How to Get an Arbitrator Appointed Under Section 11

What a Section 11 arbitrator appointment does

Section 11 of the Arbitration and Conciliation Act 1996 is the safety valve that stops an arbitration clause from becoming useless. Parties are free to agree on how the arbitrator is chosen. If the agreed method breaks down, for example because one side simply does not reply, either party can ask the court to make the appointment. The court then names an arbitrator, or completes the tribunal, and the arbitration begins.

In Delhi, a Section 11 arbitrator appointment for a domestic arbitration is sought from the Delhi High Court, where these petitions are registered as arbitration petitions and listed before a single judge. The court does not decide who is right in the dispute. It decides only whether there is an arbitration agreement and whether the appointment procedure has failed, and then it appoints someone, often a retired judge or a senior member of the Bar, frequently with directions that the arbitration be conducted under the Delhi International Arbitration Centre (DIAC).

Section 11 is one of three court petitions that matter most in arbitration. A Section 9 petition seeks urgent interim protection, a Section 34 petition challenges the award, and Section 11 sits in the middle, getting the tribunal formed. Our page on arbitration petitions under Sections 9, 11 and 34 explains how the three fit together.

The process is meant to be quick. Section 11(13) asks the court to try to dispose of the application within 60 days from service of notice on the other side. In practice many Delhi petitions are decided at the first or second effective hearing, especially where the only issue is that the other party did not appoint.

When can you go to court for an appointment?

You can file a Section 11 petition in three situations. Under Section 11(4), where the tribunal is to have three members and a party fails to appoint its arbitrator within 30 days of receiving a request, or the two party-appointed arbitrators fail to agree on the presiding arbitrator within 30 days. Under Section 11(5), where a sole arbitrator is to be appointed and the parties fail to agree within 30 days of a request by one of them. Under Section 11(6), where the parties agreed on a procedure and a party or an appointing authority fails to act under it.

Each of these needs a trigger: a request or notice that the other side failed to act on. That is why the notice under Section 21 is so important. Section 21 says arbitral proceedings commence on the date the respondent receives a request for the dispute to be referred to arbitration. The notice should identify the contract, quote the arbitration clause, describe the disputes and the claims in outline, and either propose an arbitrator or call on the other side to appoint its nominee within 30 days.

Before Advocate B.K. Singh drafts a Section 11 petition, he reads the client's notice against the clause line by line. Does it name the agreement, describe the disputes, quote the clause, and propose names or ask the other side to appoint? A letter that says only 'pay within seven days or face legal action' is not a notice invoking arbitration, and the 30 days have not started. Sending a fresh, correct notice costs a month; filing on a defective one can cost much more.

If the clause sets out steps before arbitration, such as negotiation between senior officers or a reference to an engineer, follow them or record why they were futile. Courts have treated many such steps as directory rather than mandatory, but it is better not to give the other side an easy objection.

The provisions that decide your petition

Arbitrator appointment in Delhi High Court or elsewhere: which court?

For a domestic arbitration, the petition goes to the High Court that has supervisory jurisdiction over the arbitration. Where the agreement fixes a seat, the courts at the seat have exclusive jurisdiction, as the Supreme Court explained in BGS SGS Soma JV v. NHPC (2019). So arbitrator appointment in Delhi High Court is the right route when Delhi is the seat, even if both parties do business in Noida or Gurugram. If the clause names only a 'venue' with no contrary indication, courts often treat it as the seat, but drafting varies and this is a common point of dispute.

Where there is no seat or venue clause, the High Court within whose jurisdiction a court competent to hear a suit on the dispute is located will have jurisdiction, which usually means where the contract was made, performed or breached. For contracts with UP or Haryana entities, the petition may lie before the Allahabad or Punjab and Haryana High Court instead unless part of the cause of action arose in Delhi.

International commercial arbitration, where at least one party is a foreign national, a company incorporated abroad or one centrally managed abroad, goes to the Supreme Court if the seat is in India. If the seat is outside India, Indian courts do not appoint under Section 11; the foreign seat's rules or the chosen institution handle it.

MSME suppliers should check another route first. Where a supplier registered under the MSMED Act 2006 claims delayed payment, Section 18 of that Act provides a reference to the Micro and Small Enterprises Facilitation Council, and the Supreme Court in Gujarat State Civil Supplies Corporation v. Mahakali Foods (2022) held that this route prevails over a private arbitration clause. This site is a private law firm's website, not the Delhi High Court's; use the court's own website for official case status and cause lists.

Step by step: a Section 11 petition in Delhi High Court

1. Check the clause and the seat

   Read the arbitration clause for the number of arbitrators, the appointment procedure, any pre-arbitration steps, the seat and any institutional rules. Confirm that Delhi High Court is the right court.

2. Send the Section 21 notice

   Serve a written notice invoking arbitration on the other party at the address in the contract, by a method that gives proof of delivery, and by email if the contract allows. Propose one or more names, or ask the other party to appoint its nominee within 30 days.

