Knowledge Base – A LawSikho Initiative

This article is written to equip the readers with a step-by-step guide to draft an application for the appointment of an arbitrator before the Supreme Court of India– which is done in case of an International Commercial Arbitration. It explains the legal framework governing appointment, the grounds for seeking appointment, the required documentation, the filing process, and how to contest and challenge such applications. If you are new to the Supreme Court and want to practice in arbitration disputes or are already handling arbitration matters, then this article will be helpful for you.

Introduction

Businesses hate going to courts — it costs time, money, and reputation.

But there are always disputes. 

What if there was an easier, cost-friendly, quicker, and confidential way of settling it? Well, thankfully, there is. 

Yes, you guessed it right– it is arbitration.

Globally, any country that wants to thrive economically and open up its market to international trade and business – has to have an efficient and quick dispute resolution mechanism, and arbitration is a global favourite amongst all alternative dispute resolution mechanisms. 

Governments have recently started adopting and incorporating arbitration clauses in their tenders and contracts. 

So, you can imagine the kind of hype and demand. 

In this article, I will teach you how to approach the court to get an arbitrator appointed, more specifically in the case of international commercial arbitration. 

Ready? Let’s dive in!

What is Arbitration?

Let’s first understand what exactly is Arbitration. 

It is a consensual dispute resolution process by way of which parties appoint one or more neutral third parties to adjudicate their disputes. This neutral third party is called an Arbitrator. 

As per the Arbitration and Conciliation Act (“the Act” ), the parties must have a legal relationship between them. 

And, all the parties involved in this legal relationship, by way of writing, need to establish their desire to get their dispute resolved by arbitration. 

Once they do, they cannot go back on this promise to arbitrate and drag each other to courts. An arbitration clause/agreement thus gives businesses the confidence that in case anything goes wrong, they won’t be dragged to a court of law, and can resolve their issues through an easier, much more flexible process. 

Now that you have understood the basics of what arbitration is, let us understand what international commercial arbitration is.

What is an International Commercial Arbitration?

International Commercial Arbitration is defined under Section 2(1)(f) of the Act. It means an arbitration that relates to disputes arising out of legal relationships (whether contractual or not), that are considered commercial under Indian Law and where at least one of the parties is:

• An individual who is a national of, or habitually resident in, any country other than India; or 
• A body corporate that is incorporated in any country other than India; or
• An association or body of individuals whose central management and control is exercised in any country other than India; or
• The Government of a foreign country

Let’s now understand why is it that businesses around the world, governments, and even SMEs/MSMEs are gravitating towards arbitration. 

What are the benefits of arbitration?

There are some obvious answers to this question:

Flexibility of rules of proceedings

Court proceedings are strictly regulated by their practice directions, whereas in arbitration parties are free to set up their own rules or be governed by the rules of any arbitral institution that they find flexible

Resolution with a stipulated timeline

Generally, people want a quick dispute-resolution mechanism. Not only arbitrations are time-bound, but parties can choose and stick to the timeline that they decide– unlike courts where dates for hearings are largely decided by the judge. 

Finality of Awards and limited grounds to challenge 

The decision of the Arbitrator (called the “Award”) is final and binding on both the parties just like an order of the court. In itself this doesn’t look like much but, add the fact that this Award can only be challenged on very narrow grounds to set it aside— and it becomes a blessing for businesses. 

In contrast, traditional court rulings can be challenged by way of an appeal/revision on really broad principles and can also be subjected to review/quashing, etc., which makes parties quite uncertain about the finality of the outcome. 

Confidentiality of proceedings 

Disputes don’t just cost money and time, they can also cost someone their reputation. For businesses, especially, this stands very true. Arbitration proceedings are confidential, and the awards are only communicated to the parties, unlike court orders which are publicly available for everyone’s viewing. 

Number of Arbitrators

As per Section 10 of the Act parties in arbitration are free to decide how many adjudicators they want. However, this has to be an odd number- one, three, five, and so on. But generally, people for one or three. 

How is an Arbitrator appointed?

Before we learn how to draft this application for the appointment of an arbitrator, we need to learn the overall process of appointment. It is not always that parties need to file an application to get an arbitrator appointed– sometimes parties just mutually agree between themselves as to who their arbitrator should be. 

As per the Act, when a dispute arises, the party which wants to initiate arbitration has to send a notice under Section 21 of the Act stating that there is a dispute, there is an existing arbitration clause and suggest the name of a person who they want to appoint as arbitrator. 

In this notice, they will have to give a period to the other party to respond or the other party can respond within the statutorily prescribed period of 30 days. They either agree to the suggested arbitrator’s name or suggest their own. 

In the case of 3 arbitrators, each party suggests one name – which they can deliberate and agree upon, and these two arbitrators decide the third. 

In some cases, the other party may not reply at all or reply and deny the existence of an arbitration clause. In some, the parties cannot mutually agree on an Arbitrator.

What happens in such a situation then? 

What’s the next step?

