Best Finding and Appointing a Neutral Arbitrator Lawyer

The choice of arbitrator often shapes the whole arbitration. A good sole arbitrator, independent, experienced in the subject and available, can resolve a dispute quickly and fairly at a reasonable cost. A poor choice, or a choice that one side made alone, can lead to delay, a weak award, or a challenge that sets the whole process back. Since the Supreme Court's decisions in Perkins Eastman (2019) and CORE (2024), it is clear that an arbitrator should be chosen by agreement or through a neutral process, not by one party alone.

This page is for parties who need to appoint an arbitrator: businesses that have agreed to arbitrate and want a neutral sole arbitrator, parties whose clause says "an arbitrator to be mutually appointed", and parties whose counterparty will not agree on anyone. In short: agree on an independent person with relevant experience and time; check their written disclosure against the Fifth and Seventh Schedules; fix their fees and the basic procedure in writing; and if the other side will not cooperate, apply to the court or designated institution under Section 11.

We help parties identify suitable independent arbitrators, run the agreement process, and handle Section 11 applications. We never propose anyone connected with our firm as arbitrator in a dispute where we act for a party.

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Appointing an arbitrator: the rules

What makes a good sole arbitrator

A good arbitrator for a commercial dispute has four qualities. Independence: no relationship with either party or their lawyers that could raise justifiable doubts. Relevant experience: a construction dispute benefits from someone who understands contracts, programmes and measurements; an accounts dispute from someone who can read financial statements. Availability: the ability to fix hearings within weeks, not months, and to deliver the award within the Section 29A limit. And a record of reasoned, timely awards.

Retired judges, senior advocates, chartered accountants, engineers and other professionals all serve as arbitrators. The best choice depends on the dispute. For a mainly legal question, such as the interpretation of a clause or limitation, a legally trained arbitrator is usually best. For a dispute about quantities or defects, an expert in the field may decide faster, perhaps with legal support from the parties' counsel.

How we help appoint a neutral arbitrator

Time and typical cost range

Our fees are agreed in writing at the start, stage by stage, and are not linked to the outcome.

Documents needed

Fourth Schedule fee ceilings (ad hoc arbitration)

A sole arbitrator is entitled to an additional 25% on the above. The Fourth Schedule applies where the parties have not agreed fees, and does not apply to institutional arbitrations or most international commercial arbitrations. See our arbitration fee calculator.

Unilateral appointment after CORE

In TRF v Energo Engineering (2017), the Supreme Court held that a person who is ineligible to be arbitrator cannot nominate another. In Perkins Eastman v HSCC (2019), it extended this to hold that a party with an interest in the outcome cannot unilaterally appoint a sole arbitrator. In Central Organisation for Railway Electrification v ECI-SPIC-SMO-MCML (November 2024), a Constitution Bench held that clauses allowing one party to unilaterally appoint a sole arbitrator are invalid as they violate equal treatment of parties, and that clauses requiring a party to choose its nominee from a panel curated by the other side can also give rise to justifiable doubts about impartiality.

The decision in CORE applies prospectively to appointments made after its date. So, for any new appointment, the arbitrator should be chosen by agreement or through a neutral process, such as an institution or the court. If your contract gives the other side the sole right to appoint, you can insist on a joint or neutral appointment.

Section 11 when the other side will not agree

If the parties' procedure fails, for example where the other side does not agree on a sole arbitrator within 30 days of a request, a party can apply under Section 11 to the High Court (for domestic arbitrations) or the Supreme Court (for international commercial arbitrations), or to an institution designated by them. After In re Interplay (2023) and SBI General Insurance v Krish Spinning (2024), the court's examination at this stage is limited to whether an arbitration agreement exists; questions of limitation, arbitrability and accord and satisfaction are generally left to the tribunal.

Courts commonly appoint retired judges or senior advocates, or refer the appointment to an institution such as DIAC. A well-prepared Section 11 application, with the notice, proof of service and a short note on the agreement, is usually decided within a few hearings. See appointment of arbitrator.

Laws that apply

How we work

We are a litigation and advisory practice led by Advocate BK Singh, with offices in Dwarka (New Delhi) and Vaishali (Ghaziabad). This is what you can expect:

• Independent candidates: names unconnected to either party or to our firm.
• Careful checks: disclosures reviewed against the Schedules.
• Clear terms: fees and procedure agreed in writing at the start.
• Court backup: Section 11 applications if agreement fails.
• Written fee terms: agreed stage by stage, never linked to the outcome.

Mistakes in appointing arbitrators

Reading an arbitrator's disclosure

Before accepting an appointment, every arbitrator must disclose in writing, in the form of the Sixth Schedule, any circumstances likely to give rise to justifiable doubts about their independence or impartiality, and any circumstances likely to affect their ability to devote sufficient time and complete the arbitration within twelve months. The Fifth Schedule lists circumstances that may give rise to such doubts, and the Seventh Schedule lists relationships that make a person ineligible.

