India: Law Of And Procedure For Appointment Of Arbitrator(S)

Article by Ginny J. Rautray and Saurendra Rautray*

I. Introduction:

Arbitration may be defined as "the process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially and with binding effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law"¹.

There can be reference to arbitration only if there is an arbitration agreement between the parties. The Act makes it clear that an arbitrator can be appointed under the Act at the instance of a party to an arbitration agreement only in respect of disputes with another party to the arbitration agreement. If there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also nonparties to the arbitration agreement, reference to arbitration or appointment of arbitrator can be only with respect to the parties to the arbitration agreement and not the non-parties².

The source of the jurisdiction of the arbitrator is the arbitration clause. The arbitration clause is normally a part of the main contract governing the parties. An arbitration agreement on the other hand constitutes a separate agreement, distinct from the main contract, and is binding on the parties. Parties can, even after the disputes have arisen, agree to have their disputes referred to arbitration. The agreement, however, must be in writing. Although contracts are required to be signed by the parties, arbitration clause need not be signed by the parties. An arbitration clause is binding if the parties have given their express or implied or tacit consent to refer the disputes to arbitration. Subject to the law of limitation, parties can refer their disputes to arbitration any time.

There are two forms of arbitration namely, ad hoc and institutional arbitration. Both forms have separate mechanism for appointment of arbitrators. In ad hoc arbitrations, parties make their own arrangements for selection of arbitrators and for designation of rules, applicable law, procedures and administrative support. However, an institution administers the arbitral process as per the institutional rules on payment of administrative fees by the parties. The institution also allows the parties to select arbitrator(s) from the institution's panel of arbitrators comprising experts drawn from various parts of the world.

II. Arbitration Agreement:

An arbitration agreement is collateral to the substantial stipulation of the contract. It is merely procedural and ancillary to the contract and it is a mode of settling the disputes, though the agreement to do so is itself subject to the discretion of the court. It is distinguishable from other clauses in the contract. It embodies an agreement of both parties with consensus ad idem that if any dispute arises with regard to the obligations undertaken therein which one party has undertaken towards the other, such a dispute shall be settled by a tribunal of their own constitution³. It is the procedural machinery which is activated when disputes arise between parties regarding their rights and liabilities⁴.

III. Rule of 'incorporation by reference':

The rule of 'incorporation by reference' asserts that, even though the contract between the parties does not have a provision for arbitration but is contained in an independent document it will be imported and engrafted in the contract between the parties, by reference to such independent document in the contract, if the reference is such as to make the arbitration clause in such document, a part of the contract. The wording of provisions of the Act⁵ makes it clear that a mere reference to a document would not have the effect of making an arbitration clause from that document, a part of the contract. The reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document, into the contract. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing.

The intention of the Indian Legislature is not to incorporate an arbitration clause contained in a separate document, merely on reference to such document in the contract. The intention was to ensure that the reference is such as to make that arbitration clause part of the contract and there is a conscious acceptance of the arbitration clause in another document, by the parties, as the part of their contract, before such arbitration clause could be read as a part of the contract between the parties⁶.

The Act does not contain any indication or guidelines as to the conditions to be fulfilled before a reference to a document in a contract can be construed as a reference incorporating an arbitration clause contained in such document, into the contract. In the absence of such statutory guidelines the normal rules of construction of contracts would have to be applied. The court in ascertaining the intention of the parties would determine as to whether the intention of the parties was to borrow specific terms and conditions contained in the separate document or the reference to that document was made with the intention to incorporate the contents of that document in its entirety into the contract.

The test is that there should be a special reference indicating a mutual intention to incorporate the arbitration clause from another document in the contract. The exception to the requirement of special reference is where the referred document is not another contract, but a standard form of terms and conditions of a trade associations or regulatory institutions which publish or circulate such standard terms and conditions for the benefit of the members or others who want to adopt the same. The standard forms of terms and conditions of trade associations or regulatory institutions are drafted by experience gained from trade practices and conventions, frequent areas of conflicts and differences, and dispute resolutions in the particular trade. They are also well known in trade circle and parties using such formats are usually well versed with the content thereof including the arbitration clause therein. Therefore, even a general reference to such standard terms, without special reference to the arbitration clause therein, is sufficient to incorporate the arbitration clause into the contract⁷.

IV. Ad hoc arbitration:

Ad hoc arbitration is an arbitration which is not administered by an institution providing arbitration facilities and it is left to the parties to determine all aspects of the arbitration like appointment of arbitrators, manner in which appointment is made, procedure for conducting the proceedings and for designation of rules, applicable law, procedures and administrative support. Ad hoc arbitration is mainly governed by the provisions of Arbitration and conciliation Act 1996 ('Act') and parties are free to determine the procedure.