Appointment of Arbitrator through court intervention

This is where Section 11 of the Act comes in.

Think of it as the “help” section. If the parties cannot agree on who should be the arbitrator and how or fail to follow the process of appointment, this section lays out the process for resolving that. 

So, you are not left in a deadlock situation. 

Now let’s see.

What is section 11 and why is it so important?

Section 11 of the Act forms the basis for setting up the framework for the appointment of the Arbitrators and also ensuring that disputes between the parties are resolved in a timely and efficient manner. 

Section 11 has sub-sections, let’s understand these sub-sections 

Sub-section 1 – nationality of arbitrators

This sub-section speaks of the nationality of the Arbitrator, it says that the Arbitrator can be a person of any nationality unless otherwise agreed by the parties.  

For instance, in international arbitration, the agreement may include a clause that may require an arbitrator of a specific nationality to be appointed in case of any dispute to ensure neutrality. 

Sub-section 2 – freedom of the procedure for appointment of an arbitrator

This sub-section permits the parties to freely agree on the procedure for appointing the arbitrators. The parties are free to agree on every aspect of arbitration such as:

• a place where arbitration shall be conducted, 
• the language in which proceedings shall be conducted, the 
• method of appointing arbitrators, and;
• the rules and procedures for arbitration.

These terms are usually mentioned in the arbitration agreement itself and if anything is specifically mentioned then it shall be followed. 

Sub-section 3 – procedure for appointing three arbitrators

It simply states if there is no agreement on the procedure for appointing an arbitrator then in the case each party will appoint one arbitrator, and the two appointed arbitrators shall choose a third arbitrator who will act as the presiding arbitrator. This is to ensure that the tribunal is balanced. 

Sub-section 4 – timeline for appointing arbitrators

It mentions a specific timeline for appointing arbitrators to speed up the arbitration process .

So each party is required to choose one arbitrator within 30 days from the receipt of a request from the other party. 

Thereafter, those two appointed arbitrators must then appoint a third arbitrator (presiding arbitrator) within 30 days from their appointment.

If any of them viz. party or the appointed arbitrator are unable to comply with these timelines, then either the Supreme Court or the High Court may step in to make such appointments. 

Sub-section 5 – appointment of a sole arbitrator

This sub-section deals with the appointment of a sole arbitrator. In essence, it states that if the parties fail to agree on an appointment procedure, then in case of arbitration with a sole arbitrator, each party must agree on the arbitrator within 30 days from the receipt of such request from the other party.

Otherwise, the Court will intervene and make the appointment.

In case of domestic arbitrations, the High Courts shall appoint the arbitrator.

In the case of international arbitrations, parties can directly approach the Supreme Court, which will make such an appointment.

This helps in ensuring that there is no delay in the arbitration process

Sub-section 6 – failure of agreed appointment procedures

Sometimes, parties may have agreed on how to appoint arbitrators, but something goes wrong, maybe one party doesn’t act, or there’s a disagreement.

If that happens, the courts (again, either the Supreme Court or High Court depending on the case) will step in and make the appointment. This keeps the process going, even if there’s a procedural hiccup.

Sub-section 8 – disclosure by arbitrators

This ensures transparency in the arbitration process. 

So before an arbitrator is appointed by the Court, they will seek necessary disclosures from the arbitrators in terms of sub-section (1) of section 12.

The Court will also have due regard to any qualifications required for the arbitrator under the agreement   

Sub-section 9 – nationality of arbitrators in international arbitrations

As mentioned above, in cases of international commercial arbitration, the Supreme Court may make the appointment of the sole or third arbitrator of a nationality other than the nationality of the parties.

This is necessary to ensure fairness in the arbitration proceedings.

Sub-section 11 – jurisdiction in multi-jurisdictional applications

If multiple requests have been made to different High Courts or their designates under Sub-sections (4), (5), or (6), then in that case the High Court to whom the request has been first made shall alone be competent to decide on the request.

This avoids any jurisdictional conflicts.

Sub-section 13 – expedited disposal of application

The applications for appointment of arbitrators must be disposed of as expeditiously as possible by the Supreme Court and High Court and an endeavor should be made to dispose of the application within 30 days from the date of service of notice on the opposite party.

The 2019 Amendment has shifted the responsibility of appointing arbitrators from courts to arbitral institutions thereby streamlining the process.

Sub-section 14 –fees of the tribunal

This sub-section stipulates that the arbitral institution shall determine the fees of the tribunal and how the payment is to be made to the tribunal as per the rates specified in the Fourth Schedule of the Act. However, this subsection does not apply to international commercial arbitration and arbitrations other than international commercial arbitrations where both parties have agreed on the fees of the tribunal as per the rules of the arbitral institution.

Now that we have understood Section 11, I will now unravel the mysteries behind drafting Section 11 petitions, how to contest them, the limitation period, the critical documents you need, and much more. 

How to draft a Section 11 petition under the Arbitration and Conciliation Act?

