Appointment of Arbitrators (Section 11) →

Every arbitration begins with a deceptively simple question: who will sit in judgment? Section 11 of the Arbitration and Conciliation Act, 1996 answers it by privileging the parties' own choice and supplying a default machinery only when that choice fails. Around this short provision the Supreme Court has built one of the richest bodies of arbitration jurisprudence in India — from SBP & Co. v. Patel Engineering Ltd. on the nature of the appointing power, through TRF Ltd. v. Energo Engineering and Perkins Eastman v. HSCC on the death of unilateral appointments, to Vidya Drolia v. Durga Trading on how deep a court may probe before it appoints. This article maps the section, the schedules that police impartiality, and the case law that judiciary and CLAT-PG aspirants are routinely tested on.

The Scheme of Section 11: Party Autonomy First

Section 11 opens with a clear statement of priority. Under Section 11(2), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators, and a person of any nationality may be an arbitrator unless the parties agree otherwise (Section 11(1)). Only when that agreed procedure fails, or where there is no agreement at all, does the statutory default machinery come alive. The provision must be read alongside Section 2, which defines the "Court" and "arbitral tribunal", and Section 10, which fixes the number of arbitrators.

The architecture is built around three sub-sections. Section 11(3) supplies the default for a three-member tribunal: each party appoints one arbitrator, and the two appointed arbitrators appoint a third, who acts as the presiding arbitrator. Section 11(4) and Section 11(5) deal with breakdowns — a party's failure to appoint, or the two arbitrators' failure to agree on the presiding arbitrator. Section 11(6) is the catch-all, triggered where a party, the two arbitrators, or an institution fails to perform a function entrusted under an agreed procedure. In each case the remedy is an application to the Supreme Court (for international commercial arbitration) or the High Court (for domestic arbitration), or any person or institution designated by such Court.

Two features of this design deserve emphasis. First, court intervention is residual: the section never displaces an agreed appointment mechanism that is working, and a party cannot leapfrog to court while the contractual procedure remains capable of producing a tribunal. Second, the forum depends on the nature of the arbitration. The 2015 Amendment substituted "Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court" for the earlier "Chief Justice" formulation, so that the appointing authority is now the court as an institution rather than the Chief Justice in persona. For an international commercial arbitration the appointing court is the Supreme Court; for every other arbitration it is the High Court. This bifurcation matters because it also governs which court later supervises the reference under the rest of the Act.

Number of Arbitrators: The Odd-Number Rule and Its Limits

Section 10 provides that the parties are free to determine the number of arbitrators, provided that such number shall not be an even number, and that failing such determination the tribunal shall consist of a sole arbitrator. The odd-number requirement exists to forestall deadlock: a tribunal of one or three (or five) can always reach a majority, whereas a tie on a two-member tribunal would paralyse the proceedings.

What happens, though, when parties have nonetheless agreed on an even number? The Supreme Court answered in M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd., (1996) 6 SCC 716. The Court held that there is nothing in Section 7 to make the number of arbitrators part of the arbitration agreement; the validity of an arbitration agreement does not depend on the number specified in it. Section 10 is merely a machinery provision for the working of the agreement. Accordingly, an agreement providing for two arbitrators is not void; the two so appointed should themselves appoint a third to act as presiding arbitrator, curing the even-number defect rather than destroying the reference. The case is a staple illustration of how courts read arbitration clauses to save, not strike down, the parties' bargain — a theme that connects to the form and validity of the arbitration agreement.

The Default Appointment Machinery and the 30-Day Trigger

The default machinery is time-bound. Where the parties have not agreed on a procedure and the arbitration is to be conducted by three arbitrators, Section 11(3) requires each party to appoint one arbitrator, and the two appointed arbitrators to appoint the third. If a party fails to appoint its arbitrator within thirty days of receipt of a request to do so from the other party, or if the two appointed arbitrators fail to agree on the third arbitrator within thirty days of their appointment, Section 11(4) permits the aggrieved party to seek a court-made appointment. For a sole arbitrator, Section 11(5) applies where the parties fail to agree on the arbitrator within thirty days of a request by one party to the other.

A recurring examination point is whether the thirty-day window extinguishes the defaulting party's right automatically. It does not. In Datar Switchgears Ltd. v. Tata Finance Ltd., (2000) 8 SCC 151, the Supreme Court held that the right of the opposite party to appoint an arbitrator is not forfeited merely by the expiry of thirty days; the right continues, but only until the applicant actually files the application under Section 11(6). If the opposite party appoints before the application is filed, the appointment stands; if it does not, the right is lost once the court is approached. The cut-off is therefore the filing of the petition, not the passage of time alone.