V. Institutional arbitration:

In institutional arbitration, a specialized institution with a permanent character intervenes and assumes the functions of aiding and administering the arbitral process, as provided by the rules of that institution. The institution only facilitates and administers the process and the tribunal is appointed either by the parties or the institution. Often, the contract between the parties will contain an arbitration clause which will designate an institution as administrator by stating that the arbitration would be conducted as per the party designated institutional rules. For administering and facilitating the arbitration and providing secretarial services and facilities for conducting the arbitration proceedings, the institution normally levies administrative charges on the parties. The primary disadvantages of the institutional arbitration are:

In institutional arbitration, the first issue arising for agreement of the parties is choice of the institution appropriate for the resolution of disputes arising under the contract. Whilst making such choice, there are various factors to be considered i.e. nature & commercial value of the dispute, rules of the institution (as these rules differ), past record and reputation of the institution and also that the institutional rules are in tune with the latest developments in international commercial arbitration practice.

The advantages of institutional arbitration outweigh those of ad hoc arbitrations. Some of the advantages are:

VI. Number of arbitrators:

The Act⁸ provides that parties are free to determine the number of arbitrators which however, should not be an even number. Failing any determination by the parties, the arbitral tribunal shall consist of a sole arbitrator⁹. The statutory requirement of odd numbers of arbitrators is a derogable provision¹⁰. The words in the provision "the parties are free to determine the number of arbitrators" indicate that if they desire to exercise their option in favour of even number of arbitrators and agree to not to challenge the consequent award, the award rendered would be a valid and binding. The provision only gives a ground to either of the party in the event of appointment of even number of parties to object to such composition of the arbitral tribunal. A party has a right to object to the composition of the arbitral tribunal, if such composition is not in accordance with the Act. There is, however, no provision for the eventuality in case where the parties agree to even number. If neither of the parties challenge the composition then any challenge to the composition must be raised by a party before the time period prescribed under the Act¹¹, failing which it will not be open to that party to challenge the award after it has been passed by the arbitral tribunal. The Act enables the arbitral tribunal to rule on its own jurisdiction¹². A challenge to the jurisdiction of the arbitral tribunal must be raised, not later than the submission of the statement of defence even though the party may have participated in the appointment of the arbitrator and/or may have himself appointed the arbitrator¹³. The Act¹⁴ recognises the right of both parties to choose the number of arbitrators. If the party wishing to exercise the right fails to exercise such right within the time frame provided¹⁵ then he will be deemed to have waived his right to so object¹⁶.

VII. Qualification of arbitrators:

The agreement executed by the parties has to be given great importance. An agreed procedure for appointing the arbitrators has to be given preference to any other mode for securing appointment of an arbitrator. If the procedure for appointment as agreed between the parties fails and an application is filed in court for appointment, the court cannot ignore provisions contained in Clause (a) of Sub-section (8) of section 11 of the Act wherein it is specifically provided that the Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties¹⁷.

A clause in the agreement providing for settling the dispute by arbitration through arbitrators having certain qualifications or in certain agreed manner is normally adhered to by the courts and not departed with unless there are strong grounds for doing so¹⁸. The appointment of an arbitrator can be challenged by a party on the ground that he does not possess the qualification agreed to by the parties¹⁹. Such challenge has to be brought within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of the circumstance that he does not possess the necessary qualification²⁰.

VIII. Nationality of the arbitrator:

Parties are free to agree to the nationality of the arbitrator. The word "may" in the Act²¹ confers a discretion on the Chief Justice or his nominee. It is not mandatory that the arbitrator should be of a nationality other than the nationalities of the parties to the agreement.

IX. Named person or authority as arbitrator:

The parties to an arbitration agreement may agree to refer their disputes to a specific person and may either name him or give his designation in the agreement. For example, parties may state that the "Chief Engineer" of the department shall act as the arbitrator. If the person named therein or person holding the designation refuses to act as arbitrator and the parties have not intended that the vacancy should not be supplied, in that event the court will have jurisdiction to appoint another arbitrator. The basis for assuming such jurisdiction is that the clause would otherwise be rendered inoperative²².

Where the agreement itself specifies and names the arbitrator, it is obligatory upon the court, in case it is satisfied that the dispute ought to be referred to the arbitrator, to refer the dispute to the arbitrator specified in the agreement. It is not open to the court to ignore the arbitration clause and to appoint another person as an arbitrator. Only in cases where the arbitrator specified and named in the agreement refuses or fails to act or where the agreement does not specify the arbitrator and the parties cannot also agree upon an arbitrator, does the court get the jurisdiction to appoint an arbitrator. The court is bound to refer the dispute only to the arbitrator named and specified in the agreement²³.

If the arbitration agreement mentions a "named arbitrator", he should be identifiable by name, designation or office. Reference of such a person by class, description or in the generic sense would not amount to naming the arbitrator in the arbitration agreement²⁴. The court would always try to give effect to the terms of the arbitration agreement even though the contracting party had failed to act according to the contract²⁵. Failure on the part of the party to appoint an arbitrator in terms of the agreement would amount to abdication of the right of that party to make such appointment and the court would then be competent to appoint the arbitrator of its choice²⁶.

It will not be open to a party, at least in government contracts, to contend that appointment of a sole arbitrator only by one party to the dispute violates the equitable principle that no man can be a judge in his own cause if that party had entered into the contract with eyes wide open and had accepted the terms and conditions of the contract²⁷. Any challenge to the maintainability of the proceedings before the arbitral tribunal and to the tribunal's jurisdiction on the ground that the arbitration clause in the contract between the parties is void and unenforceable law will be rejected. In Nandan Biomatrix Ltd. v. D1 Oils Ltd., it was contended that appointment of a sole arbitrator only by one party to the dispute violates the equitable principle that no man can be a judge in his own cause. Rejecting the contention the Court held that the petitioner having accepted the terms and conditions of the contract cannot now resile from the same²⁸.

