Appointment of Arbitrators under Section 11 of the Indian Arbitration Act (1996)

The Supreme Court of India, which plays a key role in appointment of arbitrators for international commercial arbitrations under the Arbitration & Conciliation Act, 1996.

Introduction

The Arbitration and Conciliation Act, 1996 governs arbitration law in India, providing a framework for appointment of arbitrators when parties cannot agree. Section 11 of this Act sets out the procedure for such court-appointed arbitrators, distinguishing between domestic and international disputes. Over the years, Indian courts (and the legislature) have debated whether the role of the courts in appointing arbitrators is a mere administrative function or a judicial power. This question gave rise to landmark judgments – notably the Konkan Railway cases and SBP & Co. vs. Patel Engineering – and prompted legislative change through the 2015 Amendment. In this article, we explain Section 11(5) and 11(6) of the Act, the evolution of court powers from administrative to judicial, and the current legal position (post-2015 amendments) regarding appointments by the Supreme Court and High Courts, with relevant case laws, provisions, and amendments in a clear, accessible manner.

Section 11(5) vs. Section 11(6): Basics of Appointment Procedure

Section 11 of the Arbitration Act, 1996 lays down how arbitrators are appointed, especially when parties fail to do so on their own. The provision differentiates between two scenarios:

• Section 11(5) applies when parties need to appoint a sole arbitrator but cannot reach an agreement. If one party sends a request to appoint an arbitrator and the other side does not agree within 30 days, the aggrieved party may approach the court for appointment. In such cases with no pre-agreed appointment procedure, an application for appointment is maintainable under Section 11(5) .
• Section 11(6) applies when there is an agreed procedure (often detailed in the arbitration clause or agreement) for constituting the tribunal, but that procedure fails. For example, if one party fails to appoint an arbitrator as required, or two appointed arbitrators cannot agree on a third, or an appointing authority (like an institution named in the contract) does not perform, then Section 11(6) allows a party to seek court intervention. In such cases, because a specific procedure was agreed but not followed through, the application for appointment is made under Section 11(6) .

In summary, Section 11(5) covers the situation of no agreed appointment procedure and a deadlock in naming a sole arbitrator, whereas Section 11(6) addresses failure of an agreed procedure or multi-arbitrator appointments. Notably, both sub-sections empower a court to step in and appoint the arbitrator(s) upon request, ensuring the arbitration can proceed even if parties or appointing authorities default.

Supreme Court vs. High Court: Domestic and International Arbitrations

The authority of courts under Section 11 is split between the High Courts and the Supreme Court, depending on the nature of the arbitration. For domestic arbitration disputes (where all parties are Indian and the arbitration is not an “international commercial arbitration”), the application for appointment is made to the relevant High Court (usually the High Court with jurisdiction over the arbitration matter) . On the other hand, for an international commercial arbitration (where at least one party is foreign or the dispute involves international elements as defined in the Act), the power to appoint arbitrators is vested in the Supreme Court of India . This distinction was part of the original Act – earlier, the Chief Justice of India (or their designate) handled international arbitration appointments, while the Chief Justice of the High Court (or designate) handled domestic cases.

After amendments in 2015, the wording now refers directly to the Supreme Court or High Court (instead of the Chief Justice) for these appointments, but in practice the split remains: the Supreme Court deals with requests arising from international commercial arbitrations, and High Courts address domestic arbitration appointments. In both cases, the goal is to prevent a stalemate – if parties or nominating authorities don’t appoint an arbitrator as agreed, the court can be asked to appoint one so that arbitration is not stalled.

It’s worth noting that “court” in the context of Section 11 is not any civil court, but specifically the High Court (or its designated judge) for domestic cases or the Supreme Court (or a designated judge) for international cases, as defined in the Act . Thus, the higher judiciary plays a gatekeeping role in constituting arbitral tribunals when parties fail to do so.

Konkan Railway

 Cases: Appointment as an Administrative Function

The debate on whether the court’s role in Section 11 is administrative or judicial began with the Konkan Railway cases in the early 2000s. In Konkan Railway Corp. Ltd. v. Mehul Construction Co. (2000), the Supreme Court examined the nature of the Chief Justice’s power to appoint an arbitrator under Section 11(6). The Court concluded that this function of appointment is purely administrative in nature, not a judicial or adjudicatory act . The reasoning was rooted in the Act’s emphasis on speedy arbitration and the principle of kompetenz-kompetenz (Section 16 of the Act, which allows an arbitral tribunal to decide its own jurisdiction) . The Court in Konkan Railway (2000) held that the Chief Justice (or designate) should simply appoint the arbitrator without delving into contentious issues, so that the arbitral process can commence without undue delay .