The practical upshot for an aspirant to remember is the precise sequence: a valid notice invoking the agreed procedure, a thirty-day window for the other side to respond, and only thereafter recourse to the court. A premature petition — one filed before the thirty days have run — is liable to be dismissed as not maintainable, because the statutory pre-condition of "failure" has not yet crystallised. Equally, a belated appointment by the defaulting party, made only after the court has been moved, comes too late under Datar Switchgears and cannot oust the court's jurisdiction to appoint.

SBP & Co. v. Patel Engineering: A Judicial, Not Administrative, Power

For nearly a decade the courts treated the appointment power as administrative, following Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., (2002) 2 SCC 388. That position was overturned by a seven-Judge Bench in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618. The Court held that the power exercised by the Chief Justice or his designate under Section 11(6) is a judicial power, not an administrative function.

The consequence was significant. Because the function was judicial, the Chief Justice (or his designate) could decide preliminary jurisdictional questions at the appointment stage — the existence of a valid arbitration agreement, whether the claim was a live claim or barred, and whether the conditions for appointment were satisfied. The Court reasoned that treating the appointment as judicial imparted greater sanctity and thoroughness to the process and reinforced the credibility of the arbitral mechanism. SBP also ruled prospectively, protecting appointments already made before 26 October 2005. Its expansion of judicial scrutiny, however, sat uneasily with the Act's minimal-intervention philosophy, and Parliament eventually responded through the 2015 Amendment discussed below.

Section 11(6A) and the Narrowing of Judicial Enquiry

The Arbitration and Conciliation (Amendment) Act, 2015 inserted Section 11(6A), directing that the court, while considering an application under Section 11(4), (5) or (6), shall, notwithstanding any judgment, decree or order of any court, confine itself to the examination of the existence of an arbitration agreement. The provision was a deliberate legislative pruning of the wide enquiry that SBP had sanctioned, reorienting Section 11 towards speed and minimal intervention.

Yet the boundary between the "existence" and the "validity" of an agreement proved porous. In Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1, a three-Judge Bench held that the expression "existence of an arbitration agreement" in Section 11 takes within its fold aspects of validity, but the court at the referral stage applies only a prima facie test. The guiding maxim is "when in doubt, do refer" — a court should decline to refer only where it is manifestly and ex facie certain that no arbitration agreement exists or that the dispute is non-arbitrable; all other questions are left to the tribunal under Section 16. The 2019 Amendment purported to omit Section 11(6A) altogether (transferring appointments to designated arbitral institutions), but that omission has not yet been notified, so Section 11(6A) and the Vidya Drolia prima facie standard continue to govern.

TRF Ltd. v. Energo Engineering: An Ineligible Person Cannot Appoint

The 2015 Amendment also recast the eligibility regime through Section 12(5) and the Seventh Schedule, and this immediately collided with a common clause in Indian contracts: arbitration by a named officer of one party, or his nominee. In TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377, the clause named the Managing Director of one party as sole arbitrator, or, in the alternative, empowered him to nominate an arbitrator. By virtue of Section 12(5) read with the Seventh Schedule, the Managing Director was himself ineligible to act as arbitrator.

The Supreme Court held that once an arbitrator is ineligible by operation of law, he is denuded of the power to nominate another as arbitrator. In the Court's memorable formulation, what cannot be done directly cannot be done indirectly. The disqualification therefore travelled from the named arbitrator to the act of nomination, rendering the nominee's appointment invalid. TRF is the doctrinal foundation on which the later attack on unilateral appointments was built.

Perkins Eastman v. HSCC: The End of Unilateral Appointments

TRF left a gap. What if the clause did not name the interested officer as arbitrator but simply gave him the unilateral power to appoint a third party? The Supreme Court closed that gap in Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517. Here the Chairman-cum-Managing Director of the respondent — an interested party — was empowered to appoint a sole arbitrator and had nominated a retired judge.

The Court held that a person who has an interest in the outcome of the dispute, and who is therefore himself ineligible under Section 12(5), cannot have the sole power to appoint an arbitrator either. The reasoning extended TRF beyond the situation where the interested person was also named arbitrator: the very exclusivity of the appointing power, vested in one interested party, gives rise to justifiable doubts about the independence of the appointee. Exercising its power under Section 11(6), the Court itself appointed Dr Justice A. K. Sikri (Retd.) as sole arbitrator. Perkins effectively ended unilateral appointment clauses in India and is among the most frequently litigated propositions in the entire Act.

