SPECIAL ARTICLE

Appointment of Arbitrators by the Designate under

the Arbitration and Conciliation Act: A Critique
Badrinath Srinivasan

Section 11 of the Arbitration and Conciliation Act, 1996

provides for appointment of arbitrators by the Chief
Justice on failure of party-agreed procedure or the lack
of consensus between the parties regarding the
arbitrator. Numerous applications are filed every year in
the Supreme Court and the high courts for appointment
of arbitrators. This paper argues that (1) the judiciary has
virtually created a monopoly by institutionalising
appointment of retired judges as arbitrators; (2) courts
have eliminated competition from other potentially
capable professionals for appointment as arbitrators;
and (3) there is lack of transparency in the process of
appointment of arbitrators. Information to gauge the
level of transparency in the appointment process has
been obtained from 10 high courts and the Supreme
Court through the Right to Information Act, 2005.

ection 11 of the Arbitration and Conciliation Act, 1996

(1996 Act or Act) provides for appointment of the arbitrator on failure of party-agreed procedure or the lack of
consensus between the parties regarding the arbitrator. The
authority empowered to appoint the arbitrator is the Chief Justice of the relevant court or his Designate (the Chief Justice or
his Designate shall hereinafter be referred to as Designate).
In international commercial arbitration, as defined in the Act,
the relevant appointing authority is the Chief Justice of India
or his Designate Supreme Court judge, and in case of arbitrations other than international commercial arbitrations, the
authority is the Chief Justice of the relevant high court or his
Designate high court judge.1 Numerous applications are filed
every year in the Supreme Court and the high courts for
appointment of arbitrators. The courts generally appoint
retired judges as the arbitrators. Information relating to the
appointment of arbitrators by the Designate is scarce.
This paper attempts to shed light on the level of transparency in the appointment of arbitrators by the Designate under
Section 11 of the 1996 Act. In cases of lack of transparency in
governance, an effective methodology to address information
gaps is to obtain authoritative information under the Right to
Information Act, 2005 (RTI Act). This paper adopts the same
approach. Information was sought from the public information officers (PIOs) of several high courts and the Supreme
Court on the process of appointment of arbitrators by courts
under Section 11 of the 1996 Act. Transparency in the appointment process has been gauged on the basis of the replies
submitted by the PIOs of the high courts.
Legal Framework for Appointment of Arbitrators

Thanks to Roshni Rajiv, M L S Kaarmukilan, Madhavi Nalluri and

J Ravichandran for their critical comments on a draft of this paper.
Views are personal.
Badrinath Srinivasan (lawbadri@gmail.com) works for a public sector
undertaking.
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Parties generally agree to one or three arbitrators to resolve

their disputes.2 Where the parties fail to act as per procedure
specified in the agreement for selection of arbitrators, or if the
appointment procedure fails, the Designate is empowered under Section 11 of the Act to appoint the arbitrator or take the
appropriate steps to do so.
Except for Section 11(8), the Act does not indicate the manner of appointment by the Designate. Even Section 11(8) merely
provides that the Designate shall have due regard to the qualifications required by the arbitration agreement and other considerations that are likely to secure the appointment of an independent and impartial arbitrator. Section 11(10) empowers
the Chief Justice of India or of the relevant high court, as the
case may be, to make appropriate schemes for appointment.
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Accordingly, schemes have been made for the purposes of

Section 11.3 The schemes made under Section 11(10) of the Act
chiefly deal with the procedural aspects of applying to the
Chief Justice for appointment of arbitrator and the procedure
to be followed by the Chief Justice, the person or the institution designated by him, as the case may be, on receipt of such
application.4 Even these schemes do not provide guidelines on
who shall be appointed as arbitrator by the Designate, or the
mode of selection of a particular person over another.
Section 82 of the 1996 Act empowers the high court to
make rules relating to the proceedings under the 1996 Act
before the courts. These include proceedings under Sections
8, 9, 14, 27, 34, 39 and 43, apart from Section 11. Several high
courts have framed rules under these provisions.5 Although
most of these rules do not deal with the proceedings under
Section 11, as there is already a separate scheme framed by
the relevant court, some of these rules deal with aspects
pertaining to Section 11 as well.6 Nevertheless, even these
rules do not deal with the question as to who shall be
appointed as arbitrator.
Methodology

