| R & D Law Chambers LLP
Practice is led by Ravish Bhatt | Advocate, Bar Council of Gujarat (G/504/2008) | Dual-qualified lawyer (India and England and Wales) | Solicitor of England and Wales (non-practising), SRA Registration No. 492 477 | ADIT, Chartered Institute of Taxation, London Published: 4 November 2026 | Last reviewed: 4 November 2026 |
| Written against the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and by the Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of 2019) to the extent that Act has been brought into force. Commencement checked to 4 November 2026. This page states Indian law only. |
| Agreeing that an arbitration will be conducted under ICC, SIAC or Indian Council of Arbitration rules does not by itself hand appointment of the tribunal to that institution. The provision that would have moved appointments from the courts to designated arbitral institutions, section 11(3A), has never been brought into force. The court still appoints. The live question is whether the agreed procedure has failed yet. |
Does agreeing to ICC, SIAC or ICA rules take the appointment away from the court?
| Not on its own. A clause can choose institutional rules to govern how the arbitration is run while leaving the parties themselves to constitute the tribunal. Where the parties retained the power to appoint, the Supreme Court has held that the power was not ceded to the institution. |
An arbitration clause usually does two separate jobs in two separate sentences. One sentence chooses the rules that will govern the conduct of the arbitration. The other sets out how the tribunal is to be constituted. Drafters routinely treat the first sentence as settling the second. It does not.
In C.M.C. Ltd. v. Unit Trust of India (Civil Appeal No. 1119 of 2007, decided 1 March 2007, P.K. Balasubramanyan and V.S. Sirpurkar JJ), the clause referred disputes to arbitration under the rules of the Indian Council of Arbitration. The Supreme Court held that “the power to appoint has not been ceded to the Indian Council of Arbitration”, because the parties had “retained in themselves the right to name an arbitrator of their own”. The Council’s own rules pointed the same way, providing that the Council “shall not be bound to process the case unless both the parties agree”. The Court expressly left open whether the tribunal would have to follow the Council’s rules in conducting the proceedings. That separation between conduct and constitution is the whole point.
The position holds where the institution is the ICC. In Delta Mechcons (India) Ltd. v. Marubeni Corporation (Arbitration Petition No. 11 of 2006, decided 18 May 2007, P.K. Balasubramanyan J), clause 22.1 provided that disputes be settled exclusively by arbitration “conducted in accordance with the Rules of” the ICC Rules of Conciliation and Arbitration. The appointment machinery was separate: each party was to appoint one arbitrator, the two appointees were to choose a third as chairman, and the ICC was to appoint the chairman only if they failed to agree within thirty days. Holding that “the arbitration agreement has to be read as a whole to know its purport”, the Court found that the agreed machinery had broken down and itself appointed a chairman of a nationality different from that of either party. A reference to the ICC Rules had not transferred appointment to the ICC. The judgment is available on the Rajasthan High Court’s Supreme Court judgment repository here.
The working rule that follows is to read the clause twice: once for who appoints, and once for which rules govern. Where the appointment sentence names the parties, or the two party-appointed arbitrators, appointment does not sit with the institution, whatever the rules sentence says.
Did the 2019 amendment move appointments to arbitral institutions?
| On paper, yes. In force, no. Section 3 of the Arbitration and Conciliation (Amendment) Act, 2019 would route appointment applications to arbitral institutions designated by the courts. The commencement notification of 30 August 2019 left section 3 out, and the body that was to grade those institutions has never been constituted. |
Section 3 of the Arbitration and Conciliation (Amendment) Act, 2019 rewrites section 11 of the principal Act. It inserts sub-section (3A), under which the Supreme Court and the High Courts designate graded arbitral institutions; it routes applications under sub-sections (4), (5) and (6) to the designated institution rather than to the Court; it omits sub-sections (6A), (7) and (10); and it substitutes sub-sections (11) to (14).