Whether appointment has to be made de hors the contract on failure by the named authority or institution? The Chief Justice or his designate cannot ignore the contractual terms between the parties and appoint an arbitrator even when the person or authority named is available. The court summed up the position stating:

A party would forfeit its right to appoint an arbitrator in terms of arbitration clause after the end of the statutory period of 30 days and if no steps have been taken to appoint before the other party makes an application to the court seeking appointment; the court may appoint an arbitrator³⁰.

X. "Notice of Arbitration" and "Commencement of Arbitration":

According to the Act, arbitral proceedings would commence on the date of service of a notice for appointment of an arbitrator³¹. The notice must be issued to and received by the respondent indicating that the claimant seeks arbitration of the disputes. If the request / notice is not received or there is a denial by the respondent of such receipt, the burden is on the party making the request to show that the respondent can be deemed to have received the request. This may be so in a situation where the request is sent by registered post and the acknowledgement to which bears the signature of the respondent.

Request to appoint an arbitrator need not be in express and precise language, it may be implied³². The test is to determine whether the 'communications were in their context sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt that they were intended to operate as a call for the appointment of an arbitrator'.

The issue of "notice of arbitration" and "commencement of arbitration", has been dealt by Mustill and Boyd. They have stated:

XI. Requirements of a letter of invocation:

XII. Requirements for filing an application:

The essential pre-conditions to be satisfied before an application for appointment of arbitrator by Court is filed are:

In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court³⁶. The existence of an arbitration agreement³⁷ is a condition precedent for exercise of power to appoint the arbitral tribunal³⁸.

XIII. Existence of arbitration clause:

Before seeking appointment of an arbitrator it is necessary to ascertain as to whether the contract governing the parties contains an arbitration clause. If the contract does not contain an arbitration clause, unless otherwise agreed by the other party, the disputes cannot be referred to arbitration. The aggrieved party would have to file a civil suit before the appropriate forum to have its claim adjudicated. In some contracts, mostly standard form contracts, the arbitration clause is not contained in the contract governing the parties but is contained in a separate document the terms of which are incorporated by reference into the contract signed by the parties.

The Act has conferred the power on the arbitral tribunal to decide whether there is in 'existence' an arbitration clause³⁹. The statute uses the word "may" when conferring such power which is a clear indication that even courts could go into such issues when hearing an application for appointment of arbitrator. An option given by the arbitration clause to the parties with the use of the expression "parties may refer the disputes to arbitration" would be a case where no arbitration clause exists between the parties and hence no appointment of an arbitrator can be made⁴⁰. The use of the word 'may' would imply that parties need not necessarily go to an arbitrator but can also go before the civil court by way of a suit. In order to make such an arbitration clause effective, a fresh consent for arbitration would be necessary⁴¹. The arbitration clause therefore, must be firm or mandatory.

In dealing with the issue of existence of an arbitration agreement between the parties, the learned Chief Justice or his designate is required to decide the issue finally and it is not permissible in a proceeding under Section 11 to merely hold that a party is prima facie a party to the arbitration agreement and that a party is prima facie bound by it. It is not as if the Chief Justice or his designate will subsequently be passing any other final decision as to who are the parties to the arbitration agreement. Once a decision is rendered by the Chief Justice or his designate under Section 11 of the Act, holding that there is an arbitration agreement between the parties, it will not be permissible for the arbitrator to consider or examine the same issue and record a finding contrary to the finding recorded by the court⁴². This is categorically laid down by the Constitution Bench in SBP & Co. v. Patel Engg. Ltd⁴³.

If there is an assertion of existence of an arbitration agreement in any suit, petition or application filed before any court, and if there is no denial thereof in the defence/counter/written statement thereto filed by the other party to such suit, petition or application, then it can be said that there is an "exchange of statements of claim and defence" for the purposes of Section 7(4)(c) of the Act. It follows that if in the application filed under Section 11 of the Act, the applicant asserts the existence of an arbitration agreement with each of the respondents and if the respondents do not deny the said assertion, in their statement of defence, the court can proceed on the basis that there is an arbitration agreement in writing between the parties⁴⁴.

Notwithstanding the arbitration clause, a party may challenge its effectiveness or validity. A reference to arbitration may be disputed where some of the claims are arbitrable and not all. In other words, parties have expressly stated in the contract that a particular nature of claims cannot be a subject matter of adjudication by the arbitral tribunal. Such non-arbitrable claims would fall within the meaning of "excepted matters", adjudication of which is either completely barred or can be done only before the court.