Initially drafting a section 11 petition might seem like a cumbersome task, but it is not what it seems like.  

It is pretty simple once you know your way around and you need not spend hours looking for a perfect template.

The Act does not provide for any specific format for the petition. You will get all the guidance you need to start with from the “Appointment of Arbitrators by Chief Justice of India Scheme, 1996” .

Before you get started with the drafting, there are a few details you need to have clarity on. Let us see what are those details that you need:

• You will need the original arbitration agreement, it forms the basis of your drafting and without it, you cannot start with your drafting.
• You need to know the names of the parties.
• You need to know the name of the arbitrator who would be stepping in and settling the dispute. If your agreement mentions the name of the Arbitrator then that’s your Arbitrator and if your agreement is silent on it, then you should know who the proposed Arbitrator would be.

You are good to go once you are aware of these details. It is all about knowing what you should include and how you have to structure it. Once you master the art of drafting section 11 petitions, it can become a steady source of income for you, 

Coming back to how to draft, let us make it more interesting to understand by using a real-life example, and by the end of it you will have a clear and better understanding of how to draft such petitions with confidence. Explanations are in red, bold and italics. 

Here are the facts for your consideration:

“Ready to Move Co., a private limited company which was engaged in the business of transportation of goods across India, entered into an agreement with Amazing Corp., a UK-based multinational retail company dated 11.06.2017.  

The contract was for interstate transport of goods, with an annual payment of ₹100 crores for up to one million kilometers of freight movement. The contract was renewable after every five years and the contract included an arbitration clause specifying the appointment of a sole arbitrator by mutual consent in case of disputes.

Disputes arose in 2023, when Amazing Corp., alleged deficiencies in the services of Ready to Move Co. Ready to Move Co. attributed the issues to the conduct of Amazing Corp., which created uncertainty about the renewal of the contract, delaying necessary investments. 

On account of deficiencies in service, Amazing Corp., not only withheld the payments but also forfeited an amount to the tune of Rs.5 crore which was given as a security deposit without providing any valid reasons since July 2023

Such alleged withholding of the payments and forfeiture of the security deposit, Ready to Move Co. on 26.12.2023, issued a notice to Amazing Corp., invoking the arbitration clause, thereby proposing the appointment of Mr. X, a retired Delhi High Court judge, as the sole arbitrator. However, both the parties within the stipulated period of 30 days, could not agree on the arbitrator’s appointment, therefore necessitating this application.”

Here’s the format

Heading and Cause Title

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION APPLICATION NO. _______________ OF 20_

IN THE MATTER OF:

The Arbitration and Conciliation Act, 1996 and the appointment of an Arbitrator under Section 11(5) [Depending on the relevant sub-section, this part shall be modified], read with Section 11(12)(a) of the Arbitration and Conciliation Act, 1996 and under the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996.

AND

IN THE MATTER OF:

READY TO MOVE CO,

THROUGH MR. A, AUTHORISED REPRESENTATIVE

HAVING ITS REGISTERED OFFICE AT [address]

…APPLICANT

VERSUS

AMAZING CORP,

THROUGH Mr. Z,

HAVING ITS REGISTERED OFFICE AT [address]

…CONTESTING RESPONDENT

Explanation: The first part is the heading, where you specify the jurisdiction (Supreme Court of India), the case number, and the relevant sections of the law. The “Cause Title” will include the names of the parties involved, details of who their authorized representatives are, and their official addresses for service of documents etc.

Introductory Paragraph

APPLICATION TO THE HON’BLE CHIEF JUSTICE OF INDIA FOR APPOINTMENT OF A SOLE ARBITRATOR, UNDER SECTION 11(5) READ WITH SECTION 11(12)(A) OF THE ARBITRATION AND CONCILIATION ACT, 1996, AND THE APPOINTMENT OF ARBITRATORS BY THE CHIEF JUSTICE OF INDIA SCHEME, 1996.

THE HUMBLE REQUEST OF THE 

ABOVE-NAMED APPLICANT:

MOST RESPECTFULLY SHEWETH THAT:

1. This request to the Hon’ble Chief Justice of India is made under Section 11(5) read with Section 11(12)(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Act“), and with the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996 (“Scheme”). The following particulars are submitted herewith, as required by the Scheme. 

Explanation: This is a formal request to the Chief Justice of India under Section 11 for the appointment of an arbitrator. The applicant has to clarify that they are filing under subsection (5) for the appointment of a sole arbitrator. Here onwards, we are following the headings of the Scheme.

Compliance with scheme requirements 

1.1 Rule 2(a) of the Scheme — the original arbitration agreement or a duly certified copy thereof:

The arbitration agreement is contained in clause No. 6.1 of the Agreement dated 11.06.2017 wherein the Applicant had agreed for an annual payment of Rs. 100 crores to ferry goods for one million KM on trucks of the Respondent and other commercial vehicles of transport, with renewal every 5 years. 

