Abstract

Arbitration is a private adjudicatory forum resembling the characteristics of judicial adjudication rendering final justice to the parties at dispute. The foremost task of the process of arbitration is the appointment of the arbitrator(s), which constitutes the arbitral tribunal and facilitates the process further. The process of appointment of the arbitrator(s) is dependent upon the agreement of the parties to the contract. Failure to agree upon the procedure or deadlock between the parties is concomitant to external aid, either of the Court or the permanent arbitral institute, depending upon the curial law of the country. The statutory procedure of appointment of the arbitrator(s) varies from one country to another despite the attempt of the United Nations Commission of International Trade Law Model Law on International Commercial Arbitration, 1985, to uniform the law of arbitration globally. This journey of twenty-four years from 1996 to 2020 have shaped and encapsulated the best arbitration practices in the Indian arbitration regime, specifically vis-à-vis the appointment of the arbitrator(s) under section 11 of the Arbitration and Conciliation Act, 1996. The legislature enacted two amendment Acts, and the one common element of both the amendments was a drastic atonement of the procedure of appointment of the arbitrator(s) under Section 11. To put it succinctly, there was a shift from ‘chief Justice’ to ‘Court’ and then to ‘arbitral institute’ as the appointing authority. The judiciary, on the other hand, equally contributed towards developing a better and improved law of arbitration in each phase of the shift under section 11, scrutinising the agreement and determining the circumstances under which the Court can legitimately exercise its jurisdiction under section 11 to appoint the arbitrator(s). This paper, through descriptive and comparative research, attempts to trace and analyse the shift and development in the procedure of appointment from both the legislative as well judicial aspect.

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