Arbitration agreement requires mutual consent; a unilateral testamentary declaration cannot support appointment of an arbitrator.

Pendency of an appeal against an order concerning reference to arbitration does not, by itself, prevent consideration of an application for appointment of an arbitrator, because the statutory scheme allows arbitration to be commenced or continued despite a pending section 8 challenge. An arbitration agreement under section 7 must be a written agreement between the parties to submit disputes to arbitration; a unilateral testamentary declaration expressing a wish for future disputes to go to arbitration is not enough. In the absence of a signed document, exchanged communications, or pleadings admitting the agreement, the precondition for appointment under section 11 is not satisfied.

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Issues: (i) Whether the pendency of an appeal against the order referring the parties to arbitration barred consideration of an application for appointment of an arbitrator under the Act. (ii) Whether a unilateral declaration by a testator could constitute an arbitration agreement between the parties within the meaning of section 7 of the Act.

Issue (i): Whether the pendency of an appeal against the order referring the parties to arbitration barred consideration of an application for appointment of an arbitrator under the Act.

Analysis: Section 8(3) of the Act makes it clear that pendency of an application under section 8 does not prevent an arbitration from being commenced or continued. On that statutory scheme, the mere pendency of an appeal questioning the order declining to dismiss the suit, or the interim stay of that order, does not prohibit consideration of an application under sections 11 or 15(2) for appointment of an arbitrator.

Conclusion: The pendency of the appeal did not bar consideration of the application for appointment of an arbitrator.

Issue (ii): Whether a unilateral declaration by a testator could constitute an arbitration agreement between the parties within the meaning of section 7 of the Act.

Analysis: An arbitration agreement under section 7 must be an agreement between the parties to submit disputes to arbitration and must be in writing in the manner recognised by the provision. A unilateral wish or declaration by a father or testator, even if recorded in a document, is not an agreement between future disputants. In the absence of a document signed by the parties, an exchange of communications, or pleadings admitting the agreement, the statutory requirement is not satisfied. The existence of an arbitration agreement is a condition precedent to the power under section 11 to appoint an arbitrator.

Conclusion: There was no arbitration agreement between the parties, and the appointment of the arbitrator was unsustainable.

Final Conclusion: The order appointing the arbitrator could not be sustained because the statutory precondition of an arbitration agreement was absent, and the appellant was entitled to succeed.

Ratio Decidendi: The power to appoint an arbitrator under the Act arises only where there exists a valid arbitration agreement between the parties; a unilateral testamentary declaration expressing a desire that future disputes be referred to arbitration does not amount to such an agreement.

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