3. Wait 30 days and record the response

   If the other side agrees on a name, the court is not needed. If it ignores the notice, refuses, or appoints its own employee or a person under its control, keep that reply. It is the core of your petition.

4. Draft and file the petition

   The petition sets out the contract, the clause, the disputes in brief, the notice, the failure to appoint and the relief sought. It is supported by an affidavit and the documents, and filed through the Delhi High Court's e-filing system with the court fee.

5. Serve an advance copy

   Send an advance copy of the petition to the respondent before listing, as the Delhi High Court requires in most matters, and file proof of service. Our guide on serving an advance copy explains the practice.

6. Cure registry objections

   The registry may raise objections about indexing, page numbering, missing documents or court fee. Cure them within the time allowed so that the petition is listed without delay.

7. Attend the first hearing

   The court usually issues notice if the respondent is absent, or hears both sides if present. Many petitions are disposed of at the first or second hearing with an appointment, sometimes by consent of a name proposed in court.

8. Follow up on the appointment

   Send the order to the arbitrator or DIAC, file the disclosure if the court asked for it, and get the first procedural hearing fixed. The arbitration has now begun.

Defects in filing are the most common cause of delay; our guide on registry objections and how to cure them covers the usual ones.

Time and cost at each stage

Unilateral appointment clauses: can one side choose the arbitrator alone?

Many contracts, especially with government bodies, PSUs, builders and finance companies, say that the sole arbitrator will be appointed by one party's managing director, chief engineer or chairman. The courts have steadily cut down such clauses. In TRF Ltd v. Energo Engineering Projects (2017) the Supreme Court held that a person who is himself ineligible to be an arbitrator under Section 12(5) cannot nominate one. In Perkins Eastman Architects v. HSCC (India) (2019) it went further: a party with an interest in the outcome cannot unilaterally appoint a sole arbitrator.

Waiver is narrow. Bharat Broadband Network v. United Telecoms (2019) held that the bar in Section 12(5) can be waived only by an express agreement in writing after the dispute has arisen. Taking part in the arbitration without objecting, or filing a statement of claim before a unilaterally appointed arbitrator, does not amount to waiver.

In Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV) (8 November 2024), a Constitution Bench held that unilateral appointment clauses in public-private contracts violate the principle of equal treatment of parties, and that a clause forcing a party to choose its nominee from a panel curated by the other side is also open to challenge. The court made its ruling prospective, applying to appointments made after the judgment, so older appointments need careful analysis.

In practice, when a unilateral appointment clause is in the contract, the Delhi High Court treats the clause's appointment mechanism as unworkable and appoints an independent arbitrator under Section 11, while keeping the rest of the arbitration agreement alive. If an arbitrator has already been unilaterally appointed and is proceeding, the remedy depends on timing: an application to terminate the mandate, a Section 11 petition, or a challenge at the Section 34 stage. Do not simply ignore the proceedings.

What the court will and will not decide

The court at the Section 11 stage is a referral court, not a trial court. In Vidya Drolia v. Durga Trading Corporation (2020) the Supreme Court said the review is prima facie and summed it up as 'when in doubt, do refer'. In SBI General Insurance v. Krish Spinning (2024) it confirmed that the referral court looks only at whether an arbitration agreement exists; questions such as accord and satisfaction, full and final settlement and whether the claims themselves are time-barred are generally for the arbitrator.

Stamp duty is no longer a barrier at this stage. A seven-judge bench, deciding the reference on the interplay between arbitration agreements and stamp laws in December 2023, held that an unstamped or insufficiently stamped agreement is not void, and that the stamp objection is for the arbitral tribunal rather than the referral court.

Non-signatories can sometimes be brought in. In Cox and Kings v. SAP India (2023) the Supreme Court accepted the group of companies doctrine, allowing a non-signatory to be bound where the conduct of the parties shows a mutual intention to bind it. The referral court may leave the final decision on that to the tribunal.

What the court will still examine: whether there is an arbitration agreement at all, whether the petitioner is a party to it, whether the petition itself is within limitation, and whether the dispute is plainly outside the clause or non-arbitrable, such as certain criminal, matrimonial or insolvency questions.

Limitation: two clocks to watch

The first clock is for the Section 11 petition. In Arif Azim Co. Ltd v. Aptech Ltd (2024) the Supreme Court held that Article 137 of the Limitation Act applies, giving three years from when the right to apply accrues. That is usually the date on which the other party fails or refuses to make the appointment after receiving a valid notice invoking arbitration. Missing this deadline can end your route to arbitration even if your claim is strong.

The second clock is for the claims themselves. Section 43 of the Arbitration Act applies the Limitation Act to arbitrations, and for limitation purposes the arbitration is taken to have commenced on the date of the Section 21 notice. So a notice sent just before a money claim becomes time-barred can save it, even if the arbitrator is appointed months later.

