Section 11 of the Arbitration and Conciliation Act, 1996, deals with the provision

of appointment of arbitrators in an arbitration settlement. It provides for

different courses of action that parties to a dispute can take in order to appoint
arbitrators. Section 11 allows the parties to choose arbitrators by themselves by
agreeing upon a procedure for appointment. In case the parties cannot appoint
arbitrators by themselves, they can get arbitrators appointed through any one
of the procedures prescribed in Section 11. Over the years, the section has
gone through several changes via amendments in the years 2015 and 2019,
substantially reducing the influence of the judiciary in arbitration.

Meaning of arbitrator
As per the dictionary meaning, ‘An arbitrator is the person who has been
officially chosen to decide between two people or groups who do not agree’. In
other words, an arbitrator can be defined as a person who acts as a neutral
dispute resolution authority, in deciding the issues between the parties in a
dispute. The arbitrator acts as a supreme authority in the process of arbitration
and holds the same position as that of a judge. Hence, he is bound to follow the
principles of natural justice, and act in a just way in providing justice to the
parties.

Definition
1.
The appointment of arbitrators comprises the process whereby arbitrators are appointed to
adjudicate over a legal dispute. The composition of the arbitral tribunal is perhaps the most
fundamental point in international arbitration procedure.1

Appointment of arbitrators under Section 11 of

the Arbitration and Conciliation Act

Clauses
1. The nationality of an arbitrator is not essential unless the parties
otherwise agree upon it.
 2. The parties can also form an agreement on the procedure for
appointing arbitrators.
3. In case of failure to reach an agreement on the procedure of
appointment, clause (3) prescribes the following procedure for the
appointment of three arbitrators:
1. Each party appoints an arbitrator.
2. The two arbitrators then jointly appoint the third arbitrator,
who acts as the presiding arbitrator.
4. The Supreme Court and high courts have the power to designate
arbitral institutions. The arbitral institutions are graded by the
Arbitration Council of India under Section 43-I of the Act. If a high
court has no graded arbitral institution, the Chief Justice of the
concerned high court may maintain a panel of arbitrators and also
review it from time to time.
5. Clause 4 states that when the procedure mentioned in clause (3) is
applied, there are two conditions, which are the following:
1. Each party must appoint an arbitrator within thirty days of
receiving the request from the other party to do so.
2. The two arbitrators must reach an agreement on appointing
the third arbitrator within thirty days from the date of their
appointment.
In case of failure of either of the two conditions, the appointment shall be made
by the arbitral institution designated by the Supreme Court or a high court upon
the application or request of a party.

6. Clause 5 provides that in case of failure to reach an agreement on the

procedure of appointment, the parties must agree on appointing a sole
arbitrator within thirty days of receipt of the request by either party.
If there is no such appointment within thirty days, an appointment shall be
made by the arbitral institution designated by the Supreme Court or a high
court upon the application or request of a party.

7. Clause 6 states that where an agreement on the appointment

procedure has been made by the parties, if
1. A party fails to act as prescribed by the procedure, or
2. The parties or the appointed arbitrators fail to reach an
agreement as prescribed by the procedure, or
3. The person or institution entrusted with a function by the
procedure fails to perform it,
then the parties may perform the alternative steps provided by the agreement,
if any. Or, an appointment shall be made by the arbitral institution designated
by the Supreme Court or a high court upon the application or request of a
party.

