Appointment of arbitrators under section 11

The appointment of arbitrators under Section 11 of the Arbitration and Conciliation Act, 1996 runs on the procedure the parties agreed, and the court steps in only when that procedure fails. A Constitution Bench of the Supreme Court of India held in November 2024 that the principle of equal treatment applies at the appointment stage, that a party cannot be compelled to pick its arbitrator from a panel curated by the other side, and that unilateral appointment clauses in public-private contracts violate Article 14 of the Constitution. In January 2026 the Supreme Court added that a unilaterally appointed sole arbitrator is void ab initio, and that taking part in the arbitration without objecting does not amount to consent. Sections 10, 11 and 12(5) supply the frame: an odd number of arbitrators, the qualifications the parties agreed, and a statutory ineligibility that only an express written agreement made after the dispute can waive.

This article sets out who may appoint an arbitrator under Section 11, how many arbitrators a tribunal must have, what disqualifies a person from sitting, and where consent to an appointment breaks down.

SPONSORED

Most appointment disputes in India now turn on a single question: whether both sides had an equal say in choosing the tribunal. Contracts drafted before the 2015 amendment routinely gave one party, often a public sector undertaking or a lender, the power to name the sole arbitrator or to supply the panel from which the other side had to choose. Those clauses are still in circulation, and agreements signed a decade ago are still producing arbitrations today.

Two judgments govern the area. The Constitution Bench decided who may control the appointment, and a two-judge Bench in January 2026 decided what counts as the other party’s agreement to an appointment already made. Each holding below is tied to the paragraph it was decided in, because the reasoning on this subject is frequently reported loosely.

Appointment of arbitrators under Section 11

The appointment of arbitrators under Section 11 of the Arbitration and Conciliation Act, 1996 starts with the parties’ own agreed procedure. Section 11(2) leaves them free to agree how the arbitrator or arbitrators will be chosen. The court has no role while that procedure is working.

Section 11(6) is the entry point when it stops working. It allows a party to approach the Supreme Court or the High Court, or a person or institution designated by the court, in three situations: where “a party fails to act as required under that procedure”, where “the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure”, or where “a person, including an institution, fails to perform any function entrusted to him or it under that procedure”. The subsection closes with a limit that is easy to miss: the court acts “unless the agreement on the appointment procedure provides other means for securing the appointment”.

When the court does appoint, Section 11(8) tells it what to look at. The court “shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12”, and must have due regard to “any qualifications required for the arbitrator by the agreement of the parties” and to “the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator”. Party choice and statutory neutrality are both built into the same subsection.

The scope of the Section 11 enquiry is narrow. Section 11(6A) confines the court to examining the existence of an arbitration agreement, and in Motilal Oswal Financial Services Ltd. v. Santosh Cordeiro, 2026 INSC 5, decided on 5 January 2026, the Supreme Court held that “examination” marks a limit on the court’s jurisdiction: it calls for a prima facie determination, not a laborious or contested enquiry. Whether the agreement is substantively valid, and whether the dispute is arbitrable, belong to the tribunal under Section 16, and the referral court is not the forum for a mini-trial.

Section 11(6A) continues to apply because the 2019 amendment that would omit it, and route appointments through designated arbitral institutions, has not been brought into force. The operative timeline is therefore still the one in Section 11(13), which asks that an application be disposed of “as expeditiously as possible” with an endeavour to finish within sixty days of service of notice on the opposite party. That period is directory, not mandatory.

The sub-section by sub-section detail of the provision, including fees, limitation and the amendment history, is covered separately in the iPleaders explainer on Section 11 of the Arbitration and Conciliation Act, 1996. A shorter walkthrough of the appointment mechanics is also available on the LawSikho blog. What follows here is the part those treatments predate: what the courts have said about who gets to choose.

Number of arbitrators

The number of arbitrators is for the parties to fix, subject to a single statutory limit. Section 10 of the Arbitration and Conciliation Act, 1996 provides that “the parties are free to determine the number of arbitrators, provided that such number shall not be an even number”. If they do not determine it, Section 10(2) supplies the default: “the arbitral tribunal shall consist of a sole arbitrator”.

The bar on even numbers exists to prevent deadlock, but it is not a rule the court polices on its own motion. In Narayan Prasad Lohia v. Nikunj Kumar Lohia, (2002) 3 SCC 572, an award made by two arbitrators was challenged on the ground that a two-member tribunal offends Section 10. The Supreme Court held that Section 10 is derogable, and that a party who does not object to the composition of the tribunal under Section 16 is taken to have waived the point.

That result is worth holding onto, because it does not carry across to neutrality. A defect in the number of arbitrators can be lost through silence. A defect in the eligibility of the arbitrator cannot, as the section on waiver below explains.

