Appointment of an Arbitrator Under Section 11

When can you ask the court to appoint an arbitrator?

You can go to court under section 11 when the appointment cannot happen by agreement. The Act lists the situations. If the clause provides for a sole arbitrator to be agreed and the parties do not agree within 30 days of one side's written request, section 11(5) applies. If the clause provides for three arbitrators and a party does not appoint its nominee within 30 days of the request, or the two nominees do not agree on the presiding arbitrator within 30 days, section 11(4) applies. If the parties agreed on a specific procedure and a party, the two arbitrators, or a named person or institution fails to act under it, section 11(6) applies.

The common thread is a failure after a proper request. You cannot skip the request and go straight to court because you expect the other side to be difficult. The court will ask for proof that you invoked the arbitration clause in writing, proposed a way forward, and gave the other side the time the clause or the Act allows.

Section 11 is also the remedy where the other side has already appointed someone who is legally ineligible, for example its own officer or a person it chose alone under a clause that lets one party appoint the sole arbitrator. In that situation the appointment is void from the start, and the court can be asked to appoint an independent arbitrator in place of the person named.

Which part of section 11 fits your situation?

The relief is the same in each case, an appointment, but the petition should be framed under the correct sub-section and show the specific failure.

Which court: the High Court or the Supreme Court?

For a domestic arbitration, meaning one between Indian parties, the petition goes to the High Court. For an international commercial arbitration, where at least one party is a foreign national, a company incorporated outside India, or a body whose central management is outside India, it goes to the Supreme Court under section 11(12). An international petition needs an Advocate-on-Record for filing, as all Supreme Court matters do; our page on Supreme Court practice in Delhi explains how that works.

Among High Courts, the right one is usually the High Court with jurisdiction over the seat of arbitration. If the clause names New Delhi as the seat, the Delhi High Court hears the petition. If it names Noida or Ghaziabad, the Allahabad High Court does. Where no seat is named, the High Court within whose territory the cause of action arose or the respondent resides is usually approached, and the choice can itself be contested, which is one reason a clear seat matters.

Pecuniary value does not decide the forum for a section 11 petition. Even a modest claim goes to the High Court, unlike a section 9 or section 34 application, which may go to a district-level commercial court depending on the amount. Many people expect to file in the district court and lose time correcting the filing.

Why the notice invoking arbitration matters so much

The notice under section 21 starts the arbitration. The arbitral proceedings commence on the date the respondent receives a request to refer the dispute to arbitration. That date stops the clock for limitation on your claims under section 43, and it starts the 30-day period for the other side to agree or appoint. A sloppy notice can cost you on both counts.

A good notice identifies the contract and the arbitration clause, states the disputes briefly with the amounts claimed, says clearly that you are invoking arbitration, and proposes a way to constitute the tribunal: one to three names for a sole arbitrator, or your nominee for a three-member tribunal. It should follow any procedure the clause prescribes, such as prior negotiation or a notice to a named officer. Send it to the address in the notices clause by a method that gives proof of delivery, such as speed post with tracking and email.

When Advocate B.K. Singh prepares a section 11 petition, the first document he looks for is proof that the notice actually reached the other side, because a petition built on a notice sent to an old address or an unmonitored email is the easiest one to delay. If delivery is doubtful, it is quicker to send a fresh notice and wait 30 days than to argue the point in court.

Steps from the first notice to the arbitrator entering reference

In a typical domestic case before the Delhi High Court, the process runs through these stages.

1. Check the clause and any pre-steps

   Read the arbitration clause, the notices clause and any negotiation or mediation requirement. If the clause has a time-bound pre-step, complete it and keep a written record that it was done.

2. Send the notice invoking arbitration

   Serve a notice under section 21 stating the disputes, invoking the clause and proposing arbitrators or naming your nominee. Keep tracking reports and email delivery records.

3. Wait for the period in the clause or 30 days

   If the other side agrees on a name, the tribunal is constituted without court involvement. If it proposes a different name, consider it on its merits; a quick agreement is cheaper than a petition.

4. File the section 11 petition

   If there is no agreement, file a petition in the High Court with the contract, the notice, proof of delivery, any reply and an affidavit. In Delhi this is done through e-filing.

5. First hearing and notice

   The court usually issues notice to the respondent. If the respondent appears and agrees to an appointment, or raises no real objection to the existence of the agreement, the court can appoint at an early hearing.

6. Appointment order

   The court appoints an arbitrator, often a retired judge or senior member of the bar, and in Delhi frequently directs that the arbitration be conducted under the aegis of the Delhi International Arbitration Centre, with fees under its schedule.

7. Disclosure and entering reference

   The arbitrator gives a written disclosure under section 12 and fixes a preliminary hearing. Pleadings must be completed within six months, and the award is due within 12 months of completion of pleadings under section 29A.

What does the court look at in a section 11 petition?

