Ad hoc autonomy, institutional accountability: Reconstructing arbitrator appointments in Indian arbitration

The story of arbitration reform in India is often narrated as a story of expanding party autonomy. Since the enactment of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), the amendment acts of 2015 and 2019, and successive judicial pronouncements have all proceeded on a common premise: that the procedural flexibility and contractual freedom are indispensable to an efficient arbitral process. Nearly three decades after the Arbitration Act has come into effect, arbitrator appointments remain among one of its most litigated aspects, with disputes concerning unilateral appointment clauses, restricted panels, repetitive appointments and non-cooperation frequently arising under Section 11. As a result parties often spend months litigating arbitrator appointments before the dispute itself.

Judicial decisions such as TRF Ltd. v. Energo Engineering Projects Ltd., Perkins Eastman Architects DPC v. HSCC (India) Ltd., and the Constitution Bench ruling in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV) have progressively restricted unilateral appointment powers and emphasised equality in tribunal constitution as an essential component of arbitral fairness. Against this backdrop, the debate should therefore move beyond ad hoc versus institutional arbitration to ensuring arbitrator appointments are transparent, accountable and resistant to strategic manipulation.

Despite repeated institutionalisation efforts, such as with the Mumbai Centre for International Arbitration (MCIA), Delhi International Arbitration Centre (DIAC), and the Indian International Arbitration Centre (NDIAC), and the Gujarat International Finance Tee-City (GIFT IFSC), institutional arbitration is less preferred in India. Parties, particularly those operating in infrastructure, construction, public procurement and government-linked sectors, have traditionally viewed ad hoc arbitration as a more cost-effective and adaptable mechanism. Moreover, unlike jurisdictions such as Singapore, London, Paris, and Hong Kong, where institutional arbitration forms the default mechanism for high-value commercial disputes, India’s arbitration ecosystem developed largely around party-driven proceedings with minimal administrative supervision. Recent developments, such as the ICC Arbitration Rules 2026, balance party autonomy with institutional oversight through safeguards against appointment deadlocks, conflicts of interest and threats to tribunal neutrality.

A striking feature of Indian arbitration is that disputes over the constitution of the arbitral tribunal often become more contentious than the underlying dispute itself. Although arbitration is intended to provide an efficient alternative to litigation, significant judicial intervention often arises at arbitrator appointment stage.

The structural vulnerabilities of party-controlled appointments

Appointment disputes are often viewed as issues of bias or impartiality, but the real concern is the lack of safeguards governing arbitrator appointments. Historically, government contracts, infrastructure agreements, and public procurement contracts gave one party significant control over tribunal constitution through unilateral appointments or restricted panels. Although, courts initially upheld such clauses on basis of party autonomy, they increasingly recognized that unequal bargaining power often left weaker parties with little ability to negotiate fair appointment procedures. Consequently, appointment procedures often reflected institutional convenience rather than procedural equality.

From unilateral appointments to curated panels

The Supreme Court’s decisions in TRF Ltd. and Perkins recognised that a party interested in the outcome of a dispute cannot exercise unilateral control over the appointment process. The Court acknowledged that the power to appoint itself carries the potential to undermine confidence in the neutrality of the arbitral process. However, the practical consequence of Perkins was the emergence of panel-based mechanisms. Under this arrangement, one party prepared a panel of arbitrators from which the opposing party was required to make its selection. This has however raised the problem of panel capture. The critical question is whether the ability to choose from a predetermined panel genuinely places parties on an equal footing.

The Constitution Bench and the shift towards procedural equality

The Constitution Bench decision in CORE marked a significant shift by holding that though the Arbitration and Conciliation Act, 1996 does not expressly prohibit unilateral appointments however, whether appointment mechanisms that disproportionately favour one party are compatible with the broader principles underlying the act. Drawing upon sections 11, 12, and 18 of the Arbitration Act, the Court held that procedural equality cannot be confined to the hearing and evidentiary stages; it must also extend to the process through which the tribunal itself is constituted.

The Fifth and Seventh Schedules to the Act reinforce this judicial approach by strengthening appointment safeguards. The Fifth Schedule enumerates circumstances that give rise to justifiable doubts as to an arbitrator’s independence or impartiality, while the Seventh Schedule goes further, rendering individuals ineligible for appointment in cases of direct conflicts, unless expressly waived in writing post-dispute under Section 12(5). These Schedules operationalise the principles of equality and fairness articulated in CORE, extending procedural safeguards beyond the hearing stage to the very constitution of the tribunal.

The appointment crisis as a governance problem

The legitimacy of arbitration depends upon whether parties perceive the process of tribunal constitution as fair, balanced, and transparent. Frequent litigation under Section 11 over delay appointments, challenge procedure, contest disclosures, or seeking strategic advantages through procedural manoeuvring exposes a structural weakness within ad hoc arbitration itself. This concern is reflected in what has been described as India’s “panel paradox”.  Although Arbitration seeks to minimise judicial intervention, yet courts remain central due to recurring appointment disputes. The Fifth and Seventh Schedules address key vulnerabilities through concrete, internationally aligned benchmarks but their effectiveness in curbing Section 11 litigation depends on robust enforcement, timely disclosures, and judicial sensitivity to unequal bargaining dynamics in government and infrastructure contracts.

Over the past decade, institutionalisation has become the dominant policy response to concerns regarding delay, inefficiency, and excessive judicial intervention. The experience of the last decade suggests that India’s difficulties cannot be attributed solely to the continued relevance of ad hoc arbitration. Even after Perkins and CORE, parties remain capable of delaying appointments, contesting procedures and forcing recourse to section 11 proceedings. Judicial intervention is therefore criticised as a cause of delay while simultaneously serving as the mechanism through which arbitration is rescued from procedural paralysis. Viewed in this light, the debate should move beyond ad hoc arbitration versus institutional arbitration and focus on the development of appointment governance mechanisms capable of operating effectively, irrespective of the procedural model chosen by the parties.  Looking ahead, Indian arbitration is likely to move towards hybrid forms of appointment governance that emphasize transparency, neutrality and accountability.  

The real question, therefore, is whether Indian arbitration is prepared to move beyond an understanding of party autonomy that equates freedom with the absence of regulation. The future of arbitration lies not in unrestricted autonomy, but in accountable autonomy. Institutional arbitration offers valuable lessons because it recognises that procedural legitimacy must be built into the appointment process itself. If India succeeds in embedding those lessons across its arbitration framework, the transition from ad hoc arbitration to institutional arbitration will ultimately be remembered not as a shift in procedure, but as a shift in philosophy.

About the authors: Ankit Konwar is a Partner Designate, Sonali Khanna is a Senior Associate-II and Yashica Dhawan is an Assessment Intern at Hammurabi & Solomon Partners.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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