The law does not lay down any criteria on who shall be
appointed as an arbitrator. As long as the arbitrator satisfies
the qualifications prescribed in the arbitration agreement,
such an appointment is accepted as valid. If the agreement
does not deal with the qualifications, the Designate has the
discretion to appoint any person as arbitrator. In the absence
of an authoritative direction, either through a legislative enactment or judicial determination on the issue, the matter is
wholly left to the discretion of the Designate. Considering
these aspects, the manner of selection of arbitrators by the
Designate and the appointment of a particular person to arbitrate a particular dispute become relevant.
Issues as to whether the Designate maintains a list from
which he/she selects an arbitrator or whether he/she arbitrarily selects an arbitrator, the reason for the Designate to select a
particular person from the list (if available) over another, the
number of times the Designate appoints a person as arbitrator,
whether the Designate can appoint a person from outside that
list, the authority that prepares, maintains and updates such a
list of arbitrators, the qualifications for persons to become a
part of the list of such arbitrators, etc, are those that the law is
silent about. Therefore, an authoritative answer to these elusive aspects has become necessary.
With the enactment of the RTI Act, it has become possible for
Indian citizens to seek information from public authorities on
a variety of aspects. The RTI Act seeks to promote transparency and accountability in the working of the public authorities, chiefly by granting the citizens the right to information.
Any person who desires to obtain information can make an
application to the public authority, specifying the particulars
of the information sought, along with the prescribed fee.7 On
receipt of such a request, the public authority is obligated to
provide the information within 30 days from the date of receipt
of such application.8
60

A public authority is empowered to reject any application if

the information sought falls under any of the grounds specified in Sections 8 and 9 of the RTI Act. Section 8 exempts disclosure of certain kinds of information such as commercial
confidence, trade secrets, information received in confidence
from foreign government, cabinet papers, etc. Section 9
empowers the public authority to reject request for information where providing access to such information would involve
an infringement of copyright subsisting in a person other than
the state. In sum, mechanisms have been built in Indian law to
seek information from the relevant public authority, subject
to exceptions.
As regards the issues discussed above, it is possible to seek
answers from the PIO of the relevant courts, since courts come
within the ambit of public authority for the purposes of the
RTI Act.9 Consequently, information was sought from the
Supreme Court and 15 high courts. It is true that a complete
account of the topic under analysis could be obtained only
after receiving the responses from all the 24 high courts. However, 15 high courts were chosen at random because it was felt
that responses from such number of courts were sufficient to
draw generalised inferences on the state of affairs of the
appointment of arbitrators by the high courts.
Out of the 15 high courts that were approached, only 10 high
courts responded.10 It is submitted that the state of affairs in
the five high courts that did not respond to the RTI application
would not be substantially different from that of the 10 high
courts, considering that the relevant law applicable is virtually
the same for all the high courts.
The queries addressed to the Supreme Court were the
following:
(1) Is there a list of people maintained by the Supreme Court
who could be appointed by the Chief Justice of India or his
Designate as arbitrators in an application under Section 11 of
the Arbitration and Conciliation Act, 1996 (henceforth Act)?
(2) If yes, kindly furnish a copy of the said list.
(3) How is a person nominated by the Chief Justice of India or
his Designate as an arbitrator in a petition under Section 11 of
the Act?
(4) If there is such a list as mentioned above, whether any
eligibility criteria is prescribed?
(5) Who prescribes the said eligibility criteria?
(6) Whether before the Chief Justice of India or his Designate
appoints an arbitrator, his or her consent is taken to act as
arbitrator?
The same queries were addressed to 15 high courts as well,
with necessary changes mutatis mutandis.
The first two questions were regarding the existence of a list
from which a person could be selected by the Designate as
arbitrator. The purpose behind these queries was to find out the
number of persons available in the list and their profile. Existence
of such a list would also enable the parties to suggest a specific
person from the list as arbitrator in proceedings under Section 11
of the Act, rather than the Designate choosing a person. One
would expect, for obvious reasons, that there would be a list of
persons available from which a person would be selected by
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the Designate as the arbitrator. In fact, most of the well-known

arbitral institutions maintain such a list of arbitrators.
The third question was on the methodology of nomination
by the Designate. Strictly, this query would not come within
the purview of information as an explanation would not be
information11 for the purposes of the RTI Act, unless there is
a document which records such a practice. Technicality apart,
the query was posed to elicit response on how an arbitrator
would be chosen for a particular dispute. For instance, a
retired judge who has no experience in dealing with a shareholders agreement would not be better placed to deal with
arbitration on the shareholders agreement as compared to a
competent person, such as an experienced company secretary.
As stated previously, Section 11(8) of the 1996 Act directs the
Designate to have due regard to the qualifications required by
the arbitration agreement and other considerations that are
likely to secure the appointment of an independent and impartial arbitrator. Even if the agreement does not expressly prescribe the qualifications of the arbitrator, the nature of the disputes contemplated by the agreement may dictate that arbitrators with certain specialisation should be preferred over others
for an effective arbitration. Hence, the manner in which an
arbitrator is chosen becomes relevant.
International practice suggests that the prospective arbitrator
is obligated to disclose to the parties circumstances that are
likely to affect their independence or impartiality.12 A similar
requirement is found in Section 12(1) of the 1996 Act. From
that perspective, the question arises as to whether the Designate seeks information on such circumstances before selecting
a particular person as arbitrator. In case the appointment is
made without enquiring into the existence of such circumstances, the order of the Designate becomes binding and the
arbitrator may refrain from voluntarily disclosing such circumstances to the parties.
A related question is whether the consent of a particular person
is taken before selecting him or her as arbitrator in a particular
dispute. This becomes relevant because a person might make him
or herself available for appointment as arbitrator in disputes, but
when the actual appointment is made, the said person might not
be ready to arbitrate disputes. This might lead to loss of time for
the parties to enter into another round of proceedings for the constitution of the tribunal. Hence, information was sought from the
court on whether the Designate seeks consent from the person
he/she intends to appoint as arbitrator in a particular dispute
before he/she passes an order for appointment.
The Supreme Court and 10 high courts responded to the
applications seeking information.13 Some of the high courts
rejected the application in limine on technical grounds, while
some addressed each query on merits.14 These responses are
discussed below.
Existence of a Panel of Arbitrators

