Arbitrator appointment under Section 11(3) is valid without writing, physical meeting, or party notice where the choice is actually made and communicated.

Section 11(3) of the Arbitration and Conciliation Act, 1996 requires only that the third arbitrator be appointed by the two appointed arbitrators; it does not impose a mandatory requirement of a written appointment, a joint physical meeting, or prior notice to the parties. Consultation by correspondence or electronic communication is sufficient if the appointment is actually made and communicated. A further objection based on an alleged mistake that the presiding arbitrator had to be a non-Indian was rejected, because choosing a foreign national was treated as a lawful preference rather than a legal error. Any challenge to the tribunal's constitution could in any event be raised before the arbitral tribunal under section 16.

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Issues: (i) Whether the third arbitrator under section 11(3) of the Arbitration and Conciliation Act, 1996 had to be appointed in writing, in the presence of both appointed arbitrators, and after notice to the parties; (ii) Whether the appointment of the presiding arbitrator could be invalidated on the ground that one arbitrator acted under a mistaken view that the third arbitrator had to be a non-Indian.

Issue (i): Whether the third arbitrator under section 11(3) of the Arbitration and Conciliation Act, 1996 had to be appointed in writing, in the presence of both appointed arbitrators, and after notice to the parties.

Analysis: The statutory requirement is only that the third arbitrator be appointed by the two appointed arbitrators. The Act does not prescribe any mandatory form of writing for such appointment, nor does it require the two arbitrators to sit together at one place or to consult the parties before making the appointment. Consultation or conference between the two arbitrators, including through correspondence or electronic communication, is sufficient if the appointment is actually made by them and communicated. The court also noted that the legislative scheme uses the expression of writing where it intends such a requirement, but no such mandate appears in section 11(3).

Conclusion: The appointment was not invalid merely because it was not made in writing or in the physical presence of both arbitrators, and prior notice to the parties was not essential.

Issue (ii): Whether the appointment of the presiding arbitrator could be invalidated on the ground that one arbitrator acted under a mistaken view that the third arbitrator had to be a non-Indian.

Analysis: The contention of mistake of law was rejected. The fact that an Indian national could also have been appointed did not make the joint choice of a foreign national unlawful. The preference for a third-nationality arbitrator was treated as a matter of choice and convenience in international arbitration, not as a legally fatal mistake. Any objection to the constitution of the tribunal could in any event be raised before the arbitral tribunal under section 16.

Conclusion: The appointment was not vitiated by any mistake of law, and the objection did not justify intervention under section 11(6).

Final Conclusion: The arbitral tribunal was validly constituted, and the petition invoking section 11(6) was not maintainable in the circumstances.

Ratio Decidendi: Under section 11(3), the appointment of the third arbitrator is valid if it is actually made by the two appointed arbitrators after consultation and is communicated, and such appointment is not invalid merely because it is not in writing, is not made in the parties' presence, or reflects a lawful preference in the choice of presiding arbitrator.

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