Arbitration Procedure, Appointment of an Arbitrator and Other Aspects: formula sheet

Key formulas

Party freedom

Section 11(1) and (2): any nationality may be an arbitrator unless parties agree otherwise; parties are free to agree on the appointment procedure, subject to sub-section (6)

Always start with the agreement. The default applies only if there is no agreement.

Default for three arbitrators

Each party appoints 1 arbitrator; the two appointed arbitrators appoint the third, who is the presiding arbitrator (Section 11(3))

Applies only failing any agreement on procedure.

Failure in a three-member tribunal

Party fails to appoint within 30 days of the other party's request, or the two arbitrators fail to agree on the third within 30 days of their appointment → appointment on request by the Court or its designate (Section 11(4))

The two 30-day clocks start at different points. Note them carefully.

Sole arbitrator default

Parties fail to agree within 30 days from receipt of a request by one party from the other → appointment on request by the Court or its designate (Section 11(5))

The clock runs from receipt of the request.

Failure of an agreed procedure

Party fails to act, parties or arbitrators fail to reach an expected agreement, or a person or institution fails to perform its function → a party may request the Court or its designate to take the necessary measure (Section 11(6))

Unless the agreement provides other means of securing the appointment.

Scope of the Court's examination

Under sub-sections (4), (5) and (6), the Court confines itself to the examination of the existence of an arbitration agreement (Section 11(6A))

The Court does not decide the merits of the dispute at this stage.

Which court

International commercial arbitration → Supreme Court. Any other arbitration → High Court within whose limits the principal Civil Court is situate (Section 11(12))

If more than one request is made to different High Courts, the one first approached alone is competent (Section 11(11)).

Finality and speed

Decision is final, with no appeal including Letters Patent Appeal (Section 11(7)). Endeavour to dispose of the application within 60 days from service of notice on the opposite party (Section 11(13))

The 60 days is an endeavour, not a strict bar.

Number of arbitrators (Section 10(1))

Number = as agreed by parties, but never an even number

One, three, five and so on are valid. Two or four is not.

Default number (Section 10(2))

No agreement on number ⇒ sole arbitrator

The default is one arbitrator, not three.

Nationality (Section 11(1))

Any nationality may be an arbitrator, unless the parties agree otherwise

A foreign national can be an arbitrator in India unless the parties have agreed otherwise.

Three-member default appointment (Section 11(3))

Each party appoints one; the two appointees appoint the third, who is the presiding arbitrator

Applies only when there is no agreed procedure under Section 11(2).

Disclosure (Section 12(1))

Written disclosure of circumstances raising justifiable doubts on independence or impartiality, and affecting time to finish within twelve months

Made in the form in the Sixth Schedule. The Fifth Schedule guides what raises doubts.

Grounds of challenge (Section 12(3))

Challenge only if (a) justifiable doubts on independence or impartiality, or (b) agreed qualifications are lacking

These are the only two grounds.

Ineligibility (Section 12(5))

Seventh Schedule relationship ⇒ ineligible despite any prior agreement

Parties may waive only after disputes arise, by express agreement in writing.

Scope of court examination

Section 11(6A): confine to the existence of an arbitration agreement

Applies to applications under s 11(4), (5) and (6). It applies notwithstanding any judgment, decree or order of any court.

Disposal period

Section 11(13): endeavour to dispose within 60 days from date of service of notice on the opposite party

Disposal should be as expeditious as possible. The period runs from service of notice, not from filing.

Finality

Section 11(7): decision is final; no appeal including Letters Patent Appeal

Covers decisions under s 11(4), (5) and (6).

Fees of tribunal

Section 11(14): High Court may frame rules, regarding the Fourth Schedule rates

Not for international commercial arbitration, nor where parties agreed fees under an arbitral institution's rules.

Disclosure before appointment

Section 11(8): seek written disclosure under s 12(1); have due regard to party-agreed qualifications and independence

Court or designate must do this before appointing.

Which court

Section 11(12): international commercial arbitration - Supreme Court; other arbitration - High Court

For other arbitration, it is the High Court within whose limits the principal Civil Court is situated.

First request prevails

Section 11(11): the High Court first approached alone is competent

Applies where requests go to different High Courts.

Procedural freedom (Section 19)

Tribunal not bound by CPC, 1908 or Evidence Act, 1872. Parties agree procedure; failing that, tribunal decides.

Always subject to Part I of the Act. The tribunal also decides admissibility, relevance, materiality and weight of evidence.

Language (Section 22)

Parties agree language; failing agreement, tribunal determines it.

Applies to written statements, hearings, awards and tribunal communications unless otherwise specified. Tribunal may order translations of documents.

Claim and defence (Section 23)

Claimant: facts + points at issue + relief sought. Respondent: defence on the same particulars.

Counterclaim or set-off allowed if within the arbitration agreement. Pleadings to be completed within 6 months of the arbitrator(s) receiving written notice of appointment.

Amendment (Section 23(3))

Amendment allowed unless agreed otherwise or tribunal finds it inappropriate due to delay.

Delay is the tribunal's test for refusing an amendment.

Hearings (Section 24)

Tribunal decides oral or documents-only; must hold oral hearing if a party requests, unless parties agreed no oral hearing.