XIV. Discharge of contract and arbitration clause as a result of full and final settlement:

When a respondent contends that the dispute is not arbitrable on account of discharge of the contract under a settlement agreement or discharge voucher or no-claim certificate, and the claimant contends that it was obtained by fraud, coercion or undue influence, the issue will have to be decided either by the Chief Justice/his designate in the proceedings under Section 11 of the Act or by the Arbitral Tribunal as directed by the order under Section 11 of the Act. A claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher had been executed by the claimant, if its validity is disputed by the claimant⁴⁵. The court in Boghara Polyfab case further observed:

XV. Existence of 'dispute' a pre-condition of the right to seek appointment:

Existence of a dispute or difference is a pre-condition of the right to arbitrate and seek an appointment. It is not necessary for a claim to be formulated to give rise to a dispute. Mere existence of a disagreement on a central issue is sufficient. However, merely raising a claim does not satisfy the pre-condition of the dispute. For a dispute to come into existence there should be an assertion on behalf of one party and a positive denial by the other. There would be no dispute or difference if one party's claim has been expressly or impliedly admitted or if the other party has demonstrably no defence. A 'dispute' and 'difference' is most of the time used interchangeably and are the same although 'difference' has been held to have a wider meaning⁴⁶.

The word "dispute" means a genuine and real dispute and a claim which is indisputable because there is no arguable defence, does not create a dispute at all. The jurisdiction of an arbitrator depends not upon the existence of a claim or the accrual of a cause of action but upon the existence of a dispute. The question whether the dispute in the suit falls within the arbitration clause involves consideration of two matters. Firstly, what is the dispute in the suit and secondly, what disputes the arbitration clause covers. Thus, where the arbitration clause referred to a dispute regarding the goods of the contract and not to a dispute regarding the contract itself, and the suit was for damages for breach of the contract occasioned by non-delivery of goods. It was held that the suit was not in respect of a matter agreed to be referred to arbitration under the terms of the contract and could not be stayed⁴⁷.

XVI. Court intervention:

The Act limits court intervention in the arbitral process to the minimum in order to preserve the sanctity of the agreement of the parties to have their disputes settled by a forum of their choice. In view of this objective the legislative intent was not to make each and every order passed by an authority under the Act, a subject-matter of judicial scrutiny of a court of law⁴⁸.

XVII. Anti-suit proceedings:

A party seeking to stay the suit and have the disputes referred to arbitration would have to establish that the arbitrator is competent or empowered to decide the dispute. An application would lie only where there is already a judicial proceeding pending even though parties had agreed to refer the disputes to arbitration. The pendency of the proceeding itself is evidence of dispute. All that the court needs to ensure is whether the subject matter of the dispute is covered by the arbitration agreement⁴⁹.

The matter will not be referred to the arbitral tribunal, by the Court if (a) no application for referring the dispute to the arbitrator has been filed by the parties to the arbitration agreement; (b) such application is not filed before submitting first statement on the substance of the dispute in a pending suit; or (c) such application is filed without the original arbitration agreement or duly certified copy thereof. Application to the court will not lie if the subject matter of the suit is relating to matters lying outside the arbitration agreement, or between parties not involved in an arbitration agreement⁵⁰.

XVIII. Meaning of Court:

"Court" means the principal civil court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit. It, however, does not include any civil court of a grade inferior to such principal civil court, or any court of small causes.

The expression "if the same had been the subject-matter of a suit" means that had there been no arbitration agreement between the parties in the contract governing their obligations then on disputes arising between the parties the appropriate court would be one where the suit would have been filed in accordance with the provisions contained in sections 15 to 20 of the Code of Civil Procedure, 1908 (CPC). Therefore, even for matters which are subject of arbitration agreement the principles underlying the provisions of the CPC will continue to apply for determination of the appropriate "court". The only qualification to the application of the said provisions of CPC to disputes forming subject matter of arbitration agreement is that it will not include a court inferior to principal civil court in a district. As a consequence even High Courts in exercise of its ordinary original civil jurisdiction would fall under the definition of Court. However, unlike the provisions of section 15 to 20 which refer to the place, where the parties reside, dwell or carry on business to determine the court having jurisdiction, provisions of the Act⁵¹ only refers to the subject-matter of the arbitration. The Act excludes residence of parties for purposes of determination of jurisdiction of court. A "subject-matter" of arbitration can be determined from the nature of dispute which is raised by a party to arbitration agreement. Although, a contract between parties can give rise to several kinds of dispute, it will only be disputes which can be referred to arbitration which would fall within the term "subject-matter". Those disputes which under the contract cannot be referred to arbitration cannot be taken into consideration for determination of "subject-matter" of the arbitration although it may be an issue before the arbitrator as to whether it falls within the arbitration agreement or is an excepted matter. If the dispute relates to contract for construction of a building then in that case it will be the place where the contract is to be performed and not merely where the contract had been signed as it may have been signed at the place where the parties reside which may be different from place where the contract is to be performed.

Principal civil court of original jurisdiction in a district will be the Court where an application for enforcement of the award as decree shall have to be filed. The expression "the Principal Civil Court of original jurisdiction in a District" has not been defined under the Act. CPC defines a "district" to mean the local limits of the jurisdiction of a principal civil court of original jurisdiction ("district court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court⁵².

The General Clauses Act defines "district judge" to mean the judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction⁵³. The definition of "court" if read with the definition of "district" and "district Judge" would evince that the Court of district judge is the principal civil court of original jurisdiction in a district.

