to remove the arbitrator?
Generally no: the usual route is for the arbitration to continue, with the objection preserved and raised again, if necessary, in a subsequent Section 34 challenge to the eventual award.
Does disclosure by the arbitrator automatically disqualify them?
No. Disclosure is meant to give the parties the information needed to assess a possible conflict; disqualification under the Fifth Schedule standard follows only if the disclosed circumstance would raise a real, reasonable apprehension of bias, not from disclosure alone.
References & Further Reading
This article references the following statutory provisions. It is educational content, not advice on any specific dispute.
- Arbitration and Conciliation Act, 1996, Section 12 and the Fifth, Sixth and Seventh Schedules: arbitrator independence, impartiality and disclosure.
- See our Arbitration & Dispute Resolution practice area for further reading.