Failure to approach a designated appointing authority renders an arbitration clause's time-limit for appointment enabling, not mandatory.

The Appellant (MCGM) awarded a consultancy contract for a sewage project to the Respondent in 1995.

Following disputes over outstanding dues, the Respondent invoked arbitration in 2005 under Clause 8.3(b) of the Agreement.

Both parties appointed nominee arbitrators, but the appointment of the Presiding Arbitrator was delayed as the parties explored conciliation.

After two previous presiding arbitrators resigned, the nominee arbitrators appointed Mr. Anwarul Haque on 24.10.2008.

MCGM participated in the preliminary meeting on 09.01.2009 but subsequently challenged the Tribunal's jurisdiction under Section 16 of the Arbitration and Conciliation Act, 1996 ("1996 Act"), arguing that since the appointment happened beyond the 30-day window stipulated in the contract, only the Secretary General of ICSID had the power to appoint.

The Tribunal rejected the plea, and the High Court of Bombay subsequently dismissed MCGM’s challenges under Sections 34 and 37.

Whether the Arbitral Tribunal was improperly constituted and lacked jurisdiction because the Presiding Arbitrator was appointed by the Co-Arbitrators after the expiration of the contractual 30-day period.

Whether the Appellant, by its conduct and participation in the proceedings, waived its right to object to the procedure of appointment.

The Court applied Section 16 of the 1996 Act, which empowers a tribunal to rule on its own jurisdiction.

It relied on Section 4 regarding the waiver of the right to object when a party proceeds without stating objections to non-compliance with the arbitration agreement.

The Court further applied the principle of judicial non-interference in arbitral awards under Section 34, noting the arbitrator is the master of contractual interpretation as held in *Consolidated Construction Consortium Ltd. v. STPI*.

Regarding waiver, it cited *Narayan Prasad Lohia v. Nikunj Kumar Lohia*, establishing that composition of a tribunal is a derogable matter.

Regarding the relinquishment of known rights, it cited *Hindustan Construction Co. Ltd. v. Bihar Rajya Pul Nirman Nigam Ltd.*

The Court found that Clause 8.3(b) was "enabling" rather than "restrictive."

The provision for ICSID appointment was a "fail-safe" triggered only upon a specific request by a party, which neither party made.

The Court reasoned that interpreting the clause to mean Co-Arbitrators lose power after 30 days would lead to "commercial absurdity," leaving the process in limbo indefinitely.

While MCGM filed its Section 16 application within the statutory timeline (before the Statement of Defence), its prior actions—consenting to keep proceedings in abeyance and failing to object through three successive appointments of presiding arbitrators—constituted acquiescence.

The Court held that a party cannot "keep a jurisdictional ace up their sleeve" while actively participating in the process.

The Court held that the Tribunal’s interpretation of Clause 8.3(b) was a "plausible view" that did not warrant interference.

It concluded that the appointment of the Presiding Arbitrator by the Co-Arbitrators was valid as no party had invoked the ICSID contingency.

Furthermore, the Appellant’s conduct of participating in the process without demur for years precluded it from later challenging the foundational appointment process.

The stay on the operation of the impugned order was vacated.