Evolution of Section 11 of the Arbitration –Prior 2018 Amendment
The law regarding arbitration in India is an important aspect over the past few years. The Arbitration Act,1966 is to expedite the arbitration process and curtail upon the judiciary. The judiciary has failed to resolve the existing thousands of cases in the courts of the country, which lead to the appointment of an arbitrator to settle disputes between the two parties under Section 11 (4),(5),(6) of Arbitration Act,1966. Section 11 of the Arbitration Act renders a variety of conditions where the parties are unable or unwilling to constitute the Arbitral tribunal. The main purpose of the Section is to safeguard against any difficulty in constituting the arbitral tribunal and does not hamper the commencement of Arbitral proceedings. It also tries to trace the present position of the law through different cases starting from Ador Samia Vs. A. Peekay Holdings Limited and concluding with United Insurance Co Ltd &Anr Vs. Hyundai Engineering Construction and Co.
The first legislation in India to govern the process of arbitration was the Arbitration Act, 1899. Later, the Arbitration Act was enforced in India and was again replaced by Arbitration and Consolidation Act, 1966. The Act of Arbitration,1966 is based upon the UNICITERAL model Law of Arbitration, 1855 and with the purpose to limit the scope for the interference of judiciary in arbitral proceedings. Under the provision and sections of the Arbitration Act, the parties to the dispute are free to select the arbitrators, provided the decision is given a fair and unbiased manner as well as the procedure for appointing them. Under Section 11 parties can seek a proper remedy that provides detailed information for the appointment of arbitrators through judicial interference. Section 11 of the Act empowers the Chief Justice or any person designed by it, for appointing arbitrators under the circumstances specified therein. The provision is also said to correspond to the UNICITERAL Law Model, the Article mentions the authority to appoint an arbitrator.
The Law Commissioner proposed to make it necessary upon the Supreme Court or the High Court or any person designated by them to dispose of the proceedings under Section 11 of the Act, the case should be disposed of within 60 days from the date of service of the notice by the opposite party of the dispute. Eventually, the proposal was enforced in the Arbitration Act, 2015. The Arbitration Act failed to recognize the need and importance of institutional Arbitration when various arbitration Institutions were set up such as the International Chamber Of Commerce (ICC) Paris, Singapore International Arbitration, London Court of International Arbitration are the settling offices for resolving disputes in India and offering their services in the country. Thus, the Lok Sabha passed the Arbitration Amendment Bill, 2018 which offers appointments by designated arbitral institutions.
In the case, Konkan Railway Vs. Mehul Construction Limited, it was held by a three-Judge bench of Supreme court, the order was passed by the Chief Justice. Section 11(6A) is administrative in nature and any intervention is possible only in circumstances where the Chief Justice or the refuses to make the appointment.