ALTERNATIVE DISPUTE RESOLUTION

Unit- III

Topic: Arbitration Act

Sreedurga T.N
Assistant Professor
DME Law School
Suggested Readings:

1. The Legal Services Authorities Act, 1987

2. S. Muralidhar, ‘Law, Poverty And Legal Aid: Access To Criminal
Justice’, (Lexis Nexis 2004.)
3. Dr. N.V. Paranjape, ‘Public Interest Litigation, Legal Aid & Services
Lok Adalats’, (Central Law Agency 2004).
4. Lok Adalat, available at https://nalsa.gov.in/lok-adalat (last accessed
on 5 June 2020).
Number of arbitrators

Determined by parties (Not an even

Number)

If not determined by parties(Sole

arbitrator)
• If the parties want more than one arbitrator, they will have to specify
that expressly in the agreement.
• Otherwise, it will be a sole arbitrator appointed with the consent of
parties
• When one party declined to give consent to appoint even after second
notice, the court on application of other party can appoint an arbitrator.
( B.S jaireth v S.P Sinha, AIR 1994 cal 68.)
Agreement for even number

• Parties are free to determine the number of arbitrators

• Section 10(1)- Such number shall not be an even number
• If agreement provides for even number(2), agreement itself is not
invalid.
• Then a third arbitrator will be appointed as a presiding arbitrator
Appointment of arbitrator

As per agreement of parties

As per Section 11
• the parties are free to agree on a procedure for appointing the
arbitrator or arbitrators.
• If there is an agreed procedure for appointment between parties, court
cannot make an appointment
• Only enforce or compel the party to make appointment in accordance
with agreed procedure
• May name the arbitrator
• Each party may appoint an arbitrator themselves
• Or designate someone to appoint in his name
If No agreement between parties for procedure for appointing
arbitrator
• 3 arbitrators
• 1- party A
• 2- party B
• 3rd arbitrator – (by 1st and 2nd arbitrator)
3 arbitrator

1st
A 3rd
arbitrator
parties
2nd
B arbitrator
arbitrator
Court appointment

• Failure of parties
• Failure of arbitrator
• To appoint
• On request of parties
• Court will appoint
• Applies in case of failure of sole arbitrator appointment also
• NB: these conditions apply only if there is no agreement between
parties
If there is any agreement between parties

• Failure to comply with that agreement

• By parties
• Two appointed arbitrators
• A person or institution entrusted
• Court on request of parties take necessary measure
Appointment of arbitrators

• Party autonomy
• Also some court intervention
• As per sub-section (6-A), the power of the Court had been restricted only
to the examination of the existence of an arbitration agreement.
• Courts shall not refer the parties to arbitration, only if it finds that there
does not exist an arbitration agreement or that the arbitration agreement is
null and void.
• If the Judicial authority is of the opinion that prima facie the arbitration
agreement exists, then it shall refer the dispute to arbitration and leave the
existence of the arbitration agreement to be finally determined by the
arbitral tribunal.
• However, if the Judicial authority concludes that the agreement does not
exist, then the conclusion will be final and not prima facie
Two Courts

• Supreme Court –Court for International commercial arbitration

• High Court – for domestic arbitration
11 (6) and 11 (5)
• Administrative powers of supreme Court & High courts
• Delegated authority also having administrative powers

• No appeal lies
• No SLP lies
• Mandamus may lie for non-performance of duties
Speedy disposal of application

• a period of sixty days from the date of service of notice on the

opposite party.
SC and HC to consider

• The Supreme Court or, as the case may be, the High Court or the
person or institution designated by such Court,
• before appointing an arbitrator, shall seek a disclosure in writing from
the prospective arbitrator in terms of sub-section (1) of section 12
(impartiality disclosure)
• (a) any qualifications required for the arbitrator by the agreement of
the parties;
• and (b) the contents of the disclosure and other considerations as are
likely to secure the appointment of an independent and impartial
arbitrator
International commercial arbitration

• In the case of appointment of sole or third arbitrator in an international

commercial arbitration,
• [the Supreme Court or the person or institution designated by that
Court] may appoint an arbitrator of a nationality other than the
nationalities of the parties where the parties belong to different
nationalities
Which Court

• HC-domestic
• SC-international
• Both high courts have been approached –first request would be
considered
• Number of arbitrators – sole or odd
• Who appoints –party, arbitrators , High court, Supreme Court,
Designated person, institution
• What are the types of arbitration-domestic/ international
• Adhoc/institutional