How Many Arbitrators, and How They Are Appointed

Section 11(6): where under an agreed procedure (a) a party fails to act as required, or (b) the parties or the two appointed arbitrators fail to reach an agreement expected of them, or (c) a person or institution fails to perform a function entrusted to it, a party may request the Court or its designate to take the necessary measure, unless the agreement provides other means of securing the appointment.

Note the difference between sub-sections (4) and (5) on one hand and (6) on the other. The thirty day periods belong to the default procedure. Where the parties have agreed their own procedure, sub-section (6) applies and there is no statutory thirty days; what matters is a failure to act as the agreed procedure required.

Section 11(6A) and (6B): confining the court's enquiry

Section 11(6A), inserted in 2015: the Court, while considering an application under sub-sections (4), (5) or (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.

This is the most important sentence in the section. Before 2015, the practice that had grown up under S.B.P. & Co v. Patel Engineering Ltd treated the appointment stage as judicial and allowed a wide enquiry into preliminary questions. Sub-section (6A) cuts it down to one question: does an arbitration agreement exist? Everything else goes to the tribunal under section 16.

S.B.P. & Co v. Patel Engineering Ltd, decided 26 October 2005, is in the queue in authorities/cases.json and has not been read for facts and holding. Do not state its reasoning; know that the 2015 amendment was directed at the position it produced.

And on stamping, chapter 230 has the current answer: In Re: Interplay holds that an objection as to stamping does not fall for determination under section 8 or section 11, and that the concerned court examines whether the arbitration agreement prima facie exists.

Section 11(6B): designating a person or institution is not to be regarded as a delegation of judicial power by the Supreme Court or the High Court.

Section 11(7) to (14): the rest of the machinery

Section 11(7): a decision on a matter entrusted by sub-sections (4), (5) or (6) is final, and no appeal, including a Letters Patent Appeal, lies against it.

Section 11(8): before appointing, the Court or its designate shall seek a disclosure in writing from the prospective arbitrator under section 12(1), and shall have due regard to (a) any qualifications required by the parties' agreement, and (b) the contents of the disclosure and other considerations likely to secure the appointment of an independent and impartial arbitrator. Chapter 280 works through the disclosure.

Section 11(9): in the appointment of a sole or third arbitrator in an international commercial arbitration, the Supreme Court or its designate may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties are of different nationalities.

Section 11(10): the Court may make a scheme for dealing with these matters.

Section 11(11): where more than one request has been made to different High Courts or their designates, the one to whom the request was first made alone is competent to decide.

Section 11(12): the forum split. In an international commercial arbitration, the references to "the Supreme Court or, as the case may be, the High Court" mean the Supreme Court. In any other arbitration they mean the High Court within whose local limits the principal Civil Court under section 2(1)(e) is situated, or that High Court itself where it is the court under that clause.

Section 11(13): an application is to be disposed of as expeditiously as possible, with an endeavour to dispose of it within sixty days from service of notice on the opposite party.

Section 11(14): for determining the fees of the tribunal and the manner of payment, the High Court may frame rules after taking into consideration the rates specified in the Fourth Schedule. The Explanation is important: sub-section (14) does not apply to international commercial arbitration, nor to other arbitrations where the parties have agreed that fees be determined by the rules of an arbitral institution.

Section 11A: the Central Government may by notification amend the Fourth Schedule; a draft of every such notification must be laid before each House of Parliament for thirty days, and both Houses may disapprove it or agree on modifications.

What the 2019 amendment tried to do

The 2019 amendment rewrote parts of section 11 to route appointments through arbitral institutions graded by the Arbitration Council of India, rather than through the courts, with the Supreme Court and High Courts designating institutions for the purpose.

Read that against chapter 440. Part IA is in force from 12 October 2023, but the Government told the Lok Sabha on 6 February 2026 that the Arbitration Council of India "has not been constituted as yet." A scheme that depends on graded institutions cannot operate until there is a body to grade them, so appointments continue to be made by the courts and their designates as the text set out above provides. State both halves.

