SNDT WOMEN’S UNIVERSITY

LAW SCHOOL, SANTACRUZ

SUBJECT: - CONTRACT LAW

SEMINAR TOPIC: - APPOINMENT OF ARBITRATORS

ACADEMIC YEAR: 2021-22

NAME: TRUPTI SHRIKRISHNA DABKE.

CLASS: FIRST YEAR, LLM.

ROLL NO: 7

SUBMITTED TO: PROF. ANURADHA KUMAR.

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Introduction-
 The Arbitration and Conciliation (Amendment) Act, 2015 grants the liberty to the parties
to appoint an arbitrator mutually.
 Arbitration and conciliation Act did not define the term arbitration specifically. Section
2(1) (a) states that “arbitration” means any arbitration whether or not administered by
permanent arbitral institution. Which simply means a procedure in which the dispute is
submitted to an arbitration tribunal consisting a sole or an odd number of arbitrators.
 The Act provides that the parties are free to determine the number of arbitrators, provided
that such number shall not be an even number. However, if the parties fail to do so, the
arbitral tribunal shall consist of a sole arbitrator.
 The statutory requirement of odd numbers of arbitrators is can be moved away from, which
means that if they wish to exercise an option of choosing even number of arbitrators and
agree to not to challenge the award thereafter, the award rendered would be a valid and
binding.

Requirements for Filing an Application for the appointment of an arbitrator

 The essential pre-conditions to be satisfied before an application for appointment of
arbitrator by Court is filed are:
(i) There should be an arbitration clause in the contract in terms of section 7;
(ii) The party filing the application should have knowledge of the arbitration
agreement;
(iii) There is a dispute between the parties in relation to the contract containing the
arbitration agreement.
(iv) A notice invoking an arbitration clause has been issued and received by the other
party.

Appointment of arbitrators
 Section 11 of the Arbitration and Conciliation Act, 1996 deals with the appointment of
arbitrators. A person of any nationality may be appointed arbitrator unless the contrary
intention is expressed by the parties.

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  The parties are free to agree on a procedure for appointment of arbitrator or arbitrators.
Where parties fail to appoint three arbitrators, each party shall appoint one arbitrator and
the two arbitrators shall appoint the third arbitrator.
 Hence, appointing three arbitrators is mandatory, with the third one being the presiding
arbitrator.
 Where a party fails to appoint an arbitrator in accordance with the third arbitrator with the
within thirty days from the date of receipts of a request to do so from the other party or two
appointed arbitrators fail to agree on the third arbitrator within 30 days from the date of
their appointment, the appointment shall be made, upon a request of a party, by the Chief
Justice of the High Court or any person or institution designated by him.
 The decision of the Chief Justice of the High Court or the person or the institution
designated by him in appointing an arbitrator shall be final.

In such appointment, two considerations are to be made:

a. Required qualifications of the arbitrator as provided in the agreement of the parties,

and
b. Independent and impartial person as an arbitrator.
 These are the circumstances under which the Chief Justice of a High Court can make an
appointment.
 In case of appointment of a sole or third arbitrator in international commercial arbitration,
the appointing authority is the Chief Justice of India or a person or institution designated
by him.

Appointment of Arbitrator through Court Assistance

 An arbitration agreement as defined under Section 7 of the Act is a condition precedent in
order to exercise the power to appoint an arbitrator or an Arbitral Tribunal, according to
Section 11 of the Act by the Chief Justice or his designate.
 The Supreme Court has identified the duties of the chief justice or his designate.[iii] First
they identified and separated the preliminary issues that arise from the application under
Section 11 of the Act into three categories, that is:

(i) Issues that the Chief Justice or his designate must decide;
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 (ii) Issues which the Chief Justice or his designate choose to decide
(iii) Issues that have to be left to the Arbitral Tribunal to decide.
 Section 11 of the Act provides for the procedure to appoint an arbitrator or arbitrators with
court assistance.
 The primary objective of seeking court interference under the Act is so that securing the
constitution of the arbitral tribunal can happen expeditiously.
 Parties can agree upon a procedure for appointment of a sole arbitrator or arbitrators as
under sub-section (2) of section 11 and can approach the court in the event they don’t have
a procedure.

The disagreement between arbitrators:

 If there is any disagreement between the arbitrators, there is no award and the jurisdiction
of the presiding arbitrator can be invoked.
 In the absence of any contrary provision in the arbitration agreement, the presiding
arbitrator can adjudicate the whole case if the arbitrators disagree on any particular point,
as held in Probodh v. Union of India.

Appointment of Presiding Officer (Umpire)

 The question for the appointment of Presiding Officer arises only when there is a conflict
of opinion between an even number of arbitrators
 Appointment of the third arbitrator may be made in any one of the two following cases:
i. By the parties themselves at the time of submission, and
ii. By the arbitrators.

Appointment of the sole arbitrator:

 Where a sole arbitrator is appointed, it must be notified to the other side, otherwise, his
appointment cannot be considered valid.

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Appointment of presiding arbitrator:

 As soon as the arbitrators accept their appointments and communicate with each other the
reference, they are presumed to have entered upon the reference.
 When one of the arbitrators refuses to act or concur on the appointment of a third arbitrator,
there is a disagreement and in such as case, the Chief Justice of the High Court is competent
to make the appointment of the presiding arbitrator.

Qualification of Arbitrators
 The parties should ideally follow an agreed procedure for appointing the arbitrators.
However if that fails and an application is filed in court for appointment, 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 parties.
 A clause in the agreement, which provides for settling the dispute by arbitration through
arbitrators having certain qualifications or in certain agreed manner is ordinarily followed
by the courts and not derogated from unless there are strong grounds for doing so.
 The appointment of an arbitrator can be challenged within 15 days after he learns of the
constitution of the arbitral tribunal or after becoming aware of the circumstance that he
does not possess the necessary qualification.
 It is not open to a party, especially in government contracts, to contend that appointment
of only one arbitrator only by one of the parties to the dispute will violate the principle that
no man can be a judge in his own cause if that party had voluntarily entered into the contract
with knowledge of this fact and had thus accepted the terms and conditions of the contract.
 The question of its maintainability before the arbitral tribunal stating that the arbitration
clause in the contract between the parties is void and unenforceable law cannot be accepted.

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Conclusion-
 Appointing authority and Party need to be defined in the contract document. Qualification
of arbitrator needs to be included in the contract document, preferably an engineer having
experience of contract management.
 The general powers and duties are important for an arbitrator to conduct fair arbitration
proceedings, the arbitrator must also have to draw the checklist upon his specific duties
given under the agreement.
 In the constitution of the arbitral tribunal, the concept of equality or fair treatment of the
parties ensures that the parties must be given equal opportunity to participate in the
constitution of the arbitral tribunal.
 As far as party-appointed arbitrators are concerned, the concept demands that each party
has the ability to make a unilateral choice.

References

Bibliography-
 Arbitration and Conciliation (Amendment) Act 2015- Simran R. Gurnani, C.
Jamandas & Co.

Webliography-
 Appointment of Arbitrators- https://lawtimesjournal.in/
 Appointment of Arbitrators - http://www.legalserviceindia.com/