Getting an Arbitrator Appointed by the Delhi High Court Under Section 11

If the other party to a contract will not cooperate in appointing an arbitrator, you can ask the Delhi High Court to appoint one by filing a petition under Section 11 of the Arbitration and Conciliation Act, 1996. The steps are short: send a written notice invoking arbitration under Section 21, wait thirty days for the other side to appoint or agree, and then file the petition. The court’s job at that stage is narrow. It checks, on a prima facie view, that an arbitration agreement exists and that the petition is within time, and then names an arbitrator. Everything else, including the merits and most objections, goes to the arbitrator.

This guide covers a domestic arbitration seated in Delhi. For the wider picture, see our page for arbitration lawyers in Delhi.

Step 1: Read the arbitration clause

Before sending anything, read the clause for five things:

1. The seat. The High Court for the seat hears the petition. If the seat is outside Delhi, the Delhi High Court is the wrong court.
2. The number of arbitrators. A sole arbitrator, or three with each side naming one and the two choosing the presiding arbitrator.
3. The appointment procedure, whether a named person, an office, an institution or nothing at all.
4. Pre-arbitration steps, such as negotiation between senior officers. Comply and keep a record.
5. Who controls the appointment. If the clause lets the other side choose the sole arbitrator, or a person who works for them, that appointment may not be valid. In Perkins Eastman Architects v. HSCC (India) (2019) the Supreme Court held that a party with an interest in the outcome cannot unilaterally appoint a sole arbitrator, and in 2024 a Constitution Bench in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML held that unilateral appointment clauses in public-private contracts violate equality, for appointments made after that judgment.

Step 2: Send the notice invoking arbitration (Section 21)

Arbitral proceedings commence on the date the other side receives a request to refer the dispute to arbitration. That date matters twice: it stops the limitation clock on your claims, and it starts the thirty-day period for the appointment.

A useful notice:

• identifies the contract and quotes the arbitration clause;
• describes the dispute and the claims in outline, with the amounts;
• states that you invoke arbitration;
• proposes one or more names for a sole arbitrator, or names your nominee where the tribunal has three members, and calls on the other side to agree or appoint within thirty days;
• is sent by registered post or speed post and by email, with the receipts and tracking record kept.

Our legal notice format guide covers how to prove receipt.

Step 3: Wait thirty days

Section 11 gives the other side thirty days from receipt of your request:

• Three arbitrators: if a party fails to appoint its arbitrator within thirty days, or the two arbitrators fail to agree on the third within thirty days of their appointment, the court can appoint (Section 11(4)).
• Sole arbitrator: if the parties fail to agree within thirty days of the request, the court can appoint (Section 11(5)).
• Agreed procedure fails: if a party, the two arbitrators or a named institution does not act as the agreed procedure requires, the court can step in (Section 11(6)).

Do not file before the thirty days end. A premature petition is liable to be dismissed. If the other side makes a valid appointment after the thirty days but before you file, that appointment may stand, so file promptly once the period has passed.

Step 4: Check limitation

There are two separate limitation questions:

• The petition. In Arif Azim Co. v. Aptech (2024) the Supreme Court held that a Section 11 petition must be filed within three years under Article 137 of the Limitation Act, 1963, counted from when the right to apply arises, that is, when the other side fails to appoint after the notice.
• The claims. Whether the underlying claims are time-barred is ordinarily for the arbitrator. A court may refuse a reference where the claims are plainly dead on the face of the record, but that is the exception.

Step 5: File the petition in the Delhi High Court

The petition is filed on the original side of the Delhi High Court as an arbitration petition. It sets out the parties, the contract, the clause, the dispute, the notice and its receipt, the other side’s failure to appoint, and the relief sought. It is supported by an affidavit and annexes:

• the contract or the document containing the arbitration clause;
• any correspondence showing the dispute and the pre-arbitration steps;
• the Section 21 notice with proof of dispatch and receipt;
• any reply received.

A copy is usually served on the other side before or at the time of filing, and the court issues notice when the petition is first listed. For an international commercial arbitration, the application goes to the Supreme Court, not the High Court.

Step 6: What the court examines now

The scope of a Section 11 hearing has narrowed considerably over the last few years:

• Existence of the agreement, prima facie. In SBI General Insurance v. Krish Spinning (2024) a three-judge bench held that the referral court should confine itself to whether an arbitration agreement prima facie exists. Questions such as whether the contract was discharged by accord and satisfaction are for the arbitrator.
• Stamping is not a bar at this stage. The seven-judge bench in In re Interplay (2023) held that an unstamped or insufficiently stamped agreement is not void, and that stamp objections are for the tribunal, not the referral court.
• Merits and arbitrability of individual claims go to the tribunal, which rules on its own jurisdiction under Section 16.
• Limitation of the petition is checked by the court, as in Step 4.

Objections at this stage therefore tend to be about whether any agreement binds these parties, whether the petition is premature or late, and whether it is in the right High Court.

Step 7: The appointment order and fees

If the petition succeeds, the court appoints the arbitrator, often a retired judge or an advocate, and frequently directs that the arbitration be conducted under the aegis of the Delhi International Arbitration Centre (DIAC), the institution attached to the Delhi High Court. The arbitrator must make the disclosure required by Section 12 before entering on the reference.

The order usually also fixes the basis for fees. The Fourth Schedule to the Act sets model fees according to the sum in dispute:

A sole arbitrator receives 25% more. Where the arbitration runs under DIAC, the centre’s own fee schedule may apply instead, and where the parties have agreed the fees in their contract, the agreement governs. The Supreme Court so held in ONGC v. Afcons Gunanusa (2022). Fees are usually shared equally while the arbitration runs, and the award decides who finally bears the costs.

Timelines

• Notice to petition: at least thirty days after receipt of the notice.
• Petition to appointment: Section 11(13) asks the court to try to dispose of the petition within sixty days of notice to the other side. In practice, an uncontested petition can be decided at the first or second hearing, and a contested one in some weeks to a few months.
• After appointment: pleadings are due within six months, and the award within twelve months of the completion of pleadings under Section 29A, unless extended.

These are ranges, not promises.

Common mistakes

• Filing in the wrong High Court because the contract was signed or performed in Delhi while the seat is elsewhere.
• Filing too early, before the thirty days from receipt of the notice have passed.
• Skipping the pre-arbitration steps the clause requires.
• Using Section 11 for interim relief. It only constitutes the tribunal; urgent protection comes under Section 9, or Section 17 once the tribunal is in place.
• Waiting too long, so that the petition or the claims become time-barred.

How we help

We read the clause, send the Section 21 notice, file and argue the Section 11 petition in the Delhi High Court, and represent you before the tribunal and in any challenge or enforcement that follows. For disputes without an arbitration clause, see our commercial dispute lawyers in Delhi. No lawyer can promise how an arbitration will end, and we do not.

Call 99115 44811 or write to manujalawyers@gmail.com. Read more on our work as arbitration lawyers in Delhi.

This post gives general information on the law as it stands and is not advice on your particular case.