While it is correct that after the appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) of The Arbitration and Conciliation Act, 1996 but such remedy lies elsewhere and under different provisions of the Act [Sections 12, 13], the context in which the aforesaid view is usually expressed cannot be lost sight of.
Unless the appointment of the Arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6), acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law.
– Hon’ble Justice Ranjan Gogoi, Walter Bau v. Municipal Corporation of Greater Mumbai, (2015) 1 SCALE 515.
In the present case, the relevant Arbitration Clause contemplated that after one of the parties invokes the clause; appoints its Arbitrator and thereafter gives notice to the other party to appoint its Arbitrator, if the same is not done within 30 days the matter is to be referred to the International Centre for Alternative Dispute Resolution in India. The Respondent Corporation having failed to respond to the notice of the Petitioner, an approach was made to the ICADR. On the basis thereof, the ICADR called upon the Respondent Corporation to make the appointment of an Arbitrator from a panel of three names or make an independent choice. The Respondent Corporation pursuant to the said communication appointed Mr. Justice (Retd.) A.D. Mane as the Arbitrator. Thereafter, the application/petition under Section 11(6) was filed. Mr. Mukul Rohatgi, Learned Attorney General, appearing for the Respondent Corporation submitted that the petition would not be maintainable. The submission was rejected: “appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the Respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non-est in law.” The jurisdiction under Section 11(6) was thus not barred.
Note: Must be researched how frequently have the submissions of the 12 Attorney Generals been rejected. That would be a challenge.