The arbitration clause reads as under:

“In case of dispute between the parties to this agreement, the same shall be referred for mediation to the President of Global Chamber of Commerce, failing which for arbitration by sole arbitrator to be appointed by mutual consent of the parties.”

1.2 The Original Agreement dated 11.06.2017 is annexed hereto and marked as ANNEXURE P – 1.

Explanation: You need to provide the original arbitration agreement or a certified copy, which includes details such as the date of agreement, relevant clauses and any other significant terms. This will ensure the court recognizes that there is an enforceable arbitration clause. Remember that without your original agreement or a duly certified copy, the Registry will mark a defect in the matter and unless you clear this, your case will not be registered.

1.3  Rule 2(b) of the Scheme — the names and addresses of the parties to the arbitration agreement: 

Pursuant to the Agreement dated 11.06.2017, the names and addresses of the parties to the arbitration agreement are as stated in the cause title above.

Explanation: This is a standard clause and the marginal heading will be as per the Scheme mentioned above. Only the factual details will change as per the case. So we have only inserted the date of the agreement.

1.4 Rule 2(c) of the Scheme — the names and addresses of the arbitrators, if any, already appointed

No arbitrator has been appointed yet. However, the Applicant has previously proposed the appointment of Mr. X, retired Judge of Delhi High Court, having substantial experience in international commercial arbitration matters.

Explanation: In case any arbitrator has been appointed previously, this needs to be mentioned. If not, state so explicitly. As in our case, we did not appoint any arbitrator, so we mentioned that above. If you have proposed the appointment of an arbitrator, you need to disclose that relevant information.

1.5 Rule 2(d) of the Scheme — the name and address of the person or institution, if any, to whom or which any function has been entrusted by the parties to the arbitration agreement under the appointment procedure agreed upon by them:

No appointment procedure has been agreed by the parties to the arbitration agreement. As a result, there is no person or institution to whom or which any function has been entrusted by the parties to the arbitration agreement. 

Explanation: This Rule deals with the situation, where any appointment procedure for arbitrators was agreed between the parties. If that is the case, then the same is required to be mentioned along with the details of the person/institution to whom the function of appointment of arbitrator was entrusted with. Since this is not applicable in our case, we will mention that no appointment procedure was agreed between the parties.

1.6 Rule 2(e) of the Scheme — the qualifications required, if any, of the arbitrators by the agreement of the parties:

The parties have not specified any qualifications required of the arbitrator in their arbitration agreement. The provision as to qualification is therefore not applicable. 

Explanation: If the parties have specified qualifications for the arbitrator, mention them. Otherwise, clarify that none were specified. This ensures the court is aware that no specific qualifications are required in the matter.

1.7 Rule 2(f) of the Scheme — a brief written statement describing the general nature of the dispute and the points at issue:

A brief written statement describing the general nature of dispute and the point at issue is contained in paragraph 4 of the present application.

Explanation: As we are going to write the facts of the case in detail later, we are writing this here. Fill up the para number later.

1.8 Rule 2(g) of the Scheme — the relief or remedy sought: 

The relief sought by the Applicant has been stated in the prayer clause of the present application. 

Explanation: As we are going to write the relief in the prayer portion, we are writing this here.

1.9 Rule 2(h) of the Scheme — an affidavit, supported by relevant documents, to the effect that the condition to be satisfied under sub-section (4) or sub-section (5) or sub-section (6) of Section 11, as the case may be, before making the request to the Chief Justice, has been satisfied

An affidavit supporting the present application to the effect that conditions under sub-section (5) Section 11 of the Act have been satisfied before making this application, is submitted with this application. 

Explanation: The affidavit verifies that the legal prerequisites for filing under Section 11(4), (5) or (6) have been fulfilled. It is a standard clause and will remain as it is.

Address of parties and authorization

2. The addresses of the Applicant and Respondent for purposes of service of summons, notices, and other documents are as set out in the cause title above. The Applicant may also be served through its counsel, Mr. X, Chamber No. 123, Supreme Court of India.

Explanation: Service to the counsel is usually preferred and hence we are putting the counsel’s address.

3. The Applicant is represented by its Authorised Representative Mr. A, R/o- Delhi who has been appointed, vide Board Resolution dated 31.12.2023.

Explanation: These details are required to be given, and depending upon the nature of the entity, the form of authorization might change.

Statement of facts and dispute

[Remember as per Rule 2(f) we had to give a brief written statement describing the general nature of the dispute and the points at issue. We will do that now.

We will start by describing the parties, their relationship, how the dispute arose etc.]

4. A brief written statement describing the general nature of the dispute and the point at issue is set out below. 

4.1 The Applicant is a private limited company incorporated under the Companies Act, 1956. It is a startup company by young entrepreneurs involved in the business of transporting goods throughout India. [describe briefly the Applicant and its nature of business]

Copy of the Applicant’s fresh certificate of incorporation dated 11.11.2016 is annexed hereto and marked as ANNEXURE P – 2.

