Arbitrator Appointment Procedure: Section 11 of the Arbitration Act

Executive Summary

The appointment of arbitrators is a critical stage that determines the composition and legitimacy of the arbitral tribunal. Section 11 provides the statutory framework:

Section 11: Court intervention when appointment procedure fails
Institutional arbitration: Appointment by designated institutions
Ad hoc arbitration: Party-driven appointment process
Supreme Court guidelines: BALCO judgment streamlined procedure
Time limits: Strict timelines under 2015/2019 amendments
Challenges: Limited scope under Section 11(6A)

This guide examines the appointment mechanisms, judicial intervention, and practical considerations.

1. Statutory Framework

Section 11 Overview

Provision	Content
Section 11(2)	Appointment in three-arbitrator tribunal
Section 11(3)	Appointment when parties fail to agree
Section 11(4)	Appointment where procedure inapplicable
Section 11(5)	Designation of arbitrator-appointing authority
Section 11(6)	Supreme Court/High Court power
Section 11(6A)	Examination limited to arbitration agreement existence
Section 11(13)	Decision to be made within 60 days

Time Limits

Stage	Timeline
Party appointment	30 days from request
Jointly appointed arbitrator	30 days from party arbitrators' appointment
Court decision	60 days from notice
Fast-track arbitration	Award within 6 months

2. Institutional vs Ad Hoc Arbitration

Institutional Arbitration

Feature	Description
Appointing authority	Institution's panel/committee
Rules applied	Institution's arbitration rules
Administrative support	Provided by institution
Costs	Institution fees + arbitrator fees
Procedure	Standardized
Examples	DIAC, MCIA, ICC, SIAC, LCIA

Advantages:

Advantage	Benefit
Expertise	Experienced arbitrators
Speed	Streamlined procedure
Infrastructure	Hearing facilities
Quality control	Institutional oversight
Predictability	Established rules

Ad Hoc Arbitration

Feature	Description
Appointing authority	Parties or court under Section 11
Rules applied	Party-agreed or statutory default
Administrative support	None (parties arrange)
Costs	Generally lower
Procedure	Flexible

Advantages:

Advantage	Benefit
Flexibility	Tailored procedure
Cost	Lower institutional fees
Privacy	Greater confidentiality
Autonomy	Party control

3. Appointment Procedure - Three-Arbitrator Tribunal

Standard Procedure (Section 11(2))

Step	Party Action	Timeline
1	Claimant appoints one arbitrator	Upon invoking arbitration
2	Notice to respondent	Immediately
3	Respondent appoints one arbitrator	30 days from notice
4	Two arbitrators appoint third (presiding)	30 days from their appointment
5	If failure, court intervention	Application under Section 11

Sole Arbitrator Appointment (Section 11(3))

Step	Action	Timeline
1	Parties attempt to agree	Reasonable time
2	If no agreement, notice to court	After failure
3	Court appoints sole arbitrator	Within 60 days

4. Court Intervention Under Section 11

When Court Intervenes

Situation	Statutory Basis
Party fails to appoint	Section 11(4)
Two arbitrators fail to appoint third	Section 11(5)
Appointment procedure inoperable	Section 11(6)
Institutional appointment delayed	Section 11(6)
Challenge to arbitrator appointment	Section 11(8)

Limited Scope of Examination (Section 11(6A))

Court examines only:

Issue	Examination Permitted
Existence of arbitration agreement	Yes
Disputes covered by agreement	Yes
Merits of dispute	No
Prima facie case	No
Arbitrability (post-2015)	No (decided by tribunal)

5. Landmark Judgment: SBP & Co. v. Patel Engineering (BALCO)

Key Holdings

Principle	Impact
Chief Justice designation	CJI to designate High Court
Limited judicial review	Only existence of agreement
No merits examination	Courts avoid substantive issues
Referral to tribunal	Arbitrability determined by tribunal
Expedited procedure	Streamlined court intervention

Pre-BALCO vs Post-BALCO

Aspect	Pre-BALCO	Post-BALCO
Scope of inquiry	Extensive	Limited
Merits examination	Often done	Prohibited
Time taken	2-3 years	2-3 months
Arbitrability	Court decides	Tribunal decides
Prima facie case	Examined	Not examined

6. Qualifications and Eligibility

Statutory Requirements

Requirement	Source	Content
Neutral arbitrator	Section 12	No conflict of interest
Disclosure obligation	Section 12	Disclose all relevant circumstances
Ineligibility	Fifth Schedule	Specific disqualifications
Challenge grounds	Seventh Schedule	Justifiable doubts

Practical Considerations

Factor	Consideration
Expertise	Subject matter knowledge
Availability	Time commitment
Language	Communication ability
Location	Convenience for hearings
Fees	Reasonable and disclosed
Track record	Prior arbitration experience

7. Designation of Appointing Authority

Section 11(5) Procedure

Level	Designating Authority
International commercial arbitration	Chief Justice of India
Domestic arbitration	Chief Justice of High Court
Specific institution	As agreed by parties

Common Appointing Authorities in India

Institution	Type	Location
Delhi International Arbitration Centre (DIAC)	Institutional	New Delhi
Mumbai Centre for International Arbitration (MCIA)	Institutional	Mumbai
Indian Council of Arbitration (ICA)	Institutional	New Delhi
International Centre for ADR (ICADR)	Institutional	New Delhi
Chief Justice of High Court	Judicial	State capitals

