Refusing to appoint an arbitrator is the most common way a reluctant party stalls an arbitration, on the assumption that nothing can proceed without their cooperation. It can, but only if the notice and the record are built properly from the first letter.
Start with the agreement
The appointment mechanism is whatever the parties agreed. Read the clause before doing anything.
| Clause provides for | Consequence |
|---|---|
| A sole arbitrator, agreed between parties | Agreement needed; court can appoint on failure |
| One arbitrator each, plus an umpire | Each appoints; umpire chosen by the two |
| A named arbitrator | Check they are willing and able to act |
| An appointing authority or institution | Follow that procedure |
| Silence on number | Take advice; the default position applies |
| Qualifications required | The appointee must satisfy them |
Check whether your clause names an appointing authority. Where it does, that route is usually faster and cheaper than going to court, and skipping it to go straight to a judge invites an objection that you did not follow your own agreement.
The notice that starts everything
A properly drafted notice is both a procedural requirement and the foundation of any later court application.
- Identify the agreement and the arbitration clause relied on.
- Identify the dispute being referred, in sufficient terms.
- State your appointment, or your proposal for a sole arbitrator.
- Call on the other party to appoint or concur, within a stated time.
- State the consequence of failure - that you will apply to court.
- Serve it properly, at the address specified in the contract.
- Keep proof of service.
Service at the contractual notice address matters more than people expect. A notice sent to a convenient email address instead of the address the contract specifies gives the other side an argument that time never started running - which is exactly the argument they will make when you ask the court to appoint.
When the other party will not engage
- Confirm the notice period has expired and that service was proper.
- Send a reminder if the period is unclear, restarting a clean clock.
- Apply to the court for appointment under the Act.
- Produce the agreement, the notice and proof of service.
- Address any objection to the existence or scope of the agreement.
- Obtain the appointment and proceed.
Non-cooperation slows an arbitration; it does not defeat one. The party who built a clean record of notice and service is in a strong position, and the party who ignored correspondence usually finds that silence was not the strategy they thought.
Choosing well
Where you do have a choice, it matters more than most clause terms.
- Subject-matter familiarity - construction, banking, shipping, whatever the dispute is.
- Availability. A distinguished arbitrator with no time is worse than a competent one with capacity.
- Independence and impartiality, and no conflict with either party.
- Experience of writing enforceable awards, which is a distinct skill.
- Language and comfort with the documents.
- Fee expectations, agreed in advance.
Weight availability heavily. Arbitrations stall for months because a tribunal member cannot find hearing dates, and the delay costs both sides while producing nothing. Ask directly about capacity before appointing rather than discovering it afterwards.
Challenging an arbitrator
An arbitrator can be challenged, but the grounds are limited and the process should be used seriously rather than tactically.
- Justifiable doubts as to independence or impartiality.
- Failure to satisfy agreed qualifications.
- Misconduct in the conduct of the proceedings.
- Failure to act or undue delay.
- Incapacity.
Raise a concern promptly. A party that knows of a potential conflict, says nothing, loses, and then raises it is unlikely to be heard sympathetically - the objection will look like an afterthought because it is one.
Disclosure and conflicts
Prospective arbitrators should disclose anything that might raise doubts about independence. Practical steps:
- Ask for a written disclosure before appointment.
- Check prior appointments by either party or their counsel.
- Check professional and commercial connections with the parties.
- Keep the disclosure on file.
- Ask for continuing disclosure if circumstances change.
- Raise anything material at once, in writing.
Pakistan's commercial and professional community is not large, and some degree of prior connection is common. What matters is that it is disclosed and considered, not that it never exists.
Who pays the arbitrator
Arbitrator fees are a live commercial issue that parties often leave until it is awkward to raise. Settle it at appointment.
| Question | Agree it when |
|---|---|
| Basis of the fee - hourly, daily, or fixed | Before appointment |
| Whether reading and drafting time is charged | Before appointment |
| How fees are split between the parties | At the first procedural meeting |
| Whether deposits are required | Early - it affects cash flow |
| What happens if one side does not pay its share | Before it happens |
| Whether costs follow the event in the award | Raise it in submissions |
The fifth row is the one that causes real difficulty. A respondent who stops paying its share of deposits can stall the reference, and the usual answer is for the claimant to pay the shortfall and seek to recover it in the award - which is workable but only if anticipated.
Ask about fees before confirming an appointment, in writing. Once an arbitrator is appointed and the reference is under way, negotiating their fee is uncomfortable and your leverage has gone. See arbitration vs litigation for how the overall cost compares.
Keeping a stalled reference moving
| Problem | Response |
|---|---|
| Other side will not appoint | Notice, then apply to court |
| Appointed arbitrators cannot agree an umpire | Apply to court |
| Named arbitrator unwilling or unable | Check the clause for a fallback; else court |
| Arbitrator not progressing the reference | Write to the tribunal; consider a challenge |
| Other side ignores directions | Ask the tribunal for peremptory directions |
| Dispute over whether the clause applies | Take advice; this may need determination |
Do not let a reference simply go quiet. Correspondence that stops for months tends to attract arguments about abandonment and delay later, and it costs nothing to keep a clear, dated written record of every step you took to move it forward.
Frequently asked questions
How is an arbitrator appointed in Pakistan?
According to the arbitration agreement first - whatever procedure the parties agreed. Where a party fails to appoint, or appointed arbitrators cannot agree an umpire, the court can be approached under the Arbitration Act 1940.
What if the other side refuses to appoint?
Non-cooperation slows an arbitration but does not defeat it. Serve a proper written notice calling on them to appoint within a stated time, then apply to court producing the agreement, the notice and proof of service.
What must the notice contain?
Identification of the agreement and clause relied on, the dispute referred, your own appointment or proposal, a call on the other party to appoint within a stated time, and the consequence of failure.
Does it matter where I serve the notice?
Considerably. Serve at the address the contract specifies. A notice sent elsewhere gives the other side an argument that time never started running, which is exactly what they will say when you apply to court.
What should I look for in an arbitrator?
Subject-matter familiarity, genuine availability, independence and no conflicts, experience writing enforceable awards, appropriate language, and agreed fee expectations. Weight availability heavily.
Can I challenge an arbitrator?
Yes, on limited grounds - justifiable doubts as to independence or impartiality, failure to meet agreed qualifications, misconduct, failure to act or undue delay, or incapacity. Raise concerns promptly rather than after losing.
What if my clause names an appointing authority?
Use it. That route is usually faster and cheaper than court, and going straight to a judge invites an objection that you did not follow your own agreement.
What if the arbitration has simply gone quiet?
Keep a clear dated written record of every step you take to move it forward. Correspondence that stops for months attracts later arguments about abandonment and delay.
Who pays the arbitrator?
Usually the parties share the fees, with the split agreed at the first procedural meeting and costs dealt with in the award. Agree the basis, whether reading time is charged, and deposit requirements before appointment.
What if the other side stops paying its share of deposits?
It can stall the reference. The usual answer is for the claimant to pay the shortfall and seek to recover it in the award, which works but only if anticipated when the fee arrangements are set.
Sources & official references
- Arbitration Act 1940 - domestic arbitration in Pakistan
- Supreme Court of Pakistan - judgments and case information
- Lahore High Court - case status, cause lists and judgments