PROJECT REPORT

ON

Appointment of Arbitrators under

Arbitration and conciliation Act, 1996

SUBMITTED TO
Ms. Adya pandey
(FACULTY OF ADR)

SUBMITTED BY – Pankaj Sharma

SECTION - A
ROLL NO. – 100
SEMESTER – VI

DATE OF SUBMISSION – 15/02/2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY
 TABLE OF CONTENTS
Declaration....................................................................................................................
Acknowledgement.........................................................................................................
I. INTRODUCTION
THE ACT OF 1940
THE UNICTRALMODEL LAW
THE ENGLISHLAW
THE ACT OF 1996
OBJECTIVES......................................................................................................................
RESEARCH METHODOLOGY.......................................................................................
II. NATIONALITY OF AN ARBITRATOR
i. PARTY AUTONOMY
ii. NATIONALITY
iii. INSTITUTIONAL RULES
III. APPOINTMENT OF ARBITRATORS
i. GENERAL
ii. CONTRACT TO APPOINT ARBITRATOR
iii. REQUIREMENTS OF A VALID APPOINTMENT
iv. EFFECT OF A VALID APPOINTMENT
v. APPOINTMENT BY AGREEMENT OF THE PARTIES
vi. IDENTITY OF THE ARBITRATOR
vii. ACCEPTANCE OF APPOINTMENT BY THE PROSPECTIVE ARBITRATOR
viii. APPOINTMENT BY ARBITRAL INSTITUTIONS
ix. APPOINTMENT BY TRADE INSTITUTIONS
x. APPOINTMENT BY LIST SYSTEMS
IV. APPOINTMENT PROCEDURE

i. CONSENSUAL PROCEDURE
ii. DEFAULT PROCEDURE
V. CONCLUSION…………………………………………………………………………………
VI. REFERENCES……………………………………………………………………….18
 DECLARATION

The research report entitled “APPOINTMENT OF ARBITRATORS UNDER THE

ARBITRATIONAND CONCILIATION ACT, 1996” has been prepared entirely by me
under the guidance of Ms. Adya Pandey, Assistant Lecturer, Faculty of ADR,
Hidayatullah National Law University, Raipur, India.
I hereby declare that this work is original and has not been submitted in part or full to
any other university or institute for research purpose.

Place: Raipur
Date: 15/02/2017
Pankaj sharma
ROLL NO.100
SECTION-A
 ACKNOWLEDGEMENTS
I would like to express my deep and sincere gratitude to my supervisor Ms. ADYA PANDEY
her wide knowledge and logical way of thinking have been of great value for me. Her
understanding, encouraging, and personal guidance have provided a great basis for the
present work.
Words are not enough for me to show my gratitude to Prof. Dr. Sukhpal Singh, VC
of HNLU. His spiritual ideas and concept have had a remarkable influence on me. I would
like to express my heartfelt gratitude to our respective faculty members for
their continuous guidance and unconditional support.
I also owe acknowledgement to the HNLU Administration for providing us with such
excellent resources in the form of IT lab and Library facilities without which this project
would never be materialised.
 I. INTRODUCTION

[I.1] THE ACT OF 1940

The power and procedure to appoint an arbitrator under the Arbitration and Conciliation Act,
1940 was spread over several provisions. Section 4 provided that the parties to an arbitration
agreement may agree that any reference thereafter under shall be to an arbitrator or arbitrators
To be appointed by a person designated in the agreement either by name, or as the holder, for
the time being, of any office or appointment. Section 8 empowered the court to appoint an
arbitrator, s.9 empowered a party to appoint a new arbitrator or, in certain cases a sole
arbitrator, while s. 10 made provisions as to appointment of three or more arbitrators.

