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Section 11 Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996

 

 

11. Appointment of arbitrators.—

 

 

(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

 

(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

 

(3) Failing any agreement referred to in sub-section (2), in an 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.

 

(4) If the appointment procedure in sub-section (3) applies and—

 

(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or

 

(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

 

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

 

(6) Where, under an appointment procedure agreed upon by the parties,—

 

(a) a party fails to act as required under that procedure; or

 

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

 

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

 

(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.

 

(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to—

 

(a) any qualifications required of the arbitrator by the agreement of the parties; and

 

(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

 

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

 

(10) The Chief Justice may make such scheme1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.

 

(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.

 

(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice’’ in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India’’.

 

(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

 

Comments

 

‘A party’—Meaning of

 

As per the Webiters Dictionary ‘A party’ in context of legal affairs is one of the litigants in legal proceeding, the plaintiff or defendant or a signatory to a legal instrument.

 

The Chambers Dictionary defines ‘a party’ as each of the individuals or groups concerned in a contract agreement, law suit, etc.

 

As per Oxford Dictionary the word ‘parties’ refers to a person or persons forming one side in an agreement or dispute.

 

Whartons Law Lexicon, 14th edition defines the word ‘parties’ as persons jointly concerned in any deed or act; litigants.

 

’Agreement’—Meaning of

 

As per Oxford Dictionary the word ‘agreement’ means an arrangement between the parties as to a course of action.

 

As per Wharton’s Law Lexicon ’agreement’ means a consensus of two or more minds in anything done or to be done.

 

Chambers Dictionary describes the word ‘agreement’ as a contract or term; a joint decision made after discussion.

 

Discretion for appointment of arbitrator

 

Exercise of discretion for appointment of same arbitrator even after forfeiture of right is improper; Suri Constructions v. State of Rajasthan, AIR 2006 Raj 53.

 

Scope

It is well settled that where an arbitrator is named in the arbitration agreement, the provisions of section 11 of the Act are not attracted and the court will not have jurisdiction to try and decide the petition filed by party for appointment of another arbitrator; Kamla Solvent v. Manipal Finance Corpn. Ltd., AIR 2001 Mad 440.

 

Under section 11, there is no provision fixing any time limit except under sub-section (5) which provides the time limit of 30 days from the receipt of the request from the party for appointment of an arbitrator. Under sub-section (6) no such time limit have been fixed. It is required under the procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment; Ansal Properties & Industries Ltd. v. Himachal Pradesh State Electricity Board, AIR 1997 Arb LR 11.

 

Existence of arbitration clause and validity of reference

 

The existence of the arbitration clause and the validity of reference shall only be decided by the Arbitrator. It is also within the domain of the Arbitrator to decide whether the claim of the petitioner has already been settled on full satisfaction; Navratandas & Co. (P) Ltd. v. Tata Iron & Steel Co., AIR 2006 Jhar 7.

 

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1. See Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, published in the Gazette of India, Extra., Pt. III, Sec. 1, dated 16th May, 1996.

 

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Arbitration and Conciliation Act, 1996

 

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