Except for a few high courts, most courts which responded did
not even have a list of arbitrators from whom an arbitrator
could be selected. The replies as regards the existence of a list
of arbitrators are listed in Table 1.
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Table 1: Existence of a List of Arbitrators with the Court

S No

1
2
3
4
5
6
7
8
9
10
11

Court

Supreme Court of India

Allahabad High Court
Bombay High Court
Calcutta High Court
Chhattisgarh High Court
Delhi High Court
Gujarat High Court
Guwahati High Court
Himachal Pradesh High Court
Kerala High Court
Madras High Court

List (Yes/ No/ Not Known)

No
Not known
Not known
Yes
Not known
No
No
Not known
Not known
Yes
No

The Kerala and the Calcutta High Courts alone have a list of
arbitrators. In the absence of a list of persons who could be appointed as arbitrators, it is unclear how a Designate would select a particular retired judge as arbitrator. For instance, as per
the PIO of the Gujarat High Court, the Gujarat High Court does
not maintain any list of arbitrators. Even so the Designate appointed C K Thakkar, retired judge, Supreme Court of India, as
Sole Arbitrator in the arbitration between SPML Infra and
Gujarat Water Supply and Sewerage Board, rather than a
retired judge of the Gujarat High Court.15 This is one of the
several hundred cases where a Designate appointed a person
as arbitrator in the absence of a list of arbitrators.
Consequently, the Designate possesses unbridled discretionary powers to appoint any person he chooses as arbitrator in the absence of a predetermined list, provided that such
person satisfies the qualifications prescribed in the arbitration agreement, if any, and is seemingly independent and
impartial. Such unbridled power does not bode well for
Indian arbitration.
Retired Judges as Arbitrators