[I.2] THE UNICTRALMODEL LAW

Article 11 typifies a ‘two-level’ system and gives maximum freedom to the parties in
agreeing upon the procedure to appoint arbitrators followed by default provisions in case the
parties do not come to agreement. This is one of the instances where court assistance is of
vital importance to ensure smooth and efficient arbitral proceedings. It takes the object of the
Model Law to harmonise and to unify int’l trade law a step further by stipulating that a
person of any nationality may act as an arbitrator.1

[I.3] THE ENGLISH LAW

Section 16 to 19 of the English Arbitration Act 1996, contain the provisions wrt. The
procedure for appointment of arbitrators. There is no limitation on the parties’ freedom to
agree upon a procedure for the appointment of an arbitration of an arbitration tribunal,2
though if such agreement breaks down or if there is no agreement, the court will appoint one
or more arbitrators upon the application of the parties.3 The court will also take account of
any qualification requirement.4

[I.4] THE ACT OF 1996

Sub-sections (1) to (8) of s. 11 of this Act adopt the substance of all five paragraphs of art. 11
of the UNICTRAL Model Law. Section 11(1) states that ‘a person of any nationality may be
an arbitrator, unless otherwise agreed by the parties’, while art. 11(1) of the Model Law says

1
Peter Binder, International Commercial Arbitration and Conciliation in UNICTRAL Model Law Jurisdiction,
second edn. 2005, p.109, para. 3-022, p. 114, para 3-035.
2
The English Arbitration Act, 1996, s. 16(1).
3
Ibid, s. 18.
4
Ibid, s. 19.
‘no person shall be precluded by reason of his nationality from acting as an arbitrator, unless
otherwise agreed by the parties.’ The substance of art. 11(2) to 11(5) of the Model Law has
been, with some textual variations, covered in sub-s. (2) to (8) of s. 11 of this Act. The most
significant deviation from the Model Law is that s. 11 uses the word ‘Chief Justice’ instead of
the word ‘court’ used in art. 11. The provisions of sub-ss 11(9) to 11(12) are not based on any
provision of the Model Law.
 OBJECTIVES OF THE STUDY

The main objective of this project to is to study the “APPOINTMENT OF

ARBITRATORS UNDER THE ARBITRATIONAND CONCILIATION ACT, 1996”
via study of-
· Appointment Procedure of Arbitrators.
· Party Autonomy and Limitations on Party Autonomy in Appointment of
Arbitrators.
· Requisites and Effects of Valid Appointment.

Focusing on these objectives I will try to explain the “APPOINTMENT OF

ARBITRATORS UNDER THE ARBITRATIONAND CONCILIATION ACT, 1996”
through research and study by the various resources and will try to bring the truth behind the
curtain using the best of my capabilities.

RESEARCH METHODOLOGY
The secondary data available regarding the “APPOINTMENT OF ARBITRATORS UNDER
THE ARBITRATIONAND CONCILIATION ACT, 1996” have been discussed and
analysed. The study has been carried out using the descriptive analytical method. A doctrinal
method for research has been adopted. Both primary and secondary sources of data have been
used. The research consisted books, articles, and websites.

ORGANISATION OF THE STUDY

The study has been organised into five chapters. The first chapter provides an outline of the
project report and introduces the topic followed by objectives and methodology. The second
chapter elaborates and analyses the provisions of Nationality of arbitrators. The third chapter
provides an insight into the Appointment of Arbitrator. The fourth chapter briefly deals with
the procedure for appointment of arbitrators. The fifth and final chapter deals with conclusion
and references.
 II. NATIONALITY OF AN ARBITRATOR

II.1] PARTY AUTONOMY

The parties are free to determine any odd number of arbitrators, and in default of party
consensus, the arbitral tribunal will consist of a sole arbitrator.5 Section 11(1) provides that,
subject to agreement of the parties to the contrary, a person of any nationality may be
appointed as an arbitrator. Section 11(1) of the Model Law which reads: ‘No person shall be
precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by
the parties’. It is not mandatory and is subject to party autonomy.