These two clocks interact in a way that catches people out. A contractor who sends a Section 21 notice in time, gets no reply, and then waits four years to file a Section 11 petition may find that the petition is out of time, even though the claim itself was saved by the notice. If the respondent never answered your notice, file within months, not years.

Documents for a Section 11 petition

What happens at the hearing in Delhi High Court

Most Section 11 hearings are short. The judge checks the clause, the notice and the failure to appoint, and asks the respondent's counsel, if present, whether there is any objection. If the respondent agrees in principle to arbitration, the court often appoints an arbitrator at once, sometimes from names suggested by both sides, and records that the arbitrator will fix fees in terms of the DIAC schedule or the Fourth Schedule to the Act.

Where the respondent contests, the usual objections are that there is no arbitration agreement with the petitioner, that the petition is time-barred, that the claim is excluded from arbitration by the contract (an 'excepted matters' clause), or that a pre-arbitration step was not followed. The court may give time for a short reply and decide at the next hearing.

Advocate B.K. Singh's practical tip here is to deal with fees and venue at the first hearing itself. If the contract fixes the arbitrator's fees or caps them, point it out when the order is being dictated; if you want DIAC to administer the arbitration, ask for it then. Once the order is signed, changing these details means another application and another few weeks.

The order normally directs the arbitrator to make the disclosure under Section 12(1) and leaves all questions, including the respondent's objections on merits and limitation of claims, open for the tribunal. If the respondent has a counter-claim, it can raise it before the same arbitrator.

Common mistakes in Section 11 petitions

• Treating a demand notice as a Section 21 notice. Without a clear request for arbitration, the 30 days have not run and the petition may be premature.
• Filing in the wrong High Court. Check the seat clause first; a petition in Delhi where the seat is Mumbai will be returned.
• Ignoring a unilaterally appointed arbitrator. Write to object at once and move the court; do not file a claim before that arbitrator without reserving your objection.
• Letting the petition become time-barred. Three years from the failure to appoint is the outer limit, and it passes quickly while parties 'negotiate'.
• Arguing the merits. Long pleadings on who breached the contract waste the court's time at this stage and can annoy the bench.
• Not checking the MSME route. An MSME supplier with a delayed-payment claim may be better served by the Facilitation Council under the MSMED Act.

If you are the respondent

If you have received a Section 11 petition, first decide whether you actually oppose arbitration or only the petitioner's choice of arbitrator. Opposing a valid clause rarely succeeds and adds cost. It is often better to agree to an appointment and suggest names, keeping all objections on merits, limitation and counter-claims for the tribunal.

Genuine objections should be raised clearly and early: no arbitration agreement with this petitioner, the dispute falls within an excepted matters clause, the petition is beyond three years, or the court lacks territorial jurisdiction because the seat is elsewhere. File a short reply with the relevant documents before the hearing if the court allows it.

If your own contract had a unilateral appointment clause in your favour, accept that it is unlikely to survive. Arguing for it after Perkins Eastman and the 2024 Constitution Bench decision usually just delays the inevitable and can attract costs.

If urgent interim protection is needed by either side, for instance to stop encashment of a bank guarantee or removal of machinery, a Section 9 petition can run alongside; see our guide on Section 9 petitions for urgent relief.

After the appointment: what comes next

Once appointed, the arbitrator issues a disclosure, fixes a preliminary hearing and sets a timetable. Under Section 23(4) the statement of claim and defence are to be completed within six months of the arbitrator receiving notice of appointment, and under Section 29A the award is to be made within twelve months of completion of pleadings, extendable by six months by consent and beyond that only by the court. For a broader view of where commercial matters are heard in Delhi, see our guide on which commercial cases go to the Commercial Division.

Keep track of fee deposits. Arbitrators and DIAC ask both sides to deposit fees, and a party that refuses can leave the other to pay its share to keep the arbitration moving. Courts and tribunals can adjust costs at the end.

After the award, the losing party may challenge it under Section 34 within three months, extendable by up to 30 days for sufficient cause; our guide on challenging an arbitral award under Section 34 explains the grounds. An award that is not challenged, or survives challenge, is enforced like a decree; see how to enforce an arbitral award in Delhi. For more detail on arbitration practice across India, our sister site arbitrationlawyer.in covers each stage.

What to do this week

Pull out the contract and read the arbitration clause for the seat, the number of arbitrators and the appointment method. If you have not yet sent a notice invoking arbitration, send one that quotes the clause, sets out the disputes and proposes names. If you sent one more than 30 days ago and got no reply or an unacceptable unilateral appointment, start preparing the Section 11 petition with the documents listed above, and note the date from which the three-year limit runs.

If you are a respondent, decide quickly whether you really oppose arbitration and, if not, propose names so the court can appoint someone acceptable to both sides. The arbitration petitions page sets out how we handle these matters in the Delhi High Court. If you want your clause, notice or petition checked, or want updates on the law on appointments, contact Advocate B.K. Singh.