Is Section 10 a non-derogable rule in arbitration?

No. The Court rejected the claim that Section 10 is non-derogable. An agreement is not invalid only because two arbitrators are appointed.

Can a third arbitrator be added later?

Yes. Under Section 11(3), two arbitrators may appoint a third, and this can happen later, especially if they differ.

Does an even-number tribunal make the award void?

No, not by itself. If composition accords with the agreement or the Act, the award is not void on that ground alone.

On what grounds can an award be set aside?

Grounds are limited to those in Sections 12, 13, 16, and 34. Mere disagreement with tribunal composition is not enough if it complies with the Act.

Lohia v. Lohia

Q: Can parties waive a mandatory rule of the Act?

Parties cannot override the Act, but Lohia clarifies Section 10 does not automatically invalidate a two-member tribunal; the Act allows cure via Section 11(3).

Lohia v. Lohia

Even-number arbitrators: invalid or curable? A simple guide to Section 10, the third arbitrator under Section 11(3), and limits on setting aside awards.

Supreme Court of India 2002 (2002) 1 Arb LR 493 (SC) Bench: Supreme Court Arbitration | Tribunal Composition ~6 min read

Author: Gulzar Hashmi • India • Published: 02 Nov 2025

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CASE_TITLE

Lohia v. Lohia, (2002) 1 Arb LR 493 (SC)

SLUG

lohia-v-lohia

PRIMARY_KEYWORDS

Section 10 Arbitration Even-Number Arbitrators Third Arbitrator Rule

SECONDARY_KEYWORDS

Section 11(3) Sections 12, 13, 16, 34 Tribunal Composition

Quick Summary

The Supreme Court rejected the claim that Section 10 makes a two-member tribunal automatically invalid. If two arbitrators are appointed, they can add a third under Section 11(3), including later, if they differ. An award can be set aside only on the narrow grounds in Sections 12, 13, 16, and 34.

Bottom line: an even-number tribunal is not fatal by itself if the Act provides a cure and the procedure aligns with the agreement or the statute.

Issues

Is Section 10 non-derogable so that appointment of two arbitrators makes the tribunal void?
Can parties or the tribunal cure the even-number issue by appointing a third arbitrator later?
Can an award be set aside solely because two arbitrators made it?

Rules

Section 10: Does not, by itself, invalidate a two-arbitrator tribunal.
Section 11(3): Two arbitrators may appoint a third; appointment can occur later, when needed.
Setting Aside: Only under Sections 12, 13, 16, 34; composition valid if it conforms to the agreement or the Act.

Facts (Timeline)

Timeline Image

Family Business Dispute

Parties had disputes over businesses and properties; they chose arbitration.

Two Arbitrators Appointed

Mr. Pramod Kumar Khaitan and Mr. Sardul Singh Jain acted as arbitrators.

Award Made

Award dated 6 Oct 1996 was passed by the two arbitrators.

Challenge in High Court

On 22 Dec 1997, the award was challenged in Calcutta High Court, arguing Section 10 bars even-number tribunals.

Timeline graphic for Lohia v. Lohia events

Arguments

Appellant

Section 10 is mandatory; two-member tribunal is invalid.
Invalid composition = no jurisdiction; award must be void.
Section 16 does not permit challenging composition; hence entire process is a nullity.

Respondent

Act allows cure via Section 11(3); two can appoint a third.
No automatic invalidity; award can be tested only under Sections 12, 13, 16, 34.
Composition aligned with the agreement/Act; award stands.

Judgment (Held)

Judgment Image

The Court rejected the plea that Section 10 is a non-derogable bar that voids a two-member tribunal. The Act’s scheme lets the two appoint a third under Section 11(3), including later when they differ.

An award is set aside only as per Sections 12, 13, 16, and 34. If composition or procedure matches the parties’ agreement or the Act, the award cannot be struck down merely for being made by two arbitrators.

Ratio Decidendi

Section 10 does not automatically invalidate a two-arbitrator tribunal; Section 11(3) supplies the mechanism to add a third. Challenges to awards must stay within the confined grounds of the Act.

Why It Matters

No automatic nullity: Even-number tribunals are not fatal per se.
Practical flexibility: Third arbitrator can be added later if needed.
Certainty: Award challenges are tightly ring-fenced by the statute.

Key Takeaways

Two arbitrators ≠ invalid by default.
Third can be appointed under Section 11(3).
Appointment can occur later when they differ.

Award set-aside grounds: Ss. 12, 13, 16, 34.
Agreement/Act-compliant composition is protected.
Jurisdiction objections must track the Act.

Mnemonic + 3-Step Hook

Mnemonic: “TWO → THIRD → TIGHT”

TWO: Two arbitrators do not doom the tribunal.
THIRD: Add a third via Section 11(3) if needed.
TIGHT: Set-aside grounds are tight (Ss. 12/13/16/34).

IRAC Outline

Issue	Does Section 10 invalidate a two-member tribunal and the resulting award?
Rule	Section 10 is not an automatic bar; Section 11(3) allows appointing a third. Awards are challengeable only under Ss. 12, 13, 16, 34.
Application	Two arbitrators made the award; the Act provides a lawful way to add a third; composition aligned with statute/agreement.
Conclusion	No automatic invalidity; award cannot be set aside on that ground alone.

Glossary

Section 10: Provision relating to number of arbitrators; does not make a two-member tribunal per se void.
Section 11(3): Allows two arbitrators to appoint a third, including later if they disagree.
Set-Aside Grounds: Statutory grounds in Sections 12, 13, 16, 34; outside them, courts will not annul awards.