8. Designation by the Supreme Court or the high court shall not be

treated as a delegation of judicial power.
9. When the decision is given by the arbitral institution, it should be done
while considering the following factors:
1. Qualifications required for an arbitrator as per the agreement
of the parties,
2. Contents of disclosure and other considerations for appointing
an independent and impartial arbitrator
10. In cases where the parties belong to multiple nationalities and there
is a need to appoint a sole arbitrator or a third arbitrator, the arbitral
institution designated by the Supreme Court or a high court may
appoint an arbitrator of a nationality other than the nationalities of the
parties.
11. If there has been more than one request or application made to
several arbitral institutions during the application of any of the
aforementioned provisions, the arbitral institution receiving the first
request alone will be competent.
12. In matters concerning international commercial arbitration, only the
arbitral institution of the Supreme Court gets involved and not those of
the high courts.
13. An application or request for the appointment of arbitrators shall be
disposed of expeditiously by the arbitral institution. It shall be disposed
of within thirty days from the date of service of notice on the opposite
party.
14. When there is an involvement of a high court, it is always the high
court within whose local limits the principal civil court of the district is
situated.
15. The arbitral institution shall determine the fee and manner of its
payment to the arbitral tribunal after considering the rates prescribed
in the Fourth Schedule of the Act. However, the explanation of this
subsection provides that in the case of international arbitration in non-
commercial matters, the parties may agree to determine fees as per
the rules prescribed by an arbitral tribunal.
Procedure for the appointment:
Section 11 only confers power on the High Court to appoint an arbitrator or presiding arbitrator
only when the following conditions are fulfilled:

a. where there is a valid arbitration agreement;

b. the agreement contains for the appointment of one or more arbitrators;
c. the appointment of the arbitrator is to be made by mutual consent of all the parties to
the dispute.
d. differences have arisen between the parties to the arbitration agreement; or between
the appointed arbitrators;
e. the differences are on the appointment or appointments of arbitrators.

Appointment of a third arbitrator by the court in case of disagreement

between two arbitrators:
In ICICI Ltd. v. East Coast Boat Builders & Engineers Ltd., two arbitrators were appointed by
respective parties, but they did not agree on the name of the third arbitrator. The petitioner
made an application for appointment of the third arbitrator by the court under s.11 of the Act.
The court accepted the prayer and appointed the third arbitrator.

Lack of jurisdiction to appoint the arbitrator:

In Kanagarani Durairaj v. Dwaragan, it was held that:
�in absence of a delegation of power by the Chief Justice of High Court under s.11 of the Act,
the City Civil Court has no jurisdiction to appoint an arbitrator under s.11 of the court.�

The disagreement between arbitrators:

If there is any disagreement between the arbitrators, there is no award and the jurisdiction of
the presiding arbitrator can be invoked. In the absence of any contrary provision in the
arbitration agreement, the presiding arbitrator can adjudicate the whole case if the arbitrators
disagree on any particular point, as held in Probodh v. Union of India.

Appointment of Presiding Officer (Umpire)

The question for the appointment of Presiding Officer arises only when there is a conflict of
opinion between an even number of arbitrators. Appointment of the third arbitrator may be
made in any one of the two following cases:
 a. By the parties themselves at the time of submission, and
b. by the arbitrators.

Appointment of the sole arbitrator:

Where a sole arbitrator is appointed, it must be notified to the other side, otherwise, his
appointment cannot be considered valid.

Appointment of presiding arbitrator:

As soon as the arbitrators accept their appointments and communicate with each other the
reference, they are presumed to have entered upon the reference. When one of the arbitrators
refuses to act or concur on the appointment of a third arbitrator, there is a disagreement and in
such as case, the Chief Justice of the High Court is competent to make the appointment of the
presiding arbitrator.

Qualifications of an arbitrator
The Indian legislation does not specify the qualifications required to become an
arbitrator. Under the Arbitration and Conciliation Act, the person can only be
appointed as an arbitrator if he is not a minor and is of sound mind. The
arbitrators in India are appointed by the arbitral institutions and associations,
which includes a panel of experts who appoint arbitrators on their
understanding.

Essential qualities that an arbitrator should possess

Arbitration is a process to settle disputes in the commercial arena. But the
process cannot flourish if there are no arbitrators to resolve the issues between
the parties. A person to be appointed as the arbitrator should retain some
specialized skills and qualities to get that superior position and authority in the
arbitral proceedings.

Let’s take a look into some of the qualities that a person must possess –
Competency
Even though there has been no mention of the essential qualities and
qualifications in the Arbitration and Conciliation Act,1996, the basic
requirements that the person must possess to be appointed as an arbitrator are
that he must have completed the age of majority i.e., he must be more than 18
years of age and should be of sound mind i.e, not a lunatic and has not been
framed under any charges either of a criminal and a civil nature under the
various provisions of law.

