Section 11 deals with the appointment of arbitrators. The parties are free to agree upon the procedure for the appointment of arbitrators. In case of three arbitrators, each party has to appoint one arbitrator and those two arbitrators should appoint a third arbitrator who shall be the presiding arbitrator. In case either the parties or the two arbitrators fail to appoint an arbitrator within 30 days, then upon the request of the parties, the Supreme Court or the High Court or any person or institution designated by the courts shall appoint one.
In the case of S.B.P. and Co. V Patel Engineering Ltd. And Ors, the court questioned whether the chief justice exercised judicial power or administrative power? It was held that:
- It was held that the powers held by the Chief Justice of the Supreme Court or the High Court or any designated judge (under Section 11(6) of the act), exercise judicial power and not administrative powers.
- The power under section 11(6) of this act, in its entirety, could be delegated. The Chief Justice of the High Court can delegate it to any judge of the High Court and the Chief Justice of the Supreme Court can delegate it to any judge of the Supreme Court.
- In the case of designation of a judge of the High court or the Supreme Court, the power that is exercised by the designation, Judge would be that of the chief justice as conferred by the statute.
- The chief justice or the designated judge will have the right to decide the initial aspects. The chief justice or the judge designated would be allowed to seek the opinion of an institution in the matter of nominating an arbitrator qualified under section 11(8) of the act.
- Designation of a District judge as the authority under section 11 (6) of the act by the Chief Justice of the High Court is not a justifiable aspect of the act.
- Once the matter is in the hands of an arbitral tribunal or the sole arbitrator, the High Court or the Supreme Court cannot further interfere in the matter. Unless the parties approach the Court under Section 34 or 37 of the act.
- Since the order passed by the Chief Justice of the High Court or the designated judge is a judicial order, an appeal can be taken forward only under Article 136 of the constitution of India.
- There can be no appeal against an order by the Chief Justice of India or the judge of the Supreme Court under Section 11(6) of the act.