Introduction
With increasing pendency of cases before courts in Bihar, arbitration serves as an effective mechanism for resolution of commercial and contractual disputes. Parties entering into agreements frequently include an arbitration clause to ensure that disputes are resolved outside the regular court system.
Arbitration is intended to provide a quicker and cost-effective remedy. However, the process cannot commence unless an arbitrator is appointed. In practice, disputes often arise at this stage, where one party does not cooperate, does not respond to communications, or delays the process of appointment of arbitrator. This results in a situation where the agreed dispute resolution mechanism cannot even begin.
To address such situations, Section 11 of the Arbitration and Conciliation Act, 1996 empowers the High Court to appoint an arbitrator when the agreed procedure fails.
When Section 11 is Invoked?
Section 11 of the Arbitration and Conciliation Act, 1996 is invoked when there is a valid arbitration agreement and a dispute has arisen, but the process of appointing an arbitrator cannot be completed.
This generally happens when the agreed method of appointment does not work. For instance, where the agreement requires both parties to jointly appoint a sole arbitrator and one party does not agree or respond, or where each party is required to appoint one arbitrator and a party fails to do so, or where the appointed arbitrators fail to appoint the presiding arbitrator. It may also arise where the agreement contains an arbitration clause but does not provide any clear procedure for appointment.
Under Section 11(2), parties are free to decide the procedure for appointing an arbitrator. However, where such procedure fails, or where no procedure exists, the Act provides a default mechanism. Sections 11(3), (4) and (5) lay down that in a three-member tribunal, each party appoints one arbitrator and the two appointed arbitrators appoint the third arbitrator. If a party fails to appoint an arbitrator within thirty days from receipt of a request, or if the two arbitrators fail to agree on the third arbitrator within thirty days, the appointment is made by the High Court upon request of a party under Section 11(4). In the case of a sole arbitrator, if the parties fail to agree within thirty days from receipt of request, the appointment is made by the High Court upon request of a party under Section 11(5).
Further, under Section 11(6), a party may approach the High Court where a party fails to act as required under the agreed procedure, where the parties or arbitrators fail to reach agreement, or where any person or institution entrusted with the appointment fails to perform its function.
In such circumstances, the High Court appoints an arbitrator so that the arbitration process can commence.
Pre-Condition: Compliance with Contractual Procedure
Before approaching the Patna High Court under Section 11, the party seeking appointment must show that the procedure provided in the arbitration agreement has been followed and has failed.
This generally requires issuing a notice to the opposite party informing it of the dispute and calling upon it to appoint an arbitrator or agree to a proposed arbitrator. If the opposite party fails to act within thirty days from receipt of such request, the right to approach the Court arises.
This requirement is reflected in Sections 11(4) and 11(5) of the Arbitration and Conciliation Act, 1996, which provide that if a party fails to appoint an arbitrator, or the parties fail to agree on the appointment, within thirty days from receipt of such request, the appointment may be made by the High Court upon request of a party.
Accordingly, the Court examines whether the agreed mechanism was invoked and whether it failed before exercising its power under Section 11.
Filing of Section 11 Application Before Patna High Court
Upon failure of the agreed procedure, the aggrieved party may approach the Patna High Court by filing an application under Section 11, commonly registered as a request case in Patna High Court.
The application is filed through an advocate and is supported by a Vakalatnama and an affidavit. It must clearly state the existence of the arbitration agreement, the nature of the dispute, the steps taken for appointment, and the failure of the agreed procedure.
At this stage, in terms of Section 11(6A) of the Arbitration and Conciliation Act, 1996, the Court confines its examination to the existence of an arbitration agreement. The merits of the dispute are not considered.
The application is filed before the Original Side Registry of the Patna High Court, through e-filing along with submission of hard copies. Upon filing, the Registry assigns a case number or diary number for tracking.
At the time of filing, a demand draft of ₹500 in favour of ‘The Registrar General, Patna High Court, Patna’ is also required.
Documents Required for Filing Before Patna High Court
An application under Section 11 is primarily based on documents and must be supported by the relevant records. These include the arbitration agreement forming part of the contract, proof of notice issued to the opposite party for appointment of an arbitrator, and documents evidencing the dispute.
The applicant is also required to file identity proof, a Vakalatnama authorising the advocate, and an affidavit verifying the facts stated in the application. Any additional documents relating to the dispute or showing the steps taken for appointment may also be annexed.