XIX. Appointment of arbitrator through Court assistance:

The existence of an arbitration agreement as defined under Section 7 of the Act is a condition precedent for exercise of power to appoint an arbitrator/Arbitral Tribunal, under Section 11 of the Act by the Chief Justice or his designate. It is not permissible to appoint an arbitrator to adjudicate the disputes between the parties, in the absence of an arbitration agreement or mutual consent⁵⁴.

Where the intervention of the court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. case⁵⁵. The Supreme Court in that case identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is:

The issues (first category) which the Chief Justice/his designate will have to decide are:

The issues (second category) which the Chief Justice/his designate may choose to decide

(or leave them to the decision of the Arbitral Tribunal) are:

The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are:

As per the scheme of the Act, in regard to issues falling under the second category, if raised in any application under Section 11 of the Act, the Chief Justice/his designate may decide them, if necessary, by taking evidence. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice or his designate chooses to examine the issue and decides it, the Arbitral Tribunal cannot re-examine the same issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the Arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue.

Section 11 of the Act lays down the procedure for appointment of arbitrator or arbitrators with court intervention. The sole object of seeking court assistance under the Act⁵⁷ is to secure constitution of the arbitral tribunal expeditiously. Parties to an arbitration agreement can agree upon a procedure for appointment of a sole arbitrator or arbitrators as contemplated under sub-section (2) of section 11. A party can approach the Chief Justice or his designate if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub-section (2) of section 11 of the Act or the circumstances provided for in sub-section (6) have arisen. Section 11(2) provides that the parties are free to agree to any procedure for appointing the arbitrator. In case of failure of the procedure in securing the appointment agreed between the parties, the aggrieved party can invoke sub-sections (4), (5) or (6) of Section 11, as the case may be.

Sub-section (4) of section 11 of the Act deals with the existence of an appointment procedure and the failure of a party to appoint the arbitrator within 30 days from the receipt of a request to do so from the other party or when the two appointed arbitrators fail to agree on the presiding arbitrator within 30 days of their appointment. Sub-section (5) deals with the parties failing to agree in nominating a sole arbitrator within 30 days of the request in that behalf made by one of the parties to the arbitration agreement and sub-section (6) deals with the Chief Justice appointing an arbitrator or an Arbitral Tribunal when the party or the two arbitrators or a person including an institution entrusted with the function, fails to perform the same.

Section 11(6) of the Act applies only when a party has failed to act in terms of the arbitration agreement. Section 11(6) contemplates that a request be made to the Chief Justice of India or his nominee to take the necessary measure if:

For filing an application for appointment of an arbitrator under section 11(6) of the Act, no time limit has been prescribed, whereas a period of 30 days has been prescribed under section 11(4) and section 11(5) of the Act.

Sub-sections (3) and (5) will come into play only when there is no agreement between the parties as is referred to in sub-section (2) of section 11 of the Act viz. that the parties have not agreed on a procedure for appointing the arbitrator or arbitrators. If the parties have agreed on a procedure for appointing arbitrator or arbitrators, sub-sections (3) and (5) of section 11 of the Act will have no application. Similarly, under sub-section (6) of section 11 request to the Chief Justice or to an institution designated by him to take the necessary measures, can be made if the conditions enumerated in clause (a) or (b) or (c) of this sub-section are satisfied.

Therefore, a combined reading of the various sub-sections of section 11 of the Act would show that the request to the Chief Justice for appointment of an arbitrator can be made under sub-sections (4) and (5) of section 11 where parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub-section (2) of Section 11. A request to the Chief Justice for appointment of an arbitrator can also be made under sub-section (6) where parties have agreed on a procedure for appointment of an arbitrator as contemplated in sub-section (2) but certain consequential measures which are required to be taken as enumerated in clause (a) or (b) or (c) of sub-section (6) are not taken or performed⁵⁸.

Sub-section (7) of section 11, makes the decision of the Chief Justice on the matters decided by him final while constituting the arbitral tribunal. The finality under section 11 (7) of the Act, however, is attached only to a decision of the Chief Justice on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) of that section.

Sub-section (8) of section 11, requires the Chief Justice or the person or institution designated by him to give due regard to the qualifications required for an arbitrator by the agreement of the parties, and other considerations as are likely to secure the appointment of an independent and impartial arbitrator when making an appointment. Even while exercising the jurisdiction under section 11(6), the court is required to have due regard to the provisions contained in section 11(8) of the Act. The aforesaid section provides that apart from ensuring that the arbitrator possesses the necessary qualifications required of the arbitrator by the agreement of the parties, the court shall have due regard to other considerations as are likely to ensure the appointment of an independent and impartial arbitrator⁵⁹. In Indian Oil Corpn. Ltd. case⁶⁰, it was emphasised that normally the court shall make the appointment in terms of the agreed procedure, however, the Chief Justice or his designate may deviate from the same after recording reasons for the same.

Sub-section (9) of section 11, deals with the power of the Chief Justice of India or a person or institution designated by him to appoint the sole or the third arbitrator in an international commercial arbitration.

Sub-section (10) of section 11, deals with the Chief Justice's power to make a scheme for dealing with matters entrusted to him by sub-section (4) or sub-section (5) or subsection (6) of Section 11.

Sub-section (11) of section 11, deals with the respective jurisdiction of the Chief Justices of different High Courts who are approached with requests regarding the same dispute and specifies as to who should entertain such a request.

