Arbitration — Kerala High Court
Section 11 — Getting the Court to Appoint an Arbitrator When the Other Side Refuses
Your contract has an arbitration clause. The dispute has arisen. But the other party will not cooperate in appointing an arbitrator, and the process has stalled. Section 11 is the remedy.
Arbitration and Conciliation Act, 1996 — Section 11
When Section 11 Applies
An arbitration clause is only as useful as the mechanism that activates it. When the arbitration agreement calls for a sole arbitrator to be agreed upon by the parties, or for each party to appoint one arbitrator who then jointly appoint a presiding arbitrator, the process depends on cooperation. When that cooperation breaks down, Section 11 provides the solution.
The most common triggers for a Section 11 application are:
- One party fails to appoint its arbitrator within 30 days of receiving a request in writing
- The two party-appointed arbitrators fail to agree on a presiding arbitrator within 30 days of their own appointment
- The parties cannot agree on a sole arbitrator within 30 days of a written request
- An agreed procedure in the arbitration clause has broken down — the named institution does not respond, or the named individual is unavailable or refuses
Important: Before filing under Section 11, a written request to the other party to cooperate in the appointment process must be made and at least 30 days must have elapsed without a satisfactory response. Maintain documentary evidence of this request — it is a precondition to the Section 11 application.
The Court's Role — A Limited but Essential Function
The 2015 amendment to the Arbitration Act significantly narrowed the scope of court intervention under Section 11. The High Court's examination at this stage is confined to one question: does a valid arbitration agreement exist between the parties?
The court does not examine:
- The merits of the underlying dispute
- Whether the claim is time-barred under limitation law
- Whether the dispute falls within or outside the scope of the arbitration clause (this is for the Tribunal to decide)
- Whether the contract as a whole is valid or has been terminated
If a valid arbitration agreement exists, the court must make the appointment. Objections about the merits, limitation, or scope are reserved for the Arbitral Tribunal and post-award proceedings.
Filing at the Kerala High Court — Procedure
1
Issue written request: Send a formal letter/email to the other party requesting cooperation in the appointment process. Specify the clause, the number of arbitrators required, and a 30-day deadline. Retain proof of delivery.
2
File Section 11 application: On expiry of 30 days without response, file an application under Section 11(4), 11(5), or 11(6) as applicable, before the Kerala High Court. Attach the arbitration agreement, correspondence, and a brief statement of the dispute.
3
Notice to respondent: The court issues notice to the other party who may file objections limited to the existence and validity of the arbitration agreement.
4
Prima facie examination: The court satisfies itself that an arbitration agreement exists. In straightforward cases with a clear written clause, this stage is brief.
5
Appointment order: The court appoints an arbitrator from a panel of qualified individuals or a designated institution. The arbitrator's mandate begins from the date of appointment.
Timelines
The Supreme Court has directed High Courts to dispose of Section 11 applications within 60 days of filing. Actual timelines at the Kerala High Court depend on court load and whether the respondent contests the application. Uncontested matters are typically resolved in 6–10 weeks. Contested matters may take 3–5 months.
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