Arbitration and Conciliation Act, 1996
Section 11 of Arbitration Act: Appointment of Arbitrators
Section 11 of the Arbitration and Conciliation Act, 1996 governs the appointment of arbitrators. It recognizes party autonomy in designing the appointment procedure, provides default mechanisms when the agreed process fails, identifies the role of the Supreme Court and High Courts, requires written disclosure from prospective arbitrators, and addresses timelines and tribunal fees.
- Section 11 statutory text
- Party autonomy in appointment
- Three-member tribunal
- Sole arbitrator
- Failure of agreed appointment procedure
- Role of Supreme Court and High Court
- Disclosure, independence and impartiality
- International commercial arbitration
- Sixty-day endeavour
- Fees and Fourth Schedule
- Later institutional reforms
- Official sources
Section 11 - Appointment of Arbitrators
(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and-
(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court.
(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree, the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court.
(6) Where, under an appointment procedure agreed upon by the parties,-
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.
(6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.
(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision.
(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to-
(a) any qualifications required for the arbitrator by the agreement of the parties; and
(b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Supreme Court or the person or institution designated by that Court may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
(10) The Supreme Court or, as the case may be, the High Court, may make such scheme as the said Court may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6), to it.
(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to different High Courts or their designates, the High Court or its designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.
(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in an international commercial arbitration, the reference to the "Supreme Court or, as the case may be, the High Court" in those sub-sections shall be construed as a reference to the "Supreme Court"; and
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other arbitration, the reference to the Supreme Court or, as the case may be, the High Court in those sub-sections shall be construed as a reference to the "High Court" within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate, and where the High Court itself is the Court referred to in that clause, to that High Court.
(13) An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or the person or institution designated by such Court, as the case may be, as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.
(14) For the purpose of determination of the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal, the High Court may frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.
Explanation.- For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) in case where parties have agreed for determination of fees as per the rules of an arbitral institution.
Amendment note: The above text incorporates the changes made by the Arbitration and Conciliation (Amendment) Act, 2015, including substitution of the earlier references to the Chief Justice and insertion of sub-sections (6A), (6B), (13) and (14), with effect from 23-10-2015.
Party Autonomy in Appointment of Arbitrators
Section 11(2) gives parties freedom to agree on their own procedure for appointing the arbitrator or arbitral tribunal. That agreed procedure ordinarily governs unless it fails in a manner contemplated by Section 11(6).
The appointment clause should therefore clearly address the number of arbitrators, method of nomination, time limits, appointing authority and any required qualifications.
Appointment in a Three-Arbitrator Tribunal
Where there is no agreed appointment procedure and the tribunal is to consist of three arbitrators, each party appoints one arbitrator and the two party-appointed arbitrators appoint the third arbitrator, who acts as the presiding arbitrator.
If a party does not appoint within thirty days after receiving a request, or if the two arbitrators fail to agree on the third arbitrator within thirty days, Section 11 provides the statutory default appointment mechanism.
Appointment of a Sole Arbitrator
Where the arbitration is to be conducted by a sole arbitrator and the parties cannot agree on the arbitrator within thirty days from receipt of a request to agree, a party may invoke the statutory appointment mechanism under Section 11(5).
Failure of an Agreed Appointment Procedure
Role of the Supreme Court and High Court
Section 11 distinguishes between international commercial arbitration and other arbitration. In international commercial arbitration, the relevant appointment power is linked to the Supreme Court. In other arbitrations, the relevant High Court is identified by Section 11(12)(b).
The provision also allows appointment functions to be performed by a person or institution designated by the relevant Court, and Section 11(6B) clarifies that such designation is not treated as a delegation of judicial power.
Disclosure, Qualifications, Independence and Impartiality
Before appointment, Section 11(8) requires a written disclosure from the prospective arbitrator in terms of Section 12(1). The appointing authority must also consider any qualifications required by the parties' agreement and considerations relevant to securing an independent and impartial arbitrator.
International Commercial Arbitration
For appointment of a sole or third arbitrator in an international commercial arbitration, Section 11(9) permits appointment of an arbitrator of a nationality different from those of the parties where the parties are of different nationalities.
Sixty-Day Endeavour for Disposal
Section 11(13) requires applications for appointment of arbitrators to be dealt with as expeditiously as possible. The provision states that an endeavour should be made to dispose of the matter within sixty days from the date on which notice is served on the opposite party.
Arbitral Fees and the Fourth Schedule
Section 11(14) empowers the High Court to frame rules concerning determination and payment of arbitral tribunal fees after considering the rates in the Fourth Schedule.
The explanation excludes international commercial arbitration and also excludes other arbitrations where the parties have agreed that fees will be determined under the rules of an arbitral institution.
See also Section 11A - Power of Central Government to Amend Fourth Schedule.
Later Institutional-Arbitration Reforms
The Arbitration and Conciliation (Amendment) Act, 2019 introduced a broader institutional-arbitration framework involving designated and graded arbitral institutions and the Arbitration Council of India. Government implementation materials show that commencement of those reforms has occurred in stages.
Accordingly, for an actual appointment application, the latest commencement notifications, applicable High Court or Supreme Court schemes, institutional designations and current official text should be checked before filing.
Official Sources
India Code records the Arbitration and Conciliation Act, 1996 as Act No. 26 of 1996 and lists Section 11 as the provision on appointment of arbitrators.
View the Arbitration and Conciliation Act, 1996 on India Code