The appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 happens in one of two ways: either the parties appoint the arbitrator themselves under the procedure written into their arbitration agreement, or, where that procedure fails or the other side will not cooperate, a party applies to the court (or a designated arbitral institution) to make the appointment for them. Section 11 is the safety valve that ensures an arbitration agreement does not collapse simply because one party refuses to nominate an arbitrator.
In short: agree on the arbitrator yourselves if you can; if you cannot, Section 11 lets a court or institution step in so the dispute still gets heard. This guide explains the procedure, the limited scope of the court's power, and the independence and impartiality rules that govern who may be appointed.
What Section 11 actually says
Section 11 of the Arbitration and Conciliation Act, 1996 (the “A&C Act” or “the 1996 Act”) deals with the appointment of arbitrators. Its core ideas are:
- A person of any nationality may be an arbitrator unless the parties agree otherwise (Section 11(1)).
- The parties are free to agree on a procedure for appointing the arbitrator(s) (Section 11(2)).
- For a three-arbitrator tribunal, each party appoints one arbitrator, and those two appoint the third, who acts as the presiding arbitrator (Section 11(3)).
- If a party fails to appoint within 30 days of a request, or the two party-appointed arbitrators fail to agree on the third within 30 days, the appointment is made on request — historically by the Chief Justice or a person/institution designated by the Chief Justice (Sections 11(4) and 11(5)).
- Where an agreed appointment procedure breaks down — a party does not act, the parties or the two arbitrators cannot reach agreement, or a designated person or institution fails to perform — a party may seek the court's intervention (Section 11(6)).
Because the A&C Act has been amended more than once (notably in 2015, 2019 and 2021), the exact wording, the body that makes the appointment, and the fee schedule have shifted over time. Always check the current version of Section 11 on the official source before filing.
The procedure for appointment of arbitrator under Section 11
The procedure is best understood as a sequence of steps that move from private agreement to court intervention only when private agreement fails.
Step 1 — Follow the arbitration agreement first
Most commercial contracts contain an arbitration clause that already names an appointing authority or sets out a method (for example, “each party shall appoint one arbitrator”). Section 11 respects party autonomy: you must first attempt the agreed mechanism. Courts will not be invoked simply because one party prefers a different route.
Step 2 — Issue a notice invoking arbitration
The party seeking arbitration sends a written notice to the other side invoking the arbitration clause and calling upon them to concur in appointing an arbitrator (this notice is connected to Section 21, which fixes when arbitral proceedings commence). The clock for the other party to act — typically 30 days — usually runs from receipt of this request.
Step 3 — Wait out the statutory period
If the other party does not appoint within 30 days of the request (sole arbitrator), or the two party-appointed arbitrators do not agree on the presiding arbitrator within 30 days, the right to seek a court-assisted appointment arises.
Step 4 — Apply to the competent court or designated institution
The applicant files an application under Section 11(6). Depending on whether the arbitration is domestic or international commercial arbitration, and on the amendments in force, this goes to the High Court or the Supreme Court (or an arbitral institution they designate). The court or institution then appoints the arbitrator.
Step 5 — Disclosure and confirmation
The proposed arbitrator must make written disclosures about independence and impartiality (Section 12, read with the Fifth and Seventh Schedules) before the appointment is confirmed.
| Stage | Who acts | Typical trigger / timeline |
|---|---|---|
| Invoke arbitration | Claimant | Section 21 notice to the other party |
| Party appointment | Each party | Within 30 days of the request |
| Presiding arbitrator | The two arbitrators | Within 30 days of their appointment |
| Court/institution steps in | High Court / Supreme Court / designated institution | On failure of the above (Section 11(4)–(6)) |
| Disclosure | Proposed arbitrator | Before confirmation (Section 12) |
The scope of the court's power under Section 11
A central question is: when a court appoints an arbitrator, how deeply does it examine the dispute? The answer goes to the court's power under Section 11.
The 2015 amendment inserted Section 11(6A) (since the subject of further legislative change), which directed courts to confine their examination at the appointment stage to the existence of an arbitration agreement — not the merits, and not detailed arbitrability questions, which are left for the tribunal under the principle of kompetenz-kompetenz (the tribunal's power to rule on its own jurisdiction, reflected in Section 16).
The broad position that has emerged through case law is:
- The referral court's role is limited and supervisory, not a full trial of preliminary issues.
- The court primarily checks whether an arbitration agreement exists.
- Complex questions of arbitrability, limitation and jurisdiction are generally left to the arbitral tribunal, subject to narrow “eye of the needle” exceptions where a claim is ex facie (on its face) dead or non-existent.
Because the precise contours of this power have been shaped and re-shaped by Supreme Court decisions, the controlling authorities should be confirmed by counsel for the specific facts. The direction of travel, however, is consistent: minimal judicial interference at the appointment stage.
| Question | At the Section 11 (appointment) stage | At the arbitral tribunal stage |
|---|---|---|
| Does an arbitration agreement exist? | Examined (primary focus) | Can be revisited under Section 16 |
| Are the claims arbitrable / within limitation? | Generally left to the tribunal (narrow exceptions) | Decided here |
| Merits of the dispute | Not examined | Decided here |
Independence and impartiality of the arbitrator
Independence is governed mainly by Section 12 and the Fifth and Seventh Schedules to the A&C Act, which were strengthened by the 2015 amendment.
