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CS Professional · Arbitration, Mediation and Conciliation · Conceptual Framework of International Commercial Arbitration

Under a contract between Krishna Pharma Ltd (India) and Delmar SA (Brazil), the clause says the third arbitrator is to be chosen by the two party-appointed arbitrators, and the clause also names an institution to step in if they fail. Krishna Pharma's counsel is advising on court intervention and finality. Which advice is correct under section 11?

The court confines itself to whether an arbitration agreement exists, and its appointment decision is final, with no appeal including Letters Patent Appeal. It must also obtain the prospective arbitrator's written disclosure before appointing. It does not rule on the validity of the underlying contract at this stage.

  1. AThe court's examination at the appointment stage is confined to the existence of an arbitration agreement, and its decision on the appointment is final with no appeal, including Letters Patent AppealCorrect
  2. BThe court must decide on the validity of the underlying contract before appointing
  3. CThe court's appointment decision can be appealed by Letters Patent Appeal to a larger bench
  4. DThe court may appoint without seeking any disclosure from the prospective arbitrator

Explanation

Section 11(6A) confines the court to examining the existence of an arbitration agreement. Section 11(7) makes the decision final and bars any appeal, including Letters Patent Appeal. Section 11(8) requires a written disclosure under section 12(1) from the prospective arbitrator before appointment, so the last option is also wrong.

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