Read the disclosure line by line. Check for past or present relationships with either party, its group companies, its lawyers, or the other arbitrators; past appointments by the same party; financial interests; and the number of pending arbitrations, which affects availability. If something concerns you, ask for clarification in writing before the appointment is confirmed. A challenge under Section 13 must be made within 15 days of becoming aware of the circumstances.

Fees: agree them at the start

Fee disputes between parties and arbitrators are common and damaging. Agree the fee structure in writing before the arbitration starts: a lump sum for the whole reference, a fee per sitting, or a percentage of the amount in dispute within the Fourth Schedule ceilings. Agree how deposits will be paid and shared, what expenses are covered, and what happens to fees if the case settles early.

In ONGC v Afcons Gunanusa (2022), the Supreme Court held that arbitrators cannot unilaterally fix their own fees in ad hoc arbitrations; fees must be agreed with the parties, failing which the Fourth Schedule applies. A short fee letter signed by the arbitrator and the parties avoids most problems.

Three-member tribunals

For large or complex disputes, the parties may prefer a three-member tribunal. Each party nominates one arbitrator, and the two nominees choose the presiding arbitrator. Even with party nominees, every member must be independent and impartial; a nominee is not the party's advocate. The same disclosure and eligibility rules apply.

Three-member tribunals cost more and take longer to schedule, so they are usually justified only for high-value or technically complex disputes. Where the clause provides for three arbitrators but the dispute is modest, the parties can agree to a sole arbitrator to save cost.

Preliminary hearing and procedure

Once appointed, the arbitrator usually holds a preliminary hearing to fix the procedure: the timetable for pleadings, whether documents will be produced, how evidence will be given, whether hearings will be online or in person, and the language. Parties can propose an agreed draft procedural order, which saves time.

For small and medium disputes, a lean procedure works well: pleadings with documents, written witness statements, a short hearing for cross-examination of key witnesses, and written submissions. Fast-track procedure under Section 29B is an option if both sides agree. See fast-track arbitration.

Replacing an arbitrator

An arbitrator's mandate can end if they withdraw, if the parties agree, if they become unable, legally or in fact, to perform, or if they fail to act without undue delay (Section 14). A party can apply to the court under Section 14(2) to decide on termination where there is a dispute. Where an arbitrator is ineligible under Section 12(5), their mandate terminates automatically, and the court can be asked to decide this.

A substitute arbitrator is appointed under Section 15, following the same rules that applied to the original appointment. Proceedings may continue from the stage reached, unless the parties agree otherwise. Plan for this possibility in the appointment letter by agreeing what happens to fees already paid.

Institutional appointment as an alternative

Parties who cannot agree on an individual can agree instead to ask an institution to appoint, even if their contract does not name one. An institution such as DIAC, IIAC, MCIA or ICA will appoint from its panel, after checking disclosures, usually within weeks. This avoids a Section 11 application, though institutional fees will apply. Many parties find this a practical middle path. See DIAC arbitration.

Government contracts and neutral appointments

Government departments and public sector undertakings have long used clauses that let them appoint arbitrators, often serving or retired officers. After CORE (2024), such clauses are open to challenge for appointments made after the judgment, and many government bodies now agree to neutral appointments, institutional arbitration, or a panel from which each side chooses freely. Contractors dealing with government buyers should insist on a neutral process for any new appointment.

Where a government body proposes a panel of names, check whether the panel is broad and genuinely independent, and whether the contractor has a free choice. A narrow panel of the department's own former officers may still give rise to justifiable doubts. Where agreement cannot be reached, a Section 11 application allows the court to appoint.

Costs of a sole arbitrator compared with three

Under the Fourth Schedule, a sole arbitrator receives the model fee plus 25%, while each member of a three-member tribunal receives the model fee. So a three-member tribunal typically costs about two and a half times as much in arbitrator fees as a sole arbitrator, before venue and other expenses. Scheduling three busy people also takes longer. For most disputes below a few crore rupees, a sole arbitrator is the more proportionate choice.

Where one side insists on three arbitrators because the clause provides for it, the other can propose a sole arbitrator to save costs, but cannot force it. If both agree, the change should be recorded in writing.

Confidentiality and the arbitrator

Section 42A requires the arbitrator, the arbitral institution and the parties to keep all arbitral proceedings confidential, except the award where its disclosure is necessary for implementation and enforcement. When appointing an arbitrator, include a confidentiality undertaking in the appointment letter, covering documents, hearings and the award. This is particularly important in disputes involving trade secrets, pricing or personal data.