4.2 The Respondent is a UK-based multinational retail giant engaged in procurement, storage, and logistics for distribution to a vast number of online customers throughout India. [describe briefly the Respondent and its nature of business]

4.3 You can mention the rest of the facts as per your case

[In the next para, we then mention the fact of service of Notice under Section 11 to the Respondent for the appointment of arbitrator. 

Then we mention that after several rounds, the parties failed to agree mutually on the appointment of an arbitrator. We will also mark the notice as an annexure. 

Now you see, this fact qualifies us to file an Application under Section 11, if we refer to Clause (5)]

4.4 In light of the subsisting arbitration agreement in clause 6.1 of the Agreement dated 11.06.2017, the Applicant herein served Notice dated 26.12.2023 under Section 11 of the Act for the appointment of Mr. X, a retired Delhi High Court Judge as the sole arbitrator.  

Copy of the Applicant’s notice dated 26.12.2023 is annexed hereto and marked as ANNEXURE P – 3. 

4.5 However, after several rounds of meetings, both parties could not come to a consensus on the appointment of an arbitrator, as the Respondent had rejected the nomination of Mr. X as the arbitrator.

4.6 This notice requesting arbitration was received on _________. Copy of the courier delivery statement dated ________ is annexed hereto and marked as ANNEXURE P –4. 

4.7 The Applicant received no response to its notice requesting arbitration during the thirty days specified in Section 11(5) of the Act. [use as applicable] 

OR 

The Applicant received a Reply dated ________ denying the existence of arbitration agreement. [use as applicable]

Copy of the Respondent’s letter dated ________ is annexed hereto and marked as   ANNEXURE P-5 . [In our case, we are required to mention this]

5. In light of the above, it is evident that an arbitration clause contained in clause 6.1 of the agreement subsists. The dispute between the parties concerns non-payment of transportation charges and forfeiture of security money. The parties have not concluded or recorded any discharge or satisfaction of the Agreement, or any disputes thereunder.

[A paragraph showcasing the existence of a dispute is required and the fact that the agreement has not been discharged is required for the intervention of the Court, and thus this paragraph]

Jurisdiction and legal requirement

6. As the arbitration relates to disputes arising out of contractual relationships considered as commercial under the laws of India, and as the Respondent is a UK based Corporation [we mention the nationality of the Respondent Company to qualify as an international commercial arbitration] and the Applicant is an Indian company, the arbitration is an “international commercial arbitration” as defined in Section 2(f) of the Act. 

7. Furthermore, it is evident that the Respondent has failed to agree on the arbitrator within thirty days of receipt of the Applicant’s request to agree. 

Explanation: As the notice was sent on 16.12.2023 and the thirty days statutory period has lapsed as per the Act, we need to mention this part to showcase our ELIGIBILITY to file an application u/s 11.

Standard Paragraphs – the subsection number has to be changed as applicable 

8. Therefore, the Hon’ble Chief Justice of India, or any person or institution designated by him, has jurisdiction to appoint the arbitrator pursuant to this application. The Applicant therefore hereby requests the Hon’ble Chief Justice of India, or any person or institution designated by him, to appoint a sole arbitrator pursuant to Section 11(5) of the Act. 

9. The Applicant therefore states that the conditions set out in Section 11(5) of the Act have been satisfied. An affidavit supporting the present application to the effect that conditions under Section 11 (5) of the Act have been satisfied is enclosed with the present application. 

10. The Applicant further submits that it has not filed any other petition before any other Court in India or before this Hon’ble Court seeking the same relief against the Respondent. No such petition claiming the same or similar relief is pending at present. No other relief beyond the ambit of the arbitration agreement has been claimed in this application. 

11. The Applicant has paid the necessary court fees. The Applicant submits that the law of limitation bars no part of the Applicant’s claim. 

12. Mr. A, the authorized representative of the Applicant, who is able, competent and authorized to sign and verify this application, has verified the same and submitted his affidavit in support thereof.

Prayer clause

In view of the facts and circumstances mentioned above, it is most respectfully prayed that the Hon’ble Chief Justice of India or any person or institution designated by him may graciously be pleased to:

1. appoint a sole arbitrator for the international commercial arbitration between the parties described in this petition; and

Explanation: the prayer we are seeking in this case is the appointment of a sole arbitrator and that is the only thing you need to write in this clause.

2. pass such other or further orders as the Hon’ble Chief Justice of India or any person or institution designated by him may deem just and convenient in the circumstances and do justice. 

AND FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL EVER PRAY.

Drawn & Filed by :    [●]

Advocates for the Appellant

Place: [●]

Dated : [●]

You have now learned to draft the Section 11 petition from scratch.

Scrutiny of Section 11 petition by the Court 

When a petition is filed under Section 11, the court plays a crucial role and the Court, to deal with an application as above, shall have to decide the following issues:

1. Whether the party making the application has approached the appropriate Court?
2. Whether there is an existence of an arbitration agreement and whether the party who has applied is a party to such agreement?
3. Whether the party applying has invoked the arbitration clause and issued notice to the other party?
4. Whether the application is filed within limitation?
5. Whether the claim is a dead (long-barred) claim or a live claim?