Sub-section (12) of section 11, clause (a) clarifies that in relation to international arbitration, the reference in the relevant sub-sections to the "Chief Justice" would mean the "Chief Justice of India". Clause (b) indicates that otherwise the expression "Chief Justice" shall be construed as a reference to the Chief Justice of the High Court within whose local limits the Principal Court is situated.

The jurisdiction of the court and the nature of power exercised by it when acting pursuant to the provisions contained in section 11 has been summarized in S.B.P & Co. v. Patel Engineering⁶¹ as under:

If an arbitrator is appointed by the designate of the Chief Justice under Section 11 of the Act, nothing prevents the arbitrator from proceeding with the arbitration. It also therefore follows that the mere fact that an appeal from an order dismissing the suit under Order 7 Rule 11 CPC (on the ground that the disputes were required to be settled by arbitration) is pending before the High Court, will not come in the way of the appointment of an arbitrator under Section 11 read with Section 15(2) of the Act, if the authority under Section 11 finds it necessary to appoint an arbitrator⁶³.

While appointing an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, two things must be kept in mind:

The scope of Section 11 of the Act containing the scheme of appointment of arbitrators may be summarised thus:

XX. Appointment of the third / presiding arbitrator:

The Act provides⁶⁶ that in arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. It is not necessary that the appointment of the third arbitrator be done by the two appointed arbitrators by sitting together and in writing. The requirement of the law is that there should be an appointment and the appointment should be by the two appointed arbitrators. The statute does not contemplate that such appointment should be made in writing⁶⁷. In Keshavsinh Dwarkadas Kapadia v. Indian Engineering Company⁶⁸, it was observed that:

"The appointment of an umpire by two arbitrators means that the arbitrators are to concur in appointing an umpire. There is no particular method of appointment of an umpire prescribed by the Act. The usual method of appointment of an umpire by the arbitrators is in writing. Arbitrators who are required to appoint an umpire are under no obligation to obtain the approval of the choice of the personnel by the parties who appointed the arbitrators. If any party is dissatisfied with the choice that will not affect the validity of the appointment. [See, Oliver v. Collings) (1809) 11 East 367 : 103 ER 1045].

The provisions of the Act also do not provide that the appointment of third arbitrator cannot be agreed upon orally or through mutual discussion⁶⁹. It is also not necessary that the two arbitrators appointed by each of the parties must sit at one place, deliberate jointly and take a decision in the presence of each other in regard to the appointment of the third arbitrator. All that needs to be done is that they have actually consulted or conferred with each other and both or one of them has informed the parties that the presiding or the third arbitrator has been appointed by them after joint deliberation. In other words all that the two arbitrators need to do to satisfy the provision of statute, while making the appointment is to:

The Act no where provides that the parties need to be consulted, involved or informed prior to the appointment of the presiding arbitrator⁷⁰.

XXI. Appointment of presiding arbitrator by the arbitral institution:

An arbitration clause may require each of the parties to the dispute to nominate its arbitrator and the third arbitrator is to be chosen by the two arbitrators appointed by the parties who shall act as the presiding arbitrator.

If under the appointment procedure contemplated by the contract, any person or organization or body is required to appoint the presiding arbitrator then the court will not exercise its jurisdiction under the Act⁷¹ to fill the vacancy. The cause of action for moving an application under the Act would exist only if the person or organization or body fails or refuses to appoint the presiding arbitrator⁷².

XXII. Refusal by or failure of one party to appoint:

If the party having the responsibility under the arbitration agreement refuses or fails to appoint an arbitrator or arbitrators as the case may be as per the agreed procedure for appointment, within 30 days of the demand being made by the other party, the party having the right to make such appointment can be said to have forfeited his right and it will be open to the other party to approach the court and seek the appointment of the arbitrator in accordance with the agreed procedure. However, the right to appoint the arbitrator or arbitrators of the defaulting party would subsist till the time the other party has not filed an application before the court seeking appointment of the arbitrator or arbitrators. Once the other party moves the Court the right to make the appointment ceases to exist⁷³ and the procedure envisaged under the arbitration clause for appointment of arbitrator ceases to be in existence.

If, however, after making an appointment of arbitrator, there is a vacancy in the office of the arbitrator by virtue of death, retirement or resignation the appointing authority would not lose his right to supply the vacancy.

XXIII. Challenge to the order of appointment:

The power exercised by the Chief Justice or the Judge designated at the time of appointment of arbitrator on request filed by a party is in the nature of a judicial order. The Chief Justice or the designated Judge would not pass the order of appointment going into the contentious issues between the party. The function of the Chief Justice or his designate under Section 11 is simply to fill the gap left by parties in the arbitration agreement or in the nomination of an arbitrator by two arbitrators appointed by the parties. Section 11 does not contemplate a decision by the Chief Justice or his designate on any controversy that the other party may raise even where the other party has failed to appoint an arbitrator within thirty days of the request being made.

XIV. Limitation for filing an application seeking appointment:

The period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued, just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued. In arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued⁷⁴.

