Refusing to appoint is a common delaying tactic, and the Act has a specific answer to it.
Step 1: the invocation notice
Under Section 21, arbitral proceedings commence on the date the respondent receives a request that the dispute be referred to arbitration. This notice matters more than people realise:
- It fixes the date for limitation purposes.
- It must identify the disputes, refer to the arbitration clause, and either propose an arbitrator or call on the other side to concur in one.
- Serve it in a way that gives proof of delivery, at the address in the contract.
Step 2: the applicable appointment procedure
Where the statutory default procedure for three arbitrators applies, Section 11(4) provides 30 days for a party to appoint after receiving a request, or for the two appointed arbitrators to agree on the third. An agreed appointment procedure requires separate examination under Section 11(6).
The same 30 day period applies where the clause provides for a sole arbitrator and the parties fail to agree after one has asked the other. Where the parties agreed their own procedure and a party, the two appointed arbitrators, or a named institution fails to do what it requires, the court can be approached on that footing too. In each case the clock starts on a real request identifying what is asked for, which is why the notice and its proof of service do so much work.
Step 3: the Section 11 application
Apply to the High Court for a domestic arbitration, or the Supreme Court for an international commercial arbitration. In Motilal Oswal Financial Services v. Santosh Cordeiro (5 January 2026), the Supreme Court reaffirmed the limited examination under the operative Section 11(6A): the court considers the prima facie existence of the arbitration agreement. It does not conduct a trial of the underlying claim or decide its limitation merits at the appointment stage. The 2019 provision omitting Section 11(6A) had not been brought into force in that decision.
Appointing your own arbitrator too quickly can be a mistake where the clause names an officer of the other party, or gives one side the unilateral right to appoint. Following Perkins Eastman v. HSCC (2019), a person who is himself ineligible cannot appoint a sole arbitrator. If your contract has such a clause, do not go along with it. Say so in the notice and go to Section 11.
What goes into the application, and where it is filed
For a domestic arbitration seated in Karnataka the application is filed in the High Court of Karnataka. Keep it short and let the annexures carry it: the contract containing the clause, the invocation notice under Section 21, proof of its delivery at the contractual address, the reply if there was one, and a chronology showing how the applicable appointment procedure failed. If the other side nominated someone ineligible, annex that too; it is usually the point on which the application is allowed.
Before an arbitrator is appointed, a written disclosure is sought from the prospective appointee under Section 12. It must cover any past or present relationship with or interest in a party or the subject matter, financial, business, professional or otherwise, likely to give rise to justifiable doubts about independence or impartiality, and whether the person can devote enough time to finish within twelve months. The Fifth Schedule guides what raises justifiable doubts, the disclosure is made in the Sixth Schedule form, and anyone falling in a Seventh Schedule category is ineligible whatever the contract says, subject only to an express written waiver agreed after the disputes arose. Read it when it comes; a challenge to your own nominee is open only for reasons you learn of after the appointment.
More arbitrations sour over fees than over law. The Act contemplates a Fourth Schedule as the model fee scale, but the 2019 institutional-appointment amendments must not be assumed operative merely because they appear in an amended bare Act. Those figures and institutional tariffs change, so confirm the version in force rather than working from an older note, and record the agreed fee, the sitting basis and who bears secretarial and venue costs in the first procedural order. Choosing an institution rather than an ad hoc tribunal settles most of this in advance: the fees, the timetable and the appointment mechanism come with the rules, and there is no Section 11 application at all.
Practical points
- Keep the notice on record with proof of service; a Section 11 application without it is premature.
- Do not delay. Limitation applies to the Section 11 application itself as well as to the underlying claim. The Limitation Act applies to arbitrations by force of Section 43, and the arbitration is deemed to have commenced on the date the Section 21 request reached the respondent, so a fresh notice does not revive a claim already time barred when the first one went out.
- Consider proposing a sole arbitrator rather than a three-member tribunal for a modest claim. A three-member tribunal often costs more than the amount in dispute.
- Plan for the statutory clock from day one. Under Section 23 the statement of claim and defence are to be completed within six months from the date the arbitrators receive written notice of their appointment, and under Section 29A a domestic award is to be made within twelve months from the completion of those pleadings. The parties may extend that by consent by up to six months; beyond that the mandate terminates unless the court extends it, and the court may reduce the arbitrator's fees where the delay is attributable to the tribunal.
Our note on getting an arbitrator appointed under Section 11 covers the drafting of the notice and the application, and is worth reading with our guide to drafting an arbitration agreement, because most appointment fights come from a clause that never said who appoints whom.