Dispute resolution clause preserving arbitration after consultation can support appointment of an arbitrator despite parallel court option.

A dispute resolution clause requiring consultation first, and then allowing recourse either to arbitration or to court, was read as preserving arbitration as an available post-consultation option. The decisive factor was the parties' intention as disclosed by the clause; because arbitration was not excluded and had been invoked, the existence of an arbitral forum could not be denied merely because litigation was also mentioned. The request for constitution of the tribunal was therefore maintainable, and a sole arbitrator was appointed.

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Issues: Whether the dispute resolution clause, which provided for settlement by consultation and thereafter recourse to arbitration or the court, enabled appointment of an arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996.

Analysis: The clause was read as an agreement to attempt amicable settlement first, and on failure to do so, to proceed either by arbitration or by litigation. The decisive consideration was the intention of the parties as disclosed by the clause. Since the clause did not exclude arbitration and the petitioner had invoked that option, the existence of an arbitral forum could not be denied merely because the clause also mentioned the court. In these circumstances, the request for constitution of the tribunal was maintainable.

Conclusion: The dispute resolution clause was held sufficient to permit arbitration, and a sole arbitrator was appointed.

Ratio Decidendi: Where a dispute resolution clause preserves arbitration as one of the available post-consultation options, the court may give effect to that choice and appoint an arbitrator if the parties' intention to permit arbitration is discernible from the clause.

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