Court Appointed Arbitrators—India's 'Gateway' Jurisprudence

The provision for courts appointing arbitrators is standard mechanics for modern arbitration statutes (see, Art. 11(4) UNCITRAL Model Law on International Commercial Arbitration). However, the standard of review to be applied by an appointing court remains an subjective ​‘gateway’ issue — differing across jurisdictions. In the UK, under the English Arbitration Act 1996, courts look to a ​‘good arguable case’ that an arbitration agreement exists (see, Noble Denton Middle East v. Noble Denton International English High Court, 2010). In Singapore, under the International Arbitration Act 1994 and the Arbitration Act 2001, the power to appoint arbitrators is statutorily delegated to the President of the Court of Arbitration of the Singapore International Arbitration Centre — to be exercised in an ​‘administrative’ capacity based on a ​‘prima facie’ finding of the parties’ intention to arbitrate (see, K.V.C. Rice Intertrade v. Asian Mineral Resources Singapore High Court, 2017). 

In India, under the Arbitration Act 1996 (section 11), the early legal standard came to be based on the appointing court’s ​‘prima facie’ satisfaction regarding the existence of an arbitration clause and as an exercise undertaken by courts in an ​‘administrative’ capacity (see, Konkan Railway Corporation v. Rani Constructions Supreme Court, 2002). Under that standard, enquiries into contentious preliminary issues by appointing courts were uniformly denounced, leaving them for the arbitral tribunal (see, Konkan Railway Corporation v. Mehul Constructions Supreme Court, 2001). However, that legal position was overturned in 2005 (see, SBP & Co. v. Patel Engineering Supreme Court, 2005), and the power to appoint came to be framed as an exercise in ​‘judicial’ capacity — providing imprimatur to assess a variety of questions at the appointment stage, including arbitrability and the ​‘validity’ of the arbitration clause.