An application under section 11 of the Act for appointment of arbitrator is governed by Article 137 of the schedule to the Limitation Act, 1963 and must be made within 3 years from the date when the right to apply first accrues. However, there is no right to apply until there is a clear and unequivocal denial of that right by the respondent. It must, therefore, be clear that the claim for arbitration must be raised as soon as the cause for arbitration arises as in the case of cause of action arises in a civil action. There must thus, not only be an entitlement to money but there must be a difference or a dispute must arise. An application filed after the expiry of three years from the date of acceptance of final bill and measurement will be barred by limitation. Any negotiations or agreement between the parties after accrual of cause of action to refer the matter to arbitration, does not have the effect of suspending the cause of action so as to stop the running of limitation⁷⁵.

A party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim. The existence of dispute is essential for appointment of an arbitrator⁷⁶. Cause for arbitration arises on date of service of the notice calling upon respondent to refer matter for arbitration.

Till such time as the settlement talks are going on directly or by way of correspondence no issue arises and with the result the limitation does not start running. As long as parties are in dialogue and even if the differences would have surfaced between the parties it cannot be asserted that period of limitation under Article 137 has commenced⁷⁷.

Footnotes

^{* Authors are Partners at Rautray & Co. and are reachable at mail@rautray.com.}

^{1 Halsbury's Laws of England (Butterworths, 4th edition, 1991) para 332 and 601.}

^{2 S.N. Prasad, Hitek Industries (Bihar) Limited v. Monnet Finance Limited, (2011) 1 SCC 320.}

^{3 K. Sasidharan v. Kerala State Film Development Corporation, (1994) 4 SCC 135.}

^{4 National Thermal Power Corporation v. Singer Company, (1992) 3 SCC 551.}

^{5 Section 7, sub-section 5 of the 1996 Act.}

^{6 M. R. Engineers and Contractors Pvt. Ltd. v. Som Datt Builders Ltd., AIR 2009 SC (Supp) 1786.}

^{7 Groupe Chimique Tunisien SA v. S. P. I. Corpn. Ltd., AIR 2006 SC 2422, the purchase orders placed by the respondent on the petitioner constituted as contracts between the parties and the purchase orders were subject to 'Fertilizer Association of India Terms and Conditions for Sale and Purchase of Phosphoric Acid' (FAI) terms which contained the arbitration clause. It was held that the case was covered by the provisions of section 7(5) of the 1996 Act and there was an arbitration agreement between the parties. All the purchase orders were signed on behalf of the respondent and the same had been counter-signed by the petitioner in token of acceptance of the purchase orders. Also see: Vessel M. V. Baltic Confidence v. State Trading Corpn. of India Ltd., AIR 2001 SC 3381.}

^{8 Section 10 of 1996 Act.}

^{9 Section 10(2) of 1996 Act.}

^{10 Narayan Prasad Lohia v. Nikunj Kumar Lohia, (2002) 3 SCC 56.}

^{11 Section 16 of 1996 Act.}

^{12 Section 16 of 1996 Act.}

^{13 Section 16(2) of 1996 Act.}

^{14 Section 10 of 1996 Act.}

^{15 See section 16 (2) of 1996 Act.}

^{16 Section 4 of 1996 Act.}

^{17 Iron & Steel Co. Ltd. v. Tiwari Road Lines, (2007) 5 SCC 703.}

^{18 Iron & Steel Co. Ltd. v. Tiwari Road Lines, (2007) 5 SCC 703, at page 709.}

^{19 Section 12 (3) (b) of 1996 Act.}

^{20 Section 13 (2) of 1996 Act.}

^{21 Section 11 (9) of 1996 Act.}

^{22 State of West Bengal v. National Builders, AIR 1994 SC 200. In Union of India v. Singh Builders Syndicate, (2009) 4 SCC 523, at page 527 it was held that "the object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of the parties' choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the arbitration agreement, the Chief Justice or his designate, required to exercise power under Section 11 of the Act, can step in and pass appropriate orders".}

^{23 S. Rajan v. State of Kerala, (1992) 3 SCC 608. See Rite Approach Group Ltd. v. Rosoboronexport, (2006) 1 SCC 206 and Iron & Steel Co. Ltd. v. Tiwari Road Lines, (2007) 5 SCC 703.}

^{24 Union of India v. Bhaskar Construction Co. (2003) 2 Arb. LR 180 (Gauhati High Court).}

^{25 G. Ramachandra Reddy and Co. v. Chief Engineer, AIR 1994 SC 2381.}

^{26 Union of India v. Prahallad Moharana, AIR 1996 Orissa 19.}

^{27 Societe Pepper Grenoble S.A.R.L v. Union of India, AIR 2004 Delhi 376.}

^{28 Nandan Biomatrix Ltd. v. D1 Oils Ltd., (2009) 4 SCC 495.}

^{29 JESMAJO Industrial Fabrications - Karnataka Pvt. Ltd. v. Indian Oil Corporation Limited, (2003) 3 Arb. LR 289 (Bombay).}

^{30 Bhaskar Wires Private Limited vs. Union of India (2003) 102 DLT 870, the court rejected the contention that it cannot appoint an independent arbitrator contrary to the terms of arbitration agreement between the parties. However, in Bel House Associates Pvt. Ltd. v. The General Manager, Southern Railway, AIR 2001 Kerala 163, it was held that the Court must implement the procedure agreed upon between the parties for appointment of an Arbitrator.}