Experience
An arbitrator must have knowledge and experience over the matters in which he
is asked to preside. A mediocre arbitrator can conduct normal arbitral
proceedings but lacks adequacy when it comes to framing the issues or solving
the disputes between the parties. The person must have excelling skills in
examining the facts and pronouncing the judgment, following the due process of
law which can only be attained and achieved with maturity and proficiency in
life. Not only the judicial proceedings but the arbitral proceedings are also
judged and determined on the facts and circumstances of the case. The facts of
the cases can only be ascertained if the person to be appointed as an arbitrator
has been well versed with the functioning of the systems, people, and the
principles of law.

Professionalism
Not only the legal professionals, practitioners, and young lawyers but the
arbitrators should also possess professional behaviour. He must keep in his
mind that he is assisting and providing legal aid to the parties in the dispute and
then come to a final and binding conclusion. They should be respectful,
diplomatic, and professional in their work. He is not a judge, so does not have
any inherent powers and his powers and efficacy are derived from respect,
consistency, and diplomacy.

Task management
The person to be appointed as an arbitrator must avail attributes in managing
the tasks and must possess leadership qualities. As the procedure of arbitration
is lengthy and extensive, he should not lose his calm during the arbitral
proceedings. The deprivation in his managing work can challenge his power as
an arbitrator and he can even lose his position because of his unprofessionalism
at the workplace and task management.
Legal educational expertise
It would be beneficial in the process of arbitration if a person to be elected as
an arbitrator is from a legal background. The person must be well versed with
the judicial laws of the land and must have credentials for the same. In the
arbitral proceedings, they must justify and state the rationales for their
respective decisions, as the decisions of the arbitrators can be challenged and
reviewed by the judges. The selection of an arbitrator with formal legal
education and legal experience with justiciable credentials will increase his
likelihood of handling the complex questions in the dispute responsibly and
ensuring justice to the parties

Drafting and writing skills

The legal practitioners and young lawyers are always advised to have adequate
writing and drafting skills as they are the ones responsible for drafting the
agreements, contracts, and legal petitions. In the same way, the arbitrator
must have efficient and exemplary writing skills as it is his evident duty to make
an award enforceable in the dispute. The documents sent to the disputing
parties in the written form either an agreement, files, or even emails, and
granting an award in the arbitral proceedings should be clear, consistent, and
unambiguous.

Attending certified courses

The arbitrators can enhance their skills in arbitration by attending certified
training and diploma courses that are initiated by the various dispute resolution
organizations and forums such as the Chartered Institute of Arbitrators (Carib).
The organizations offer distance learning diplomas in the reign of arbitration.
The diplomas are organized to benefit those who want to represent themselves
as arbitrators and could help the parties in the arbitration situation. Once the
person has been certified for attending the diploma courses and training, he
should take initiatives in building his career professionally and attend arbitral
proceedings to get exposure to the processes of arbitration practically. The
person can also opt for internships and can even assist the manager of the firm
or can join as a legal staff.

Impartial and fair

The person appointed as an arbitrator or to be appointed as an arbitrator by the
council should be independent. He should not have any kind of social, familial,
and/or business relationships with the parties in the disputes as this could lead
to biases. He should be neutral and must be impartial and fair. The person while
pronouncing the judgment in the form of an award should act on the principles
of natural justice, equity, and rule of law.

Management skills
The person to be appointed as an arbitrator must have efficient communication
skills. He should have an able and proper understanding of managing people
involved in the proceedings. The management skills should also include the
ability to stride the line between laxity and undue delay on the one hand and
the dictatorial and unreasonable demands on the other hand. If the
management skills are not exercised properly then the speedy justice and cost-
effectiveness correlated with the arbitral proceedings cannot be comprehended.

Demonstration of communicative proficiency and judicial open-

mindedness
Communication skills act as a primary tool in listening to the parties in dispute,
synthesizing their respective positions, and obtaining satisfactory skills. They
also have the right to put further arguments in their defence, pose questions,
make decisions and articulate the problems persuasively adequately.

