When a Sole Arbitrator Is Appointed Without a Notice Invoking the Arbitration Clause, the Award Is a Nullity

Arbitration in India rests on consent, equality, and impartiality. A recurring question before the courts is what happens when one party appoints a sole arbitrator without issuing any notice invoking the arbitration clause or agreement to the other side. The consistent judicial position is that such an appointment is void ab initio, the proceedings conducted before that arbitrator are a nullity, and the award passed by the tribunal can be set aside under Section 34 of the Arbitration and Conciliation Act, 1996 as being against the public policy of India 2025 Supreme(Online)(Del) 48607.

Why the Absence of an Invocation Notice Is Fatal

The consent of both parties is the first requirement for a valid arbitration. As one court observed, the first requirement is that the Arbitrator must be appointed by the consent of the parties. The consent of Petitioner was never obtained. Therefore, the unilateral appointment of Arbitrator, in such fashion itself is impermissible mode to resolve the disputes 2025 0 Supreme(Bom) 1933. Where no notice invoking the arbitration clause is issued, the other party has no opportunity to participate in or even object to the appointment, and the proceedings suffer from a lack of inherent jurisdiction 2025 0 Supreme(Bom) 1933.

The Division Bench in Mahavir Prasad Gupta and Sons v. Govt. of NCT of Delhi laid down the governing principle: A unilateral appointment by any party in the arbitrations seated in India is strictly prohibited and considered as null and void since its very inception. Resultantly, any proceedings conducted before such unilaterally appointed Arbitral Tribunal are also nullity and cannot result into an enforceable award being against Public Policy of India and can be set aside under Section 34 of the Act and/or refused to be enforced under Section 36 of the Act 2026 0 Supreme(Del) 669.

The Role of Section 12(5) and the Seventh Schedule

Since the 2015 Amendment, Section 12(5) read with the Seventh Schedule of the Act renders certain categories of persons ineligible to act as arbitrators. A person with an interest in the dispute or connected to one of the parties cannot appoint an arbitrator, and a unilateral appointment by such a person is ex facie invalid 2026 Supreme(Online)(Del) 5742.

Courts have repeatedly held that:

• Any arbitration agreement providing for unilateral appointment of the sole or presiding arbitrator is invalid, and proceedings before such a tribunal cannot result in an enforceable award 2025 0 Supreme(Bom) 1933.
• The vice of unilateral appointment extends beyond direct appointment: even where one party calls upon the other to choose only one of its named persons, the appointment is unilateral 2025 0 Supreme(Bom) 1933.
• Ineligibility under Section 12(5) operates automatically, and the award of an ineligible tribunal is a nullity settable aside under Section 34 2026 Supreme(Online)(Del) 5742.

Objection at Any Stage: No Waiver by Conduct

A critical practical question is whether an objection to unilateral appointment must be raised before the arbitrator. The answer is no. The ineligibility goes to the root of the tribunal's jurisdiction, so the objection can be taken at any stage, including for the first time in a Section 34 petition, even by a party who itself made the unilateral appointment 2026 Supreme(Online)(Del) 5742 and 2026 0 Supreme(Del) 669.

The proviso to Section 12(5) permits waiver only by an express agreement in writing after the dispute has arisen. Conduct, participation, or acquiescence in proceedings cannot constitute a valid waiver 2025 Supreme(Online)(Del) 48607. However, participation under protest, with timely objections under Section 16, does not amount to waiving the right to challenge a void appointment 2026 Supreme(Online)(Del) 21994.

The Limits: What Is Not a Unilateral Appointment

The doctrine is not absolute. Courts have recognised important boundaries:

• Institutional arbitration: where a neutral body nominates the arbitrator as per the contract, it does not constitute a unilateral appointment 2026 0 Supreme(Raj) 333.
• Default appointment mechanisms: where the agreement gives both parties the right to nominate their arbitrator, and one party fails to act, the other party's nominee becoming sole arbitrator is legitimate — the silence or inaction of the second party is presumed as acceptance 2025 0 Supreme(Telangana) 66 and 2014 0 Supreme(Del) 2430.
• Mutual nomination: where parties mutually nominated an arbitrator in the agreement itself, the appointment is not unilateral, and an executing court cannot suo motu dismiss an execution petition on the ground of nullity without examining the factual matrix 2026 0 Supreme(Ker) 1298.
• Severability: where a portion of the arbitration clause vests exclusive appointment power in one interested party, that portion may be severed as void while the substantive agreement to arbitrate survives 2026 Supreme(Online)(Del) 20417.
• Pre-amendment proceedings: the Amendment Act, 2015 does not apply to arbitral proceedings that commenced before 23 October 2015, unless the parties agree otherwise 2019 0 Supreme(SC) 373.

Practical Steps for Challenging Such an Award

1. File a Section 34 petition promptly, pleading that the arbitrator was unilaterally appointed without a notice invoking the arbitration clause, rendering the award a nullity against public policy 2025 0 Supreme(Bom) 1933.
2. Document the absence of notice. The record must show that no notice invoking the arbitration clause or agreement was issued before the appointment — this goes to the root of jurisdiction 2025 0 Supreme(Bom) 1933.
3. Raise the objection even if late. Since the ineligibility is inherent, the court can set aside the award suo motu if it finds the appointment unilateral, even without prior objection by either party 2025 Supreme(Online)(Del) 48607.
4. Seek a fresh appointment under Section 11(6) after the award is set aside, ensuring compliance with Section 12(5) and the equality principle under Section 18 of the Act.
5. Counter waiver arguments by pointing out that only an express written agreement, post-dispute, can waive the ineligibility under the proviso to Section 12(5) — mere participation in proceedings will not suffice 2026 Supreme(Online)(Del) 5742.

Key Takeaways

The unilateral appointment of a sole arbitrator without a notice invoking the arbitration clause strikes at the foundation of arbitration: consent, equality, and impartiality. Such an appointment is void ab initio, the proceedings before the arbitrator are a nullity, and the resulting award is vulnerable to being set aside under Section 34 and to refusal of enforcement under Section 36. Yet the doctrine has limits — institutional appointments, default mechanisms, and mutual nominations are generally not treated as unilateral. This article is intended as general information on the current judicial position and should not be treated as a substitute for advice on the specific facts of any dispute.