This view was affirmed again in Konkan Railway Corp. Ltd. v. Rani Construction (P) Ltd. (2002), where a larger bench of the Supreme Court reiterated that Section 11 does not envisage a judicial decision; instead, the role of the court (Chief Justice) is to administratively facilitate the appointment and “leave contentious issues for the arbitral tribunal to decide under Section 16” . Under this approach, any disputes about the validity of the arbitration agreement, the arbitrability of the subject-matter, or other preliminary objections were not for the court to decide at the appointment stage. Those issues were to be raised before the arbitrator once constituted, consistent with the competence-competence doctrine (which gives the arbitrator the power to rule on its own jurisdiction) .

The practical effect of the Konkan Railway rulings was that getting an arbitrator appointed became easier and faster – the court would not get entangled in threshold objections and would simply appoint, treating the request as an administrative matter. However, it also meant that if there was a serious issue like a non-existent or invalid arbitration agreement, the arbitrator would still be appointed and such issues would be sorted out only later by the tribunal. Additionally, orders passed by the Chief Justice or their designates under Section 11 were considered administrative orders, arguably not subject to judicial appeals. This pro-arbitration, minimal court intervention stance was welcomed by many for promoting arbitration, but it soon came under reconsideration due to concerns about jurisdictional defects and who should filter them.

SBP & Co. v. Patel Engineering (2005): Judicial Power and Overruling 

Konkan

The landscape shifted dramatically with the seven-judge bench decision in SBP & Co. v. Patel Engineering Ltd., (2005). In this landmark judgment, the Supreme Court overruled the Konkan Railway precedents and held that the power exercised by a court under Section 11(6) is in fact a judicial power . The Court reasoned that the act of appointing an arbitrator affects the rights of parties and therefore cannot be a purely administrative act – it requires judicial consideration. Key points from SBP vs. Patel Engineering include:

• The decision clarified that when the Supreme Court or High Court (under Section 11) appoints an arbitrator, it performs a judicial function which can not be delegated to a non-judicial authority . (Post-SBP, the practice became that only a Judge of the Supreme Court/High Court could be the “designate” for Section 11, rather than any institution or person, since a judicial mind must assess the request .)
• The Court held that as a judicial authority, the court must decide certain preliminary issues before appointing an arbitrator. Specifically, the court can examine “the validity of the arbitral agreement, the necessity for arbitration in the case, and other similar issues” before proceeding . This opened the door for courts to evaluate whether a valid arbitration agreement exists between the parties, whether the dispute falls within the scope of that arbitration clause, and whether the claim is arbitrable or hit by any legal bar. In other words, questions of arbitrability and jurisdiction that were earlier left to the arbitrator could now be adjudicated by the court at the threshold .
• The SBP judgment explicitly noted that an order under Section 11(6) is a judicial order. Consequently, it held that such an order is final (by virtue of Section 11(7) of the Act) and cannot be appealed, except possibly via a special leave petition to the Supreme Court . Since the court’s decision on appointment now involved judicial determination of certain issues, those issues could not be re-agitated before the arbitrator under Section 16 . This was a crucial change – it meant the arbitrator was bound by the court’s findings on, say, the validity of the arbitration clause or whether the claim is time-barred if the court had touched those issues at the appointment stage.

The shift in SBP vs. Patel Engineering was significant but also controversial. Critics argued that this “judicialization” of the appointment process went against the pro-arbitration spirit of the 1996 Act and the UNCITRAL Model Law , which aim to minimize court interference in arbitration. By allowing extensive judicial scrutiny at the pre-arbitral stage, SBP arguably slowed down proceedings and increased court interference – something the Act intended to reduce . Indeed, the Supreme Court itself in SBP acknowledged that this interpretation might seem against the trend of minimal interference, but justified it as necessary to ensure arbitrations were based on valid agreements and to prevent futile arbitrations where there was no real consent.

To strike a balance, subsequent decisions like National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. (2009) tried to categorize what issues a court should decide and what it shouldn’t at the Section 11 stage . The Court in Boghara Polyfab grouped issues into three categories: (1) mandatory issues that the court must decide – e.g. whether there is an arbitration agreement between the parties, and whether the party applying has approached the correct court; (2) discretionary issues the court may decide or leave to the arbitrator – e.g. whether claims are time-barred or whether there was satisfaction of claims (accord and satisfaction); and (3) other issues that should be left to the arbitral tribunal – e.g. issues on the merits of the case or whether certain disputes fall within the scope of the arbitration clause . This framework was an attempt to prevent courts from diving too deep into the dispute at the appointment stage, while still resolving the essential gateway questions.