Managing the caseload

The person, if appointed as an arbitrator, should schedule matters to be solved
in advance. This would help in providing speedy resolution of the cases and
equitable justice to the parties. If the matters are scheduled in advance, it
would reduce the caseload on the arbitrators, and prevent a further backlog of
the cases.

Grounds for challenging the appointment of the

Arbitrator
Section 12 of the Act lays down the grounds on which an arbitrator can be
challenged. The 2015 amendment to the Act, has added a schedule to this
section which lays down additional criteria that may give rise to a challenge of
an arbitrator.
  Disclosure of certain circumstances
Section 12(1) of the Act, amended in 2015, compels a prospective arbitrator to
provide a written disclosure of certain circumstances which may give rise to
suspicions to his independence or impartiality. Whether a circumstance is
suspicious to the independence of an arbitrator, is to be decided by the
arbitrator himself.

Section 12(1)(a) states that the arbitrator should disclose if he has any direct,
indirect, past or present relationship to the parties, or if he has any financial,
business, professional or any other kind of interest in the subject-matter of the
dispute, which would affect his impartiality in the case.

For example, Company X and Company Z while entering into a particular

contract, add an arbitration clause naming Mr. A as an arbitrator. Mr. A is the
owner of Company C. A dispute concerning payment of bills to Company X by
Company Z arose and Mr. A was approached for presiding as an arbitrator.
Company Z is a client of Company C and forms a considerable part of its
income.

In such a scenario, Mr. A would have an interest in the dispute and that might
give rise to doubts to his impartiality.

Section 12(1)(b) similarly points to any circumstances that would affect an

arbitrator’s capacity to devote enough time to finish the arbitration within
twelve months.

There are two explanations given under the sub-section. The first one states
that the Fifth Schedule should be referred to understand whether circumstances
under Section 12(1)(a) exist. The second one states that such a disclosure
should happen in the format under Sixth Schedule.

Fifth Schedule
The fifth schedule deals with following types of relations which might give rise
to reasonable doubts:

1. Arbitrator’s relationship with parties or counsel

2. Arbitrator’s relationship to the dispute
3. Arbitrator’s interest in the dispute
 4. Arbitrator’s past involvement with the dispute
5. Relationship of co-arbitrator’s
6. Relationship of the arbitrator with parties and others in the dispute
7. Other Circumstances
If the factual scenario of a case falls under any of the above headings, then the
arbitrator may be challenged. These are extensive headings which cover many
scenarios to ensure maximum impartiality. However, ‘Explanation 3’ to this
schedule, points out that if it’s a specialized arbitration involving niche fields,
and it’s a custom to appoint same arbitrators from a small specialized pool, then
this should be noted by applying these rules. None of these headings provides
for an immediate bar to the appointment of an arbitrator.

Section 12(2) reinforces sub-section 1, by stating that unless a written

disclosure has already been given, an appointed arbitrator should disclose any
conflict of interest as soon as possible.

 Other Grounds for Challenge

The actual grounds for challenge under this section are illustrated under Section
12(3).

If an arbitrator’s independence and impartiality are doubted due to the

circumstances under Section 12(1) then he may be challenged or in the event
that he doesn’t possess the necessary qualifications agreed to by the parties.

A party to the dispute which appoints an arbitrator may challenge such

appointment for reasons he becomes aware only after the appointment.

Section 12(5), inserted by the 2015 amendment, automatically disqualifies any

potential arbitrator who falls in any category under the Seventh Schedule of the
Act.

Seventh Schedule
This schedule also covers most of the headings under the Fifth Schedule. The
list isn’t as exhaustive as the Fifth Schedule but as stated above, simply acts as
a bar to appointment as arbitrator. However, this bar can be waived by the
parties by an agreement in writing.

The Schedule covers:

 1. Arbitrator’s relationship with the parties or counsel
2. Relation of Arbitrator to the dispute
3. Arbitrator’s interest in the dispute

Termination of Mandate of the Arbitrator

Section 14 governs the situation of termination of the mandate of the arbitrator
because of his failure to act. Section 15 emphasises on the withdrawal of office
by the arbitrator himself and thereafter substitution of his mandate.