(Note: Whether a claim is barred by limitation lies ordinarily within the domain of the arbitral tribunal. However, a court may reject ex-facie non-arbitrable or dead claims, to protect the other party from being drawn into a protracted arbitration process, that is bound to eventually fail.)

6. Whether the claim made is arbitrable in nature?
7. Whether the claim made falls within the scope of the arbitration agreement?
8. Whether the arbitration agreement is invalid?

It is also crucial to understand how to contest the petition, so let us see.

How to contest a Section 11 petition? 

It may occur to you that contesting a Section 11 petition may seem like a straightforward task but it is important to know how to defend effectively, especially when it is a high stake dispute 

You can build a strategy around the questions listed above and effectively challenge the appointment of the arbitrator and ultimately prevent such an appointment.

For instance, if the claim is not arbitrable, you can build your defense around it and collate documents that effectively prove your claim.

Let us read further to understand various other aspects which are important to know.

What is the deadline for filing an application for the appointment of an arbitrator under Section 11? 

You might find it interesting that there is no specific timeline mentioned under any statute that mentions the limitation period for filing this application.

But wait, let us dig further and find out more about this limitation issue.

In a landmark case of Bharat Sanchar Nigam Limited vs. M/S Nortel Networks India Pvt. Ltd. (2021) decided by the Hon’ble Supreme Court, it was held that the limitation period for filing an application to appoint an arbitrator shall be governed by Article 137 of the Limitation Act, 1963, which prescribes a period of 3 years to file any application.

You must note that this period begins from the date you receive a request to appoint an arbitrator and the Supreme Court also clarified that the limitation period starts only if the party fails to appoint an arbitrator within a period of thirty days. 

The Supreme Court even expressed concern over this long period of limitation

But you might wonder why? 

Because one of the main reasons that people opt for arbitration as a dispute resolution is to resolve disputes expeditiously. Now if such a long period is allowed to file an application to appoint the arbitrator, it will defeat the very purpose of choosing arbitration.

Therefore, the Supreme Court suggested that the Parliament should step in and amend Section 11 to mention a specific and shorter period for filing such an application.

What do you think? Whether the period should be made shorter to make the arbitration process quicker and effective?

What are the possible outcomes of the application for the appointment of an arbitrator?

The Court may either allow the application and appoint an arbitrator or may reject the application.

If the application is allowed then the subsequent claims and dispute shall be filed before the arbitrator who will adjudicate the dispute between the parties and pass an award which shall be binding on all the parties.

If the application is rejected, then the aggrieved party can take the following recourse to challenge the order.

How to challenge an order of appointment under Section 11? 

The appeal against the Order passed under section 11 (6) of the Act by the High Court, will lie under Article 136 of the Constitution of India to the Supreme Court. 

However, no appeal shall lie against an order of the Chief Justice of India, or a judge of the Supreme Court designated by him while entertaining an application under Section 11 (6) of the Act.

If the application under section 11 of the Act is rejected by the Supreme Court, then a review can be preferred against the order of such rejection before the Supreme Court.

You must also know that Section 11 does not have any impediment to the challenging of an appointment made under it due to the removal of sub-section 7. Hence, a party may initiate proceedings to challenge such an appointment in the court. Section 12 of the Act lays down the grounds for challenging the appointment of an Arbitrator. 

Conclusion

In the current time, with the growing demand for Arbitration, mastering the art of drafting and contesting Section 11 Petitions will not only level up your practice but will also increase your income. It also opens doors for you to establish an international practice without going through the hassle of migrating elsewhere. With onset of Online Dispute Resolution mechanisms, it is not an impossible task these days.

Also if you are an aspiring Advocate On Record for the Supreme Court of India, then learning the art of drafting arbitration petitions is not restricted to the drafting paper of the AOR Exam alone—it will give you an edge over your counterparts, and that could be your ticket to a successful practice in the Supreme Court. 

FAQs

1. What are the steps for filing an application under Section 11 in the Supreme Court of India?

Steps to File the Application:

Step One

Once you have prepared the petition, you are to present the same to a Dealing Assistant at the Filing Counter. The petition shall be filed along with five copies of the petition and all the documents which accompany it. The Dealing Assistant shall do the following on the presentation of the main case:

• in case of an advocate on-record, the advocate authorized on that behalf or his registered clerk, identify the person filing the case on the production of identity card; or in respect of a party in-person, identify him/her on the basis of Aadhar Card or any other permissible identification;
• enter in the computer a complete description of the first petitioner/ applicant/appellant and first respondent/non-applicant and names of their advocates;
• check details through cause title and filing memo respectively;
• check vakalatnama and affidavit duly signed and executed;
• generate Diary number and stamp the date of filing;
• cancel the court fee stamps by punching out the figure-head to leave the amount designated on the stamp untouched or by locking eCourt fee;