Very little, and deliberately so. Section 11(6A) confines the court to examining the existence of an arbitration agreement. In Duro Felguera SA v Gangavaram Port Ltd (2017), the Supreme Court said the court need only see whether an arbitration agreement exists, nothing more. In Vidya Drolia v Durga Trading Corporation (2020), it allowed a slightly wider look to weed out claims that are plainly non-arbitrable, but summed up the approach as 'when in doubt, refer'.

The seven-judge bench in In re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 (2023) confirmed that the inquiry is prima facie and limited to existence, and that stamping questions are for the tribunal. In SBI General Insurance Co Ltd v Krish Spinning (2024), the Court held that a plea of accord and satisfaction, such as an argument that the claimant signed a discharge voucher, is for the arbitrator, not the referral court.

So a section 11 hearing is not the place to argue the merits. Questions such as whether the claim is inflated, whether the contract was validly terminated, whether a settlement was signed under pressure, or whether the claims are within limitation are mostly left to the tribunal under section 16. A respondent who files a long reply on the merits usually only delays the appointment by a hearing or two.

Is there a time limit for filing a section 11 petition?

Yes. The Act itself does not prescribe one, but in Arif Azim Co Ltd v Aptech Ltd (2024) the Supreme Court held that Article 137 of the Limitation Act 1963 applies, giving three years from the date the right to apply accrues. That right accrues when the other side fails to make the appointment after a valid notice invoking arbitration, that is, once the 30 days or the period in the clause have passed without an appointment.

Keep two clocks separate. The first is the limitation for your underlying claims, usually three years for money claims from when the cause of action arose, which stops running when the respondent receives your section 21 notice. The second is the three years for filing the section 11 petition after the other side fails to appoint. Sending a notice within time and then waiting years to file the petition can still defeat you.

The court in Arif Azim also said that the referral court may decline to refer claims that are ex facie and hopelessly time-barred. That is a narrow exception for dead claims, not a licence for a full limitation hearing. If there is any real argument that the claim is within time, for example because of an acknowledgment of debt or part payment, it will go to the tribunal.

The other side appointed its own arbitrator: what now?

Under section 12(5) and the Seventh Schedule, a person with close ties to a party, such as an employee, adviser or director, cannot act as arbitrator unless both sides waive this in an express written agreement made after the dispute arose. Following Perkins Eastern Architects DPC v HSCC (India) Ltd (2019) and the Constitution Bench in Central Organisation for Railway Electrification v ECI SPIC SMO MCML (JV) (2024), one party also cannot appoint a sole arbitrator unilaterally, even if the person chosen has no direct link with it.

If you receive a letter from a bank, NBFC or developer saying it has appointed an arbitrator under its standard clause, do not simply ignore the proceedings. Write promptly to the arbitrator and the other side objecting to the appointment and reserving your rights. Then apply to the High Court under section 11, or under sections 14 and 15 where an ineligible arbitrator has already entered reference, for a declaration that the mandate has ended and for an independent appointment. Our post on credit card and personal loan defaults deals with the lender-appointed arbitrations borrowers most often face.

Taking part in hearings before an ineligible arbitrator does not waive the objection, as the Supreme Court held in Bharat Broadband Network Ltd v United Telecoms Ltd (2019). Even so, waiting until the award is passed to object wastes time and money. Raise it at the start.

What if the other side appoints late, after the 30 days?

A late appointment is not automatically invalid. In Datar Switchgears Ltd v Tata Finance Ltd (2000), the Supreme Court held that where the clause gives one party a role in the appointment, that party does not lose the right merely because 30 days have passed, but it does lose it once the other party has filed a section 11 petition. So if the respondent wakes up after your petition is filed and names an arbitrator, the court can disregard that name and make its own appointment.

This cuts both ways. If you are the party with the right to appoint, act within the 30 days. If you are the claimant facing a silent respondent, do not wait months after the 30 days hoping it will respond; file the petition, which fixes the position.

A late appointment must still be a valid one. A respondent who names its own officer after the deadline has made two errors, not one, and the court will appoint an independent arbitrator in that person's place.

Objections the other side usually raises, and how courts treat them

The most common objection is that no arbitration agreement exists or that it does not bind the respondent. Where the respondent signed the contract containing the clause, this rarely succeeds. Where the respondent is a group company, a promoter or a guarantor who did not sign, the court may take a prima facie view and leave the final decision to the tribunal, in line with the Constitution Bench in Cox and Kings Ltd v SAP India Pvt Ltd (2023). Include those parties in the petition only if you have material showing they are bound.

Other frequent objections are that the claim is time-barred, that the parties have already settled, that the contract is unstamped, and that the dispute falls outside the clause. As explained above, the first three are generally for the arbitrator, and the fourth is decided on a prima facie reading of the clause. A respondent may also say the dispute is not arbitrable because it is a consumer matter, a tenancy under a rent control law, or a matter reserved for a statutory body. Those objections can succeed at the referral stage when they are clear on the face of the papers.

Two objections can stop the petition outright. If the respondent company is under a moratorium in insolvency, section 14 of the Insolvency and Bankruptcy Code bars proceedings against it, as our post on the CIRP moratorium explains. And if the claimant is a micro or small enterprise that has already invoked the MSME Facilitation Council under section 18 of the MSMED Act 2006, that statutory process generally takes over.