A perusal of the decisions of the Designates of various courts

appointing arbitrators shows that generally retired judges
are appointed as arbitrators. It is in this context that the
question arises as to whether the judiciary has monopolised
the arbitrator profession by using Section 11 to appoint only
retired judges as arbitrators.16 Since the enactment of the 1996
Act, Designates have consistently appointed retired judges
alone as arbitrators. The practice of appointing retired judges
has become so entrenched into the system that it has become
extremely difficult for the parties to choose efficient, impartial
arbitrators who are not retired judges, or lawyers, for that matter. Anecdotal evidence suggests that retired judges in India
have not been able to meet the party expectations of efficient
and inexpensive resolution of disputes (Antony 2013; Datar
2010: xxiii; Dubey 2013; KLRCA 2012; Ernst & Young 2011: 10,
14; Iyer 2010: 109; Mahapatra 2005; Nair 2006; Sarma et al
2009: 14-15, 32-33; Shah and Gandhi 2011; Singal and Tyagi
2011; Srinivasan 2011; Thomas 2011: 9).17
In fact, in an empirical study conducted by Ernst & Young,
68% of the respondents stated that they wanted to appoint
experts in the subject matter of arbitration as arbitrators,
instead of retired judges, while 22% of the respondents
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wanted retired judges as arbitrators (Ernst & Young 2011: 14). from six courts, while five chose to reject the query for differThe following are some problems associated with appointing ent reasons. Table 2 describes the responses provided by each
of the courts on merits to the query posed.
retired judges:
A huge fee is paid to a retired judge
Table 2: Manner of Selection of an Arbitrator
who functions as arbitrator.
S No
Court
Reply
The proceedings are generally held in 1 Supreme Court of India
Further, for obtaining information relating to appointment of
Arbitrators, you may, if so advised, refer to Article 142 of Constitution of
star hotels which increase the overall
India, Section 11 of Arbitration and Conciliation Act and Supreme Court
costs of arbitration.
Rules, 1966.
Inflexible arbitral process which more 2 Calcutta High Court
Arbitrators are appointed by orders passed under Section 11 of the
Arbitration and Conciliation Act, 1996 by The Honble The Chief Justice
or less mimics court proceedings.
or His Lordships Designate.
Lack of technical knowledge leads to
3 Gujarat High Court
With regard to this point the concerned department of this Honble
increased time in making them underhigh court has stated that the Honble the then Chief Justice was pleased
stand the technical aspects. Lack of
to make The Scheme for Appointment of Arbitrators by the Chief Justice
of Gujarat High Court, 2007 which was notified vide High Court
technical knowledge at times may lead
Notification No C 3001/2007, dated 04/04/2007.
to faulty appreciation of a situation.
4 Himachal Pradesh High Court The arbitrators are appointed on case to case basis as per The High Court
Long gaps between hearings, espeof Himachal Pradesh (Arbitration and Conciliation) Rules, 2002 and
The Appointment of Arbitrators by the Chief Justice of the Himachal
cially in cases of three-member arbitral
Pradesh High Court Scheme 2006.
tribunals where hearings are held once
5 Kerala High Court
A petition filed under Section 11 of the Arbitration and Conciliation Act
in three or more months.
before the high court is heard by a bench nominated by honourable
the Chief Justice and an arbitrator is appointed by the Bench in
Considering these aspects, the pracaccordance with the provisions of the said Act and the scheme for
tice by Designates of appointing only
appointment of Arbitrators by the Chief Justice of High Court of
retired judges as arbitrators may not be
Kerala, 1996.
in the best interests of Indian arbitra- 6 Madras High Court
It is informed that the Arbitrators are being appointed by His Lordship
Honble Chief Justice, and the office of the Honble Chief Justice has the
tion. It is surprising to find that none of
discretional Powers to appoint the arbitrators from among the retired
the high courts has empanelled technihonble judges.
cal experts as arbitrators. There are
several technical experts with a working knowledge of law
Some of the above courts referred to the relevant schemes
who are suitably qualified to be arbitrators. Apart from tech- made by the high courts under Sections 11 and 8219 of the 1996
nical experts, there are several other professionals who are Act. For instance, the Gujarat High Court stated:
well-suited for being appointed as arbitrators such as advoWith regard to this point the concerned department of this honouracates, legal advisors, chartered accountants, company secreble high court has stated that the Honble the then Chief Justice was
pleased to make The Scheme for Appointment of Arbitrators by the
taries, etc. Yet, such potentially capable professionals have been
Chief Justice of Gujarat High Court, (2007) which was notified vide
systemically excluded from being appointed as arbitrators. It
High Court Notification No C 3001/2007, dated 4 April 2007.
is worthwhile to point out that only the Kerala High Court
18
has appointed persons who are not lawyers as arbitrators.
As discussed previously, none of the schemes provides
It may be noted that there are parties who are satisfied any direction on the manner of appointment of a particular
with the appointment of retired judges as arbitrators. In person as arbitrator over another. In the absence of the
a survey conducted by a reputed consultancy fi rm, 68% manner of appointment of a particular person as arbitrator,
of the respondents preferred to have retired judges as there seems to be no systematic basis on which the Designate
a rbitrators (PricewaterhouseCoopers 2013: 15). The survey decides to allocate a particular dispute to a particular
arbitrator. For instance, if the dispute pertains to the oil
also concludes,
and gas industry, it would do well to appoint a qualified
[c]urrently nearly two-thirds opt for retired Supreme Court or high
arbitrator well versed with such industry rather than, say, a
court judges as arbitrators, however, qualitative feedback from the reretired judge who has mostly dealt with criminal matters in
spondents reveals that, arbitration proceedings in India are critically
affected due to lack of availability of a large club of arbitrators with
his career.
requisite industry knowledge coupled with necessary professional atThe PIO of the Supreme Court stated the following in his
titude (ibid: 16).
common reply to all the questions: For obtaining information
Thus, it is clear that parties should be given the choice of relating to appointment of Arbitrators, you may, if so advised,
appointing arbitrators from a wider range of competent refer to Article 142 of Constitution of India, Section 11 of Arbitration and Conciliation Act and Supreme Court Rules 1966.
professionals.
While, Article 142(1)20 of the Constitution of India empowers
Manner of Appointment
the Supreme Court to do complete justice in any case, as is
As stated previously, the query regarding the manner of apparent from the provision, the power can be exercised in
appointment of a person as arbitrator was posed to elicit a any cause or matter pending before the Court. The procedure
response on how a particular person is chosen as arbitrator prescribed for appointment by the Designate of the Supreme
over another person. The question elicited response on merits Court under Section 11 is virtually identical to the procedure
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courts.21

for the high

Article 142 is not available to the Designate
in the high court. Consequently, it is doubtable if Article 142
can be resorted to for appointing a certain group of persons
alone as arbitrators.
Eligibility Criteria under Section 11

