Arbitration, as an alternative dispute resolution mechanism, relies heavily on the autonomy of the parties and the sanctity of the arbitration agreement. Section 11 of the Arbitration and Conciliation Act, 1996, deals with the appointment of arbitrators and delineates the circumstances under which judicial intervention is warranted. Judicial interpretation, especially  by the Supreme Court, has clarified various ambiguities relating to this provision. One such significant ruling is in the case of Antrix Corp. Ltd. v. Devas Multimedia Pvt. Ltd., which sheds light on when an application under Section 11 can be challenged or deemed unsustainable.

Supreme Court on Appointment of Arbitrator: Antrix Corp. Ltd. v. Devas Multimedia Pvt. Ltd:

In this landmark case, the Supreme Court held that if an arbitrator has already been appointed and intimation thereof has been conveyed to the opposite party, any subsequent application under Section 11 for the appointment of an arbitrator is not maintainable.

The Court emphasized the principle that once the mechanism provided under the arbitration agreement is triggered and an arbitrator is appointed accordingly, a fresh application before the Chief Justice or the court cannot be entertained.
This ruling aligns with the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, which provides for judicial intervention only when:

• A party fails to act as required under the appointment procedure; or
• The parties, or the appointed arbitrators, fail to reach an agreement expected of them; or
• A person or institution fails to perform any function entrusted to them under the procedure.

Thus, if none of these defaults occur, judicial intervention is barred.

Judicial Interpretation of Section 11 and the Role of the Chief Justice:

The text further elaborates that when one party to an arbitration agreement fails to act in accordance with its terms, the Chief Justice of a High Court or the Supreme Court (depending on jurisdiction) may step in to appoint an arbitrator. However, this power is not absolute. It cannot be exercised if an arbitrator has already been appointed by one party as per the agreed procedure and the appointment has been communicated to the other side. Any contrary interpretation, as noted by the Supreme Court, would lead to an anomalous situation. This would mean that even after a valid appointment, the opposite party could initiate proceedings to challenge the same, thereby leading to unnecessary judicial intervention and defeating the purpose of arbitration. The Court clarified that:

• The Chief Justice cannot remove or replace an arbitrator already appointed under the terms of the agreement.
• The judicial authority under Section 11 is only to facilitate the arbitration process in cases of deadlock, not to override valid appointments.

Invocation of Arbitration Clause and the ICC Rules:

The judgment also addressed cases governed by international arbitration rules such as the ICC (International Chamber of Commerce) Rules. Once the arbitration clause has been validly invoked by one party under such rules, the jurisdiction under Section 11(6) cannot be exercised again for the same cause. Therefore, once a party has taken steps to initiate arbitration under agreed institutional rules, the only remedy available to the aggrieved party lies in the internal challenge mechanisms (such as Section 13 - challenge procedure against an arbitrator) and subsequently under Section 34 - application for setting aside the arbitral award.

Right to Challenge Arbitrator's Appointment:

The judgment does not completely bar a challenge to the appointment of an arbitrator. It states that while a party may be entitled to challenge the appointment, it must do so by following the prescribed procedures. Specifically:

• Under Section 13, a party may challenge the arbitrator before the tribunal itself.
• Post-award, an aggrieved party may seek to set aside the award under Section 34 if bias or invalid constitution of the tribunal is demonstrated.

However, such a challenge cannot be made by way of a fresh application for appointment under Section 11.

Conclusion:
The Supreme Court's interpretation in Antrix Corp. Ltd. v. Devas Multimedia Pvt. Ltd. strengthens the autonomy of arbitration proceedings by restricting unwarranted judicial interference. Section 11 is not a tool to circumvent the agreed procedure of arbitration but a facilitative provision triggered only in specific situations of procedural deadlock or default.  Parties to an arbitration agreement must exercise diligence and good faith in following the agreed procedure and utilize appropriate remedies like Section 13 and Section 34 rather than re-approaching courts for fresh appointments.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565