Appointment of Arbitrator under Section 11: What the High Court Can — and Cannot — Decide

Introduction

A contractor’s bills are withheld. He writes to the employer, then writes again. Months later he sends a notice invoking the arbitration clause and asks the other side to agree on an arbitrator. Nothing comes back. He files an application under Section 11 of the Arbitration and Conciliation Act, 1996 in the High Court, asking the Court to appoint one.

The employer’s lawyer has a long list of objections: the claims are years old, the contractor accepted the deductions, the dispute is not covered by the clause, the clause names a specific officer as arbitrator, and the contractor never went to him. Which of these will the High Court actually hear?

Ten years ago, quite a few. Today, very few. Over 2023 and 2024 the Supreme Court has, in a series of decisions, reduced the referral court’s job to a narrow prima facie check and pushed almost everything else to the arbitral tribunal. This article sets out where the line now sits, what objections survive at the Section 11 stage, and what each side should do about it.

What Section 11 Actually Does

Section 11 is the fallback mechanism for constituting an arbitral tribunal when the parties’ own machinery does not work. It operates in three situations:

• Section 11(4) — in a three-member tribunal, a party fails to appoint its arbitrator within 30 days of a request, or the two party-appointed arbitrators fail to agree on the presiding arbitrator within 30 days.
• Section 11(5) — for a sole arbitrator, the parties fail to agree within 30 days of a request by one of them.
• Section 11(6) — where there is an agreed appointment procedure, but a party fails to act as required under it, the parties or the two arbitrators cannot agree as the procedure requires, or a person or institution fails to perform a function entrusted to it under that procedure.

In a domestic arbitration the application goes to the High Court; in an international commercial arbitration, to the Supreme Court. Under Section 11(7), the decision is final and no appeal, including a Letters Patent Appeal, lies against it. The only route onward is a special leave petition under Article 136. Section 11(13) asks the Court to endeavour to dispose of the application within 60 days of service of notice on the opposite party.

That last point — no appeal — turns out to be central to why the Supreme Court has kept the enquiry so thin. As the Court put it in Aslam Ismail Khan Deshmukh, if the referral court rejects a claimant at the threshold, there is a serious risk of leaving the claimant without any forum at all.

How the Referral Court’s Role Shrank

The history matters because older High Court orders, and many older pleadings, still argue from law that no longer holds.

1. 2005

   SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618 — a seven-Judge Bench holds that the Chief Justice’s power under Section 11 is judicial, and that the court may decide preliminary issues such as its own jurisdiction, the existence of a valid agreement and whether the claim is a live one.

2. 2009

   National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd. (2009) 1 SCC 267 — sorts issues into those the court must decide, those it may decide (including whether the claim is long-barred and whether there was accord and satisfaction), and those it should leave to the tribunal.

3. 2015

   Parliament inserts Section 11(6A): the court shall, notwithstanding any judgment, decree or order, “confine to the examination of the existence of an arbitration agreement.” Duro Felguera (2017) 9 SCC 729 and Mayavati Trading (2019) 8 SCC 714 read this as legislatively overruling the wider Patel Engineering/Boghara approach.

4. 2020

   Vidya Drolia v. Durga Trading Corporation (2021) 2 SCC 1 — “when in doubt, refer”; the court may weed out only claims that are ex facie non-arbitrable or “deadwood”. NTPC Ltd. v. SPML Infra Ltd. (2023) 9 SCC 385 later describes this as an “eye of the needle” filter.

5. 2023

   In re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 (2024) 6 SCC 1 — a seven-Judge Bench holds that the referral court examines only the prima facie existence of an arbitration agreement; stamping and validity questions go to the tribunal under Section 16.

6. 2024

   SBI General Insurance Co. Ltd. v. Krish Spinning 2024 INSC 532 — a three-Judge Bench applies Interplay to accord and satisfaction, and to the timeliness of the claims, and holds both are for the tribunal. Aslam Ismail Khan Deshmukh v. ASAP Fluids (P) Ltd. (2025) 1 SCC 502 confirms that, on limitation, the referral court asks only whether the Section 11 application itself is in time.

One technical point is often missed. The Arbitration and Conciliation (Amendment) Act, 2019 provides for the omission of Section 11(6A), but that provision has not been brought into force. Section 11(6A) therefore remains on the statute book, and Interplay relied on it directly.