Documents for a section 11 petition

Collect these before drafting. Missing documents are the commonest reason a first hearing is adjourned.

How the Delhi High Court usually handles section 11 petitions

Section 11 petitions in the Delhi High Court are listed before the bench assigned arbitration matters. At the first hearing the court usually issues notice if the respondent is not already represented. Where the respondent appears and does not seriously dispute the existence of the clause, appointments are often made at the first or second effective hearing. Section 11(13) asks the court to try to decide the petition within 60 days of notice to the other side, and many petitions are decided close to that, though contested ones take longer.

The court commonly appoints a retired judge or an advocate from its list, and often directs that the arbitration be conducted under the aegis of the Delhi International Arbitration Centre, which then handles administration and fixes fees under its schedule. The order usually records that the arbitrator will give a disclosure under section 12 before entering reference, and that the parties' contentions on merits, including arbitrability and limitation where not plainly decided, are left open.

On the UP side of the NCR, petitions for arbitrations seated in Noida or Ghaziabad go to the Allahabad High Court, and practice there differs in listing and in the panel from which arbitrators are drawn. If you have a choice of seat when drafting, this is worth thinking about; see our page on arbitration practice in Delhi.

Who pays the arbitrator appointed by the court?

The parties do, usually in equal shares at the start, with the tribunal deciding at the end who bears the costs under section 31A. Where the court refers the matter to DIAC, the centre's fee schedule applies, and the deposits are collected by the centre. Where the court appoints an arbitrator directly without an institution, the Fourth Schedule to the Act provides a model scale based on the sum in dispute, and section 11(14) lets High Courts frame rules on fees taking it into account.

In ONGC Ltd v Afcons Gunanusa JV (2022), the Supreme Court held that arbitrators cannot unilaterally fix their fees; fees must be agreed with the parties or follow the applicable rules. If a respondent refuses to pay its share of the deposit, the claimant may pay it to keep the arbitration going, and the tribunal can take that into account when awarding costs.

Plan for these costs before filing. A section 11 petition followed by an arbitration is not cheap for a small claim. For a modest unpaid invoice, compare the routes in our post on unpaid invoice recovery options before committing.

Can you appeal against a section 11 order?

No appeal lies under section 37 against an order appointing an arbitrator or refusing to appoint one. The only route is a special leave petition to the Supreme Court under Article 136, and the Supreme Court interferes with section 11 orders sparingly, mostly where the High Court has gone beyond its limited role or appointed someone plainly ineligible.

For a respondent, this means the better course is usually to take objections on jurisdiction and limitation before the tribunal under section 16, and if they fail, to raise them in a challenge to the final award under section 34. Our post on challenging an arbitral award under section 34 explains which objections survive to that stage.

For a claimant whose petition is dismissed because the court finds no arbitration agreement, the option is a civil suit or, in a commercial matter, a commercial suit after pre-institution mediation. Check limitation at once, since time spent on the petition does not automatically extend it.

Mistakes that delay a section 11 appointment

• No proper notice. Filing without a section 21 notice, or on a notice that never reached the respondent, invites an adjournment or dismissal.
• Filing before the time runs out. A petition filed on day 25 of a 30-day period is premature.
• Wrong court. Filing in the district court, or in a High Court with no connection to the seat, wastes the first hearing.
• Arguing the merits. Long pleadings on the merits do not help at this stage and give the respondent a reason to reply at equal length.
• Ignoring the second clock. Sending a notice in time and then waiting more than three years after the failure to appoint to file the petition.
• Proposing conflicted names. Suggesting an arbitrator who has acted for you before invites an objection and a fresh round of proposals.
• Adding non-signatories without material. Impleading group companies or promoters with no documents showing their consent to arbitrate lengthens the hearing.

What to do this week if the other side will not appoint

• Find the signed contract and read the arbitration clause, the seat and the notices clause.
• Check whether the clause requires negotiation or mediation first, and complete it if it does.
• Work out the limitation date for your claims and make sure the notice will reach the other side before it.
• Send a notice invoking arbitration with the disputes, the amounts and one to three proposed arbitrators.
• Keep the speed post tracking report and email delivery record on file.
• Diary the date 30 days after receipt, or the period in the clause.
• If the other side has appointed someone unilaterally, object in writing at once.
• Collect the documents for the petition so it can be filed as soon as the period ends.
• Consider whether you need urgent interim relief under section 9 while the appointment is pending.

Getting the tribunal in place

A section 11 petition is usually the shortest stage of an arbitration, and the one most often lengthened by avoidable errors in the notice or the filing. Get the notice right, wait the full period, file in the correct High Court, and keep the petition short. The arguments on the merits come later, before the arbitrator.

If you want an advocate to check your clause and notice before filing, the team of Advocate B.K. Singh at B.K. Singh & Associates can read the papers and tell you whether the petition is ready and in which court it belongs. You can send them through the online enquiry page.