Day-to-day hearings as far as possible; no adjournment without sufficient cause; costs may be imposed.

Default (Section 25)

Claimant fails to file claim: proceedings terminated. Respondent fails to file defence: proceedings continue, no deemed admission. Party fails to appear or produce evidence: tribunal may proceed to award.

Applies only where no sufficient cause is shown and parties have not agreed otherwise. For the respondent, the tribunal may treat the right to file defence as forfeited.

Court assistance in evidence (Section 27)

Tribunal, or a party with the tribunal's approval, may apply to the Court for help in taking evidence.

The application must give names and addresses of parties and arbitrators, nature of claim and relief, and the evidence sought.

Section 9 timing

Section 9 application: before, during, or after the award but before enforcement under Section 36

Applies to a court. Pre-arbitration relief needs arbitration to start within 90 days of the order or such further time as the court allows.

Section 17 timing

Section 17 application: during the arbitral proceedings only

Made to the tribunal. The post-award words were omitted by the 2019 amendment.

Court after tribunal constituted

Section 9(3): court will not entertain unless Section 17 may not be efficacious

The court must find that such circumstances exist.

Enforcement of tribunal order

Section 17(2): order deemed an order of the Court, enforceable under the CPC, 1908

Subject to any orders in an appeal under Section 37.

Appeals

Section 37(1)(b): grant or refusal under Section 9; Section 37(2)(b): grant or refusal under Section 17

No second appeal, but the right to approach the Supreme Court is preserved.

Court assistance in evidence

Section 27: tribunal, or a party with its approval, may apply to the Court

The application must give names and addresses, nature of claim and relief, and the evidence sought. Defaulting persons face the same penalties as in suits.

Quick revision

• Parties are free to fix the number of arbitrators, but it cannot be an even number (Section 10(1)).
• If the parties do not fix the number, the tribunal has a sole arbitrator (Section 10(2)).
• A person of any nationality may be an arbitrator unless the parties agree otherwise (Section 11(1)).
• Parties may agree the appointment procedure; this is subject to Section 11(6).
• Default for three arbitrators: each party appoints one, and those two appoint the presiding arbitrator.
• If a party or the two arbitrators fail to appoint within 30 days, the court appoints on request of a party.
• For a sole arbitrator, the court appoints if the parties fail to agree within 30 days of a request.
• The court under Section 11 confines itself to examining the existence of an arbitration agreement (Section 11(6A)).
• The decision on appointment is final and no appeal, including Letters Patent Appeal, lies against it.
• In international commercial arbitration the Supreme Court acts; in other arbitrations, the relevant High Court acts.
• The court should endeavour to dispose of the application within 60 days from service of notice on the opposite party.
• Section 9(3): after the tribunal is constituted, the court will not entertain interim applications unless Section 17 would not be efficacious.

Common mistakes

• Applying the default three-arbitrator procedure even when the agreement lays down its own procedure. Fix: Always state that Section 11(2) gives priority to party agreement, and that Section 11(3) applies only failing such agreement.
• Approaching the Court before the thirty days have lapsed. Fix: Identify the trigger: the other party's request, the date the two arbitrators were appointed, or receipt of the request to agree on a sole arbitrator.
• Saying the default tribunal is three arbitrators. Fix: Remember Section 10(2): no agreement on number means a sole arbitrator. Section 11(3) only applies if three are to be appointed.
• Treating a two-arbitrator clause as valid because the parties agreed. Fix: The freedom is limited by the words in Section 10(1): the number shall not be even.
• Saying the court decides the merits or all jurisdictional objections at the section 11 stage. Fix: Write that under s 11(6A) the court confines itself to the existence of an arbitration agreement.
• Treating the 60-day period as mandatory and the order void if delayed. Fix: Say the court shall dispose of it expeditiously and shall endeavour to do so within 60 days; it is directory in language.
• Saying the CPC and Evidence Act apply to arbitration. Fix: Remember Section 19(1): the tribunal is not bound by either. It still must follow Part I and treat parties fairly.
• Treating a respondent's failure to file a defence as an admission of the claim. Fix: Section 25(b) says proceedings continue without treating the failure itself as an admission. The tribunal may treat the right to file defence as forfeited.
• Saying a party can apply to the tribunal under Section 17 after the award is made. Fix: Remember Section 17 covers only the period during arbitral proceedings; the post-award words were omitted in 2019.
• Saying the court can never grant interim relief once the tribunal is constituted. Fix: State that the court will not entertain the application unless circumstances may not render Section 17 efficacious.

Exam tips

• Write provision, facts, conclusion. Cite sub-section numbers such as 11(4), 11(5) and 11(6) so the examiner sees you matched the facts to the right rule.
• Count the thirty days from the right trigger and show the date calculation in the answer.
• Name the correct forum using Section 11(12) every time. Mention the designate where relevant.
• Remember that sub-section (6A) limits the Court to examining the existence of an arbitration agreement. Use it in any question where a party argues the merits at the appointment stage.
• End the answer with finality under sub-section (7) and, where relevant, the 60-day endeavour under sub-section (13).
• State the section number with each rule. Examiners reward the provision, analysis and conclusion structure.
• Always test the number first. An even number is the usual trap in case facts.
• Distinguish challenge under Section 12(3) from ineligibility under Section 12(5) in every answer on fitness.