8. Challenges to Appointment

Section 11(8) - Challenge Before Court

Ground	Basis
Ineligibility	Fifth Schedule
Lack of independence	Section 12
Justifiable doubts	Seventh Schedule
Undisclosed relationships	Section 12(1)

Procedure

Step	Action	Timeline
1	File application before same authority	After appointment
2	Notice to other party	As per court rules
3	Decision by court	Expedited hearing
4	Fresh appointment if upheld	Immediately

After Tribunal Constitution: Section 13

Stage	Procedure
Challenge ground arises	After appointment
Notice to tribunal	Written statement
Tribunal decision	Within specified time
Appeal	Only after award (Section 34)

9. Institutional Appointment Mechanisms

DIAC Procedure

Step	Action	Timeline
1	Request for arbitration filed	-
2	DIAC scrutinizes request	7 days
3	Notice to respondent	Immediately
4	Respondent nominates arbitrator	30 days
5	DIAC appoints from panel	If party defaults
6	Presiding arbitrator appointed	After party arbitrators

MCIA Procedure

Step	Action	Timeline
1	Request with fees	Upon filing
2	Proposal of arbitrators	7 days
3	Parties comment	7 days
4	MCIA appoints	15 days
5	Tribunal constitution	Immediate

10. International Commercial Arbitration

Section 11(6) - Supreme Court Jurisdiction

Situation	Forum
Parties from different states	Supreme Court
International commercial dispute	Supreme Court
Seat outside India	Supreme Court (if Part I applies)
Domestic arbitration	High Court

ICC Arbitration

Feature	Process
Appointment authority	ICC Court of Arbitration
Proposal	Parties propose names
Approval	ICC Court confirms
Challenge	To ICC Court
Replacement	ICC Court appoints substitute

11. Replacement of Arbitrators

Grounds for Termination (Section 14)

Ground	Basis
De jure inability	Legal incapacity
De facto inability	Practical impossibility
Withdrawal	Arbitrator resigns
Parties agree	Mutual consent
Challenge upheld	Section 13 procedure

Replacement Procedure (Section 15)

Step	Action
1	Mandate terminates
2	Same appointment procedure applies
3	Replacement arbitrator appointed
4	Tribunal decides whether to repeat hearings

12. Multi-Party Arbitrations

Appointment Challenges

Issue	Challenge
Multiple claimants	Agreement on arbitrator
Multiple respondents	Joint appointment required
Conflicting interests	Equal treatment principle
Consolidation	Consent required

Solutions

Solution	Application
Joint appointment	Parties on same side jointly appoint
Institutional rules	Institution appoints all arbitrators
Court intervention	Section 11 application
Separate arbitrations	If consolidation impossible

13. Practical Challenges

Common Issues

Issue	Frequency	Resolution
Party non-cooperation	High	Section 11 application
Delayed appointments	Medium	Court intervention
Conflict of interest	Low	Disclosure and challenge
Fee disputes	Medium	Institutional fee schedules
Jurisdictional challenges	Medium	Tribunal decides (Section 16)

Best Practices

Practice	Benefit
Pre-agreed panel	Faster appointment
Institutional clause	Professional administration
Clear eligibility criteria	Avoid challenges
Disclosed fee structure	No surprises
Backup mechanism	Contingency planning

14. Appointment Timelines - Summary

Statutory Timelines

Event	Deadline	Consequence of Delay
Respondent appoints arbitrator	30 days	Court intervention
Two arbitrators appoint third	30 days	Court intervention
Court decision on Section 11	60 days	Mandatory timeline
Arbitration award (fast-track)	6 months	Extension requires reasons
Arbitration award (regular)	12 months	Extension possible

15. Compliance Checklist

For Drafting Arbitration Clauses

Specify appointment mechanism (institutional/ad hoc)
Name specific institution if institutional
Provide for odd number of arbitrators
Include qualifications/eligibility criteria
Specify seat of arbitration
Reference current institutional rules
Include fallback appointment mechanism
Specify timeframes for appointment
Address multi-party scenarios if applicable

For Invoking Arbitration

Review arbitration clause carefully
Follow prescribed appointment procedure
Appoint arbitrator within timeline
Provide proper notice to other party
Disclose arbitrator details
Check arbitrator eligibility
Obtain arbitrator's acceptance
Document all communications

For Section 11 Applications

Verify existence of arbitration agreement
Confirm appointment procedure has failed
File within limitation period
Identify correct court/authority
Attach arbitration agreement
Provide details of failed appointment
Suggest names of arbitrators
Serve notice on respondent

16. Key Takeaways for Practitioners

Institutional Preferred: Institutional arbitration offers streamlined appointment and professional administration.
Section 11 is Narrow: Court intervention limited to existence of agreement only (post-BALCO).
Timelines Are Strict: 30-day and 60-day timelines must be adhered to.
Disclosure Critical: Arbitrators must disclose all relevant circumstances under Section 12.
Challenge Mechanisms Exist: Both pre-constitution (Section 11(8)) and post-constitution (Section 13).
Party Cooperation Essential: Ad hoc arbitration requires good faith participation.
Plan for Defaults: Include fallback mechanisms in arbitration clauses.

Conclusion

Arbitrator appointment is the foundational step in arbitration proceedings. The 2015 and 2019 amendments streamlined the process by limiting judicial intervention and imposing strict timelines. Practitioners must understand the distinction between institutional and ad hoc arbitration, follow prescribed procedures, and be prepared to invoke court assistance under Section 11 when necessary. Proper drafting of arbitration clauses with clear appointment mechanisms remains the best practice to avoid delays and disputes.