Out of the 11 courts from which information was sought, only

six courts addressed the question of eligibility on its merits. Of
the six courts which responded on merits, three courts, viz,
Kerala High Court, Calcutta High Court and the Madras High
Court stated that eligibility criteria existed. The following is an
analysis of the eligibility criteria prescribed by these courts.
Madras High Court: The PIO of the Madras High Court stated
that the Designate had the discretion to appoint an arbitrator
from among the retired Honble Judges. Thus, for the Madras
High Court, it appears that only retired judges can become
arbitrators. The reply does not disclose whether retired judges
of Madras High Court alone would be arbitrators. This may
pose some practical problems. For instance, in a dispute that is
the subject matter of an application under Section 11 before
the Designate of the Madras High Court, the arbitration clause
might provide for Mumbai as the seat of arbitration. In such
cases, it would be prudent for the Designate to appoint a person who resides in Mumbai as arbitrator, as this would ensure
an efficient arbitration and reduce costs. In the absence of a list
of potential arbitrators from Mumbai, it is difficult to imagine
how the Designate would make an appointment in line with
the interests of the parties to the arbitration agreement.
Calcutta High Court: The PIO of the Calcutta High Court
stated that there was no eligibility criteria fixed for appointment as an arbitrator by the Designate. From the reply of the
PIO, it appears that although no list of retired judges of the
high courts and the Supreme Court is maintained by the Designate, these judges are automatically eligible for being appointed as arbitrators. However, a list of retired higher judicial
officers, i e, judges who retired in the district judge cadre, is
being maintained by the court. The PIO also informed that a
process to prepare a list of advocates who were interested to
act as arbitrators was initiated, but the same was not finalised
as on the date of reply.
Kerala High Court: Of all the high courts, the Kerala High
Court seems to have, on paper at least, a relatively comprehensive system regarding the appointment of arbitrators. It appears
that on 28 September 2010, notification No D1-82665/08 was
issued by the Registry of the high court calling for applications
for the purpose of empanelment of arbitrators.22 The said notification prescribed the following eligibility criteria:
(1) The minimum age for empanelment shall be 45 years as on
the 1 January of the year in which the application is submitted.
(2) The applicant should have a minimum practice of 15 years
at the Bar or in the profession or technical field on the date
of application.
(3) Applicant should be an income tax assessee.
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It also clarified that those already in the panel of arbitrators

of the high court had to apply afresh. However, the clarification was not made applicable to the retired high court judges.
This gives the impression that retired judges of the high court
of Kerala are by default empanelled as arbitrators.
Subsequently, it appears that another notification, No D1(A)
82665/08, dated 1 February 2011 was issued regarding the
panel of arbitrators. Following this, a notification dated
25 February 2011 was issued wherein it was clarified that all
the retired judges of the Kerala High Court, except those who
were engaged in commissions or as members of tribunals/
forums or as ombudsman by the government, would be considered as part of the panel of arbitrators maintained by the
high court. As per the PIO, the eligibility criteria as on the date
of the reply was as quoted above.
Predetermined eligibility criteria similar to those laid down
by the Kerala High Court would ensure that competent professionals would approach the high court to be empanelled as
arbitrators, and the parties would have a variety of choices of
arbitrators to choose from to adjudicate their disputes, rather
than merely having retired judges as arbitrators without adequate knowledge of their expertise.
Prior Consent

The question as to whether prior to appointing a person as arbitrator, consent from such person is taken by the Designate,
was answered by six courts on merits. It appears that none of
the courts obtain consent from the prospective arbitrator to be
appointed in a particular dispute. It may be noted that the
schemes made under Section 11(10) of the 1996 Act generally
provide that the decision taken by the Designate to appoint an
arbitrator shall be communicated to the arbitrator appointed
pursuant to the request.23 This might lead to a few problems.
One, it may lead to a conflict of interest situation involving
the arbitrator and one of the parties. For instance, a person
holding a substantial number of shares in a company may be
appointed by the Designate as arbitrator in a dispute concerning the said company. Unless the Designate approaches a prospective arbitrator, it would not be possible for the arbitrator to
disclose in writing such circumstances prior to appointment.
In this regard, Section 12(1) of the Act mandates that when a
person is approached in connection with his possible appointment as an arbitrator, he/she shall disclose in writing any circumstances likely to give rise to justifiable grounds as to his/
her independence or impartiality. Even if the arbitrator declines to proceed with the arbitration for that reason after the
appointment is made by the Designate, the parties would be
put in the same position as they were prior to the filing of the
petition under Section 11, leading to delays of several months
and, at times, several years (Srinivasan 2012: 27, 29).
Two, a person may make himself/herself available for being
appointed as arbitrator. However, subsequently, at the time of
appointment by the Designate, the person might be unable or
might not be ready to act as an arbitrator for reasons related to
a particular dispute, or might not be ready to act as arbitrator
in any dispute owing to illness or any other reason.
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Hence, it would be prudent to seek consent prior to appointing a person as the arbitrator in a particular dispute.
Rejection of the RTI Application without Reply

