Appointment of Arbitrators by the Designate under the Arbitration and Conciliation Act: A Critique

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.