The number also decides how much of the 2024 Constitution Bench ruling applies to a given case. The Court dealt with sole arbitrators and three-member tribunals differently, and its direction on prospective effect was confined to three-member tribunals. Whether a clause names one arbitrator or three is therefore the first thing to check before working out which rule governs.

Qualifications and eligibility of an arbitrator

The qualifications and eligibility of an arbitrator come from two different places: what the parties agreed, and what the statute forbids. Section 11(8)(a) of the Arbitration and Conciliation Act, 1996 requires the court to have due regard to any qualifications the parties stipulated, such as a professional discipline, a minimum standing, or a particular technical background. Those are contractual, and the court respects them.

Statutory ineligibility works differently, and it overrides the contract. Section 12(5) provides that “notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator”. The Seventh Schedule catches, among others, employees, consultants and advisers of a party. Section 12(1) separately obliges a prospective arbitrator to disclose in writing any circumstance likely to give rise to justifiable doubts about independence or impartiality, measured against the Fifth Schedule.

An arbitrator caught by Section 12(5) is not merely open to challenge. In Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 INSC 6, decided on 5 January 2026, the Supreme Court held at paragraph 68 that “the unilateral appointment of a sole arbitrator is void ab initio, and the sole arbitrator so appointed is de jure ineligible to act as an arbitrator in terms of Section 12(5) read with the Seventh Schedule of the Act, 1996”.

Ineligibility also travels. The rule in TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377 is that a person who is himself ineligible cannot appoint someone else, because the disqualification would otherwise be defeated by delegation. Bhadra applied that reasoning to the facts before it at paragraph 67: “once the Chairman is rendered ineligible by operation of law, he cannot nominate or appoint another person as an arbitrator”. Whether the tribunal can rule on its own eligibility is a related question, taken up in the iPleaders piece on kompetenz-kompetenz and separability of the arbitration clause.

Why courts treat the appointment stage as decisive

Courts treat the appointment stage as decisive because the equality guarantee is not confined to the hearing. The Constitution Bench in Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML (JV), 2024 INSC 857, decided on 8 November 2024, concluded at paragraph 169(a) that “the principle of equal treatment of parties applies at all stages of arbitration proceedings, including the stage of appointment of arbitrators”. The ruling is commonly called CORE-II, to distinguish it from the 2019 decision it disagreed with.

The reason is stated at the opening of the judgment. Paragraph 2 records that “party autonomy cannot be stretched to disregard the principles of impartiality and independence of the arbitral process, specifically at the stage of constituting of an arbitral tribunal”. Choosing the tribunal is an exercise of party autonomy, but it is the exercise most capable of hollowing out the process it sets up.

Bhadra put the same point in contractual terms. At paragraph 33 the Court held that “the principle of equal treatment of parties applies not only to the arbitral proceedings, but also to the procedure for appointment of arbitrators”, and at paragraph 58 that “unilateral appointments are not consistent with the basic tenet of arbitration, i.e., mutual confidence in the arbitrator”. Arbitration rests on both sides accepting the decision-maker, and an appointment only one side made does not produce that acceptance.

The underlying logic is older. CORE-II records at paragraph 9 the reasoning from Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517: where each side nominates an arbitrator, “whatever advantage a party may derive by nominating an arbitrator of its choice would get counter-balanced by equal power with the other party”, but “in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity”. From that follows the proposition that “the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator”. CORE-II expressly upheld both Perkins and TRF at paragraph 168.

The Bench was not unanimous on the route, and the disagreement is worth knowing before relying on the reasoning rather than the result. One separate opinion accepted that equality applies at the appointment stage but rejected importing constitutional and administrative law principles into arbitration.

The other separate opinion went further, holding at paragraph 54.3 that “the text and the context of Section 18 as is evident from the scheme of the Act eschews application of Section 18 at the time of appointment”, on the ground that Section 18 sits in the chapter on conduct of proceedings and binds the tribunal rather than the parties. That opinion also declined to declare all such clauses void in advance, concluding that “it is not permissible for the court to give an advance declaration that all such agreements which enable one of the parties to unilaterally constitute the arbitral tribunal would be void per se”. Those are separate opinions, not the ratio, and they are regularly misreported as the majority view.

Where consent breaks down

Consent to an appointment breaks down in four recurring ways, and CORE-II addressed three of them directly. The first is the unilateral sole arbitrator. Paragraph 169(c) holds that “a clause that allows one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts as to the independence and impartiality of the arbitrator”, and that “such a unilateral clause is exclusive and hinders equal participation of the other party in the appointment process of arbitrators”. Bhadra then supplied the consequence: void ab initio.

The second is the curated panel. Empanelling is not the problem, and paragraph 169(b) is careful about this: “the Arbitration Act does not prohibit PSUs from empanelling potential arbitrators. However, an arbitration clause cannot mandate the other party to select its arbitrator from the panel curated by PSUs.” A public sector undertaking may keep a list. It may not force the other side to pick from it.

