The process for appointing an arbitrator is rooted in the principle of Party Autonomy, meaning the parties have the primary right to decide who will resolve their dispute. In India, this is governed by Section 11 of the Arbitration and Conciliation Act, 1996.
1. Number of Arbitrators (Section 10)
Before the appointment process begins, the parties must determine the size of the tribunal.
Parties are free to choose the number of arbitrators.
The Golden Rule: The number must not be even. This prevents a "deadlock" or "tie" in decision-making.
If the parties fail to agree on a number, the default is a Sole Arbitrator.
2. Appointment Procedure (Section 11)
The law provides different "routes" depending on whether the parties can agree or if the court needs to step in.
A. Mutual Agreement (The Standard Route)
Parties of any nationality are free to agree on a procedure for appointing the arbitrator(s).
Three Arbitrators: Each party appoints one arbitrator. These two appointed arbitrators then appoint the third "Presiding Arbitrator."
Sole Arbitrator: Both parties must agree on a single name.
B. Institutional Appointment
Parties often agree in their contract that an institution (like the Delhi International Arbitration Centre or the ICC) will handle the appointment. The institution then follows its own internal rules to select a qualified neutral.
C. Judicial Intervention (The "Fallback" Route)
If the parties or the two appointed arbitrators cannot reach an agreement within 30 days, a party can apply to the Court to make the appointment.
Domestic Arbitration: The application is made to the High Court.
International Commercial Arbitration: The application is made to the Supreme Court of India.
3. Statutory Disclosures (Section 12)
Before being formally appointed, a potential arbitrator has a legal duty to disclose in writing:
Any circumstances likely to give rise to justifiable doubts as to their independence or impartiality.
Whether they have the time to complete the arbitration within the statutory limit (usually 12 months).
4. Qualifications of an Arbitrator
Unlike a judge in a court of law, an arbitrator does not necessarily need to be a legal professional.
Nationality: A person of any nationality may be an arbitrator unless otherwise agreed by the parties.
Expertise: Parties can require specific qualifications, such as being a retired judge, a senior engineer, or a chartered accountant, depending on the technical nature of the dispute.
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