CS Professional · Arbitration, Mediation and Conciliation

Arbitration Procedure and Appointment of an Arbitrator

This chapter covers how an arbitral tribunal is formed and how it works. You learn Section 11 appointment, the number of arbitrators, court powers and time limits, conduct of proceedings, and interim measures. Solve each case by stating the provision, applying the facts, and giving a clear conclusion.

What this chapter covers

This chapter follows an arbitration from start to finish in its early stages. First, the tribunal must exist. So you study how arbitrators are appointed under Section 11, how many there can be under Section 10, and when a court steps in. Then you study how the tribunal runs the case and what help it can get from the court and from institutions.

The chapter is about the mechanics. Most questions give you a clause in an agreement and a dispute between two Indian companies. You must say who appoints, within what time, and before which court.

It links to the rest of the paper. Interim relief under Sections 9 and 17 connects to enforcement. The tribunal's formation connects to challenges and awards. Arbitration and Conciliation carries 70 marks in Paper 7.1, so this chapter supports a large part of your score. Electives are open book, so learn where each rule sits and how to apply it, not just the wording.

Case-based questions in this chapter are very common because the Act gives clear time limits and clear forums. You can score well by applying them step by step. Marks are lost when you mix up the 30-day periods, the Supreme Court versus High Court rule, or the court's role versus the tribunal's role. Since the paper is open book, you gain by knowing the structure of Sections 9, 10, 11, 17, 27 and 6, so you can find the text fast and spend your time on analysis and drafting.

Arbitration Procedure, Appointment of an Arbitrator and Other Aspects: topics in the order to study them

1Number and Qualifications of ArbitratorsStart here. Section 10 is short, and you need to know the tribunal's size before you study how it is appointed.
2Appointment of Arbitrators under Section 11This is the core. Learn the agreed procedure, the default for three arbitrators and for a sole arbitrator, and the 30-day periods.
3Court Powers and Time Limits in AppointmentNext, learn who the court is, what it examines, that its decision is final, and the 60-day endeavour for disposal.
4Arbitration Procedure and Conduct of ProceedingsOnce the tribunal exists, study how it runs the case, including administrative assistance under Section 6.
5Interim Measures, Tribunal Powers and Court AssistanceFinish with Sections 9, 17 and 27, which compare court and tribunal powers and need the earlier ideas to make sense.

How to prepare Arbitration Procedure, Appointment of an Arbitrator and Other Aspects

Prepare this chapter by learning the sequence of events and the time limits, then practise applying them to facts.

Read Sections 10 and 11 slowly. Mark every time limit, every forum and every condition in the text.
Draw a flow chart of Section 11: agreed procedure first, then the default for three arbitrators, then the default for a sole arbitrator, then court appointment.
Make a two-column table for Sections 9 and 17: who can act, when, and what relief. Note that Section 9(3) limits the court once the tribunal is constituted.
Learn Section 27 and Section 6 as short lists: who may apply, what the application must state, and what the court can order.
Practise case questions. For each, write the provision, the facts that matter, and a one-line conclusion.
Practise drafting a notice requesting appointment and a Section 11 application outline, using proper Indian party names and amounts in rupees.
Revise with a one-page sheet of time limits and forums the day before the exam.

Common mistakes in Arbitration Procedure, Appointment of an Arbitrator and Other Aspects

Rushing to the court without checking the agreed appointment procedure.
Fix: Always start with the clause. Apply the default rules only if there is no agreed procedure, and use Section 11(6) if the agreed procedure fails.
Mixing up which court appoints.
Fix: Remember it simply: international commercial arbitration goes to the Supreme Court. Other arbitrations go to the High Court with jurisdiction over the principal civil court.
Saying the court decides the merits or validity of the dispute at the appointment stage.
Fix: State that under Section 11(6A) the court confines itself to the existence of an arbitration agreement.
Allowing an even number of arbitrators.
Fix: Check the number in the clause. If it is even, flag the conflict with Section 10(1) in your answer.
Confusing Section 9 and Section 17.
Fix: Section 9 is the court's power, available before, during and after the award until enforcement. Section 17 is the tribunal's power during proceedings. Link them through Section 9(3).
Giving a conclusion without applying the facts or time limits.
Fix: Count the days in the facts, name the forum, and finish with a clear one-line conclusion.

Last-day revision: Arbitration Procedure, Appointment of an Arbitrator and Other Aspects

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.

Arbitration Procedure, Appointment of an Arbitrator and Other Aspects practice questions

Arbitration Procedure, Appointment of an Arbitrator and Other Aspects in other exams

The same ground in other exams, if you are preparing for more than one or want another angle on it.

CMA FinalAnti-profiteering

Arbitration Procedure, Appointment of an Arbitrator and Other Aspects: frequently asked questions

Can parties choose two arbitrators?

No. Under Section 10(1) the number of arbitrators cannot be even. If the parties do not determine the number, the tribunal has a sole arbitrator.

When can the court appoint an arbitrator under Section 11?

It can appoint when the agreed or default procedure fails. For example, a party does not appoint within 30 days of the request, or the two arbitrators do not agree on the third within 30 days. A party must request the court.

Can an interim order be sought from both the court and the tribunal?

Both have the listed powers, but once the tribunal is constituted the court will not entertain a Section 9 application unless the Section 17 remedy would not be efficacious. Before the tribunal exists, you go to the court.

Is a tribunal's interim order enforceable?

Yes. Under Section 17(2), subject to any appeal under Section 37, it is deemed an order of the Court and is enforceable under the Code of Civil Procedure, 1908 as if it were a court order.

How should I answer a case question from this chapter?

State the relevant provision, apply the facts such as dates, number of arbitrators and type of arbitration, and give a clear conclusion. Where useful, add a drafting or compliance point, such as the notice to be sent.