Three kinds of responses were given by the PIOs of the courts

to the RTI applications. One, certain PIOs replied on merits.24
Two, certain PIOs rejected the application, but also replied on
merits of the queries. Three, certain PIOs rejected the application without dealing with the merits of the queries.25
Table 3 provides the details of the reasons by the courts for
the rejection.26
Table 3: Rejection on Unreasonable Grounds
S No

Court

Allahabad High Court

Bombay High Court

3
4

Chhattisgarh High Court

Delhi High Court

Guwahati High Court

Summary of Reason(s) for Denial

(a) fee is not in the form of demand draft,

(b) separate applications are to be made for
different information sought.
(a) Information sought is not as per format,
(b) fee cannot be in the form of demand draft,
(c) information sought relates to judicial
functions and duties of the court incidental
and ancillary to the judicial functions and hence
is exempted from disclosure under Rule 13(b) of
the Bombay High Court RTI (Revised) Rules 2009,
(d) query on method of appointment does not
amount to information as defined in the RTI Act.
Fee not in the form of court fee stamp of Rs 12.
Information is not maintained in the form as
sought and hence the same cannot be provided.
(a) Information sought is not as per format,
(b) separate applications are to be made for
different information sought.

As regards rejection on the basis of fee, certain high courts

provide for payment of fee through a specific mode. For instance, the Allahabad High Court provided that the fee should
be in the form of demand draft, while the Chhattisgarh High
Court asked for the fee to be paid in court fee stamp. It is
submitted that by requiring payment of fee to be in either
of these modes, the high courts are indirectly restricting
access to information and transparency. Even the government offices and public sector undertakings accept the fee in
the form of demand draft, postal order, online payment, or
other standard modes of payment such as deposit by cash or
money order. Consequently, the practice by the high courts
of restricting the manner of deposit of the fee restricts access
to information.
Certain high courts demand excessive fee. For instance, the
fee charged by Allahabad High Court for the information
sought was Rs 250. When public sector undertakings which
are profit-oriented provide information on obtaining fee of
Rs 10, it is surprising that the high courts demand such high
amount as fee for providing information. It is apparent that by
making the process of seeking information costlier, the courts
are restricting access to information.
The RTI Act does not entitle the PIO to reject a request for
information if it is not as per the format provided in the RTI
Rules, but the PIO of the courts took shelter under the provisions in the respective rules to reject applications for information. It may be noted that the RTI Act does not prescribe
any specific format for applications and, if at all, the relevant
64

RTI Rules specify such format for administrative convenience, the same would not be mandatory.27 It is unfortunate
that even the Central Information Commission does not recognise this position.28
Another example of the reliance by the PIO on extrastatutory grounds to reject application for information is the
reason cited by the Bombay High Court. According to the PIO
of the said high court, an application for information could
be rejected if the information sought is related to judicial
functions and duties of the court incidental and ancillary to
the judicial functions as per Rule 13(b) of the Bombay High
Court RTI (Revised) Rules, 2009. It is submitted that when
the Act restricts the available grounds for rejection to those
specified in Sections 8 and 9 alone, it is difficult to imagine
how the high court can go beyond the boundaries provided
in the statute and frame additional grounds for rejection
under the Rules.
Conclusions

The 1996 Act empowered the Chief Justice of India and of the
high courts to appoint arbitrators considering their stature.
The chief justice was empowered to delegate that function to
an individual or an institution. The purpose of allowing such
delegation was to enable an individual or an institution to
effectively perform the function of choosing an appropriate
arbitrator for a particular dispute (Ministry of Law and
Justice 2010: 18).
Prominent arbitral institutions maintain a panel of arbitrators based on criteria which would ensure at least a basic level
of quality control. However, it is apparent from the responses
to the RTI applications that there is not even a list of prospective arbitrators that the Designate could choose from. Further,
there appears to be no systematic methodology on the basis of
which a particular retired judge is selected for a particular dispute. Generally, when prospective arbitrators are empanelled
by arbitral institutions, they are asked to indicate their specialisation to enable institutions to assign disputes to arbitrators who are specialised in the area of dispute. For instance,
the Indian Council of Arbitration (ICA) asks applicants who desire to be enrolled as an ICA panel arbitrator to indicate their
specialisation (ICA nd: 2).
Even where there is a list of arbitrators with the court, the
representation from technical, financial and other relevant
fields are almost non-existent. The arbitrators, whom the
courts appoint under Section 11, are predominantly retired
judges and, in rare cases, advocates. Further, retired judges by
default become eligible for appointment as arbitrators. Lastly,
no consent is obtained from the prospective arbitrator. This
eliminates any chance of declaration by the arbitrator of any
past or present connection with a party in the arbitration.
Thus, from the above, the following can be concluded: one,
the judiciary has virtually created a monopoly in the Indian
arbitration market by institutionalising appointment of retired
judges as arbitrators; two, courts have eliminated competition
from other potentially capable professionals for appointment
as arbitrators; and three, there is lack of transparency in the
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SPECIAL ARTICLE

