Section 11 of the Arbitration and Conciliation Act, 1996 deals with the
appointment of arbitrators. A person of any nationality may be appointed
arbitrator unless the contrary intention is expressed by the parties. The
parties are free to agree on a procedure for appointment of arbitrator or
arbitrators. Where parties fail to appoint three arbitrators, each party shall
appoint one arbitrator and the two arbitrators shall appoint the third
arbitrator. Hence, appointing three arbitrators is mandatory, with the third one
being the presiding arbitrator.
Where a party fails to appoint an arbitrator in accordance with the third
arbitrator with the within thirty days from the date of receipts of a request to
do so from the other party or two appointed arbitrators fail to agree on the
third arbitrator within 30 days from the date of their appointment, the
appointment shall be made, upon a request of a party, by the Chief Justice of
the High Court or any person or institution designated by him.
In the absence of
any procedure to appoint a sole arbitrator, if the parties fail to agree on the
arbitrator within 30 days from receipt on a request by one party from the other
party to so agree, the appointment shall be made upon request of a party, by the
Chief Justice of the High Court or any person or institution designated by him.
Where under an appointment procedure agreed upon by the parties:
- a party fails to act as required under that procedure; or,
- the parties or two appointed arbitrators fail to reach an agreement as
required under that procedure, or
- a person including an institution fails to perform any function as
required under that procedure, a party may request the Chief Justice of the
High Court or any person or institution designated by him to take the
necessary measures in absence of an agreement for other means of securing
The decision of the Chief Justice of the High Court or the person or the
institution designated by him in appointing an arbitrator shall be final.
such appointment, two considerations are to be made:
- Required qualifications of the arbitrator as provided in the agreement
of the parties, and
- independent and impartial person as an arbitrator.
These are the circumstances under which the Chief Justice of a High Court can
make an appointment.
In case of appointment of a sole or third arbitrator in international commercial
arbitration, the appointing authority is the Chief Justice of India or a person
or institution designated by him.
Important case laws:
In Indian Drugs & Pharmaceuticals Ltd. v. Indo Swiss S. Gem
Mfg. Co. Ltd
., it has been held that no retired High Court Judge can be
appointed as an arbitrator by the court when the arbitration clause states
categorically that the difference/dispute shall be referred “to an arbitrator by
the Chairman and Managing Director of IPDL who is the appellant in this
In National Aluminium Co.Ltd v. Metalimpex Ltd.
, a Bangladeshi company
failed to nominate its arbitrator in terms of the arbitration agreement on an
application under S.11 of the Arbitration and Conciliation Act, 1996, the Chief
Justice of India nominated an arbitrator to act on behalf of the Bangladeshi
Procedure for the appointment:
Section 11 only confers power on the High Court
to appoint an arbitrator or presiding arbitrator only when the following
conditions are fulfilled:
- where there is a valid arbitration agreement;
- the agreement contains for the appointment of one or more arbitrators;
- the appointment of the arbitrator is to be made by mutual consent of all
the parties to the dispute.
- differences have arisen between the parties to the arbitration
agreement; or between the appointed arbitrators;
- the differences are on the appointment or appointments of arbitrators.
Appointment of a third arbitrator by the court in case of disagreement between
In ICICI Ltd. v. East Coast Boat Builders & Engineers Ltd.
, two arbitrators were
appointed by respective parties, but they did not agree on the name of the third
arbitrator. The petitioner made an application for appointment of the third
arbitrator by the court under s.11 of the Act. The court accepted the prayer and
appointed the third arbitrator.
Lack of jurisdiction to appoint the arbitrator:
In Kanagarani Durairaj v. Dwaragan
, it was held that:
“in absence of a delegation
of power by the Chief Justice of High Court under s.11 of the Act, the City
Civil Court has no jurisdiction to appoint an arbitrator under s.11 of the
The disagreement between arbitrators:
If there is any disagreement between the arbitrators, there is no award and
the jurisdiction of the presiding arbitrator can be invoked. In the absence of
any contrary provision in the arbitration agreement, the presiding arbitrator
can adjudicate the whole case if the arbitrators disagree on any particular
point, as held in Probodh v. Union of India
Appointment of Presiding Officer (Umpire)
The question for the appointment of Presiding Officer arises only when there is
a conflict of opinion between an even number of arbitrators. Appointment of the
third arbitrator may be made in any one of the two following cases:
- By the parties themselves at the time of submission, and
- by the arbitrators.
Appointment of the sole arbitrator:
Where a sole arbitrator is appointed, it must be notified to the other side,
otherwise, his appointment cannot be considered valid.
Appointment of presiding arbitrator:
As soon as the arbitrators accept their appointments and communicate with each
other the reference, they are presumed to have entered upon the reference. When
one of the arbitrators refuses to act or concur on the appointment of a third
arbitrator, there is a disagreement and in such as case, the Chief Justice of
the High Court is competent to make the appointment of the presiding arbitrator.
The arbitrator should be chosen carefully because of his special knowledge of
the subject matter which is in dispute. He should be able to keep the atmosphere
clear at the tribunal and must be free from forensic eloquence and to see that
the evidence in the manner customary in the court of law and equity. He must
give attention to the facts in dispute placed before him and his decision should
be practical and impartial and in the best interest of justice, good conscience,