Failure to formally appoint an arbitrator under Section 11(8) can be cured by subsequent appointment and regularisation.

The petitioner filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an independent presiding arbitrator. On 27 September 2024, the High Court, acting on the parties’ consent, appointed retired Supreme Court Judge Dr. Justice B.S. Chauhan as presiding arbitrator, subject to the statutory consent and disclosure requirements under Section 11(8) of the Act.

Justice Chauhan submitted the statutory disclosures on 7 October 2024, but no subsequent formal order appointing him was passed by the Court.

In the meantime, the arbitral tribunal entered upon the reference, and the parties filed their pleadings. The respondent later objected that the tribunal had not been formally constituted. The tribunal gave differing views on the effect of the absence of a formal appointment order, with one member treating the proceedings as stillborn.

The petitioner thereafter filed MCC/5/2026 seeking clarification or, alternatively, a fresh appointment of Justice Chauhan with effect from 7 October 2024.

The respondent ultimately did not oppose his appointment or continuation of the proceedings, but sought permission to file an additional written statement.

1. Whether the Court could grant a declaration that the appointment of the presiding arbitrator made by its earlier order dated 27 September 2024 was validly made?

2. Whether a formal order appointing the presiding arbitrator was required after receipt of the disclosures under Section 11(8) of the Arbitration and Conciliation Act, 1996?

3. Whether the arbitral proceedings conducted before the formal appointment could be regularized, and whether the respondent should be permitted to file an additional written statement?

Section 11(6) of the Arbitration and Conciliation Act, 1996 empowers the High Court to appoint an arbitrator where the agreed appointment procedure has failed.

Section 11(8) requires the proposed arbitrator’s consent and disclosures before appointment is finalized.

The Court applied the principle that it cannot adjudicate upon the validity of its own earlier order through a clarification application seeking a declaration to that effect.

It nevertheless held that, after receipt of the statutory disclosures, a formal order appointing the proposed presiding arbitrator was required for formal constitution of the arbitral tribunal.

In the peculiar circumstances, and with the parties’ consent, the Court exercised its jurisdiction to appoint the presiding arbitrator and regularize the proceedings already undertaken, while ensuring procedural fairness to the respondent.

The Court declined to issue a declaration affirming the validity of its own earlier order, holding that such a prayer was not maintainable.

However, it noted that the parties did not dispute that no formal appointment order had been passed after the presiding arbitrator’s disclosures were received, despite the requirement contemplated by Section 11(8).

Since the respondent expressly consented to the appointment of Justice Chauhan and did not object to continuation of the tribunal, the Court appointed him as presiding arbitrator.

The Court further considered that only pleadings and settlement of issues had occurred and that evidence had not yet been recorded.

Accordingly, it found that the proceedings could be regularized without causing substantial prejudice, while permitting the respondent to file an additional written statement and requiring the tribunal to frame and determine any additional issues arising from it.

Instead, it formally appointed Dr. Justice B.S. Chauhan, retired Judge of the Supreme Court, as the presiding arbitrator.

The arbitral tribunal was directed to proceed on the basis of the pleadings already filed, and the proceedings conducted so far were regularized in the peculiar circumstances of the case.

The respondent was granted four weeks to file an additional written statement, with liberty to the tribunal to frame and decide any additional issues arising from it.

MCC/5/2026 and Arbitration Application No. 33 of 2024 were accordingly disposed of.