In summary, SBP vs. Patel Engineering overturned the Konkan Railway principle. It established that the Supreme Court/High Court’s role under Section 11 is a judicial one, allowing examination of threshold issues like existence and validity of the arbitration agreement, arbitrability of the dispute, and certain procedural preconditions before appointing an arbitrator . This marked a significant increase in judicial intervention at the start of an arbitration, which many saw as undermining party autonomy and the kompetenz-kompetenz principle. These concerns eventually led to calls for reform – and the Indian Parliament responded a decade later.

The 2015 Amendment: Introducing Section 11(6A) to Limit Court Intervention

To restore the balance in favor of arbitration and reduce court interference (which had expanded due to SBP & Patel Engineering and its progeny), the Indian legislature amended the Arbitration Act in 2015. Based on recommendations of the Law Commission’s 246th Report, a new sub-section 11(6A) was added, effective 23 October 2015 . Section 11(6A) explicitly restricted the scope of judicial review at the appointment stage by stating that: “the Supreme Court or High Court, while considering any application under Section 11(4), 11(5) or 11(6), shall confine to the examination of the existence of an arbitration agreement.”

This amendment was a direct legislative response to the SBP & Co. ruling. In effect, Section 11(6A) overruled SBP vs. Patel Engineering, reverting the court’s role to a largely administrative (or at least minimal) one in line with the original intent of the 1996 Act. Under the new regime (2015–2019):

• The only question the court should consider in a Section 11 appointment application is whether an arbitration agreement exists between the parties . This is typically a straightforward prima facie inquiry: Is there a written arbitration clause or agreement invoked by the applicant, and is it binding on the parties involved? If yes, the court should appoint and not venture further.
• The court is barred from examining issues of validity, scope, or arbitrability of the dispute at this stage . Those matters are “better suited for arbitrators to adjudicate under Section 16” (kompetenz-kompetenz) . For example, questions about whether the arbitration agreement is void for some reason (fraud, coercion, stamping issues, etc.) or whether the dispute is non-arbitrable (like certain statutory disputes) are to be left to the arbitral tribunal. The 2015 Amendment thus re-emphasized that arbitrators have the first say on their jurisdiction, and courts should not derail the process by probing such issues initially.
• This reduced role was intended to streamline and expedite arbitral proceedings. By minimizing litigation over appointments, arbitration could commence faster. It also aligned Indian law more closely with international practice and the UNCITRAL Model Law, which envisages minimal court screening (just ensuring an arbitration agreement exists) for referral to arbitration.

Courts soon applied Section 11(6A) in spirit. For instance, the Supreme Court in Duro Felguera S.A. v. Gangavaram Port Ltd. (2017) noted the change and held that after the 2015 Amendment, “all that the Courts need to see is whether an arbitration agreement exists – nothing more, nothing less.” . Similarly, in Mayavati Trading Pvt. Ltd. v. Pradyut Deb Burman (2019), the Supreme Court confirmed that SBP vs. Patel Engineering had been legislatively overruled, and the court’s duty is now limited to a prima facie existence check of the arbitration agreement (the Court cannot examine arbitrability or other issues at the Section 11 stage) . These rulings cemented the understanding that post-2015, the court’s intervention is extremely narrow when appointing arbitrators.

It’s important to clarify what “existence of an arbitration agreement” encompasses. Later cases like Vidya Drolia v. Durga Trading Corporation (2020) (three-judge bench) observed that the inquiry under Section 11(6A) is intended to be prima facie – the court can examine if, on the face of it, an arbitration agreement exists. If the agreement is obviously invalid or nonexistent (e.g., forgery or a plain case of no agreement), the court can refuse to appoint. However, if there is an arguable arbitration agreement, the court should appoint and leave deeper questions to the arbitrator . Vidya Drolia also clarified that “existence” is not the same as “validity” of the arbitration clause – for instance, issues of whether the contract is null and void go to validity and could be left to the arbitrator . The Supreme Court indicated that except in clear-cut cases where an arbitration clause is absent or patently invalid, the matter should proceed to arbitration; any complex questions of fraud, coercion, or non-arbitrability can be evaluated by the tribunal, subject to a “second look” by courts at the award enforcement/set-aside stage .

