How courts choose arbitrators

Prashant Narang and Animesh Bordoloi ()
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Animesh Bordoloi: Asian International Arbitration Centre

No 25, Working Papers from Trustbridge Rule of Law Foundation

Abstract: A court hearing a section 11 application decides whether an arbitrator should be appointed, and then who it should be. Indian arbitration law has developed considerable doctrine on the first question and very little on the second. The Act regulates several attributes of a person already under consideration and says nothing about how candidates are produced, whether alternatives are weighed, or what the court should record about the choice. This article examines the reported and retrievable section 11 orders of the Bombay and Madras High Courts from 2016 to 2024, a corpus of 372 orders naming 387 appointments among 201 individuals, with 36 semi-structured interviews. It reads orders as evidence of observable appointment practice, while distinguishing what the orders record from considerations (such as professional knowledge, informal inquiries, party suggestions) that may occur outside the published record. Retired judges took 63.3% of named appointments. The court named the individual in 84.7% of orders; 13.4% recorded both parties' agreement to the person appointed. Only 4.8% of orders recorded any reason for choosing the person appointed, and 1.6% a reason specific to that person; none compared candidates. Bombay directed a section 12 dis- closure in 115 of 123 orders and Madras in four of 249. Of 387 named appointments, 186 went to someone the same court had already appointed. Where courts continue to appoint, publishing periodic aggregate data on section 11 appointments would make a public function observable over time without constraining any individual choice.

Pages: 32 pages
Date: 2026-10
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