A worked example

A contract says: "Disputes shall be referred to arbitration by three arbitrators, one appointed by each party and the third by the two so appointed." A dispute arises between two Indian companies. Sunanda's company appoints its arbitrator and asks the other side to appoint theirs. Forty days pass and nothing happens.

Which sub-section? The parties have agreed a procedure, so this is section 11(6)(a): a party has failed to act as required under the agreed procedure. Note it is not section 11(4), because that applies where there is no agreement and the default in sub-section (3) governs, although the agreed procedure here happens to mirror the default.

Which court? This is not an international commercial arbitration, so under section 11(12)(b) the reference is to the High Court within whose local limits the principal Civil Court under section 2(1)(e) sits.

What will the court examine? Under section 11(6A), it confines itself to the existence of an arbitration agreement, and on Interplay it looks for prima facie existence. Arguments about whether the claim is time-barred, or whether the contract was validly terminated, are for the tribunal under section 16.

What must the court do before appointing? Under section 11(8), seek a written disclosure from the prospective arbitrator under section 12(1), and have regard to any qualifications the parties required and to whatever will secure an independent and impartial appointment.

How soon? Section 11(13): as expeditiously as possible, with an endeavour to dispose of the matter within sixty days of service.

Can the other side appeal? No. Section 11(7) makes the decision final and excludes any appeal including a Letters Patent Appeal.

What beginners get wrong

The default is a sole arbitrator, not three. Section 10(2).

The thirty day periods are in the default procedure, sub-sections (4) and (5), not in sub-section (6).

The court does not examine the merits at the appointment stage. Section 11(6A) confines it to the existence of an arbitration agreement.

The forum depends on the kind of arbitration. Supreme Court for international commercial arbitration; the relevant High Court otherwise, under section 11(12).

The Fourth Schedule fee rules do not apply to international commercial arbitration, nor where the parties have chosen an institution's fee rules.

Quick revision

• Section 10: the parties fix the number, never an even number; failing agreement, a sole arbitrator.
• Section 11(2): parties free to agree a procedure. 11(3): default for three arbitrators, one each and the two appoint the presiding arbitrator. 11(4) and (5): thirty days, then the Court or its designate appoints. 11(6): failure under an agreed procedure.
• 11(6A): the Court confines itself to the existence of an arbitration agreement. 11(6B): designation is not a delegation of judicial power.
• 11(7): decision final, no appeal including Letters Patent Appeal. 11(8): written disclosure under section 12(1) and regard to qualifications and to independence and impartiality. 11(9): a neutral nationality sole or third arbitrator may be appointed in an international commercial arbitration.
• 11(12): Supreme Court for international commercial arbitration; the relevant High Court otherwise. 11(13): endeavour to dispose of within sixty days. 11(14): High Court may frame fee rules having regard to the Fourth Schedule, but not for international commercial arbitration or where institutional fee rules are agreed.
• Section 11A: the Central Government may amend the Fourth Schedule, subject to laying the draft before Parliament.

Test yourself

1. A clause is silent on the number of arbitrators. How many are there? One. Section 10(2) provides that failing determination by the parties the tribunal shall consist of a sole arbitrator.

2. What may a court examine on a section 11 application? Under section 11(6A) it confines itself, notwithstanding any judgment, decree or order of any court, to the examination of the existence of an arbitration agreement. On In Re: Interplay the court looks for prima facie existence, and objections such as stamping are for the tribunal.

3. Which court appoints in an international commercial arbitration seated in India? The Supreme Court, under section 11(12)(a), which construes the references in sub-sections (4) to (8) and (10) as references to the Supreme Court in an international commercial arbitration.

4. What must the court do before it appoints an arbitrator? Under section 11(8), seek a disclosure in writing from the prospective arbitrator in terms of section 12(1), and have due regard to any qualifications required by the parties' agreement and to the contents of the disclosure and other considerations likely to secure an independent and impartial appointment.

5. Is an order appointing an arbitrator under section 11 appealable? No. Section 11(7) makes a decision on a matter entrusted by sub-sections (4), (5) or (6) final, and provides that no appeal, including a Letters Patent Appeal, shall lie against it.