The superior court, upon the request of a party, may take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment, where, under an appointment procedure agreed upon by the parties, any of the following occurs:
§ 1297.116.Necessary Measures Taken By Superior Court
Title 9.3. Arbitration and Conciliation of International Commercial Disputes · Chapter 3. Composition of Arbitral Tribunals · Article 2. Appointment of Arbitrators · Enacted 1988 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 1297.116 lets the superior court take necessary measures, on a party's request, whenever an agreed appointment procedure breaks down because a party fails to act, the parties or two arbitrators fail to reach an agreement expected under that procedure, or a third party such as an appointing institution fails to perform its assigned role, unless the agreement itself supplies another fix.
Full Text of § 1297.116
(a) A party fails to act as required under that procedure.
(b) The parties, or two appointed arbitrators, fail to reach an agreement expected of them under that procedure.
(c) A third party, including an institution, fails to perform any function entrusted to it under that procedure.
Plain-English Summary
Sections 1297.114 and 1297.115 cover breakdowns in the default appointment mechanisms this title itself supplies. This section covers the parallel problem for a procedure the parties designed themselves under Section 1297.112 -- what happens when that custom-built procedure stalls.
Three kinds of breakdown trigger the court's power to step in, on a party's request: a party fails to act as its agreed procedure requires; the parties themselves, or two arbitrators already appointed, fail to reach an agreement the procedure expected of them; or a third party -- including an institution entrusted with some role in the process, such as making a nomination or ruling on a challenge -- fails to perform that function. In any of those situations, the court may take whatever measures are necessary to get the appointment process moving again.
That authority yields to one thing: if the parties' own agreement on the appointment procedure already provides some other means for securing the appointment when it stalls, that built-in fix controls instead of court intervention. This section is a backstop for procedures that did not plan for their own failure, not a substitute for one that did.
Frequently Asked Questions
What if a party refuses to do what an agreed appointment procedure requires?
A party can ask the superior court to take the necessary measures to keep the appointment process moving.
What if an institution named to help appoint the tribunal doesn't perform its role?
The court can step in when a third party, including an institution, fails to perform a function entrusted to it under the agreed procedure.
Does the court always have the power to intervene when an agreed procedure fails?
No -- if the parties' agreement on the appointment procedure already provides other means for securing the appointment, that alternative controls instead.
Amendment History
Added by Stats. 1988, Ch. 23, Sec. 1. Effective March 7, 1988.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: court intervention failed appointment procedure californiathird party institution fails to appoint arbitrator