The Arbitration and Conciliation Act, 1996 is the backbone of arbitration law in India. Section 11 of Arbitration and Conciliation Act deals with the appointment of arbitrators. It allows parties to decide their own procedure but if they fail, the Supreme Court or High Court–designated arbitral institutions appoint arbitrators to ensure fairness and efficiency. This section ensures that the arbitration process is conducted before competent and impartial arbitrators while balancing party autonomy with limited judicial or institutional intervention.
Over time, amendments to Section 11, particularly in 2015 and 2019, have transformed how arbitrators are appointed. The power of appointment now largely rests with designated arbitral institutions, reducing judicial delays and strengthening India’s arbitration framework. This makes Section 11 of Arbitration and Conciliation Act vital for both domestic arbitration and international commercial arbitration.
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Section 11 of Arbitration and Conciliation Act, 1996: Key Provisions
Section 11 of Arbitration Act outlines the procedure and conditions for appointing arbitrators. Here’s a simplified breakdown
Subsection (1): Arbitrator’s Nationality
Anyone from any country can be chosen as an arbitrator, unless both sides agree to something different. This rule makes sure that things are fair and flexible especially when there are international cases.
Subsection (2): Agreement on Appointment Procedure
The parties are free to agree on any way they want to choose arbitrators. This brings up party autonomy which is one of the most important ideas in arbitration.
Subsection (3): Default Rule for Three Arbitrators
If no procedure is agreed and three arbitrators are required
Each party appoints one arbitrator.
The two appointed arbitrators jointly appoint the third arbitrator, who acts as the presiding arbitrator.
The Act simply says the third arbitrator must be appointed “forthwith” (i.e., without delay).
Subsection (3A): Role of Arbitral Institutions
The Supreme Court or High Courts may designate arbitral institutions to appoint arbitrators. If no such institution exists in a state, the Chief Justice of the High Court can maintain a panel of arbitrators.
Subsections (4) & (5): When Parties Fail to Appoint
If one party fails to appoint an arbitrator within 30 days of receiving a request or
If the two appointed arbitrators cannot agree on the third or
If parties fail to agree on a sole arbitrator,
then the designated arbitral institution will make the appointment.
Subsection (6): Institutional Appointment in Case of Failure
If a party, person or institution fails to act under an agreed procedure, the arbitral institution designated by the Supreme Court or High Court will step in to complete the appointment.
Subsection (6A): Limited Judicial Review (Deleted in 2019)
Earlier, courts could only examine whether an arbitration agreement existed. The 2019 Amendment deleted this subsection but judicial practice continues to apply a prima facie test: courts verify the validity of the arbitration agreement without examining the merits of the dispute.
Subsection (6B): Non-Judicial Delegation
Designation of an arbitral institution by the Supreme Court or High Courts does not amount to delegating judicial power. It simply authorizes institutions to handle administrative aspects of appointments.
Subsection (7): Finality of Decision (Deleted in 2019)
Earlier, appointments made under Section 11(4), (5) or (6) were final and non-appealable. The 2019 Amendment removed this provision.
Subsection (8): Independence and Disclosure
Arbitral institutions must ensure that appointed arbitrators disclose any circumstances likely to give rise to doubts about their impartiality or independence (as per Section 12).
Subsection (9): Arbitrator’s Nationality in International Arbitration
For international commercial arbitration, the appointed arbitrator may be of a nationality different from the parties, unless otherwise agreed.
Subsection (10): Court Schemes (Deleted in 2019)
Earlier, courts could frame schemes for appointing arbitrators. This provision was deleted in 2019 to strengthen institutional arbitration.
Subsection (11): First Institution to Act Prevails
If applications are filed before multiple institutions, the one where the request was first made will decide the matter.
Subsection (12): International Arbitrations
References to arbitral institutions in earlier subsections also apply to those designated under Subsection (3A) in international commercial arbitrations.
Subsection (13): Time Limit for Appointment
Applications for appointment of arbitrators must be disposed of within 30 days from the date of service of notice on the opposite party.
Subsection (14): Arbitration Fees
The fees payable to arbitrators are fixed by the arbitral institution as per the Fourth Schedule, unless parties have agreed otherwise or in international arbitrations where institutional rules apply.
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Landmark Case Laws on Section 11of Arbitration Act
Indian courts have shaped the interpretation of Section 11 of Arbitration and Conciliation Act through several landmark judgments
1. SBP & Co. v. Patel Engineering Ltd. (2005)
The Supreme Court held that the power exercised by the Chief Justice under Section 11 is judicial, not administrative. Courts must first determine the existence and validity of the arbitration agreement before appointing arbitrators.
2. Duro Felguera S.A. v. Gangavaram Port Ltd. (2017)
The Court made it clear that under Section 11(6A), courts should only check to see if there is an arbitration agreement and not look into any other issues. This decision strengthened the idea that courts should get involved as little as possible.
3. Mayavati Trading Pvt. Ltd. v. Pradyuat Deb Burman (2019)
Reaffirming Duro Felguera, the Court held that judicial scrutiny under Section 11 is limited to verifying the existence of an arbitration agreement.
4. Vidya Drolia v. Durga Trading Corporation (2020)
The Court clarified that at the referral stage, courts must conduct a prima facie examination to filter out frivolous or non-existent arbitration agreements, balancing judicial scrutiny with efficiency.
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Significance of Section 11
Section 11 of Arbitration and Conciliation Act plays a crucial role in India’s arbitration framework by
Preserving party autonomy in choosing arbitrators.
Providing a clear fallback mechanism when parties fail to agree.
Reducing judicial delays through institutional appointments.
Ensuring independence and impartiality of arbitrators.
Enhancing India’s reputation as an arbitration-friendly jurisdiction.
Summary
Section 11 of Arbitration and Conciliation Act, 1996 provides a structured mechanism for the appointment of arbitrators. By allowing parties autonomy, while also empowering arbitral institutions to step in when necessary, it creates a fair and efficient system. Judicial reforms and amendments have further streamlined the process, making arbitration in India more credible, impartial and globally competitive.
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Section 11 of Arbitration Act FAQs
Q1. What is the function of Section 11 of the Arbitration and Conciliation Act?
Section 11 is a procedure for the selection of arbitrators within India and outlines a frame for party autonomy and judicial intervention in cases where parties cannot agree.
Q2. Can an arbitrator be of any nationality?
Yes. Unless parties agree otherwise, an arbitrator may be of any nationality.
Q3. What happens if parties cannot agree on an arbitrator?
In such cases, the arbitral institution designated by the Supreme Court or High Court will make the appointment.
Q4. Who appoints the third arbitrator in a panel of three?
Each party nominates one arbitrator and the two chosen arbitrators jointly appoint the third, who acts as presiding arbitrator.
Q5. What role do arbitral institutions play?
They administer the appointment process, fix fees and ensure arbitrators meet the standards of impartiality and independence.
