In a significant ruling in Shikha Ghosh v. Axis Bank Ltd., a Division Bench of the Delhi High Court examined the implications of unilateral and repeated appointments of arbitrators by a party. The Court declared the arbitral award dated 26th May 2023 unenforceable against the appellant, after the Bank conceded that awards arising from its unilateral appointments of arbitrators were void ab initio. More significantly, the Court expressed serious concern over the repeated appointment of the same arbitrator by one party across multiple proceedings, observing that such a practice raises fundamental questions concerning the independence and impartiality of the arbitral process. The case thus brings into sharp focus a recurring tension in arbitration law: how is the autonomy of parties to choose their arbitrator to be reconciled with the equally fundamental requirement that the adjudicatory process remain independent, impartial and fair?

The facts in Shikha Ghosh make this question particularly striking. The Court was informed that Shri Vikrant Bhardwaj had acted as arbitrator in as many as 4,155 matters in which Axis Bank was the appointing party. The Bank further disclosed that approximately 76,000 arbitral awards had been rendered across India by sole arbitrators appointed unilaterally in matters concerning the Bank. The Court observed that this was “nothing but the tip of an iceberg”, while noting the Bank's submission that it had discontinued unilateral appointments from 2023. The immediate consequence was that the award against the appellant was declared unenforceable. The larger significance, however, lies in what these figures reveal about neutrality itself: the question is not confined to whether an arbitrator is formally eligible to act, but extends to the structure through which adjudicatory authority is conferred.

The constitutional foundation of this principle was authoritatively clarified by the five-Judge Constitution Bench of the Supreme Court in Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV), 2024 INSC 857. By a 3:2 majority, the Court held that unilateral appointment of a sole arbitrator by an interested party is impermissible and that requiring the other party to choose an arbitrator exclusively from a panel curated by the appointing party violates the principle of equal treatment. The majority emphasised that equality under Section 18 of the Arbitration and Conciliation Act, 1996, extends to the appointment stage and that party autonomy cannot override the statutory requirements of independence, impartiality and procedural fairness. The Court also directed that its ruling would apply prospectively to arbitrator appointments made after the judgment, a qualification that assumes particular importance when examining awards arising from earlier appointments.

It is against this doctrinal background that Shikha Ghosh v. Axis Bank Ltd. must be understood. The Delhi High Court did not merely apply the Constitution Bench ruling mechanically to an earlier award; it considered the Bank's concession that awards resulting from its unilateral appointments were void ab initio, alongside the established principles in Perkins Eastman Architects DPC v. HSCC (India) Ltd. and the statutory safeguards under Sections 12 and 18 of the 1996 Act. The Court's concern that one arbitrator had handled 4,155 matters appointed by the same Bank illustrates a further dimension of the problem: even beyond the legality of the appointment mechanism itself, repeated appointments on such a scale raise serious questions about the independence and impartiality of the arbitral process. Neutrality, therefore, cannot be assessed solely by asking who appointed the arbitrator or whether the arbitrator satisfies formal eligibility requirements. It also requires scrutiny of the mechanism through which the adjudicatory forum itself is constituted.

The concern surrounding unilateral and repeated appointments is therefore not confined to traditional arbitration; it raises a broader question about how institutional structures influence the independence and perceived neutrality of adjudication. It is this broader understanding of neutrality that makes the rapidly expanding field of Online Dispute Resolution (ODR) relevant to this debate. The inquiry must now extend beyond the formal power to appoint an arbitrator to the institutional and technological architecture through which disputes are resolved. ODR has emerged as an important means of improving access to justice by reducing costs, geographical barriers and procedural delays. ODR Platforms performs an administrative role, empanels independent neutrals and allocates a neutral after considering factors including the nature of the dispute, the neutral's expertise and availability, and the parties' independence from the proposed neutral.

These features may promote efficiency and procedural consistency. Nevertheless, they also invite a broader legal inquiry: when the infrastructure through which a dispute is initiated, administered and resolved is controlled by a common platform, what safeguards ensure that the institutional mechanism remains independent of the interests of repeat users and that neither party acquires a disproportionate influence over the constitution of the adjudicatory forum?

One dimension of this institutional inquiry concerns the different functions that may coexist within the same ODR ecosystem. Negotiation and mediation operate on the premise that parties voluntarily seek a mutually acceptable outcome, whereas arbitration entrusts an independent adjudicator with the authority to determine their rights and liabilities through a binding award. Where a dispute moves from settlement discussions to arbitration, the transition raises questions about the separation of confidential communications, the respective roles of platform administrators and neutrals, and the safeguards against actual or perceived conflicts of interest. This does not mean that a common platform is inherently incompatible with impartiality, nor does the provision of multiple services establish that confidential information is shared or that the process is compromised. Rather, the applicable rules and actual practices must be examined to determine whether settlement communications are appropriately protected, whether the arbitrator exercises independent judgment, and whether the parties receive adequate disclosure of the platform's role and any relevant affiliations or conflicts.

A second, and perhaps more difficult, dimension is the possibility of repeat-player advantage. A platform may formally allocate arbitrators through a standardised or algorithmic mechanism, yet neutrality ultimately depends on how that mechanism operates. Relevant questions include whether allocation criteria are transparent, whether the platform's selection process can be meaningfully challenged, whether repeat appointments involving the same party or its affiliates are monitored, and whether the commercial relationship between a platform and a frequent institutional user could affect the perception of independence. NITI Aayog's Designing the Future of Dispute Resolution: The ODR Policy Plan for India expressly recognises the risks arising from conflicts of interest, asymmetrical bargaining power and repeat clients. It calls for transparency, independence, impartiality, fairness, equality and confidentiality, alongside disclosures and safeguards for the selection and oversight of neutrals.

These recommendations are especially relevant where consumers or individual borrowers have limited practical bargaining power and may have little meaningful choice over the dispute-resolution infrastructure specified in standard-form contracts. In such cases, the shift from direct appointment to algorithmic or platform-based allocation may alter the form in which influence operates without necessarily answering the underlying question of institutional independence. Algorithmic allocation may reduce arbitrary intervention, but it cannot by itself establish that the underlying system is institutionally neutral.

This is where the significance of Shikha Ghosh extends beyond the immediate controversy concerning unilateral appointments. The disclosure that the same arbitrator had been appointed by Axis Bank in 4,155 matters does not establish that every award was biased. Its significance lies in exposing the potential structural advantage that may arise when one party repeatedly exercises influence over the selection of the person deciding its disputes. The ODR context presents a related, though legally distinct, question: even where the platform rather than the disputing party administers the appointment process, can the parties be confident that the mechanism for selecting and retaining neutrals is genuinely independent and does not systematically favour a repeat user?

The way forward is not to discourage ODR, whose potential to improve access to justice is considerable, but to ensure that technological efficiency is accompanied by verifiable procedural safeguards. These should include meaningful disclosure of appointment criteria and relevant affiliations, effective procedures for challenging a proposed neutral, appropriate separation of confidential settlement communications from adjudicatory proceedings, safeguards against conflicts of interest, and transparent oversight and grievance-redressal mechanisms. Repeat appointments should be assessed in context, rather than treated as automatic proof of bias, while the independence of both the neutral and the administering institution should remain central to the inquiry. Ultimately, as adjudication increasingly moves from conventional appointments to technology-enabled platforms, neutrality must attach not only to the person deciding the dispute, but also to the architecture through which that person comes to decide it.

Author is an Advocate practicing at Supreme Court of India. Views are personal.