Who can become an Arbitrator

The term Arbitrator is not defined under The Arbitration and Conciliation Act, 1996

The term Arbitrator is not defined under The Arbitration and Conciliation Act, 1996, while all related terms like Arbitration, Arbitration Agreement, Arbitration Award, Arbitral Tribunal and Arbitration Institution stands defined.

Section 11 of The Arbitration and Conciliation Act, 1996 provides that a Person of any Nationality can become an Arbitrator

Section 11 of The Arbitration and Conciliation Act, 1996 provides that a Person of any Nationality can become an Arbitrator, unless agreed otherwise by the Parties. 

The original Arbitration and Conciliation Act, 1996 did not provide for any qualification for becoming an Arbitrator.

While the original Act aimed to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto but it did not provide any qualification for Arbitrators.

Arbitration and Conciliation (Amendment) Act, 2019 introduced Eighth Schedule which laid qualification for Arbitrators in India

In Arbitration and Conciliation (Amendment) Act, 2019 a whole Eighth Schedule was dedicated to lay down the qualifications of an Arbitrator but the 2019 Amendment was not received well due to the introduction of such tough norms which were quite restrictive and contrary to the nature of independence of arbitration itself. The norms were looked upon as those affecting the party autonomy.

On March 10, 2021, the Arbitration and Conciliation (Amendment) Act, 2021 gained Parliamentary assent and is deemed to have come into force on November 04, 2020, thereby replacing the Arbitration and Conciliation (Amendment) Ordinance, 2020 promulgated by the President of India on November 04, 2020. 

Arbitration and Conciliation (Amendment) Act, 2021 omitted the Eighth Schedule from Arbitration and Conciliation Act, 1996

The 2021 Amendment also omitted the Eighth Schedule which was introduced by way of 2019 Amendment on 09.08.2019 and provided for Qualification of an Arbitrator.

Section 43J.of The Arbitration and Conciliation Act, 1996 provides that the qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by the regulations.In addition, it was noted that the 2019 Amendment left no opportunity for foreign qualified professionals to be appointed in Arbitrations in India, which would greatly affect and compromise the freedom of parties to opt for arbitrator(s) of their choice.

Law in India does not prescribe any specific qualifications for becoming an Arbitrators

Consequently the Legal position as on date is that the Law in India does not prescribe any specific qualifications for becoming an Arbitrators. Any person who is of major in age and is of sound mind can be appointed as an Arbitrator.

Institutional Arbitration Centres like IDRC have included wide range of experts in their panel after drawing them from Judiciary including Former Chief Justice of India, Supreme Court Judges, HIgh Court Chief Justices, High Court Judges and Judges of District Courts.

Also Domain Experts from various other professions, trade and business are empanelled including CAs, Doctors, Corporate Leaders, Public Sector Executives and Engineers. The Panel of persons are prepared on the basis of their proven track-record of impartiality, for their domain knowledge, experience and integrity.

Eighth Schedule of Arbitration and Conciliation Act, 1996

(Now Omitted)

A person shall not be qualified to be an arbitrator unless he -
(i) is an advocate within the meaning of the Advocates Act, 1961 (25 of 1961) having ten years of practice experience as an advocate; or

(ii) is a chartered accountant within the meaning of the Chartered Accountants Act, 1949 (61 of 1949) having ten years of practice experience as a chartered accountant; or

(iii) is a cost accountant within the meaning of the Cost and Works Accountants Act, 1959 (23 of 1959) having ten years of practice experience as a cost accountant; or

(iv) is a company secretary within the meaning of the Company Secretaries Act, 1980 (56 of 1980) having ten years of practice experience as a company secretary; or

(v) has been an officer of the Indian Legal Service; or

(vi) has been an officer with law degree having ten years of experience in the legal matters in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in private sector; or

(vii) has been an officer with engineering degree having ten years of experience as an engineer in the Government, Autonomous Body, Public Sector Undertaking or at a senior level managerial position in private sector or self-employed; or

(viii) has been an officer having senior level experience of administration in the Central Government or State Government or having experience of senior level management of a Public Sector Undertaking or a Government company or a private company of repute;

(ix) is a person, in any other case, having educational qualification at degree level with ten years of experience in scientific or technical stream in the fields of telecom, information technology, Intellectual Property Rights or other specialised areas in the Government, Autonomous Body, Public Sector Undertaking or a senior level managerial position in a private sector, as the case may be.

General norms applicable to Arbitrator

(i) The arbitrator shall be a person of general reputation of fairness, integrity and capable to apply objectivity in arriving at settlement of disputes;

(ii) the arbitrator must be impartial and neutral and avoid entering into any financial business or other relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias amongst the parties;

(iii) the arbitrator should not involve in any legal proceeding and avoid any potential conflict connected with any dispute to be arbitrated by him;

(iv) the arbitrator should not have been convicted of an offence involving moral turpitude or economic offence;

(v) the arbitrator shall be conversant with the Constitution of India, principles of natural justice, equity, common and customary laws, commercial laws, labour laws, law of torts, making and enforcing the arbitral awards;

(vi) the arbitrator should possess robust understanding of the domestic and international legal system on arbitration and international best practices in regard thereto;

(vii) the arbitrator should be able to understand key elements of contractual obligations in civil and commercial disputes and be able to apply legal principles to a situation under dispute and also to apply judicial decisions on a given matter relating to arbitration; and

(viii) the arbitrator should be capable of suggesting, recommending or writing a reasoned and enforceable arbitral award in any dispute which comes before him for adjudication.