[II.2] NATIONALITY

In international commercial arbitrations, the parties generally belong to different countries

and quite often neither party is willing to the jurisdiction of the national court of the other. It
is therefore, preferable that the sole or the presiding arbitrator is appointed from another
country or by an international arbitral institutions.6 Subject to agreement by the parties to the
contrary, a person of any nationality may be appointed as an arbitrator.7

[II.3] INSTITUTIONAL RULES

The UNICTRAL Rules provide, ‘In making the appointment, the appointing authority shall
have regard to such considerations as are likely to secure the appointment of an independent
and impartial arbitrator and shall take into account as well the advisability of appointing an
arbitrator of a nationality other than the nationality of the parties’8 The ICC Rules go a step
further and provide, ‘The sole arbitrator or the chairman of an arbitral tribunal shall be of a
nationality other than those of the parties’9 A similar provision has been made in the LCIA
Rules10.

5
The Arbitration and Conciliation Act, 1996, s.10.
6
Russel on Arbitration, twenty second edn, 2003 p.9, para. 1-016
7
The Arbirtration and Conciliation Act, 1996, s. 11
8
UNICDTRAL Arbitration Rules., art. 6.4.
9
ICC Arbitration Rules, art. 9.5.
10
LCIA Arbitration Rules, art. 6.1
 III. APPOINTMENT OF ARBITRATORS

[III.1GENERAL
There is no set formula for the appointment of an arbitrator. The appointment of an
arbitrator will depend on the nature of the dispute referred to him and the circumstances to
which he is appointed. The powers and duties of arbitrators will vary, depending upon
which of these forms of arbitration is adopted. 11 This Act does not prescribe any particular
form for appointment of an arbitrator as between the appointing party and the arbitrator.
Particularly, there is no requirement that an appointment is to be made in writing. For a
valid requirement of an arbitrator, two conditions are a sine qua non. First, the
arbitrator must have been notified of his appointment and he must have expressed his
willingness to act,12 although it is not necessary for the arbitrator to have been aware of the
nature of this stage.13 Secondly, the other party must have agreed to the appointment,14 and
of the matters which are to be referred to arbitration. Once these conditions have been
satisfied, the appointment is perfected and the arbitrator’s authority cannot be revoked.

[III.2] CONTRACT TO APPOINT ARBITRATOR

The constitution of the arbitral tribunal and the manner in which it is to be appointed
depends upon the type of substantive agreement. The most common forms of contract of
appointment mechanisms are-
(i) Arbitration by a single arbitrator named in the arbitration agreement.
(ii) Arbitration before a single arbitrator to be agreed upon by the parties after the
dispute has arisen.
(iii) Arbitration before a single arbitrator nominated by a trade or professional
institution.
(iv) Arbitration before two arbitrators, one nominated by each of the parties.
(v) Arbitration before a Tribunal of three arbitrators, one nominated by each of the
parties, and the third to be appointed either by the appointed either by the nominated
arbitrators, or in default, by the Chief Justice or any person or institution designated by
him15.

11
Robert Merkin, Arbitration Law, edn. 2004, pp.. 361-362, para. 10.2.
12
Tradax Export SA v. Volkswagenwerk AG, La Loma [1970] 1 Lloyd’s Rep 62, 64.
13
Re Haddan and Roupell (1861) 9 CBNS 683.
14
Thomas v. Fredericks (1847) 10 QB 775; Trew v. Harris (1848) 11 QB 7; Australian Foods v. Pars Ram [2002]
NSWSC 1180
15
THE Arbitration and Conciliation Act, 1996, s. 11(4), (5), (6).
Appointment of an arbitrator is a contract between the arbitrator is a contract between the
arbitrator on one side, and the parties on the other, for arbitrating upon the dispute between
the parties. This contract is again based upon a contract between the parties to submit the
matter to the arbitrator for arbitration of the dispute. In exercising a judicial function, the
party appointed arbitrator is in no sense the delegate or representative of the party who
appointed him.16 In order to meet possibility of an arbitrator acting in a biased, dependent or
fraudulent manner, s.13 specifically provides that an arbitrator can always be challenged
when justifiable doubts as to his independence or impartiality arise.

[III.3] REQUIREMENTS OF A VALID APPONITMENT

In Tradox Export SA v. Volkswagen AG, La Loma,17 under a similar provisions in the

English Statute. Lord Denning, MR set forth thbe following three requirements for
completion of a valid requirement. These requirements are applicable to appointment of
arbitrators under this section as well.