Step Two

On receipt of the case, the Assistant will do the following: 

• enter in the computer details of the case, if any, out of which the main case has arisen.
• check whether any similar or link case has been filed or disposed of based on filing memo;
• check through the cause title of the case whether any similar case is pending or has been disposed of;
• check whether any caveat has been lodged in the case;
• enter data as regards additional parties;

Step Three

After the details have been entered, your file is moved to scrutiny. On receipt of a main case, the Scrutiny Assistant will do the following

• scrutinize the case as to whether it conforms with the Rules and practice of the Court or is defective;
• count the value of court fees stamps affixed on the petition or interlocutory application, affidavit, vakalatnama or document separately;
• extract subject category of the case (please refer to Part IV of the Supreme Court Rules for subject category identification);
• generate limitation report;
• if the case is found to be defective, the scrutiny Assistant shall enter the defects in the computer and notify them to enable the advocate on-record or the party, as the case may be, to remove the defects within a period of twenty eight days in aggregate;
• If the case is not found to be defective and is found to be in order, the scrutiny Assistant shall open the file in respect of Part-I and Part-II documents.
• place such cases, as he considers to be not maintainable for any reason, before the Branch Officer, who shall place the same before the senior officers for orders;
• where the dealing Assistant thinks that court fee payable in a main case cannot be determined for any reason or a question as regards thereto arises, he shall place the matter, through senior officers, before the Registrar/Taxing Officer, who may, in his discretion, require the parties to produce the relevant records to enable him to decide the question of court fee.

Step Four

1. On receipt of the case from the Scrutiny Assistant, the Branch Officer or any other superior officer shall make verification/confirmation of –

• scrutiny of the main case;
• subject category and sub-category of the main case;
• Limitation;
• tagging based on identical, similar, or linked cases;
• section and provision(s) of law under which the case is filed.

2. If the main case along with interlocutory applications (if any) conforms to the requirements of the Rules and practice and procedure, the main case shall be registered.
3. The officer shall give directions to enter the said details in the computer.

If there are defects notified in a given matter, an advocate has to remove the defects and refile the case. For example, if there are errors in the pagination of annexures, the pages are to be freshly printed, renumbered, and refiled.  When the main case is re-filed after removal of the defect(s), it is placed before the Scrutiny Assistant, and the same is checked and registered, provisionally, if the defect(s) notified has been removed. This is however done subject to verification and confirmation by a superior officer.

Consequent upon registration of a main case, all papers and documents forming part of the case file are scanned/digitized. An Office Report, if required, is prepared in the defect-free main case and the case file is then sent to the concerned Court Master of the Bench on its first listing.

If in case the defects are not removed ninety days from the date of communication of the defects, the matter is then listed with the Office Report on default before the Judge in Chambers for appropriate orders. The Judge in Chambers may grant further time for the removal of defects.

If the defects are removed after 60 days from the date of notifying the defects, an application seeking condonation of delay in re-filing the main case has to be filed. The matter will then be listed before the Judge in Chambers under Order V Rule 2(32) of the Rules.

Where a period for removal of the defect(s) has been stipulated by the Judge in Chambers, the record of the case shall be sent to the concerned Dealing Assistant. The concerned person has to get the defect(s) rectified and certified by the Section Officer within the stipulated period, failing which the case is then sent for listing before the Judge in Chambers for orders on default.

If the defect(s) is removed, the case is then sent for listing before the Court.

2. Is there a fee involved in filing such an application?

Yes, the Petitioner has to deposit, along with the petition, an amount of Rs.15,000/- towards the costs involved in processing the petition.

3. How long does the process of arbitrator appointment usually take?

As per section 11(13) of the Arbitration Act, it is mentioned that the Supreme Court shall endeavor to dispose of this application within 30 days from the date of service of notice on the other party.

But usually, the application for appointment of an arbitrator is disposed of within 2-4 months.

4. Can the suggested arbitrator be rejected by the Supreme Court?

Yes, the Supreme Court has the power to reject the arbitrator suggested by the parties. This power can be exercised to ensure that the appointed arbitrator is impartial, independent, and possesses the requisite qualifications to adjudicate the dispute.

5. What are the key judgments and how have they shaped the appointment process of arbitrators?

• In the recent case of 2023, the Supreme Court, in the case of NTPC Ltd. vs. SPML Infra Ltd., held that the pre-referral jurisdiction under section 11 (6) of the Arbitration Act is very narrow and inheres two inquiries. The primary inquiry is about the existence and validity of an arbitration agreement which also includes an inquiry as to the parties to the agreement and the applicant’s privity to the said agreement. These are matters which require a thorough examination by the referral court. The secondary inquiry that may arise at the reference stage itself is with respect to the non-arbitrability of the dispute.

• In the case of Perkins Eastman Architects DPC vs. HSCC (India) Ltd. (2019), the Supreme Court held that if one party has a unilateral right to appoint the sole arbitrator, such an appointment would be invalid due to potential bias, ensuring a fair and balanced approach in the appointment process.