process of appointment of arbitrators by the courts under Section 11 of the 1996 Act.29
This state of affairs can be replaced with a more arbitrationfriendly process of appointment if certain measures are undertaken by the respective courts. The respective courts can do
what the Kerala High Court did as regards the empanelment of
arbitrators. A list of arbitrators, their qualifications and expertise, and their fee per hearing could be prepared by the registry of the relevant court. Such a list should not be restricted to
judges or advocates alone, but also include other professionals
such as technical experts, chartered accountants, etc, who are
trained in arbitration or are capable of handling arbitrations
owing to their prior experience.
Further, when a person is to be appointed as arbitrator, the
Designate should have due regard to the nature of the dispute
and the expertise of the arbitrator. For instance, in a dispute
pertaining to a production-sharing contract for exploration
and production of petroleum, it is prudent to appoint at least a
financial expert who is well-versed with fiscal aspects of the
agreement (if it is a three-member arbitral tribunal) as the
Notes
1 SBP & Co vs Patel Engineering & Co, 2005(3)
Arb LR 285 (SC). The designate can appoint a
person or an institution to select the arbitrator,
but this has rarely occurred in India, except
when parties have expressly designated a person or an institution for that purpose.
2 In the absence of any agreement, Section 10(1)
of the Act provides that the number of arbitrators shall be one.
3 For instance, the Appointment of Arbitrators by
the Chief Justice of India Scheme, 1996 and the
Scheme for Appointment of Arbitrators by the
Chief Justice of Allahabad High Court, 1996.
4 Although these schemes are laid down by different high courts and the Supreme Court,
these are more or less uniform.
5 See, for example, the Andhra Pradesh High
Court, the Bombay High Court, the Himachal
Pradesh High Court, the Karnataka High
Court, the Kerala High Court and the Madhya
Pradesh High Court.
6 For instance, para 328A, Chapter XVII, Vol I,
Civil Manual, Appellate Side of the Bombay
High Court; the Ahmedabad City Civil Courts,
Arbitration and Conciliation Proceedings Rules,
1998; and the High Court of Himachal Pradesh
(Arbitration and Conciliation) Rules 2000.
7 Section 6(1), RTI Act.
8 Section 7(1), RTI Act.
9 Section 2(h) of the RTI Act defines public
authority to mean:
[A]ny authority or body or institution of selfgovernment established or constituted (a) by
or under the Constitution; (b) by any other law
made by Parliament; (c) by any other law made
by state legislature; (d) by notification issued
or order made by the appropriate government,
and includes any (i) body owned, controlled
or substantially financed; (ii) non-government
organisation substantially financed, directly or
indirectly by funds provided by the appropriate
government.
10 The high courts which did not reply to the RTI
queries (date of applications in parentheses)
are the Orissa High Court (9 July 2013), the
Meghalaya High Court (9 July 2013), the Rajasthan High Court (14 May 2013), the Karnataka
High Court (19 December 2012), and the
Economic & Political Weekly

EPW

may 3, 2014

said expert would be familiar with the said instrument.30 The

Designate must also take into account the seat of arbitration so
that he/she can appoint an arbitrator who resides either in or
near the seat of arbitration (Srinivasan 2012: 34).
It would do well to obtain prior consent from the proposed
arbitrator proposed and also ask the said person to submit a
declaration of independence and impartiality to reduce or
eliminate altogether possibilities of bias. In addition, a declaration that the arbitrator would allocate sufficient time for the
purpose of expeditious conduct of the arbitration proceedings
may also be obtained.31
These measures, if adopted, would mitigate the lack of
transparency in the appointment of arbitrators and provide for
better choice to parties in selecting arbitrators. It must be
realised that the autonomy of the parties is paramount in arbitration and it is the duty of the Designate to ensure that the
parties get the best person as arbitrator to adjudicate their disputes, especially in the absence of the practice of designating
an appointing authority, such as an arbitral institution for the
appointment of arbitrators.

Andhra Pradesh High Court (12 October 2012).