- Section 12(1) requires a person approached for appointment to disclose, in writing, any circumstances likely to give rise to justifiable doubts about their independence or impartiality, and anything affecting their ability to devote sufficient time.
- The Fifth Schedule lists categories of relationships and circumstances that guide whether justifiable doubts exist.
- The Seventh Schedule lists relationships that make a person ineligible to be appointed — for example, where the proposed arbitrator is an employee, consultant or has a controlling relationship with a party. Such ineligibility cannot generally be cured except by an express written waiver after the dispute has arisen (Section 12(5) and its proviso).
A practical consequence: a clause that lets one party (say, a company's managing director) unilaterally appoint the sole arbitrator is vulnerable, because a person who is themselves ineligible usually cannot validly nominate the arbitrator. This is exactly the kind of point a Section 11 application can surface — and a reason to have arbitration clauses reviewed before signing.
Domestic vs international commercial arbitration: who appoints
| Feature | Domestic arbitration | International commercial arbitration |
|---|---|---|
| Default appointing authority on failure | High Court (or its designate / designated institution) | Supreme Court (or its designate / designated institution) |
| Nationality of arbitrator | Any nationality permitted unless agreed otherwise | Any nationality permitted; neutrality often preferred |
| Governing provisions | Section 11 + Part I, A&C Act | Section 11 + Part I, A&C Act (with international-commercial definition in Section 2(1)(f)) |
The split between High Court and Supreme Court turns on the statutory definition of international commercial arbitration. Confirm the current designated authority, because the framework has been moving toward institutional appointment.
A note on changing law and renumbering
India has overhauled its core criminal codes recently: the Indian Penal Code (IPC) is now the Bharatiya Nyaya Sanhita (BNS), 2023, the Code of Criminal Procedure (CrPC) is now the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Indian Evidence Act is now the Bharatiya Sakshya Adhiniyam (BSA), 2023. Those reforms do not renumber the Arbitration and Conciliation Act, 1996 — arbitration remains under its own statute. But if any older judgment or article you rely on cites the IPC or CrPC in passing, map it to the corresponding BNS/BNSS provision and verify the current section number before relying on it.
How this connects to dispute resolution strategy
Choosing arbitration, drafting a clean arbitration clause, and naming a workable appointment mechanism are decisions that are far cheaper to get right at the contract stage than to litigate later under Section 11. To see how arbitration fits within the wider menu of options, read our overview of alternate dispute resolution, and our comparison of institutional versus ad hoc arbitration — the choice affects who appoints your arbitrator and how.
If your dispute is contractual or commercial in nature, you may also find our guides on the cheque bounce case procedure under Section 138 and on copyright registration in India useful for understanding adjacent remedies. You can read the full text of the Arbitration and Conciliation Act, 1996 on the Government of India's official portal, India Code.
Frequently Asked Questions
What is the appointment of arbitrator under Section 11?
It is the mechanism in the Arbitration and Conciliation Act, 1996 by which an arbitrator is chosen — first by the parties under their agreed procedure, and, if that fails, by a court or a designated arbitral institution on a party's application.
What is the time limit to appoint an arbitrator?
A party generally has 30 days from the request to appoint its arbitrator, and two party-appointed arbitrators generally have 30 days to agree on the presiding arbitrator. If these periods lapse, a party can seek a court-assisted appointment under Section 11(6).
Which court appoints the arbitrator under Section 11?
For domestic arbitration it is generally the High Court (or its designate), and for international commercial arbitration it is generally the Supreme Court (or its designate). The framework increasingly favours appointment by designated arbitral institutions, so the current position should be verified.
What does the court examine when appointing an arbitrator?
At the appointment stage the court's power is limited — it primarily examines whether an arbitration agreement exists. Questions of arbitrability, limitation and jurisdiction are generally left to the arbitral tribunal, subject to narrow exceptions.
Why does independence and impartiality matter at appointment?
Under Section 12 and the Fifth and Seventh Schedules, a proposed arbitrator must disclose anything raising justifiable doubts about independence or impartiality, and certain relationships make a person ineligible to be appointed, protecting the fairness of the process.
Can one party unilaterally appoint a sole arbitrator?
A clause allowing one interested party to unilaterally appoint the sole arbitrator is legally vulnerable, because a person who is themselves ineligible under the Seventh Schedule generally cannot validly make such an appointment. Such clauses should be reviewed carefully.
Does the new BNS/BNSS change Section 11?
No. The 2023 criminal-law reforms (BNS, BNSS, BSA replacing the IPC, CrPC and Evidence Act) do not renumber the Arbitration and Conciliation Act, 1996. Arbitration continues under its own statute, but any cross-reference to older criminal codes in source material should be re-checked.
This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.