Grounds for termination of the mandate under Section 14:

The grounds on which the mandate of an arbitrator can be terminated under
section 14 are:
- The arbitrator becomes de jure or de facto unable to perform his function:
De Jure refers to an arbitrator’s legal incapacity to perform his functions under
the law and relates to circumstances under which the arbitrator by law is barred
from continuing in office.
For example: if an arbitrator becomes bankrupt or convicted for a criminal
offence, then he becomes de jure unable to adjudicate the case.
De Facto refers to factual inability. It relates to a factual happening during the
process of arbitration.
For example: if the arbitrator falls seriously ill or has some physical incapacity,
then he becomes de facto unable to perform his function.
- For some other reasons fails to act without undue delay:
In situations where the arbitrator is taking too long to adjudicate the dispute,
this provision shall apply. Especially when it comes to the 2015 Amendments,
where strict timelines are provided for rendering the award, it is essential for
the tribunal to pronounce the award in a timely manner. However, if the
arbitrator takes too long to even conduct the first hearing, let alone adjudication
of the case; the parties can resort to this provision to terminate the mandate of
the arbitrator.
- The arbitrator withdraws from office:
For the reasons suitable to the arbitrator, if he withdraws from office, then
automatically his mandate is terminated. This can happen because of various
reasons and the arbitrator is not bound to give a detailed explanation of the
same.

 The parties agree to the termination of his authority as an arbitrator

If one of the parties wants removal of the arbitrator, then they must approach
the court for the same. However, if both the parties agree to remove the
arbitrator, then they can do so pursuant to making an agreement under section
15(1)(b) and terminate the mandate of the arbitrator. A party singularly does
not have the power to revoke the authority of the arbitrator. But both/all parties
in the agreement can do the same and do not need to approach the court to
enforce the termination.

Procedure for termination of an arbitrator’s mandate

If the situation falls within any of the grounds mentioned under section 14, then
the party willing to terminate the mandate must approach the Court. An
application for removing the arbitrator may be made to the court in whose
jurisdiction the contract was executed, or subject matter of the work was
performed, or within whose jurisdiction the office of the arbitrator was situated.
The power to remove an arbitrator by the court is discretionary in nature. Every
application to the court under section 14 is not supposed to be ruled in the
affirmative. There might be situations where the court does not feel the need to
remove the arbitrator. If the conditions mentioned under section 14 are
satisfied, then it is imperative for the court to remove the arbitrator

Jurisdiction of arbitration
tribunal
There is no inherent jurisdiction of an arbitral tribunal. Instead, its jurisdiction is
derived from the agreement between the parties to decide a particular dispute
by way of arbitration. Thus, the jurisdiction of an arbitral tribunal is not derived
from any legislation. There is a high level of party autonomy. As a result, the
arbitration tribunal enjoys the power to rule on its own jurisdiction, and Section
16 of the Arbitration and Conciliation Act, 1996, envisages the same.

Nature of disputes that can be referred to arbitration

Some matters are specifically barred from being referred to arbitration. Such
matters include the winding up of a company, a declaration of insolvency,
matrimonial disputes, testamentary disputes, criminal matters, or matters that
are expressly excluded from the scope of arbitration.

A carefully drafted arbitration agreement gives the arbitration tribunal full

power to decide matters not only expressed in the contract but also consider
angles of tort & equity. Generally speaking, matters involving right in
personam may be submitted for arbitration, and matters concerning right in
rem cannot be referred for arbitration.

For deciding an issue, the arbitration tribunal uses the law agreed to by the
parties for dispute resolution, or in the absence of any such agreement, it
applies the law suitable to the circumstances in question.

Section 16 of the Arbitration and Conciliation Act,

1996
The provisions under Section 16 of this Act are framed in accordance with
Article 23 of the UNCITRAL Arbitration Rules.

Section 16 (1): Power to decide the jurisdiction

It provides that an arbitration tribunal is competent to rule on its own
jurisdiction. The doctrine of Kompetenz-kompetenz or competence de la
competence applies to the arbitration tribunal recognizing that the law is
competent to rule on its own jurisdiction. This is a way to minimize judicial
intervention in the arbitration proceedings. Thus, where a party raises a
question as to the jurisdiction of the arbitral tribunal, he shall apply before the
tribunal itself, and the tribunal shall either accept or reject such a plea.