“At the stage of Section 11 application, the referral Courts need only to examine whether the arbitration agreement exists — nothing more, nothing less.”— Aslam Ismail Khan Deshmukh v. ASAP Fluids Pvt. Ltd., 2024 INSC 849

What the Court Decides — and What It Sends to the Tribunal

Put the cases together and the division of labour between the referral court and the arbitral tribunal looks like this:

The left column is short, but it is not empty. A Section 11 application can still fail where there is no written agreement at all, where the application itself is out of time, or where the applicant has jumped over an agreed appointment procedure without first invoking it. Everything else will usually be answered with the same formula: “all contentions are left open to be raised before the arbitral tribunal.” For a fuller look at how arbitration clauses work once they are found to exist — including in decrees — see our note on when an executing court must send a dispute to arbitration.

Limitation: Two Different Clocks

Limitation is where Section 11 litigation most often goes wrong, because there are two separate questions, decided by two different forums.

Before Krish Spinning, Arif Azim had suggested a two-pronged test under which the referral court could also refuse reference where the claims were “ex facie dead”. Krish Spinning and Aslam Ismail narrowed that: the referral court should not undertake an evidentiary enquiry into whether the claims are time-barred. Some High Courts continue to read a narrow residual power to decline reference where a claim is hopelessly and manifestly barred on the face of the claimant’s own pleadings — but a respondent who builds its entire opposition on this is taking a real risk.

The “breaking point” — repeated letters do not stop the clock

For the tribunal stage, the leading authority remains Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd. (2020) 14 SCC 643. A party cannot postpone the accrual of its cause of action simply by writing reminders or representations. Where there has been genuine, bona fide negotiation, the tribunal may identify the “breaking point” — the date on which a reasonable party would have abandoned efforts at settlement and turned to arbitration — and count from there. The entire history of correspondence therefore matters, and both sides should put it in front of the tribunal rather than leave it in the file.

Named Arbitrators, Unilateral Appointments and Section 12(5)

Many contracts — especially public and government contracts — do not leave appointment to agreement at all. They name an officer (a Managing Director, a Chief Engineer, a Commissioner) as sole arbitrator, or let one party nominate. Since the 2015 amendment, these clauses have been tested against Section 12(5), which makes a person ineligible to be appointed as an arbitrator if their relationship with the parties, counsel or subject-matter falls within the Seventh Schedule — for example, an employee, consultant or advisor of a party, or a person in the management of a party or of an affiliate directly involved in the dispute.

• TRF Ltd. v. Energo Engineering Projects Ltd. (2017) 8 SCC 377 — a Managing Director who is himself ineligible under Section 12(5) cannot nominate someone else either.
• Bharat Broadband Network Ltd. v. United Telecoms Ltd. (2019) 5 SCC 755 — an ineligible arbitrator is de jure unable to perform, so his mandate terminates; the bar can be waived only by an express agreement in writing made after the disputes have arisen, and not by conduct.
• Perkins Eastman Architects DPC v. HSCC (India) Ltd. (2020) 20 SCC 760 — a party with an interest in the outcome cannot unilaterally appoint a sole arbitrator, even if the person appointed is not personally ineligible.
• Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV) 2024 INSC 857 — a five-Judge Constitution Bench holds, by majority, that equality of parties applies at the appointment stage; that a party cannot be compelled to choose its arbitrator from a panel curated by the other side; and that unilateral appointment clauses in public-private contracts offend Article 14. The ruling on curated panels operates prospectively, for appointments made after 8 November 2024. Justices Hrishikesh Roy and P.S. Narasimha dissented on parts of the reasoning.

Two cautions keep these cases in proportion.

First, a named arbitrator is still the agreed procedure unless he is actually ineligible. Whether a particular named officer falls within the Seventh Schedule is a fact-specific question — it depends on his relationship to the party, not merely his rank in government. Where he is not ineligible, the claimant is ordinarily expected to invoke the procedure the parties agreed to before asking the Court to step in under Section 11(6).

Second, the opposite party’s right to appoint is not lost the moment 30 days pass. Under Datar Switchgear Ltd. v. Tata Finance Ltd. (2000) 8 SCC 151, where the agreement gives one party the right to appoint, that right survives until the other side actually files its Section 11 application — though any appointment made must, after TRF and Perkins, itself pass the Section 12(5) test.

The Article 14 reasoning in CORE also ties into a broader line of cases on how public bodies must act in contractual matters — a theme we have discussed in the context of arbitrary termination of a State lease by an electricity company.

