Appointment of Arbitrators
Section 11 of the Arbitration and conciliation act deals with the appointment of arbitrators. In this article, I have tried to simplify all the provisions of section 11 by way of questions and answers.
Who can be an arbitrator?
- A person of any nationality. [s11(1)]
- One who is qualified to be an arbitrator. This qualification is determined by the court or agreement of the parties. [s11(8)(a)]
- One who qualifies the criteria mentioned in Section 12(1) of the Arbitration and conciliation act. [s11(8)(b)]
However, all these conditions are subject to agreement between parties.
Who can appoint an Arbitrator?
- Parties: Parties are free to agree upon the procedure to appoint an arbitrator. [s.11(2)]
- Other arbitrators: In case of arbitration with 3 arbitrators each party shall appoint one arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as the presiding arbitrator. [s.11(3)]
- Court: Failing to appoint an arbitrator, the court has the power to appoint an arbitrator on request of either party.
What Happens if the appointment procedure in subsection 3 does not apply?
The decision of the court is final and no appeal including patent appeal shall lie against such court. [s11(7)]
- 11(4)(a): A party fails to appoint an arbitrator within 30 days from receipt of the request.
- 11(4)(b): Two appointed arbitrators fail to agree on the third arbitrator within 30 days from the date of appointment.
In such a situation, SC/HC/Any person or institution designated by such court upon request by the party or parties can appoint an arbitrator.
What happens in the case of the sole arbitrator?
In the case of sole arbitrator parties again have the time of 30 days from the receipt of the request by one party from the other party to agree on the appointment of the arbitrator.
If no arbitrator is appointed, SC/HC and any person or an institution designated by the court on request by the party can appoint an arbitrator. However mere designation does not lead to delegation of judicial powers. [s11(6)(b)]
In this case, the provision of section 11(7) applies empowering the decision to be final.
What is the fate of the Appointment Procedure? [S11(6)(a)(b)(c)]
Party fails to act as required under that procedure
Parties or 2 arbitrators fail to reach an expected agreement
Person or Institution designated by the court fails to perform any function entrusted to him.
The party may request SC/HC and any person or institution designated by such court to take necessary actions. However, if the agreement provides for any other remedy for an appointment, it should be followed. The provisions of section 11(7) apply in this situation also empowering the decision to be final.
Precautions that the court shall practice: The court must confine to the examination of the existence of an arbitration agreement irrespective of any judicial decree or order. [S11(6A)]
Does the court have any power irrespective of an arbitration agreement?
SC/HC may make any scheme to deal with issues listed in sections 11(4), (5), (6). [1]Further, if more than one request has been made under the above sections by different HC, the HC which has first received the request will only be competent to decide. [s11(12)]
Do HCs have competency in International Commercial Arbitration?
No, in matters dealing with subsections 4,5,6,7,8, and 10, the reference to HC/SC in these subsections shall mean a reference to SC only.
Further in any other arbitration, the reference to SC/HC shall mean respectively. [s11(12)(b)]
What is the time to dispose of an Application for the appointment of an arbitrator or arbitrator?
SC/HC and any person or institution designated by the court shall try to dispose of the matter as expeditiously as possible. The courts shall try to dispose of the matter within 60 days from the date of service of notice to the opposition party. [s.11(13)
End-Notes:
- S11(10)
Written By: Swapnil Vishwakarma, 2nd Year BA-LL.B.(Hons) - ICFAI University Dehdradun
