Appointment of Arbitrators

Section 11 of the Arbitration and conciliation Act, 1996 (the Act) deals with the appointment of arbitrators. Section 11(2) of the 1996 Act provides that the parties are free to agree on a procedure for appointing an arbitrator.Theoretically, under Section 11(6) of the 1996 Act,a party does not have to approach a court for appointment of an arbitrator, if the agreement provides for a mechanism to deal with the failure of the other party to appoint the arbitrator. Thus, the parties are given complete autonomy in choosing the fastest possible method of appointing an arbitrator, and constituting a valid arbitral tribunal.

Where the procedure for appointment has been agreed upon between the parties, the court's function is only to implement the agreed procedure.The M.P. high court in Subhash Projects and Marketing Ltd. v. South Eastern Coalfields Ltd. AIR 1998 MP 276 said, "Under section 11(6), where the agreement lays down a procedure for appointment of arbitrator referable to sub-section (2), the chief justice has merely to take necessary measures for enforcing the procedure laid down in the agreement for arbitration. Under sub-section (6) the chief justice or his designate has not to make any appointment but to enforce or compel the party to make the appointment in accordance with the agreed procedure. But the A.P. High Court in Deepak Galvanising & Engg Industries Pvt Ltd v. Govt. of India , the Delhi High Court in Continental Construction Ltd. v. NHPC Ltd. and the Bombay High Court in R.P.Souza & Co v. PWD took a contrary view. There it was held that the court has to appoint an independent arbitrator when the opposite party has failed to appoint the named arbitrator.

It is well settled that where an arbitrator is named in the arbitration agreement, the provisions of section 11 of the Act are not attracted and the court will not have jurisdiction to try and decide the petition filed by party for appointment of another arbitrator. It was held by Madras High Court in Kamla Solvent v. Manipal Finance Corporation Ltd. (AIR 2001 Mad 440).