(i) Informing the other party- Section 34(2)(iii) expressly requires that the party appointing
an arbitrator must give proper notice of appointment of an arbitrator to the other party or
parties. In default, the appointment, of the arbitral tribunal will be invalid and the resulting
award, void.

(ii) Informing the nominee18- It is also important to inform the person who has been
nominated as arbitrator. This is necessary because, before giving his consent, he has to
consider whether he should accept the appointment.

(iii) Securing nominee’s agreement to act- The appointment cannot be complete without
the person nominated as arbitrator having indicated his agreement to act.

Once a valid appointment has been made, it continues until an award is made, at which point,
the arbitrators cease to have any jurisdiction. If one of the parties breaks the settlement, the
other party may request the arbitrators to proceed to give an award without seeking their

16
Mustill and Boyd, Commercial Arbitration, second edn, 1989, p.223, fn(14).
17
1920] 1 Lloyd’s Rep 62, 64.
18
The terms ‘nomination and appointment’ are generally used interchangeably, though some institutions draw
a distinction
reappointment.19The parties may get the settlement incorporated into a consent award to
avoid problems.20

In the absence of any agreed challenge procedure, it would seem that a party who objects to a
particular appointment cannot challenge the appointment as such, but instead must seek to
have the arbitrator removed on one of the grounds set out in ss. 12, 13, and 14 of the Act, eg.
that the arbitrator is not impartial,. does not possess the necessary qualifications, or, is
physically or mentally incapable of holding office. Indeed, if a party having appointed an
arbitrator of his own wishes to revoke the appointment by withdrawing the arbitrator’s
authority, he may do so only if the arbitration agreement confers him the power upon him, or
if all the parties to the reference permit him to do so.21

[III.5] APPOINTMENT BY AGREEMENT OF THE PARTIES

There is no rigid rule or practice as to how the parties should proceed in order to reach their
agreement on the identity of the arbitrator. It is, by, and large a matter of discussion and
negotiation between the parties and their counsel. The most preferable method for the
appointment of an arbitrator, whether a sole arbitrator or a member of the larger tribunal, is
by agreement of the parties to the dispute.

The major attraction of arbitration is that it allows parties to submit a dispute ot judges of
their own choice directly, rather than allow it to be exercised by a third party on their behalf.
If the parties do not agree on the appointment of the arbitrator, they lose the control over the
composition of the tribunal. The control then by default passes on to the Chief Justice of
India or any person or institution designated by him in case of an international commercial
arbitration and in case of any other arbitration to the Chief Justice of the high court having
jurisdiction over the arbitration or any person or institution designated by him.

The parties are free to determine any odd number of arbitrators. Failing such determination,
‘the arbitral tribunal shall consist of a sole arbitrator’. The parties may name the arbitrator in
the agreement, or may provide specifically for a reference to the sole arbitrator, and agree
upon the choice of the person to act after a dispute has arisen. In arbitrations with more than
one arbitrator, it is preferable that the parties agree on all arbitrators to be appointed.

19
Bunge SA V. Kruse [1980] 2 Lloyd’s Rep 142(CA).
20
Tradax Export SA v. Volkswagenwerk AG, La Loma [1970] 1 Lloyd’s Rep 62, 64
21
Itex Shipping Pte Ltd. V. China Ocean Shipping Co. The Fing Hong Hai [1989] 2 Lloyd’s Rep 522
Unilateral appointment of the arbitrator by a party and reference of disputes to him will be
void ab initio as totally incompetent or invalid, and the award made by him shall be a nullity
liable to be struck down under s. 34(2)(a)(v) and unenforceable when sought to be enforced
or acted upon.22

[III.6] IDENTITY OF THE ARBITRATOR

The first and foremost requirement of consensual appointment of an arbitrator is to agree on

the identity of the arbitrator. Though no particular formalities are required for appointing an
arbitrator, one convenient procedure commonly employed is for the claimant to submit to his
opponent agrees with the choice, one or both of them may informally approach the person of
his consent. If he consensus, they send him a written invitation to accept the reference, in
response to which he sends a written acceptance.23