Sub-section (1) of Section 16 of the Act also empowers the arbitral tribunal to
decide on the objections regarding the existence or validity of the arbitration
agreement. The powers under Section 16 (1) are discretionary in nature, as it
contains the expression “may rule,” which means that the arbitral tribunal may
exercise this power on its own motion or at the request of a party.

Further, for determining the validity of the arbitration agreement following two
things are specified:-

(a) Where an arbitration clause forms part of a contract, the said arbitration
clause shall be considered an independent agreement, and it becomes self-
sustaining. An arbitration clause, while being part of a contract, becomes
independent of the other terms of the contract.

(b) Where the arbitration tribunal declares the contract null and void, the
arbitration clause contained in that contract does not become invalid by itself.
Thus, the invalidity of the contract shall not automatically render the arbitration
agreement invalid.

Section 16 (2): Objection upon the jurisdiction

This sub-section lays down a two-fold provision:

(1) If any party wants to raise an objection regarding the jurisdiction of the
arbitration tribunal, such objection shall be raised at the first instance, i.e.,
before or along with the submission defence statement but not later than that.

(2) A party who appointed or participated in the appointment of an arbitrator is

not deprived of the right to raise such an objection.

In the case of UP Rajkija Nirman Nigam Ltd. v. Indure (P) Ltd. (1996), it was
observed that a party will not be restricted from raising a plea/objection as to
jurisdiction merely because he was a party to the appointment of the arbitrator.

Section 16 (3): Plea on exceeding the scope of

authority
This sub-section states that as soon as the matter alleged to be beyond the
scope of authority of the arbitration tribunal is raised during the arbitral
proceedings, a plea that the arbitration tribunal is exceeding the scope of
authority shall be raised.

Section 16 (4): Condonation of delay

Sub-section (4) of Section 16 is to enable the tribunal to condone the delay in

raising the plea against jurisdiction under Section 16 (2) as well as for the plea
on exceeding the scope of authority by the arbitration tribunal under Section 16
(3). In other words, it empowers the arbitration tribunal to admit a delayed plea
if the arbitration tribunal considers that the reason for the delay was justified.

In S.N. Malhotra & Sons. v. Airport Authority of India & Ors (2008) , it was
observed that if the delay is not justified, the tribunal may reject such a plea.
Section 16 (5): Decision on plea u/s 16 (2) or 16 (3)
and further proceedings
This sub-section mandates the arbitration tribunal to decide the plea raised u/s
16 (2) or 16 (3). It further states that if either of the pleas is rejected, the
arbitration tribunal should continue with the arbitration proceedings and declare
the final award.

 In Odisha State Road Transport v. Arss Bus Terminal Pvt. Ltd. (2021) .,
Orissa High Court observed that Sec 16(5) lays down that once the
arbitration tribunal rejects the challenge to its jurisdiction, it can
continue arbitration proceedings and make an award & the aggrieved
party has to wait for the final award to challenge the same.
 In Smt. Arati Dhar vs Sri S.K. Dutta (2002), the Court stated that the
question of jurisdiction goes to the root of the matter and it should be
decided first before submitting the final award. In this case, the court
also referred to the case of Konkan Railway Corporation v. Rani
Construction (P) Ltd. (2002).

Section 16 (6): Remedy against such an arbitral

award
The last sub-section of Section 16 provides a remedy to a party who is
aggrieved by an award as per sub-section (5). It gives the aggrieved party an
option to file an application in accordance with Section 34 for setting aside the
said arbitral award. This provision is available only after the award is made by
the tribunal, and the party cannot directly file an appeal based on the rejection
of its plea under Sections 16 (2) or 16 (3).

Thus, where the plea under Sections 16(2) or 16(3) is rejected and an arbitral
award is passed, parties may challenge the final award, but they cannot appeal
the rejection of the plea under Sections 16(2) and 16(3) of the Act. The reason
is that such an order of rejection is considered an interim order and not an
interim award. However, if the plea under Sections 16(22) or 16(3) is allowed
by the arbitral tribunal and the proceedings are terminated, then the parties
may prefer an appeal under Section 37 of the Act. Section 37 provides for
certain specific orders that are open for appeal.
Powers of the arbitrator in an arbitration proceeding
The arbitrator is the one who will give the arbitral award, therefore, The
Arbitration and Conciliation Act, 1996 provides several powers to him in order to
decide the award.

