Appointment of Arbitrators: Ad hoc arbitration continues to be the most common form of arbitration in India. In these arbitrations, courts are invariably called upon to appoint an arbitrator. We believe that courts are ill-equipped to appoint arbitrators because: (i) they have a limited list of arbitrators to choose from; (ii) they do not have sufficient data regarding the availability of these arbitrators; (iii) they do not have sufficient data regarding the efficiency and quality of these arbitrators. Arbitration institutions build a reputation by being in a position to bridge exactly this gap. We propose that Section 11(3-A) be given immediate effect and appropriate guidelines be framed for the creation of a panel of arbitrators by such institutions.
In the interim, until such time as Courts choose to retain the power of appointment, there must be utmost transparency and responsibility in the creation of a panel of arbitrators, and appointment of arbitrators. Specifically:
(i) The list must contain arbitrators from a diverse pool of arbitrators covering at the very least judges, advocates and technical experts. The preparation of the list must involve a selection process where interested applicants are called to apply to be a part of the panel and evaluated based on their subject matter expertise, arbitration experience and arbitrator training certifications provided by institutions like the Chartered Institute of Arbitrators.
(ii) In due recognition of party autonomy, parties must be invited to agree on an arbitrator with the Claimant sending a shortlist of about five proposed nominees drawn from the list maintained by the concerned court, together with its application under Section 11 of the Act, for the Respondent to choose. The court should only proceed to make an appointment if the parties are unable to agree on the arbitrator(s).
(iii) A portal must be created where each arbitrator registers herself/himself and updates on a monthly basis:
a. the number of arbitrations in which they are acting as arbitrators.
b. the number of arbitrations in which they sat as an arbitrator in which they have been unable to comply with the time limits set out in Section 29A of the Act.
The portal must also automatically draw from the judgments rendered by the Commercial Courts across the country to identify (i) if any award by an arbitrator has been set aside by any court in India; and (ii) if an arbitrator has been unable to complete proceedings within the time limit prescribed under Section 29A of the Act and the time for rendering an award has been extended in any case. A judge exercising the power to appoint arbitrators must have access to this data at the time of appointing the arbitrator in each case.
Source: Barandbench