That section was not brought into force. Notification S.O. 3154(E) dated 30 August 2019, issued by the Ministry of Law and Justice, Department of Legal Affairs, appointed 30 August 2019 as the date on which section 1, sections 4 to 9, sections 11 to 13 and section 15 of that Act came into force. Sections 2, 3, 10 and 14 are not in that list. The Ministry’s own announcement of the commencement is on the Press Information Bureau website.
The omission is structural rather than accidental. Section 10 of the 2019 Act would insert Part IA into the principal Act, establishing the Arbitration Council of India, whose functions include grading arbitral institutions. Section 11(3A) presupposes graded institutions, so it cannot operate until the grading exists. Answering in the Lok Sabha, the Minister of State for Law and Justice stated that the Council “has not been constituted as yet”, in a reply reported on 6 February 2026.
The operative section 11 is therefore the text the 2015 Amendment left. In sub-sections (4), (5) and (6), the appointment is made by the Supreme Court or, as the case may be, the High Court, or by any person or institution designated by that Court. Sub-section (6B) provides that such a designation is not a delegation of judicial power. Sub-section (6A), which confines the Court to examining the existence of an arbitration agreement, continues to operate, because the provision that would omit it was not notified.
This produces a trap worth naming. Consolidated texts apply an amending Act as passed and do not track commencement. Section 11 accordingly circulates in three forms: the pre-2015 text referring to the Chief Justice, the operative 2015 text, and the unnotified 2019 text in which an arbitral institution appoints. All three can be found in print and online, and at least one widely used bare-act website still serves the first. Verifying the section number is not enough. The question is whether the amending section was brought into force.
When has the agreed procedure failed, so that the court’s power opens?
| Section 11(6) opens on one of three events: a party fails to act as required under the agreed procedure; the parties or the two appointed arbitrators fail to reach an agreement expected of them under it; or a person or institution fails to perform a function entrusted to it. Until one has occurred, the application is premature. |
This is where applications are lost. In The Iron and Steel Co. Ltd. v. M/s. Tiwari Road Lines, 2007 INSC 534, [2007] 6 SCR 156, decided 8 May 2007 (G.P. Mathur and Lokeshwar Singh Panta JJ), the contract provided for arbitration under the rules of the Indian Council of Arbitration. The claimant obtained an appointment without first proceeding under those rules. The Supreme Court held that “recourse to sub-section (6) can be had only where the parties have agreed on a procedure for appointment of an arbitrator”, that “the stage for invoking sub-section (6) of Section 11 had also not arrived”, and set the appointment aside. The appeal was allowed.
An application under section 11(6) therefore has to identify which of the three events occurred, and when. That the other side has been unresponsive or obstructive is not one of them unless it maps onto a failure to act as the agreed procedure required.
Timing deserves care. The thirty-day periods in sub-sections (4) and (5) belong to the statutory default machinery, which applies where the parties have not agreed a procedure at all. Where they have agreed one, the timetable in that procedure governs what counts as a failure to act. A clause that fixes no period leaves the question to be decided on the facts, which is a sufficient reason to put a period into the clause at the drafting stage.
The practical consequence is that the gateway is usually created by correspondence. A written request calling on the other party to do the specific thing the clause requires, followed by a record that it did not, is what converts a stalled appointment into a section 11(6) case. Delta Mechcons illustrates the other side of the same line: there the machinery had demonstrably broken down, the gateway was open, and the Court appointed.
Which court do we go to, and what changes if one party is not Indian?
| In an international commercial arbitration the appointment application goes to the Supreme Court. In any other arbitration it goes to the High Court. Section 2(1)(f) decides which of the two it is, and it turns on nationality, incorporation or central management, not on where the business is carried on. |
Section 2(1)(f) defines international commercial arbitration by reference to a party who is a national of or habitually resident in a country other than India, a body corporate incorporated in a country other than India, an association or body of individuals whose central management and control is exercised in a country other than India, or the Government of a foreign country. A company incorporated in India is Indian for this purpose even if it is foreign owned or foreign controlled.
Operative section 11(12) then does the routing. Where the matters in sub-sections (4) to (8) and sub-section (10) arise in an international commercial arbitration, the reference to the High Court in those sub-sections is construed as a reference to the Supreme Court. In any other arbitration the reference is to the High Court within whose local limits the principal civil court is situated.