^{31 Section 21 of 1996 Act.}

^{32 Charles M Willie & Co (Shipping) Ltd. v. Ocean Laser Shipping Ltd., [1999] 1 Lloyd's Rep 225, The Court further observed that it was possible to show that arbitration had been commenced by means other than a notice requiring appointment or agreement of an arbitrator i.e. by way of telex. Allianz Versicherungs- Aktiengesellschaft v. Fortuna Co. Inc., [1999] 2 All ER 625. See also Nea Agrex SA v. Baltic Shipping Co. Ltd.}

^{33 Commercial Arbitration, 2nd Edition, page 169.}

^{34 Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.}

^{35 Although in some cases it may not be necessary to send a notice. However, the arbitration agreement may provide for serving of notice on the other party as a precondition to commence arbitration.}

^{36 Wazir Chand v. Union of India, AIR 1967 SC 990.}

^{37 As defined under Section 7 of the 1996 Act.}

^{38 Jagdish Chander v. Ramesh Chander, 2007 (2) Arb. LR 302 (SC).}

^{39 Section 16 of 1996 Act.}

^{40 Wellington Associates Ltd. v. Kirit Mehta, AIR 2000 SC 1379.}

^{41 Jyoti Brothers v. Shree Durga Mining Co., AIR 1956 Cal 280.}

^{42 Indowind Energy Limited v. Wescare (India) Limited, (2010) 5 SCC 306.}

^{43 SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618.}

^{44 S.N. Prasad, Hitek Industries (Bihar) Limited v. Monnet Finance Limited, (2011) 1 SCC 320.}

^{45 National Insurance Company Limited v. Boghara Polyfab Private Limited, (2009) 1 SCC 267.}

^{46 F&G Sykes (Wessex) Ltd. v. Fine Fare Ltd. [1967] 1 Lloyd's Rep 53 (60).}

^{47 Middle East Trading Co. v. The New National Mills Ltd., AIR 1960 Bom 292}

^{48 Konkan Railway Corporation Ltd. and Ors. v. Mehul Construction Co., (2000) 7 SCC 201.}

^{49 Lahar Publicity Service v. Union of India, (2003) 2 Arb. LR 541 (MP).}

^{50 Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya, AIR 2003 SC 2252.}

^{51 Section 2 (e) of 1996 Act.}

^{52 Section 2, Clause (4) of the Code of Civil Procedure, 1908.}

^{53 Section 3, Clause (17) of General Clauses Act, 1897.}

^{54 Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719.}

^{55 SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618.}

^{56 National Insurance Company Limited v. Boghara Polyfab Private Limited, (2009) 1 SCC 267.}

^{57 Section 11 of the 1996 Act.}

^{58 Iron & Steel Co. Ltd. v. Tiwari Road Lines, (2007) 5 SCC 703 , at page 708}

^{59 Denel (Pty) Ltd. v. Ministry of Defence, (2012) 2 SCC 759.}

^{60 Indian Oil Corp. Ltd. Raja Transport Pvt. Ltd., (2009) 8 SCC 520.}

^{61 S.B.P and Co. v. Patel Engineering, (2005) 8 SCC 618.}

^{62 (2002) 2 SCC 388}

^{63 Vijay Kumar Sharma v. Raghunandan Sharma, (2010) 2 SCC 486.}

^{64 Union of India v. Onkar Nath Bhalla, (2009) 7 SCC 350.}

^{65 Indian Oil Corporation Limited v. Raja Transport Private Limited, (2009) 8 SCC 520.}

^{66 Sub-section (3) of Section 11 of 1996 Act.}

^{67 Grid Corporation of Orissa Ltd. v. AES Corporation, (2002) 7 SCC 736. The Court referred to European Grain and Shipping Limited v. Johnston, [1982] 3 All ER 989, wherein Lord Denning had held that the time had come when business convenience requires laying down a different rule. When an agreement or award or another document is to be done by two or three, generally the draft can be exchanged and it would be enough if the final document is signed by all. It is quite unnecessary for them all to meet together to sign it though each signed it at a different time or place from the others.}

^{68 (1971) 2 SCC 706 (A decision under the old Arbitration Act of 1940).}

^{69 Section 11(3) of 1996 Act.}

^{70 Grid Corporation of Orissa Ltd. v. AES Corporation, (2002) 7 SCC 736.}

^{71 Section 11, sub-section (6) of 1996 Act.}

^{72 You One Engineering and Construction Co. Ltd. v. NHAI, AIR 2006 SC 3453.}

^{73 Dattar Switchgears v. Tata Finance Ltd, (2000) 8 SCC 151.}

^{74 Panchu Gopal Bose v. Board of Trustees, Calcutta Port, AIR 1994 SC 1615.}

^{75 Vishnu Bhagchand v. Chairman, Maharashtra State Electricity Board, (2003) 4 RAJ 510. See also Steel Authority of India v. J.C. Budharaja, AIR 1999 SC 3275.}

^{76 Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1007.}

^{77 Hari Shankar Singhania v. Gaur Hari Singhania, (2006) 4 SCC 658.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.