The parties are free to determine the number of arbitrators. However, it should be odd number. In case, the agreement is silent on number, the default is the sole arbitrator.
The parties have the liberty to agree on a procedure to appoint arbitrator or the arbitrator tribunal. Section 11 of the Arbitration Act details the procedure for appointment of arbitrator.
In a Tribunal consisting of three members, each party shall appoint one arbitrator and two appointed arbitrators shall appoint the third or presiding arbitrator. If a party fails to appoint an arbitrator within thirty days from the receipt of a request to appoint; or two appointed arbitrators fail to agree on appointment of the presiding arbitrator within 30 days from the date of their appointment, a party has to file an application under Section 11 before the High Court, Supreme Court (in case of international commercial arbitration) or any person or institution designated by such Court.
In case of sole arbitrator, if parties fail to agree upon within 30 days from receipt of request by one party, the appointment will be made by the High Court, Supreme Court (in case of international commercial arbitration) or any person or institution designated by such Court, in an application under Section 11.
Section 11(6-A) was inserted by way of 2015 Amendment. This empowered the Court to examine only the existence of arbitration agreement irrespective of any judgement, decree or order of any Court, while appointing arbitrator. However, 2019 Act has omitted this sub-section.
Section 11(6-B) has been inserted to make it categorical that the designation of any person or institution by the Supreme Court or High Court shall not be regarded as a delegation of judicial power.
Section 11(13) provides that the High Court, Supreme Court (in case of international commercial arbitration) or any person or institution designated by such Court shall dispose of the application for appointment as expeditiously as possible and within a period of sixty days from the service of notice. 2019 Act amends to ‘Court’ to replace with ‘arbitral institution’.
Section 11(14) provides that for determination of fee of the tribunal, the High Court may frame rules considering Fourth Schedule, except in international commercial arbitration and institutional arbitration in case of arbitration other than ICA. 2019 Act amends this provision to state that the arbitral institution shall determine the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal subject to the rates specified in the Fourth Schedule. It further explains that that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) where parties have agreed for determination of fees as per the rules of an arbitral institution.