In appointing an arbitrator by agreement of parties, as far as possible, it is advisable to avoid

naming a particular person as an arbitrator, in the arbitration clause, because at the time the
dispute arises, he may not be available as he may be preoccupied, ill or dead by the time the
dispute arises.24

[III.7] ACCEPTANCE OF APPOINTMENT BY THE PROSPECTIVE ARBITRATOR

Next important step is acceptance of the appointment by the prospective arbitrator because a
contract is not complete, unless accepted by the arbitrator by signifying his assent thereto.25
The consent may be oral or in writing. It is not essential for the arbitrator to formally notify
his acceptance.26

[III.8] APPOINTMENT BY ARBITRAL INSTITUTIONS

The national as well as international arbitral institutions are acquainted with the needs of
various types of arbitrators. They are, by their day-to-day experience, aware of the potential
persons suitable for each type of arbitration. Furthermore, they have well equipped machinery
for appointing arbitrators under their own rules of arbitration. For instance, the ICC, LCIA
and AAA, are prepared to act as appointing authority for a comparatively modest fee. ICSID

22
Dharma Prathishthanam v. Madhak Construction Pvt. Ltd. , (2004) 3 Arb LR 432(SC).
23
Mustill and Boyd, Commercial Arbitration, second edn, 1989, p. 175.
24
Redfern and Hunter, Law and Practice of International Commercial Arbitration, fourth edn., 2004, p.187,
para. 4-22
25
Indian Contract Act 1872, s. 2(b).
26
James Finlay and Co. Ltd. V. Gurdayal AIR 1924 Sind 91
performs this service without charging a fee, but is only prepared to do so where a
government or a governmental agency is involved in the dispute.27

[III.8] APPOINTMENT BY TRADE INSTITUTIONS

In institutional arbitrations, the parties may agree to entrust the entire arbitration process to
some trade associations. However, in an ad hoc arbitration, they need not entrust the entire
arbitration process to such bodies, though they may entrust them with the task of appointing
the arbitrator simply adopt their Rules with respect to appointment of arbitrators. An
arbitration clause may provide that the appointment of an arbitrator or arbitrator shall be
made by a trade association. Even if there is no such provision in the arbitration clause, the
parties may well agree, in the submission to arbitration that the appointment shall be made by
a particular trade association.28

[III.9] APPOINTMENT BY LIST SYSTEMS

The list system is not very common in India, though it has several advantages. In this system,
each party compiles a list of few candidates whom he considers to be suitable for the
arbitration, including their experience and qualifications separately in a brief note; Then they
exchange the lists between themselves in order to be able to reach on the identity of the
arbitrator. The exchange of lists helps to indicate the kind of arbitrator each party is looking
for. This prepares this ground for agreement for zeroing in on the identity on the arbitrator to
be appointed. The UNICTRAL Rules demonstrate the working of this procedure.

IV. APPOINTMENT PROCEDURE

1. CONSENSUAL PROCEDURE

IV.1.A GENERAL This section gives parties the maximum freedom to agree on a procedure,
followed by default provisions in case the parties fail to agree on the procedure. However, the
freedom of the parties to agree on the procedure under sub-s. (2) is restricted by the default
provisions of sub-s. (4), (5), and (6) of s. 11.

IV.1.B. PARTY AUTONOMY PROCEDURE AGREED UPON BY THE PARTIES Section

11(2) grants freedom to the parties ‘to agree on procedure for appointing the arbitrator

27
Redfern and Hunter, Law and Practice of International Commercial Arbitration, fourth edn., 2004
28
In UK, some of such trade assopciations are, federation of Oil Seeds and Fats Association(FOSFA), Grain and
Food Trade Association(GAFTA).
or arbitrators, and also to provide means for securing the appointment in such procedure.29
Section 2(6) enables the parties to authorise a third party to determine the appointment
procedure. This is particularly relevant in the case of institutional arbitrations, as rules of the
arbitral institutions generally provide their own procedures.

