A dispute over exhaustion of pre-arbitration conciliation does not prevent appointment of an arbitrator.

The dispute arose from an EPC agreement dated 21 January 2021 for four-laning a section of NH-415. The contract contained a multi-tier conciliation procedure in Clause 26.2, followed by arbitration under Clause 26.3.

The petitioner submitted that the contractual mechanism had been exhausted and invoked arbitration by notice dated 19 June 2026. The respondents objected that the petitioner had not pursued conciliation before the Committee of Independent Experts, despite a meeting on 25 February 2026, and had therefore invoked arbitration prematurely.

In a connected Section 9 petition, the Court had earlier stayed the effect of the termination notice insofar as it rendered the petitioner ineligible or disqualified from future tenders; the Section 9 petition was before the Court along with the Section 11 petition.

Whether the alleged non-exhaustion of the pre-arbitration conciliation process under Clause 26.2 prevented appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

Whether the pending Section 9 petition should continue before the Court or be treated as an application under Section 17 for determination by the appointed tribunal.

Section 11(6) of the Arbitration and Conciliation Act, 1996 provides for court appointment of an arbitrator where the agreed appointment procedure is not followed.

Section 9 empowers a court to grant interim measures before or during arbitral proceedings, while Section 17 empowers the arbitral tribunal to grant interim measures once constituted.

Under Clauses 26.2 and 26.3 of the EPC agreement, disputes were to proceed through the specified conciliation mechanisms before referral to arbitration.

The Court also directed the arbitrator to furnish the requisite disclosure under Section 12(2) of the Act.

The respondents’ objection was that the petitioner had not completed the Clause 26.2 process, particularly conciliation before the Committee of Independent Experts. The Court considered the contractual dispute-resolution provisions and the parties’ competing positions, but concluded that it found “no impediment” to appointing an arbitrator.

It did not make a definitive finding that every stage of conciliation had been exhausted; instead, it allowed the appointment while preserving the respondents’ liberty to raise objections concerning arbitrability or jurisdiction before the tribunal.

Because an arbitrator had been appointed, the Court treated the pending Section 9 petition as a Section 17 application for the tribunal to decide.

The respondents may raise preliminary objections on arbitrability and jurisdiction before the arbitrator, and the Court’s observations are not to influence the merits.

The connected Section 9 petition was treated as a Section 17 application; the existing interim order was continued until that application is taken up, and the arbitrator was requested to decide it preferably within two months of entering upon the reference.