In essence, the 2015 Amendment via Section 11(6A) restored a more pro-arbitration, hands-off approach at the appointment stage. Courts returned to being facilitators of arbitration rather than detailed adjudicators of preliminary issues. This was widely seen as a positive development aligning Indian arbitration law with global standards, and it significantly reduced delays in starting arbitrations caused by lengthy court battles over appointing arbitrators.

Current Legal Position and 2019 Amendments: Appointment by Courts and Arbitral Institutions

As of 2025, what is the prevailing law on appointment of arbitrators by the Supreme Court and High Courts? The answer incorporates the 2015 changes and subsequent developments:

• Limited Scope of Review: The limited mandate of Section 11(6A) (to check only the existence of an arbitration agreement) is still generally applied by the courts. Although the 2019 Amendment Act proposed to delete Section 11(6A), that particular change has not been brought into force yet . The relevant provision of the 2019 Amendment (Section 3 of the Amendment Act) is not notified, meaning the Section 11 framework from the 2015 Amendment remains operative. Therefore, both the Supreme Court and High Courts continue to follow the prima facie “existence of agreement” test when hearing Section 11 applications. Issues of validity of the arbitration clause, allegations of fraud, or complex questions of arbitrability are ordinarily left to be decided by the arbitrator, in line with the competence-competence doctrine . The judiciary has largely hewn to this restrained approach in recent years, emphasizing speed and minimal interference unless an arbitration agreement is plainly absent or dead.
• Appointment by Supreme Court vs High Court: The division of roles remains the same – the Supreme Court handles appointments in international commercial arbitrations, and the High Courts handle domestic arbitration appointments . For example, if two Indian companies cannot agree on an arbitrator, they would move the appropriate High Court under Section 11(6) for appointment. If one party is foreign (or the dispute otherwise qualifies as international), the request under Section 11 goes to the Supreme Court. The High Court’s power under Section 11(6) in domestic cases is substantively the same as the Supreme Court’s power in international cases – both courts are bound by the same norms (currently, the minimal inquiry per Section 11(6A)). The High Courts in India have developed robust procedures (often each High Court has a designated arbitration bench or judge) to deal with such applications swiftly, reflecting the legislative intent to promote arbitration.
• Termination of Arbitrator’s mandate vs. fresh appointments: A recent Supreme Court decision in 2022 (often referring to the case Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal, as reported) drew a distinction between using Section 11 for fresh appointments and other scenarios. The Court observed that if an arbitrator was already appointed by mutual consent (especially in domestic arbitrations without a formal institution) and a party seeks to terminate that arbitrator’s mandate due to some disqualification or delay, that controversy cannot straightaway be decided under Section 11(6). Instead, such issues (like termination for incapacity or failure to act without undue delay, covered by Section 14 of the Act) should be decided by the “court” in separate proceedings . In that case, the Supreme Court reiterated the difference between Section 11(5) and 11(6): if no agreed procedure or no prior agreement on a neutral arbitrator existed, the correct route was under Section 11(5) (for a mutually appointed sole arbitrator by consent, Section 11(5) applies), whereas Section 11(6) is not a catch-all for every appointment issue . This clarification reinforces that Section 11(6) is meant for failure of an agreed appointment procedure, while Section 11(5) is for when parties simply cannot agree on an arbitrator for a domestic arbitration .
• 2019 Amendments & Arbitral Institutions: The Arbitration and Conciliation (Amendment) Act, 2019 introduced further changes aiming to institutionalize arbitration appointments. It amended Section 11 to provide that appointment of arbitrators may be done by designated arbitral institutions, instead of judges directly. Under the new (but not yet operational) Section 11(3A), the Supreme Court and High Courts would designate arbitral institutions which would then appoint arbitrators for the parties . This move was intended to take the burden off courts and make the process even faster. The 2019 Amendment also sought to remove Section 11(6A) (presumably because if arbitral institutions do appointments, the issue of court examining agreement existence would anyway be minimal). However, as mentioned, these changes await notification . The required infrastructure, notably an Arbitration Council of India (ACI) to grade arbitral institutions, was not immediately in place, causing a delay in implementing this reform . As of the current date, the pre-2019 regime remains in effect, meaning courts (SC/HC) are still the ones directly appointing arbitrators under Section 11, applying the Section 11(6A) constraints on their review . We anticipate that once the institution designation framework comes into force, the role of the Supreme Court and High Courts will become more supervisory – they would refer parties to an accredited arbitral institution for the actual appointment of the arbitrator, further reducing judicial intervention. For now, though, the courts continue to handle appointments, albeit in an arbitration-friendly manner as guided by the 2015 amendment and subsequent jurisprudence.
• Competence-Competence and Arbitrator’s Jurisdiction: The current position strongly upholds the kompetenz-kompetenz principle. Courts at the Section 11 stage refrain from adjudicating disputes on the arbitrator’s jurisdiction or the arbitrability of the subject matter, except where absolutely necessary . For example, if a party argues that the contract was never signed or is void ab initio, the prevailing approach is that the court may make a prima facie assessment – if there appears to be an arbitration agreement, it will appoint, leaving detailed validity questions to the arbitrator . Only if an arbitration agreement clearly does not exist (say, the contract submitted has no arbitration clause, or one party never agreed at all) will the court refuse to appoint. This ensures that arbitration is not obstructed by extensive preliminary litigation, and any complex jurisdictional issues can be resolved by the arbitral tribunal, with the possibility of a judicial “second look” at the award stage if needed .