Where the tribunal has three members, paragraph 169(d) explains why a curated panel still fails: “mandating the other party to select its arbitrator from a curated panel of potential arbitrators is against the principle of equal treatment of parties. In this situation, there is no effective counterbalance because parties do not participate equally in the process of appointing arbitrators.” On the clause before it, the Court found that “the process of appointing arbitrators in CORE (supra) is unequal and prejudiced in favour of the Railways”. The concern is not new: CORE-II records at paragraph 5 that in Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd., (2017) 4 SCC 665, the discretion to curate a panel of five “gave rise to the suspicion that it ‘may have picked up its own favourites’”, with the remedy that “a choice must be given to both parties to nominate any person from the entire panel of arbitrators”. CORE-II upheld TRF and Perkins but disagreed with Voestalpine on three-member tribunals, so Voestalpine should be read through CORE-II rather than on its own.

The third is the public-private contract. Paragraph 169(e) holds that “unilateral appointment clauses in public-private contracts are violative of Article 14 of the Constitution”. This is the limb that attracted the separate opinions, and it is the limb most likely to be revisited, so a clause that fails only on Article 14 grounds sits on softer ground than one that fails on Section 12(5).

The fourth way is newer, and it catches parties who think they have avoided the problem: unilateral choice of the institution. In Radiance Galore v. Yes Bank, an order of the Bombay High Court dated 9 July 2025, the arbitrator was appointed by an independent online dispute resolution platform using a randomised algorithm, but the platform itself had been selected by the bank after the dispute arose. The Court observed that there are only two known methods of appointing an arbitrator, by mutual consent of the parties or under Section 11.

The award in that case was quashed by consent with liberty to reinitiate, which limits its weight as precedent, though the reasoning tracks CORE-II. The practical lesson survives the procedural posture: delegating the choice does not cure it if only one side chose the delegate. Clauses that fail for these reasons are examined further in the iPleaders piece on arbitration clause drafting mistakes that make it unenforceable in India, and the same drafting discipline applies to contract drafting for foreign clients, where the appointment mechanism is settled before any dispute exists.

When silence is not consent

Silence is not consent to an arbitrator’s appointment, and neither is participation. The proviso to Section 12(5) of the Arbitration and Conciliation Act, 1996 allows parties to “waive the applicability of this sub-section by an express agreement in writing”, but only “subsequent to disputes having arisen between them”. CORE-II confirmed at paragraph 169(f) that this express waiver requirement “also applies to situations where the parties seek to waive the allegation of bias against an arbitrator appointed unilaterally by one of the parties”, and that the choice arises only “after the disputes have arisen”.

Bhadra is the case that gives the proviso teeth. At paragraph 87 the Court held that “the expression ‘express agreement in writing’ refers to an agreement made in words and cannot be inferred by conduct”. The Act prescribes no form for the waiver, and the argument ran that this looseness permits an implied one.

The Court rejected that at paragraph 84: “the absence of a prescribed format cannot be construed to mean that the waiver may be inferred impliedly or through conduct”. What is required, at paragraph 88, is that “parties must consciously abandon their existing legal right through an express agreement”.

That disposes of the conduct-based defences respondents usually run. At paragraph 95 the Court held that “even if it is assumed that the appellant had participated in the arbitral proceedings without raising any objection to the appointment of the learned Arbitrator, it is not open to hold that he had waived his right under Section 12(5)”. At paragraph 96 it held that “a procedural order, submission of statement of claim by the appellants… cannot be countenanced to mean ‘an express agreement in writing’ within the meaning of the proviso”. Paragraph 90 states the position flatly: “the conduct of the parties is inconsequential and does not constitute a valid waiver under the proviso”.

The point extends to the notice that begins the arbitration. At paragraph 70 the Court held that a notice under Section 21 “is an expression to set the arbitration agreement into motion”, and that “it does not, by itself, operate as consent to any appointment to be made in the future”. Invoking arbitration is not agreeing to whoever the other side later names, a distinction that matters when drafting the notice invoking arbitration.

The practical reach of this is considerable. In Bhadra the objection was taken for the first time at the Section 34 stage, after the award, and it still succeeded: the appeals were allowed and the awards declared void.

Set that against the position under Section 10, where a party who says nothing about a two-member tribunal loses the point. Silence forfeits a complaint about the number of arbitrators. It does not forfeit a complaint about an ineligible one.

What is still unsettled

What remains unsettled after CORE-II is how far it reaches. The Court gave its ruling prospective effect at paragraph 169(g): “the law laid down in the present reference will apply prospectively to arbitrator appointments to be made after the date of this judgment. This direction applies to three-member tribunals.” The reason appears at paragraph 168, which records that retrospective effect “may possibly lead to the nullification of innumerable completed and ongoing arbitration proceedings involving three-member tribunals” and would disturb bargains already struck.

