How Many Arbitrators, and How They Are Appointed

In one line

The parties choose how many arbitrators there are and how they are appointed, and if that breaks down a court appoints one for them.

In exam wording: section 10 leaves the number of arbitrators to the parties provided it is not an even number, and section 11 provides the appointment procedure, including the power of the Supreme Court or the High Court, or a person or institution designated by such Court, to make the appointment where the agreed procedure fails.

Section 10: the number, and the odd-number rule

Section 10(1): the parties are free to determine the number of arbitrators, provided that such number shall not be an even number.

Section 10(2): failing such determination, the arbitral tribunal shall consist of a sole arbitrator.

Two things. The reason for the odd-number rule is practical: an even-numbered tribunal can deadlock, and section 29 decides by majority. And the default is one, not three, which surprises students: silence in the clause means a sole arbitrator.

A clause providing for two arbitrators is not automatically void. Indian courts have generally read such a clause as workable by treating the two as required to appoint a third, rather than striking the arbitration agreement down. Be careful how you state this; the safe formulation is that section 10(1) prohibits an even number and that the consequence of a clause providing for two is a question the courts have answered by preserving the arbitration where they can.

Section 11: the appointment machinery

Section 11 is the longest section in Part I and it has been amended twice. Work through it in order.

Section 11(1): a person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

Section 11(2): subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Party autonomy comes first.

Section 11(3): failing such agreement, in an arbitration with three arbitrators, each party shall appoint one, and the two so appointed shall appoint the third, who shall act as the presiding arbitrator.

Section 11(4): if that default procedure applies and (a) a party fails to appoint within thirty days from receipt of a request from the other party, or (b) the two appointed arbitrators fail to agree on the third within thirty days from their appointment, the appointment is made on the request of a party by the Supreme Court or the High Court, or any person or institution designated by such Court.

Section 11(5): failing agreement, in an arbitration with a sole arbitrator, if the parties fail to agree within thirty days of a request by one party, the appointment is made in the same way.