Section 11: Appointment of an Arbitrator by the Court

An arbitration agreement is only effective when it leads to a properly constituted arbitral tribunal. Where the agreed procedure for appointment of an arbitrator fails because a party refuses to participate, the parties cannot reach an agreement, or an appointment is invalid, Section 11 of the Arbitration and Conciliation Act, 1996 provides the mechanism for seeking the appointment of an arbitrator.

Section 11 Arbitration Act: Key Provisions

Section 11 of the Arbitration and Conciliation Act, 1996 provides the framework for appointment of arbitrators, preserving party autonomy while setting default procedures where appointment fails. It also allows court intervention under Section 11(6), limits the enquiry to the existence of an arbitration agreement under Section 11(6A), and requires attention to arbitrator independence, disclosure and timely disposal.

Section 11(1) provides that a person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

Section 11(2) preserves party autonomy: subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

Sections 11(3) to (5) supply default rules where the parties have not agreed on a procedure — including, in an arbitration with three arbitrators, each party appointing one and the two appointed arbitrators appointing the third, who acts as presiding arbitrator; and, in an arbitration with a sole arbitrator, appointment by agreement failing which the appointment is made on the application of a party.

Section 11(6) is the operative provision in contested cases. Where an appointment procedure has been agreed, a party may apply for the necessary measure to be taken if:

• a party fails to act as required under that procedure;
• the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
• a person, including an institution, fails to perform any function entrusted to him or it under that procedure.

Section 11(6A), inserted in 2015, confined the enquiry: the court, while considering an application under sub-section (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.

Section 11(8) requires the court, before appointing, to seek a disclosure in writing from the prospective arbitrator in terms of Section 12(1), and to have due regard to any qualifications required by the agreement and to the contents of the disclosure and other considerations likely to secure the appointment of an independent and impartial arbitrator.

Section 11(13) requires an application under the section to be disposed of expeditiously, and an endeavour to be made to dispose of it within the period the sub-section specifies.

Section 11(7), in its terms, addresses the finality of decisions on such applications.

The Neutrality Requirement

The 2015 amendment rewrote the law on arbitrator independence, and it is what most Section 11 applications now turn on.

Section 12(1) requires a prospective arbitrator to disclose in writing any circumstances likely to give rise to justifiable doubts as to independence or impartiality, and any circumstances likely to affect his ability to devote sufficient time and complete the arbitration within twelve months.

The Fifth Schedule lists the grounds giving rise to justifiable doubts as to independence or impartiality.

Section 12(5) provides that, notwithstanding any prior agreement to the contrary, a person whose relationship with the parties, counsel or the subject matter of the dispute falls within any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator — subject to the proviso permitting the parties to waive the applicability of the sub-section by an express agreement in writing after disputes have arisen.

The Seventh Schedule catches the arrangements common in construction, infrastructure and public sector contracts — an employee, consultant or adviser of a party, or a person having a business relationship with a party, appointed as arbitrator.

Unilateral Appointment: The Perkins line

The Perkins Eastman judgment is a leading authority on unilateral arbitrator appointment under Section 11. The Supreme Court held that a person ineligible to act as an arbitrator under Section 12(5) cannot unilaterally appoint another arbitrator, reinforcing the principles of arbitrator independence and impartiality.

The rule developed through TRF Ltd. v. Energo Engineering Projects Ltd. and Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. and continues to shape challenges to unilateral arbitrator appointments, appointment procedures and Section 11 applications. Its application may differ depending on the appointment mechanism, including curated panels and institutional arbitration, so the latest legal position should be checked before relying on a specific formulation.

How to File a Section 11 Application

A Section 11 application begins with a Section 21 notice and can be filed when the agreed appointment procedure fails. The application should include the arbitration agreement and proof of service, while addressing arbitrator eligibility and neutrality where relevant.

Step 1 — Issue a notice invoking arbitration under Section 21, identifying the disputes and calling upon the other party to concur in the appointment in accordance with the agreed procedure. Section 21 also fixes the date of commencement of the arbitral proceedings, which matters for limitation and for Section 9(2).

Step 2 — Allow the agreed procedure to run. An application under Section 11(6) presupposes a failure. Filing before the other party’s time to respond has expired is premature.

Step 3 — File the application before the appropriate forum. Section 11 identifies the Supreme Court or the High Court, or the person or institution designated by them, according to whether the arbitration is an international commercial arbitration or a domestic one.

Step 4 — Annex the essentials: the agreement containing the arbitration clause, the notice under Section 21 with proof of service, the response or the absence of one, and the correspondence.

Step 5 — Address existence, not merits. Because of Section 11(6A), the enquiry is confined to the existence of an arbitration agreement. Arguments about the strength of the claim, or about whether it is barred, belong before the tribunal — Section 16 empowers the tribunal to rule on its own jurisdiction, including on objections with respect to the existence or validity of the arbitration agreement.

Step 6 — Deal with neutrality. Where an appointment has already been made unilaterally, plead Section 12(5), the Seventh Schedule and the Perkins line. Where an appointment is sought, propose names or leave it to the court, and be ready for the Section 11(8) disclosure requirement.

Once Appointed

Once appointed, the arbitral tribunal must issue its award within the time prescribed under Section 29A of the Arbitration and Conciliation Act, 1996, subject to permitted extensions. Section 12 disclosure requirements continue to apply, while challenges to an arbitrator’s mandate are governed by Sections 12, 13 and 14 of the Arbitration Act.

Practical Guidance

Serve a proper Section 21 notice — many applications fail because the notice was defective or its service unproven.

Do not argue the merits in the Section 11 application; Section 11(6A) confines the court, and the attempt wastes the hearing.

Check the arbitration clause against the Seventh Schedule before invoking it, because a clause that appears to give the other side the appointment may be unenforceable in that respect.

And move promptly. An arbitration agreement does not suspend limitation on the underlying claim, and the date of commencement under Section 21 is what stops the clock.

Legal Information Disclaimer

This article is published for general legal information and educational purposes only. It reflects the position of Indian law as researched up to 10 August 2026 and may not account for subsequent amendments, notifications or judicial developments. The law on unilateral appointment of arbitrators has continued to develop and should be checked in its current form. It is not legal advice, does not take into account any individual’s particular facts or circumstances, and no advocate-client relationship arises from reading it. Readers dealing with an actual matter should obtain independent professional advice from a qualified advocate of their own choosing before acting on any information contained here. Statutory provisions, notified figures, rules and case citations referred to in this article have been compiled from published legal materials and may contain errors or omissions, and may have changed since the date stated; no representation or warranty, express or implied, is given as to their accuracy, completeness or currency, and each should be independently verified against the official text or the official record before being relied upon. No liability is accepted for any loss arising from reliance on this article.

Sources / Authorities

• Arbitration and Conciliation Act, 1996 — Sections 11 (including sub-sections (1) to (8) and (13)), 12 (including sub-section (5)), 13, 14, 16, 21 and 29A; the Fifth and Seventh Schedules — India Code, https://www.indiacode.nic.in
• Arbitration and Conciliation (Amendment) Act, 2015 — insertion of Section 11(6A), Section 12(5) and the Fifth and Seventh Schedules
• Perkins Eastman Architects DPC v. HSCC (India) Ltd., Arbitration Application No. 32 of 2019, Supreme Court of India (Uday Umesh Lalit and Indu Malhotra, JJ.), decided 26 November 2019 — a person ineligible to act as arbitrator cannot appoint an arbitrator — https://indiankanoon.org/doc/155925871/
• TRF Ltd. v. Energo Engineering Projects Ltd. — reference as reported; verify against the official record
• Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. — reference as reported; verify against the official record