Power to administer an oath to the parties and

witnesses
The arbitrator has the power to administer the oath to the parties and
witnesses. He also could issue interrogatories to the parties if he thought it
necessary to do so. There is no express provision relating to that power being
given under The Arbitration and Conciliation Act, 1966. However, it is implicitly
applied to the fact that he acts like a quasi-judicial authority in arbitration.

Power to take interim measures

According to Section 17 of this Act, when any party during the arbitration
proceeding or at any time after making of the arbitral award, may seek the
interim measure before the arbitration tribunal. The arbitration tribunal has the
power to take an interim measure relating to:

 Appointment of guardian for minor or person of unsound mind;

 For the protection of:-

1. Interim custody and sale of goods which are subjected to the

arbitration agreement;
2. Securing amount which is disputed in the arbitration;
3. Detention, prevention or inspection of any property or thing which is
subjected to arbitration;
4. Appointment of receiver;
5. Such other interim measure is necessary for the eyes of the Court.
Power to proceed to ex-parte
In any arbitration proceeding, the arbitrator has the power to proceed to ex-
parte i.e in the favor of one party if another party contravenes any provision of
this Act. According to Section 25, there are three conditions under which the
court may pass an ex- parte award:

1. When the claimant fails to communicate his statement of claim in

accordance with Section 23(1) of the Act.
2. When the respondent fails to communicate his statement of claim in
accordance with Section 23(1) of the Act.
3. When any party fails to appear at an oral hearing or to produce the
document or to produce documentary evidence.
The court, however, doesn’t proceed ex-parte against any party without giving
him the notice regarding the court’s intention to proceed ex parte on a specific
date, time and place.

Power to appoint an expert

According to Section 26 of the Act, the arbitrator has the power to appoint one
or more experts to report to him on a specific issue, if he finds it necessary in
any case. The arbitrator also has the power to give the expert any relevant
information or documents or property for the purpose of his inspection. If
necessary the arbitrator also has the power to appoint the expert as a
participant in a hearing but in order to appoint an expert, the expert must have
to show the parties that he has expertise in matters related to this case.

Power to make awards

Power to make awards is the most important power as well as the duty of
arbitrators which is given under The Arbitration and Conciliation Act, 1996.
However, the rules applicable in an arbitration proceeding is:

 In matters related to international commercial arbitration, the arbitral

dispute shall be decided according to the rules of proceeding which is
decided by the parties but if they fail to decide it, then the arbitrator
himself decides the rules which are applicable.
 In other matters, the arbitral tribunal shall have to decide the rule
which is in accordance with the substantive law.
However, with such aforesaid power, at the time of making such an award, the
arbitrator also has the duty to consider the following necessary aspects:

 The party who is entitled to costs;

 The party who pays the cost;
 The amount and method of determining those costs;
 The manner in which the costs shall be payable;
 The cost of the arbitration proceeding or any other expenses fixed by
the arbitration tribunal
If the number of arbitrators is more than one, then the decision must be signed
either by all the arbitrators or by the majority of them.

Duties of an arbitrator in an arbitration

In arbitration, the parties may impose specific duties on the arbitrator at the
time of appointment. The general duties which the arbitrator has to fulfill in all
kinds of arbitration are-

Duties to be independent and impartial

Section 12 and Section 18 of The Arbitration and Conciliation Act, 1996 imposed
an important duty on the arbitrator that in any arbitration proceeding that he
must have to be independent and impartial. By being independent it means that
there is no such personal or professional relationship between the arbitrator or
parties which may affect the final judgment, however, by impartial, it means
that the arbitrator should neither favor nor oppose any party and should give
equal treatment to both parties.