IV.1.C RESTRICTION ON PARTY AUTONOMY

The freedom of the parties to agree upon appointment procedure is not unfettered. This
freedom is restricted, subject to sub-s. (6) of s. 11. This provision states that unless the
agreement on the appointment procedure provides other means for securing the appointment,
party may request the Chief Justice or any person or institution designated by him to take the
necessary measure to secure the appointment of an arbitrator. Such request can be made in
the following three situations, viz, (i) a party fails to act as required under the procedure; or
(ii) the parties or the two appointed arbitrators failed to reach an agreement expected of them
under the procedure; or (iii) a person including an institution, fails to perform any function
entrusted to him under the procedure.

Sub-section 11(7) further provides that the decision of the Chief Justice or the person or
institution authorised by him, on a matter entrusted by him, on a matter entrusted by him
under sub-s (6), is final, i.e. the decision of the Chief Justice or the person or the institution
designated by him is not reviewable by any judicial authority. In cases of failing under s.
11(6), no time limit has been prescribed under the Act, whereas a period of sixty days has
been prescribed under s. 11(4) and (5) of the Act.30

IV.1.D ENFORCEMENT OF PROCEDURE BY A THIRD PARTY

In a situation where the parties have agreed upon the appointment procedure, but have not
provided the means for securing the means for securing the appointment of arbitrator or
arbitrators in the agreement, the mandatory default provisions of sub-s. (6) step in. It provides
for the assistance by a third party, viz, the Chief Justice, or any person or institution
designated by him, in order to avoid the deadlock by enforcing the procedure agreed upon by
the parties.

2. DEFAULT PROCEDURE

29
The Arbitration and Conciliation Act 1996, S. 11(2) AND S. 11(6).
30
Datar Switchgears Ltd. Tata Finance Ltd. (2000) 8 SCC 151; Nucon India (P) Ltd. V. Delhi Vidyut
Board (DESU) AIR 2001 Del 227
IV.2.A APPOINTMENT OF THE CHIEF JUSTICE

The cases where the parties fail agree upon a procedure for the appointment of arbitrator or
arbitrators under sub-ss. (2), (3), (4) and (5) of s.11, provide default procedure. Sub-section
(3) provides that in default of an agreement under sub-s. (2), in an arbitration with three
arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall
appoint the third arbitrator who shall act as the presiding arbitrator. If the appointment
procedure in sub-s. (3) applies, (i) a party fails to appoint an arbitrator within 30 days from
the receipt of a request to do so from the other party or (ii) the two arbitrators fail to agree on
the third arbitrator within 30 days from their date of appointment, the appointment on the
request of a party shall be made under sub-sec. (4) by the Chief Justice or any person or
institution designated by him. In case the two arbitrators are appointed on the same day, the
time can be reckoned from that day. In an arbitration with the sole arbitrator, in the absence
of an agreement under sub-s. 2, if the parties fail to agree on the arbitrator within 30 days
from the receipt of a request, sub-s. (5) provides that the appointment shall be made by the
Chief Justice or any person or institution designated by him on request of a party.

IV.2.B REQUEST TO THE CHIEF JUSTICE

The power of the Chief Justice to appoint an arbitrator under sub-s. (4), (5) and (6) of s. 11 is
a statutory power, which is invoked only on the request of a party, it is not an ex-officio
officer. Those schemes have been framed by the CJI under s. 11(10) to make necessary
provisions for making the application. In case of a partnership firm, the application can be
made by a partner. In Prabhu Shankar Jaiswal v. Sri Sheo Naraian Jaiswal,31 the SC held
that any one of the partners of an unregistered partnership firm, for the purpose for the
purpose of enforcing his right to secure dissolution and accounts of the partnership firm, can
initiate the arbitration proceedings in the terms of the arbitration clause in the partnership
deed. Therefore, in the arbitration proceedings, a partner of an unregistered firm can validly
request the CJ or his designate to make the necessary measures to secure the appointment of
the arbitrator under sub-s. (6) or to appoint the arbitrator under sub-ss. (4) or (5),

IV.2.C TIME LIMIT TO MAKE THE REQUEST

There is no specific period of limitation prescribed for making the request to Chief Justice or
his designate to take the necessary measure for appointing an arbitrator. Therefore, art. 137 of

