Arbitration Act has provided three classes of arbitration. These classes are arbitration without intervention of court, arbitration with intervention of court where no suit is pending, and arbitration in suits. In arbitration without intervention of court and arbitration with intervention of court where no suit is pending, parties to arbitration agreement, third party and court can appoint arbitrator and umpire. However, arbitrator is to be appointed in that manner, which is agreed upon between parties to arbitration agreement, when there is arbitration in suit.
(2) Court’s Powers To Appoint Arbitrator, Umpire & Referee & Circumstances Under Which Court Can Appoint Arbitrator, & Referee
Arbitration Act has provided court powers to appoint arbitrator and umpire. However, court can exercise these powers under certain circumstances.
Following points are important for further explanation:
(i) Arbitration without intervention of court
(ii) Removal of arbitrator or umpire
(iii) Revocation of authority of arbitrator or umpire
(iv) Arbitration with intervention of court where no suit is pending
(i) Arbitration Without intervention Of Court
In arbitration without intervention of court, court possesses power to appoint arbitrator or umpire. Here following points are important for further explanation:
(a) Service of written notice (b) Appointment by court
(a) Service Of Notice
It is necessary that any party to arbitration should serve written notice to other parties or arbitrators before appointment of arbitrator or umpire by court. Following points are important for explanation of this written notice:
(a-i) In case of difference about appointment or appointments
(a-ii) In case of appointed arbitrator’s or umpire’s negligence or refusal or incapability or death
(a-iii) Non-appointment of umpire
(a-i) In case Of Difference About Appointment Or Appointments
When arbitration agreement provides that reference shall be to one or more arbitrators, who are to be appointed by consent of parties, and all the parties do not concur in appointment or appointments after arising of differences, any party can serve other parties with a written notice to concur in appointment or appointments.
(a-ii) In Case Of Appointed Arbitrator’s Negligence Or Refusal Or Incapability Or -Death
If any appointed arbitrator or umpire neglects or refuses to act or is incapable of acting or dies, and arbitration agreement does not show that it was intended that vacancy should not be supplied, and parties or arbitrators do not supply the vacancy, any party can serve other parties or arbitrators with a written notice to concur in supplying vacancy.
(a-iii) Non-appointment Of Umpire
When parties or arbitrators are required to appoint an umpire and do not appoint him/her, any party can serve other parties or. Arbitrators with a written notice to concur in appointment.
(b) Appointment By Court
If appointment is not made within fifteen clear days after service of this notice, court can appoint an arbitrator or arbitrators or umpire. However, court can make this appointment on application of that party, who gave notice. Even court is to give other parties an opportunity of hearing before making of this appointment.
(ii) Removal Of Arbitrator Or Umpire
When court removes that umpire, who has not entered on reference, or one or more arbitrators, it can
(iii) Revocation Of Authority Of Arbitrator Or Umpire
When authority of an arbitrator or arbitrators or an umpire is revoked by leave of court or when court removes an umpire, who has entered on reference or when court removes a sole arbitrator or all the arbitrators, court can appoint a person to act as sole arbitrator in place of person or persons, who have been displaced.
(iv) In Arbitration With Intervention Of Court Where No Suit Is Pending
In arbitration with intervention of court where no suit is pending, court possesses power to appoint arbitrator.
Here following points are important for further explanation:
(a) Arbitration agreement before institution of any suit
(b) Difference & application
(c) Sufficient cause
(d) Appointment of arbitrator
(a) Arbitration Agreement Before Institution Of Any Suit
It is necessary that any persons have entered into arbitration agreement before institution of any suit with respect to subject-matter of arbitration agreement or any part of it.
(b) Difference & Application
It is essential that difference has arisen to which this agreement applies, and parties to this agreement or any of them files application to that court, which has jurisdiction in that matter to which this agreement relates.
(c) Sufficient Cause
It is also necessary that court is to give direction for giving notice to all parties to this agreement to require them to show cause within that time, which is specified in notice, why this agreement should not be filed. However, this notice cannot be given to those parties, who file application to court.
(d) Appointment Of Arbitrator
If no sufficient cause is shown, court is to appoint arbitrator espeically when parties to this agreement cannot agree upon an arbitrator.
To conclude, it can be stated that court can exercise powers to appoint arbitrator or umpire both in arbitration without intervention of court or arbitration with intervention of court where no suit is pending. However, these powers can be exercised by court only when application is filed.