The Madhya Pradesh Exception: Works Contracts and the 1983 Act

Practitioners before the Madhya Pradesh High Court have to check one more thing before anything above applies. The Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 sets up a statutory Arbitration Tribunal for disputes arising out of “works contracts” (as defined in Section 2(1)(i) of that Act — broadly, contracts for construction, repair or maintenance of works) to which the State Government or a public undertaking under its control is a party.

In Madhya Pradesh Rural Road Development Authority v. L.G. Chaudhary Engineers & Contractors (2018) 10 SCC 826, the Supreme Court held that for such works contracts the State Act prevails, and the dispute must go to the Tribunal under the 1983 Act regardless of any arbitration clause pointing to the 1996 Act. A Section 11 application in such a case is not maintainable.

The converse is equally important. The statutory definition is tied to the execution of works — construction, repair or maintenance of buildings, roads, dams, canals and similar works — and extends to supply of goods or material and other matters relating to the execution of such works. A contract that has no connection with any such work falls outside the 1983 Act, and the 1996 Act governs even if the clause refers loosely to State arbitration law. Classifying the contract correctly is therefore the first question in any Section 11 matter against a Madhya Pradesh public body. Our arbitration and commercial disputes practice page explains how we approach this threshold.

Related Doctrines Worth Checking Before You File

Unregistered partnership firms

Section 69(3) of the Indian Partnership Act, 1932 bars an unregistered firm from enforcing a right arising from a contract through a suit or “other proceeding”. In Jagdish Chander Gupta v. Kajaria Traders (India) Ltd. AIR 1964 SC 1882, the Supreme Court held that an application under the arbitration law of the time to have an arbitrator appointed was such an “other proceeding”. Whether a firm is registered — and whether the applicant is in fact a firm or a proprietorship — should be checked before filing, because a respondent will check it.

Who the parties are

A Section 11 application must be brought by and against parties to the arbitration agreement. Where several claimants join together, each must show its own agreement and its own invocation. A composite application that bundles different contracts, or different contracting parties, is open to objection on that ground.

Commercial character of the dispute

Not every dispute with a contractual flavour is arbitrable, and not every property-linked claim is “commercial”. For the distinction between statutory rights and contractual ones, see our article on when a property dispute becomes a commercial dispute.

A Practical Checklist

If you are the claimant

• Locate the arbitration clause in the executed agreement, not merely the tender document, and note whether it names an arbitrator or lays down a procedure.
• Follow that procedure first — send the notice to the person or authority the clause names, in the manner it prescribes.
• Send a clear Section 21 notice: identify the contract, the disputes, the amounts, and propose or call for appointment.
• Diarise 30 days from receipt, and three years from the failure to appoint, for the Section 11 application.
• File the agreement, the notice, proof of service, and authorisation for every applicant.

If you are the respondent

• Check whether the agreed appointment procedure was invoked at all; if not, say so first.
• Check the applicant’s identity, constitution and authority; check whether one application improperly combines separate contracts.
• Check whether the contract is a works contract within the 1983 Act (for Madhya Pradesh public bodies).
• Plead limitation of the claims, accord and satisfaction and scope — and ask that each be expressly kept open under Section 16.
• If an independent arbitrator is likely to be appointed anyway, use the hearing to secure the seat, the fee basis and the express reservation of objections.

When You May Need to Consult an Advocate

Section 11 is a one-shot proceeding with no intra-court appeal. A claimant who files without first invoking the agreed procedure, or a respondent who files a reply arguing the merits instead of the threshold conditions, may not get a second chance. You should take advice if you have received a notice invoking arbitration, if 30 days have passed without a response to yours, if your contract names an officer of the other side as arbitrator, or if you are a Madhya Pradesh public body or its contractor and are unsure whether the 1983 Act applies. You can book a consultation or contact the office directly.

Conclusion

The Supreme Court’s message since Interplay is consistent: the referral court is a gateway, not a forum. It checks that an arbitration agreement exists, that the application is in time, that the agreed machinery has genuinely failed, and that whoever is appointed is independent. Everything else — whether the claims are stale, settled, or outside the clause — will be argued before the arbitrator.

For claimants, that makes Section 11 more predictable. For respondents, it means the real defence is built for the tribunal, not the High Court — and the job at the Section 11 stage is to make sure every objection is preserved for that later stage.