31
1996 (2) Arb LR 677.
the Limitation Act, 1963 which provides the Limitation Act 1963, which provides the
limitation period of three years for filing any other application for which no period of
limitation is provided elsewhere in the third division of the Schedule of the Act from the day
when the right to apply accrues. It is the residuary article in regard to the applications, and it
can only be applied if no other article is applicable. It would only apply to an application
where it is required by law to be made. It is restricted to applications for the exercise of the
Acts and powers which the court is not bound to perform suo moto. Therefore, the period of
making a request under s. 11(6), is three years and the limitation is to be counted from the
days on which 30 days from the date of notice by one party to other appointing arbitrator
expires. The question whether the claims/disputes made in reference to arbitration was valid
is a question to be decided by the arbitrator, and not by the appointing authority of the
arbitrator under s. 11(6) of the Act. The appointing authority is certainly required to ascertain
whether the application under s. 11(6) of the Act was barred by time.32

IV.2.D REQUISITES OF APPOINTMENT

Section 11(8) of the Act provides that the Chief Justice or the person or the institution
designated by him while appointing an arbitrator shall have due regard to (i) any
qualifications required of the arbitrators by the arbitration agreement; and (ii) other
considerations as are likely to secure the appointment of an independent and impartial
arbitrator. These criterion are obligatory because they flow from the ‘arbitration agreement’,
and the statutory requirements of s.12 as well as s.18. Section 11(9) further states that in an
international commercial arbitration, while appointing a sole or third arbitrator, the Chief
Justice of India or the person or the institution designated by him may appoint an arbitrator of
a nationality other than nationalities of the parties where trhe parties belong to different
nationalities’. These provisions adopt the substance of the second sentence of article 11(5) of
the Model Law and is based on art. 6(4) of the UNICTRAL Arbitration Rules.33

REFERENCES

LEGISLATIONS AND RULES

1. The Arbitration and Conciliation Act, `1996.

32
P B Enterprises, Engineers and Contractors Burdwan v. Eastern Coalfields Ltd., Burdwan 2004 (2) Arb LR 171
(Jhar) (DB).
33
Article 6(4) of the UNICTRAL Arbitration Rules.
 2. The English Arbitration Act, 1996
3. Indian Contract Act, 1872
4. UNICTRAL Arbitration Rules
5. LCIA Arbitration Rules

CASES

1. Tradax Export SA v. Volkswagenwerk AG, La Loma [1970] 1 Lloyd’s Rep 62, 64.
2. Re Haddan and Roupell (1861) 9 CBNS 683.
3. Thomas v. Fredericks (1847) 10 QB 775
4. Trew v. Harris (1848) 11 QB 7
5. Australian Foods v. Pars Ram [2002] NSWSC 1180.
6. Bunge SA v. Kruse [1980] 2 Lloyd’s Rep 142(CA).
7. Itex Shipping Pte Ltd. V. China Ocean Shipping Co. The Fing Hong Hai [1989]
Lloyd’s Rep 522.
8. Dharma Prathishthanam v. Madhak Construction Pvt. Ltd. (2004) 3 Arb LR
432(SC).
9. James Finlay and Co. Ltd. v. Gurdayal AIR 1924 Sind 91.
10. Datar Switchgears Ltd. Tata Finance Ltd. (2000) 8 SCC 151
11. Nucon India (P) Ltd. V. Delhi Vidyut Board (DESU) AIR 2001 Del 227.
12. P B Enterprises, Engineers and Contractors Burdwan v. Eastern Coalfields
Ltd., Burdwan 2004 (2) Arb LR 171 (Jhar) (DB).

BOOKS

1. Redfern and Hunter, Law and Practice of International Commercial

Arbitration, fourth edn., 2004
2. Peter Binder, International Commercial Arbitration and Conciliation in
UNICTRAL Model Law Jurisdiction, second edn. 2005
3. Russel on Arbitration, twenty second edn, 2003
4. Robert Merkin, Arbitration Law, edn. 2004
5. Mustill and Boyd, Commercial Arbitration, second edn, 1989