The carve-out is doing a lot of work, because it is limited to three-member tribunals. Sole-arbitrator appointments sit outside it, which follows from paragraph 168: TRF and Perkins were upheld rather than overruled, so the sole-arbitrator rule was never new law needing a transition. Bhadra bears this out in practice. The clause there came from licence agreements executed in 2010, the appointment long predated November 2024, and the awards were still declared void.

Whether a unilateral appointment clause is void or merely voidable is not answered in terms by the majority, and commentators have flagged the gap. The distinction is not academic: it decides whether the clause can be severed and the agreement to arbitrate saved, or whether the whole arbitration agreement falls with it.

The forum question is also live. A challenge can surface at the Section 11 stage, before the tribunal under Section 16, or at Section 34 after the award, and the Section 11 court is confined to a prima facie view of existence. The separate opinion that would leave validity to be tested case by case under Sections 11, 14 or 34, rather than by advance declaration, reads more comfortably alongside Section 11(6A) than the majority’s broader statements do.

Until that tension is resolved, a party facing a one-sided clause should raise the objection early and in writing, because saying nothing does not help. For the related question of which forum grants interim relief once the tribunal exists, see the iPleaders comparison of Section 9 and Section 17 interim relief.

Frequently asked questions

Who appoints the arbitrator under Section 11?

The parties do, under the procedure they agreed in the arbitration clause. The court appoints only when that procedure fails in one of the three ways listed in Section 11(6): a party does not act, the parties or the two nominated arbitrators cannot agree, or a person or institution does not perform its function. Even then, the court will not step in if the agreement provides other means of securing the appointment.

Can one party appoint the sole arbitrator?

No. CORE-II held at paragraph 169(c) that a clause allowing one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts about independence and impartiality, and hinders equal participation by the other party. Bhadra held at paragraph 68 that such an appointment is void ab initio and the arbitrator de jure ineligible under Section 12(5). A party who is himself ineligible also cannot nominate a substitute.

Can a public sector undertaking require the other side to pick from its panel of arbitrators?

No, though it may maintain a panel. Paragraph 169(b) of CORE-II permits empanelment but holds that an arbitration clause “cannot mandate the other party to select its arbitrator from the panel curated by PSUs”. For three-member tribunals, paragraph 169(d) adds that compelling a choice from a curated panel leaves no effective counterbalance and offends equal treatment.

Does taking part in the arbitration mean you accepted the arbitrator?

No. Under the proviso to Section 12(5), ineligibility can be waived only by an express agreement in writing made after the dispute has arisen. Bhadra held that participation without objection is not waiver (paragraph 95), that a procedural order or a statement of claim is not an express agreement (paragraph 96), and that the conduct of the parties is inconsequential (paragraph 90). A Section 21 notice invoking arbitration is not consent to a future appointment either (paragraph 70).

Does CORE-II apply to arbitrations that began before November 2024?

Partly. The prospective direction in paragraph 169(g) applies to appointments made after 8 November 2024, and only to three-member tribunals. Sole-arbitrator appointments are governed by TRF and Perkins, which CORE-II upheld rather than overruled, so they are not covered by the carve-out. Bhadra applied the sole-arbitrator rule to a clause from 2010 and declared the resulting awards void.

How many arbitrators must a tribunal have?

An odd number. Section 10(1) leaves the count to the parties but bars an even number, and Section 10(2) makes it a sole arbitrator if they do not decide. An even-numbered tribunal is not automatically void: Narayan Prasad Lohia held that Section 10 is derogable and that a party who does not object under Section 16 waives the point.

References

Case law

1. Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 INSC 6, decided 5 January 2026
2. Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML (JV), 2024 INSC 857, Constitution Bench, decided 8 November 2024; Supreme Court judgment PDF
3. Motilal Oswal Financial Services Ltd. v. Santosh Cordeiro, 2026 INSC 5, decided 5 January 2026. Parallel citation: (2026) 2 SCC 801
4. Narayan Prasad Lohia v. Nikunj Kumar Lohia, (2002) 3 SCC 572
5. Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517, decided 26 November 2019. Parallel citation: AIR 2020 SC 59
6. Radiance Galore v. Yes Bank Ltd., Bombay High Court, order dated 9 July 2025
7. TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377
8. Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd., (2017) 4 SCC 665

Statutes

1. Arbitration and Conciliation Act, 1996. Sections cited: 10, 11(2), 11(6), 11(6A), 11(8), 11(13), 12(1), 12(5), 16, 18, 21, 34, and the Fifth and Seventh Schedules
2. Constitution of India, Article 14

This article is for informational and educational purposes only and does not constitute legal advice. For advice on a specific arbitration clause or appointment, consult a qualified professional.