• The Supreme Court of India in the case of PASL Wind Solutions Pvt. Ltd. vs. GE Power Conversion India Pvt. Ltd. dealt with an interesting question:

“Whether two Indian parties can choose a foreign seat for arbitration?”

The Supreme Court held that two Indian parties can agree to a foreign seat of arbitration and such an agreement is not in contravention of the public policy.

The Supreme Court even observed that an arbitral award passed in a foreign seat between Indian parties qualifies as a “foreign award” under the Arbitration and Conciliation Act, 1996 and the same is enforceable in India.
 

The Supreme Court clarified that Indian courts shall have jurisdiction to grant interim reliefs in respect of such a foreign-seated arbitrations between Indian parties.

6. How to prepare and make a well-drafted application?

First and foremost, you have to review the arbitration agreement and ensure that the arbitration clause has been invoked and all the necessary conditions, if any, have been fulfilled before invoking the arbitration clause viz. mediation or efforts to settle the matter.

Next, you have to check upon the parties to the dispute and whether they are bound by the arbitration clause.

Third, you have to identify the dispute and verify the arbitrability of the dispute and whether the same falls under the purview of the agreement.

Lastly, you have to collate all the necessary documents including past correspondences to support your request for the appointment of an arbitrator, and also be ready with the name and details of an arbitrator who ought to be appointed.

Now that the preparation is complete, you start drafting the application. You must remember the following points to make a well-drafted application.

• The language of the application should be simple and not complex.
• The facts must be presented chronologically and concisely and you must avoid exaggeration and adding irrelevant details.
• You must highlight the important events that justify the appointment request.
• The grounds must be set out and also attach documentary evidence to substantiate the claim.
• You must show that you have invoked the arbitration clause and issued a notice calling upon the other party to appoint an arbitrator and there has been a failure on the part of the other party.
• You must reproduce the arbitration clause and demonstrate that both the parties are privy to the arbitration agreement and the dispute has arisen out of the agreement and even after efforts to settle the dispute, the matter could not be settled.
• You have to show that the dispute is arbitrable and capable of being decided by an arbitrator.

7. What are the supporting documents and annexures along with the application?

The following documents have to be filed along with the application:

• Original arbitration agreement or duly certified copy of the agreement
• Affidavit supported by relevant documents to the effect that the conditions mentioned under sub-section (4), subsection (5) or sub-section (6) of Section 11, as the case may be, before making the petition, have been satisfied. 
• The notice or correspondence demonstrating the invocation of the arbitration clause
• Proof of Non-Appointment of Arbitrator
• Other correspondence between the parties, if any.
• Documents showing the efforts made to resolve the dispute, if any.
• Any other relevant document, if any.

8. How to argue the application for appointment of an arbitrator before the Supreme Court?

Before you argue, you have to ensure that all the documents are complete and in order. You must have clarity of thought while presenting your arguments 

You must start with addressing the Court about the arbitration agreement and draw the attention of the Court to the arbitration clause.

Thereafter, you must inform the Court about the dispute that arose between the parties and take through the necessary documents. If there were efforts made to settle the dispute, you can inform the Court about it.

Inform the court about the invocation of the arbitration mention the relevant document and also show the proof of non-appointment of the arbitrator by the other party.

Finally, cite the dispute has arisen out of the arbitration agreement and the dispute is arbitrable and the parties are privy and bound by arbitration and request for appointment of the arbitrator.

You must even address the objections raised by the opposite party in your rebuttal and also cite relevant judgments in your favor to counter the arguments of the other party.

If there is any question being asked by the bench, listen carefully and answer the same, and then move on to the next submission.

You can always consider consulting or engaging a counsel, especially in complex matters to benefit from their expertise and strategies in preparing and presenting the case.

9. What are the common pitfalls in drafting the application and how to avoid them?

• Overlooking procedural requirements:

Noncompliance with the procedural requirements laid down by the Supreme Court can delay the hearing of the application. You can avoid it by adhering strictly to the guidelines provided in the Supreme Court’s Handbook on Practice and Procedure.

• Failing to provide complete documentation:

Failing to provide complete documents or submitting inaccurate documents can undermine the credibility of the application resulting in an unfavourable outcome. You can avoid it by compiling a comprehensive set of documents and verifying the accuracy and completeness of the documents with the client.

• Misinterpreting the arbitration clause:

If you misunderstand or misinterpret the arbitration clause, it can lead to a lot of challenges and it can even lead to rejection of the application. It is therefore necessary to conduct a thorough analysis of the clause to understand the implications of the terms and conditions mentioned therein.

10. What is the recent update on arbitration jurisprudence?

Recently, on 18th October 2024, the Government of India introduced the Draft Indian Arbitration and Conciliation (Amendment) Bill, 2024 inviting public comments on proposed amendments. The bill addresses various key aspects such as formal recognition of emergency arbitration and also clarifies the ambiguities around the “venue” of arbitration.