11 Section 2(f) of the RTI Act defines information
to mean any material in any form, including
records, documents, memos, e-mails, opinions,
advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form
and information relating to any private body
which can be accessed by a public authority under any other law for the time being in force.
12 See, for instance, Article 11, UNCITRAL Arbitration Rules, 2010; Article 12, UNCITRAL
Model Law; Article 5.3(d), LCIA India Rules,
2010; Article 11(2), ICC Arbitration Rules 2012.
13 The replies of the PIOs of the Supreme Court
and the high courts are available at https://
docs.google. com/file/d/0B- ZUXtJuPbi3ZTBOV
UhSS
mkwcHM/edit?usp=sharing,
viewed on 24 October 2013.
14 It is acknowledged that the methodology
adopted in this paper is not altogether perfect.
There are certain shortcomings such as the
non-inclusion of all the high courts in the study
of their procedures or the absence of appeals
filed against wrongful rejections. Even so, it is
submitted that this study amply indicates the
lack of transparency in the process of appointment of arbitrators by the Designate under Section 11 of the 1996 Act.
15 SPML Infra Ltd vs Gujarat Water Supply and
Sewerage Board & Anr, IAAP 2 of 2011 (5 August
2011), Gujarat High Court, viewed on 29 October 2013, http://www.indiankanoon.org/doc
/174569/
16 Members of the lower judiciary in West Bengal
ranking below the post of a district judge are
not appointed as arbitrators. Similarly, the
Kerala High Court also has a list of arbitrators
who are retired high court and district court
judges, but not retired judges from lower
courts. One could reasonably conclude from
the above that members of the lower judiciary
below the district court are not considered by
the Kerala and Calcutta High Courts for
appointment as arbitrators.
17 Also, see Union of India vs Singh Builders Syndicate, (2009) 4 SCC 523, para 10.
18 The list of arbitrators maintained by the Kerala
High Court contains a chartered accountant
and a company secretary.

vol xlix no 18

19 Section 82 of the 1996 Act reads: Power of

High Court to make rules. The High Court may
make rules consistent with this Act as to all
proceedings before the Court under this Act.
20 Article 142(1) of the Constitution of India
reads:
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any
decree so passed or order so made shall be
enforceable throughout the territory of India in
such manner as may be prescribed by or under
any law made by Parliament and, until provision in that behalf is so made, in such manner
as the President may by order prescribe.
21 The powers of the designate of the Supreme
Court and the high court are similar, except for
the fact that the Designate of the Supreme
Court appoints arbitrators only in International Commercial Arbitrations as defi ned
in the 1996 Act.
22 High Court of Kerala, Notification No D182665/08, 28 September 2010, viewed on
7 September 2013, www.highcourtofkerala.
nic.in/notfn_ arbitration. pdf
23 See, for instance, Rule 9(d) of the Appointment
of Arbitrators by the Chief Justice of India
Scheme, 1996.
24 The courts were the Supreme Court of India,
the Calcutta High Court, the Kerala High
Court, the Madras High Court, the Himachal
Pradesh High Court and the Gujarat High
Court.
25 The courts were the Allahabad High Court, the
Chhattisgarh High Court and the Guwahati
High Court.
26 The courts were the Bombay High Court and
the Delhi High Court.
27 Government of India, RTI Manual: Guide for
the Central Public Information Officers,
viewed on 23 October 2013, http:// rti.india.
gov.in/manual2. php? pageid=3; Government
of India, Guide For the Information Seekers
Under the Right to Information Act, 2005,
viewed on 23 October 2013, http://rti. india.
gov.in/manual4.php?pageid=4
28 See, for instance, Ramniranjan Goud and
Prashar Narayan Sharma vs Public Information

65

SPECIAL ARTICLE
Officer, CIC/SM/C/2013/000259 & 260,
viewed on 10 April 2014, http://rti.india.gov.
in/cic_decisions/CIC_SM_C_2013_
000259_M_ 113708.pdf; Dhiren Kerketta vs
The Guwahati High Court, CIC/PA/C/2009/
000022, viewed on 10 April 2014, http://rti.
india.gov.in/cic_decisions/CIC_PA_ C_ 2009_
000022_M_38232.pdf (where rejection of RTI
application has been upheld for not being in accordance with the format provided in the RTI
Rules).
29 It is clarified that the thesis of this paper is not
that retired judges are not good arbitrators, or
that the existing system of appointment of
retired judges as arbitrators is not correct. The
paper argues that the function of the appointment process should be to enable efficient,
impartial and effective arbitration, and that
the present system is inadequate to achieve
these ends.
30 The production-sharing contract is, essentially,
a fiscal instrument.
31 This is a fairly standard practice prevalent in
arbitration. See, for instance, Rule 5.3(b) of the
LCIA India Rules, 2010 and Rule 11(2) of the
ICC Arbitration Rules, 2012.

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Document/Default.aspx? Document Uid= 0C4
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