All documents are to be properly arranged, indexed, and marked as annexures for reference before the Court. The format for indexing and marking of annexures has to be same as filing of writ petition before Patna High Court. For details please read the Article How to File a Writ Petition in Patna High Court (A Simple and Complete Guide)
Hearing Before Patna High Court
Applications under Section 11 are heard by a Single Judge as per the roster assigned by the Hon’ble Chief Justice.
Upon listing, the Court issues notice to the opposite party and grants an opportunity to file a response. At this stage, the scope of examination is limited. In terms of Section 11(6A) of the Arbitration and Conciliation Act, 1996, the Court confines its consideration to the existence of an arbitration agreement.
The Court does not adjudicate upon the merits of the dispute or examine issues which are to be decided in arbitration proceedings.
If these conditions are satisfied, the Court proceeds to appoint an arbitrator.
Timeline for Appointment
Section 11 of the Arbitration and Conciliation Act, 1996 contemplates expeditious disposal so that arbitration proceedings are not delayed. In terms of Section 11(13), an application under this section is to be disposed of as expeditiously as possible, and an endeavour is to be made to decide the matter within sixty days from the date of service of notice on the opposite party.
In practice, request cases are generally listed once in a week, usually in the second half, and the initial hearing may take place on a single day when notice is issued. The time taken for appointment depends on the response of the opposite party and the pendency of cases before the Court, and may extend to several months.
Court Fees and Charges
For filing a Section 11 application before the Patna High Court, the following charges are payable:
- ₹20 on the petition,
- ₹15 on the Vakalatnama,
- ₹20 on the affidavit, and
- ₹50 as welfare charges.
In addition, a demand draft of ₹500 in favour of the ‘The Registrar General, Patna High Court, Patna’ is required at the time of filing.
These charges are subject to change as per rules and notifications of the Patna High Court.
Scope of Court’s Power Under Section 11
The role of the Court under Section 11 of the Arbitration and Conciliation Act, 1996 is limited to facilitating the appointment of an arbitrator. The Court does not decide the dispute between the parties.
In terms of Section 11(6A), while considering an application under Section 11(4), (5) or (6), the Court confines its examination to the existence of an arbitration agreement. The Court does not examine the merits of the dispute or any issues which are to be decided in arbitration proceedings.
Its function is only to ensure that the arbitration process is set in motion where the agreed procedure cannot be carried out. All questions relating to the dispute are left to be decided by the arbitrator.
Finality of Appointment Order
Once an arbitrator is appointed by the Patna High Court under Section 11, the order is final for the purpose of commencement of arbitration proceedings.
In terms of Section 11(7) of the Arbitration and Conciliation Act, 1996, the decision of the High Court or the person or institution designated by it under sub-sections (4), (5) or (6) is final, and no appeal, including a Letters Patent Appeal (Intra Court Appeal), lies against such decision.
This ensures that arbitration is not delayed at the stage of appointment and the dispute can proceed to be decided by the arbitrator without further litigation on the issue of appointment.
Conclusion
Where parties are unable to appoint an arbitrator in accordance with their agreement, recourse to the Patna High Court under Section 11 of the Arbitration and Conciliation Act, 1996 becomes necessary.
By establishing the existence of an arbitration agreement and showing that the agreed procedure for appointment has failed, a party can seek appointment of an arbitrator through the Court in terms of Sections 11(4), (5) or (6). The Court, in such cases, intervenes only for the limited purpose of facilitating the constitution of the arbitral tribunal.
This ensures that arbitration proceedings can commence without further delay, and the dispute is decided by the arbitrator in accordance with the agreement between the parties, thereby giving effect to the agreed method of dispute resolution.
Shambhawi Jha is a legal intern at Samvida Law Associates, where she actively contributes to both litigation support and legal research work. She assists the litigation team in drafting pleadings, preparing case briefs, organizing court records, and tracking procedural compliance in matters before the Patna High Court and subordinate courts.
Her work focuses on understanding court procedures, writ jurisdiction, appellate remedies, and filing practices, which helps ensure accuracy and efficiency in day-to-day litigation. She also supports legal awareness initiatives of Samvida by helping convert complex legal processes into simple, reader-friendly guides for litigants and the general public.
Through her internship, she is gaining practical exposure to court functioning, client interaction, and legal documentation, while contributing meaningfully to Samvida’s mission of improving access to legal information and justice in Bihar.