In conclusion, the current legal position on appointment of arbitrators in India strikes a balance: The Supreme Court and High Courts remain key players for constituting tribunals (ensuring a neutral arbitrator can be appointed when parties fail to agree), but their intervention is narrowly tailored to verifying an arbitration agreement’s existence. The evolution from Konkan Railway (administrative function) to SBP vs. Patel Engineering (judicial power) and back towards a limited review via the 2015 Amendment demonstrates India’s commitment to reducing court interference and bolstering arbitration. Case law developments and amendments reflect a clear trend: courts should facilitate, not frustrate, the arbitration process. As India moves towards more institutional arbitration with future amendments, the role of the Supreme Court and High Courts may further evolve, but the core principle remains that arbitration as an alternate dispute resolution mechanism is to be encouraged with minimal judicial obstruction, consistent with both party autonomy and competence-competence.

R. Gopalakannan Advocate, Supreme Court of India & High Court of Madras 

References (Key Cases & Provisions)

• Arbitration and Conciliation Act, 1996, Section 11(5), 11(6), 11(6A) (inserted in 2015) .
• Konkan Railway Corp. Ltd. v. Mehul Construction Co. (2000) and Konkan Railway Corp. Ltd. v. Rani Construction (P) Ltd. (2002) – Supreme Court of India (held appointment by Chief Justice under Section 11 is an administrative act, with issues left to arbitrator) .
• SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 – Supreme Court (7-judge bench) – held Section 11 power is judicial, allowing courts to examine validity of arbitration agreement, arbitrability, etc., overruled Konkan Railway .
• National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., (2009) – Supreme Court – categorized issues for court vs arbitrator at appointment stage .
• Law Commission of India, 246th Report (2014) – recommended insertion of Section 11(6A) to limit court’s scope to examining existence of arbitration agreement .
• Arbitration and Conciliation (Amendment) Act, 2015 – introduced Section 11(6A) confining court inquiry to existence of arbitration agreement .
• Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 – Supreme Court – emphasized post-2015, courts only check if arbitration agreement exists (“nothing more, nothing less”) .
• Mayavati Trading Pvt. Ltd. v. Pradyut Deb Burman, (2019) SCC OnLine SC 1165 – Supreme Court – confirmed that SBP vs. Patel Engineering is legislatively overruled; under Section 11(6A) courts cannot examine other issues .
• Vidya Drolia & Ors. v. Durga Trading Corp., (2021) 2 SCC 1 – Supreme Court (3-judge bench) – clarified that “existence” of an arbitration agreement in Section 11(6A) is a prima facie review, and issues of non-arbitrability (especially arbitrability of subject matter) should ordinarily be referred to arbitration, barring exceptional cases .
• Arbitration and Conciliation (Amendment) Act, 2019 – proposed Section 11 changes (Section 11(3A) – arbitral institutions’ appointment; deletion of 11(6A) & 11(7)); not yet notified as of 2025 .
• Swadesh Kumar Agarwal vs. Dinesh Kumar Agarwal, (Supreme Court, 2022) – reiterated difference between Section 11(5) and 11(6); held that in absence of an agreed appointment procedure and if parties appointed an arbitrator by mutual consent, a subsequent application for court appointment must align with Section 11(5) (not 11(6)), and issues of terminating an arbitrator’s mandate for delay should be decided under Section 14 by the appropriate court, not in a Section 11(6) proceeding .