Duty to determine time and place of arbitration

According to Section 20 of this Act, it is the duty of the arbitrator to appoint the
time and place of arbitration if the parties have failed to decide it amongst
themselves. But at the time of determination, the arbitrator must keep in mind
the circumstances including the convenience of the parties. The arbitrator
unless otherwise agreed by the parties, also has the power to decide other
places to hear the witness or expert or to an inspection of documents, goods,
and other property.
Duty to disclosure
According to Section 12 of this Act, there is an obligation on an arbitrator to
disclose all the relevant facts which are required to be known by both parties at
the time of his first encounter with them.

In the case of Steel Authority of India v. British Marine 2016 , the Court said
that the arbitrator must have to disclose all such facts which are likely to affect
impartiality or which might create an appearance of partiality or bias.

Duty to effectively resolve the dispute

The arbitrator should have to make effective decisions without doing any
misconduct. However, there is no guideline of misconduct that is given under
the Act, its scope is to develop by case to case. The acts which are generally
considered as misconduct on the parts of the arbitrator are:

 Fails to comply with terms, that is expressly or impliedly given;

 Making awards that oppose public policy;
 To be bribed or corrupted;
 Breach the rule of natural justice.

Duty to determine the rule of procedure

According to Section 19, the arbitration procedure is not bound by any code of
procedure. Earlier parties are free to agree on the procedure that may be
followed by the arbitration tribunal, It always depends upon the will of the
parties but if they do not have any prior agreement on this, then the arbitrator
has all the power to decide the procedure for such a case. this power includes
the power to determine the admissibility, relevance, materiality or weight of any
evidence.

Duty to interpret or correct the award

According to Section 33 of this Act, it is a duty of the arbitrator to correct or
interpret the award passed by himself within 30 days from the date of receipt:
  A party with notice to another party may request arbitration tribunal to
correct any error like any typographical, computation, clerical, or any
other error of similar nature;
A party with a notice to another party may request to interpret any
specific part or parts of the award.
In this section, the court also may correct any error of the award on its own
initiative within thirty days from the date of the arbitration award.

Arbitration clause

In contract law, an arbitration clause is a clause in a contract that requires the parties to resolve
their disputes through an arbitration process. Although such a clause may or may not specify that
arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution
outside the courts, and is therefore considered a kind of forum selection clause.
Arbitration clauses are frequently paired with class action waivers, which prevent contracting parties
to file class action lawsuits against each other.

II. Common components of an arbitration clause

4.

An arbitration clause, regardless of the instrument in which it exists, will usually

contain the following:7

a. An explicit referral of disputes to arbitration;

b. The governing law of the arbitration agreement;
c. The seat of arbitration;
d. The rules governing the arbitration;
e. The number of arbitrators and their method of selection (see Arbitrator
appointment); and
f. If applicable, the institution governing proceedings (see Institutional
arbitration) or confirmation of Ad hoc arbitration.
5.
Each of these components is important for any agreement to arbitrate and are
discussed in separate sections of this Wiki.

Scope of disputes covered

The arbitration clause should be wide enough to encompass all possible disputes and
claims – this includes damages claims as well as breach of contract. The words
'disputes relating to' or 'arising in connection with' the contract are wider than disputes
'arising under' the contract, which a court may interpret as covering only contractual
claims.

There must be clear, unambiguous and mandatory submission of disputes to arbitration.

For example, a clause that provides that 'disputes may be referred to arbitration' might
not be effective, depending on the approach of the local courts, to prevent a party from
taking the dispute to court.

Significance
 Alternative Dispute Resolution: Arbitration clauses offer an alternative means of
resolving disputes outside of the courtroom.
 Time and Cost Efficiency: Arbitration tends to be faster and less expensive compared to
traditional litigation.
 Privacy and Confidentiality: Arbitration proceedings are generally private and
confidential, maintaining the confidentiality of sensitive information.
 Specialized Expertise: Parties can select arbitrators with expertise in the subject matter
of the dispute, ensuring a more informed decision-making process.
 Enforceability: Arbitration awards are often easier to enforce internationally compared
to court judgments, due to international conventions such as the New York Convention.
 Flexibility: Parties have more flexibility in choosing procedural rules and governing law,
tailoring the arbitration process to suit their specific needs and preferences.