The distinction that examiners probe is between a one-sided power to appoint and a balanced panel mechanism. Perkins condemns the former — where one interested party alone chooses the arbitrator. It does not, by itself, invalidate a clause where each side nominates and the two nominees then choose a presiding arbitrator, because there the appointing power is not concentrated in a single interested hand. The vice Perkins targets is the absence of counter-balancing choice, not the act of appointment as such. This is why broad-panel and curated-list clauses have since attracted their own line of scrutiny, the courts asking whether the counterparty enjoys a genuinely free and equal say in constituting the tribunal.

Bharat Broadband: A Void Appointment and the Limits of Waiver

The eligibility line was sharpened further in Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755. There, one party had itself appointed an arbitrator who, following TRF, was ineligible under Section 12(5). The same party later sought to challenge its own appointment. The Supreme Court held that Section 12(5) creates a de jure inability to act, and an appointment made in breach of it is void ab initio — a nullity rather than a mere irregularity.

Crucially, the Court addressed the proviso to Section 12(5), which allows the parties to waive its applicability. It held that waiver must be by an express agreement in writing made after the disputes have arisen; ineligibility cannot be waived by conduct, acquiescence or participation in the proceedings. Because the only express written waiver permitted had not occurred, the appointment remained void and the party was entitled to have a fresh, eligible arbitrator appointed under Section 11(6). Bharat Broadband thus confirms that the Seventh Schedule disqualifications are mandatory and non-derogable save through the narrow statutory waiver, a point closely linked to the doctrine of waiver of the right to object.

Qualifications, Independence and Impartiality at Appointment

Section 11(8) directs the court or designated institution, before appointing an arbitrator, to seek a disclosure in writing from the prospective arbitrator in terms of Section 12(1), and to have due regard to two matters: any qualifications required of the arbitrator by the agreement of the parties, and the contents of the disclosure together with other considerations likely to secure the appointment of an independent and impartial arbitrator. For international commercial arbitration, Section 11(9) adds that where a sole or third arbitrator is to be appointed, the court may appoint an arbitrator of a nationality other than the nationalities of the parties.

Independence and impartiality are policed primarily through Section 12 and the Fifth and Seventh Schedules, modelled on the IBA Guidelines on Conflicts of Interest. The Fifth Schedule lists grounds giving rise to justifiable doubts that must be disclosed; the Seventh Schedule lists relationships that render a person ineligible to be appointed at all. The standard is objective: as the Act and the case law make clear, not every apprehension of bias disqualifies — the doubt must be such that a reasonable, fair-minded person, on the given facts, would entertain justifiable doubts about the arbitrator's independence or impartiality. Mere subjective dissatisfaction is insufficient.

The disclosure obligation is continuing, not one-off. Section 12(1) requires a person approached for appointment to disclose in writing any circumstances likely to give rise to justifiable doubts, and the duty persists throughout the proceedings under Section 12(2). The statutory form of disclosure is set out in the Sixth Schedule. There is a crucial difference in legal effect between the two schedules: a Fifth Schedule ground merely furnishes a basis for a challenge under Sections 12 and 13, which the tribunal first decides, whereas a Seventh Schedule ground operates automatically to render the person ineligible under Section 12(5), independent of any challenge. An aspirant should therefore treat the Fifth Schedule as the "challenge" list and the Seventh Schedule as the "ineligibility" list — the former contestable, the latter mandatory.

The 2019 Amendment: Institutional Appointment and Time Limits

The Arbitration and Conciliation (Amendment) Act, 2019 sought to shift the appointment function away from the courts and towards graded arbitral institutions. Under the inserted Section 11(3A), the Supreme Court (for international commercial arbitration) and the High Court (for other arbitrations) are empowered to designate arbitral institutions, graded by the Arbitration Council of India under Section 43-I, to perform the appointment function. Where a High Court has no graded institution available within its jurisdiction, the Chief Justice of that High Court may maintain a panel of arbitrators to discharge the functions of an arbitral institution.

The 2019 Amendment also added a time discipline. Section 11(13) requires an application for appointment to be disposed of as expeditiously as possible, with an endeavour to dispose of it within thirty days from the date of service of notice on the opposite party. Fees of the arbitrator are to be determined in accordance with the rates specified in the Fourth Schedule, except in international commercial arbitration or where parties have agreed to institutional rules (Section 11(14)). Several of these institutional provisions, including the omission of Section 11(6A), await notification, so in practice courts continue to make appointments directly. The reform nonetheless signals a decisive policy turn towards institutional arbitration.

Finality of the Appointment Decision

Section 11(7), as it stood before the 2019 Amendment's unnotified changes, makes a decision on a matter entrusted by Section 11(4), (5) or (6) to the court or designated person or institution final. The legislative intent is to insulate the appointment from interlocutory challenge and to keep the arbitration moving. Section 37, which lists the orders that are appealable, does not include an order appointing or refusing to appoint an arbitrator, reinforcing this finality.