Section 2(1)(e), as substituted in 2015, governs the forum for other applications. For an arbitration other than an international commercial arbitration, the Court is the principal civil court of original jurisdiction in a district, including a High Court exercising ordinary original civil jurisdiction. For an international commercial arbitration, it is the High Court exercising ordinary original civil jurisdiction, and where there is none, the High Court having jurisdiction to hear appeals from subordinate courts.
One further provision matters where the seat is outside India. The proviso to section 2(2), inserted in 2015, applies sections 9 and 27, and section 37(1)(a) and section 37(3), to an international commercial arbitration even where the place of arbitration is outside India, subject to an agreement to the contrary. Silence in the clause therefore preserves access to the Indian courts for interim measures over Indian assets. An exclusion clause gives that access away.
| Question | Arbitration other than international commercial | International commercial arbitration |
|---|---|---|
| Who decides an appointment application | High Court within whose local limits the principal civil court is situated | Supreme Court |
| Court for other applications, such as interim measures | Principal civil court of original jurisdiction in a district, including a High Court exercising ordinary original civil jurisdiction | High Court exercising ordinary original civil jurisdiction, failing which the High Court hearing appeals from subordinate courts |
| Fourth Schedule fee rates | May be applied through High Court rules, unless the parties agreed that fees be determined under an arbitral institution’s rules | Excluded by the Explanation to section 11(14) |
| Indian court access where the seat is outside India | Does not arise | Sections 9 and 27 and section 37(1)(a) and (3) apply unless the parties agree otherwise |
Who fixes the arbitrators’ fees, and does the Fourth Schedule apply?
| Operative section 11(14) permits a High Court to frame rules for the fees of the arbitral tribunal having regard to the rates in the Fourth Schedule. Its Explanation takes two cases out: international commercial arbitration, and any arbitration in which the parties agreed that fees be determined under an arbitral institution’s rules. |
This is the part of the clause that decides cost, and it is decided at the drafting table rather than later. A party that agrees institutional rules for the determination of fees has agreed that institution’s fee scale. Having done so, it cannot ask an Indian court to substitute the Fourth Schedule, because the Explanation to section 11(14) excludes precisely that case. A party in an international commercial arbitration cannot reach the Fourth Schedule either, whether or not institutional rules were chosen.
Two conditions therefore have to hold before the Fourth Schedule is even in play. The arbitration must not be an international commercial arbitration within section 2(1)(f), and the parties must not have agreed institutional determination of fees. They are separate conditions and both must be satisfied.
The commencement question does not disturb this. The unnotified 2019 text of section 11(14) would have the arbitral institution determine the tribunal’s fees subject to the Fourth Schedule rates, and it carries an Explanation to the same effect, excluding international commercial arbitration and arbitrations where institutional fee rules were agreed. The exclusion is therefore stable whichever text is read, which is why it is the safer of the two points to plan around.
How R & D Law Chambers Works on These Matters
The firm advises on arbitration agreements and on the constitution of arbitral tribunals in arbitrations seated in India and outside it, including applications for the appointment of arbitrators and applications to the Indian courts for interim measures of protection.
Work in this area starts with the clause rather than with the dispute, because the clause settles three things at once: which body appoints the tribunal, which court is available, and whose fee scale governs. Related services and reading:
- Arbitration advisory and dispute resolution
- Drafting the cross-border arbitration clause
- Comparing the ICC, SIAC and LCIA rules
- Enforcement of foreign arbitral awards in India
- Dispute resolution and court representation
- International arbitration lawyers in India for cross-border disputes
- Gujarat High Court lawyers in Ahmedabad, for an appointment application in an arbitration that is not an international commercial arbitration
| This page is general information on Indian law as it stands on the date of publication. It is not legal advice, it does not create a lawyer and client relationship, and it must not be acted on without advice on the facts of the particular case. Statutory provisions, notifications and judgments are cited as at that date and may change. |