In Vidya Drolia, the Supreme Court itself noted the anomaly that an order refusing reference under Section 8 is appealable while a comparable refusal under Section 11 is not, and called for legislative alignment. Until then, a party aggrieved by a Section 11 appointment ordinarily has no statutory appeal and must raise jurisdictional objections before the tribunal under Section 16, preserving them for the eventual challenge to the award under Section 34. The structure thus channels disputes about the appointment into the arbitration itself rather than into satellite litigation.

After Appointment: Challenge, Termination and Substitution

Appointment is the beginning, not the end, of the integrity enquiry. A challenge to an arbitrator is mounted on the grounds in Section 12 and follows the procedure in Section 13. A party intending to challenge must, within fifteen days of becoming aware of the constitution of the tribunal or of any circumstance justifying the challenge, send a written statement of reasons to the tribunal; unless the arbitrator withdraws or the other party agrees, the tribunal itself decides the challenge. If the challenge fails, the party continues with the proceedings and may attack the award under Section 34.

Where an arbitrator becomes de jure or de facto unable to perform, or fails to act without undue delay, the mandate terminates under Section 14, and any controversy about termination may be referred to the court. On termination — whether under Section 13, Section 14, withdrawal, or agreement — Section 15 requires a substitute arbitrator to be appointed according to the rules that applied to the appointment being replaced, closing the loop back to Section 11. The tribunal then has discretion to decide how much, if any, of the earlier proceedings must be repeated. Read together, Sections 11 to 15 form a continuous regime ensuring that the bench which decides the dispute is, and remains, both competent and impartial.

For revision, the chain of provisions can be held in mind as a single arc. Section 11 constitutes the tribunal, prioritising party choice and supplying a default only on failure. Section 12 and its schedules set the standard of independence and the disclosure duty. Section 13 routes challenges first to the tribunal itself, preserving court review for the Section 34 stage. Section 14 deals with a mandate that has become impossible to perform, and Section 15 with substitution, looping the process back to Section 11's appointment rules. The judicial gloss — SBP on the character of the power, TRF and Perkins on ineligible appointers, Bharat Broadband on void appointments and waiver, and Vidya Drolia on the depth of pre-reference enquiry — turns this skeletal machinery into the working law of arbitrator appointment in India.

Frequently asked questions

What is the time limit for a party to appoint an arbitrator under Section 11?

The default period is thirty days. Under Section 11(4) and (5), if a party fails to appoint its arbitrator within thirty days of a request, or the two arbitrators fail to agree on a third within thirty days, the other party may approach the court. However, Datar Switchgears Ltd. v. Tata Finance Ltd., (2000) 8 SCC 151, clarified that the right is not forfeited automatically on expiry of thirty days — it continues until the applicant actually files the Section 11(6) petition.

Is the power to appoint an arbitrator administrative or judicial?

Judicial. In SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618, a seven-Judge Bench overruled Konkan Railway and held that the power under Section 11(6) is a judicial power, allowing the court to decide preliminary questions such as the existence of a valid arbitration agreement. The 2015 Amendment later narrowed this enquiry through Section 11(6A).

Can a party with an interest in the dispute appoint the sole arbitrator?

No. TRF Ltd. v. Energo Engineering, (2017) 8 SCC 377, held that a person ineligible under Section 12(5) cannot nominate an arbitrator, and Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517, extended this to bar an interested party from having the unilateral power to appoint a sole arbitrator. Such unilateral appointment clauses are now invalid.

What is the scope of the court's enquiry at the appointment stage?

Limited. Section 11(6A) directs the court to confine itself to the existence of an arbitration agreement. In Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1, the Supreme Court held that the court applies only a prima facie test and should refer the dispute unless it is manifestly certain that no agreement exists or the dispute is non-arbitrable — "when in doubt, do refer".

Is an appointment in breach of Section 12(5) merely irregular or wholly void?

Wholly void. In Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755, the Supreme Court held that Section 12(5) creates a de jure inability to act, and an appointment in breach is void ab initio. The ineligibility can be waived only by an express written agreement made after the dispute has arisen — not by conduct or participation.

How did the 2019 Amendment change the appointment of arbitrators?

It moved towards institutional appointment. Section 11(3A) empowers the Supreme Court and High Courts to designate graded arbitral institutions to appoint arbitrators, and Section 11(13) sets a thirty-day endeavour to dispose of appointment applications. Many of these provisions, including the omission of Section 11(6A), are not yet notified, so courts still appoint directly in practice.