International Arbitration In India 2026: Beyond The Obvious — Key Procedures & Insights For Global Businesses And Lawyers – Part I

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Executive Summary

• This document explains how international arbitration operates in the Indian context, from drafting arbitration clauses to recognition and enforcement of foreign awards.
• Covers key procedures including interim reliefs (Sections 9 and 17), appointment of arbitrators (Section 11), jurisdiction challenges (Section 16), and setting aside of awards (Section 34).
• Highlights how Indian courts interact with India-seated and foreign-seated arbitrations, with a focus on pro-enforcement trends and limits on judicial intervention.
• Clarifies what is and is not arbitrable in India, including specialised areas like consumer, employment, insolvency, fraud, and rights in rem versus rights in personam.
• Designed for foreign investors, global businesses, and counsel navigating contracts with Indian parties, India-seated arbitrations, or enforcement of foreign awards in India.

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Topics/Questions You Can Jump To

1. What is the primary legislation governing arbitration in India, and what is it based on?
2. What conventions have India ratified on the Recognition and Enforcement of Foreign Arbitral Awards?
3. How does Indian legislation distinguish domestic arbitration from international commercial arbitration?
4. Is foreign-seated arbitration distinct and different from international commercial arbitration under Indian legislation?
5. What provisions under the Arbitration and Conciliation Act, 1996, will apply to the foreign-seated arbitration?
6. Are the provisions prescribed in Indian arbitration law mandatory, or do they allow for contractual flexibility, freedom, and separability?
7. How does India's arbitration framework, including judicial intervention practices, measure up to those of other prominent arbitration-friendly jurisdictions?
8. Which types of disputes are considered non-arbitrable under Indian law?
9. Are employment, consumer, or other specialized disputes deemed arbitrable in India?
10. How does the law determine whether a particular dispute should be resolved through arbitration or whether it falls within the exclusive jurisdiction of the courts?
11. How do Indian courts determine arbitrability when a dispute involves allegations of fraud or criminal misconduct?
12. What are the key elements required for a valid and enforceable arbitration agreement under Indian law?
13. Are there specific formal requirements such as writing or signatures for an arbitration agreement to be recognized in India?
14. How are agreements treated when they form part of unstamped or inadequately stamped contracts?
15. How is the governing law of the arbitration agreement determined in your jurisdiction? Do the parties have complete contractual freedom in making such a choice?
16. Are there any limitations on selecting the seat of arbitration?
17. If parties have not explicitly agreed on the seat or language of arbitration does Indian law provide default rules?
18. Can arbitration proceedings be conducted in a language other than the local language(s)?
19. What are the practical steps for initiating arbitration under the Arbitration and Conciliation Act, 1996?
20. Can a party can object to the tribunal's jurisdiction, and what procedures must be followed?
21. Can a party refuse to participate in arbitration on the grounds that the agreement was obtained through fraud, coercion, or undue influence?
22. Can an arbitral tribunal determine its own jurisdiction, or is court intervention required under certain circumstances?
23. What is the process for constituting an arbitral tribunal in India?

Practical Summary

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FRAMEWORK

1. What is the primary legislation governing arbitration in India, and what is it based on?

The primary legislation governing arbitration in India is the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"). This Act provides a comprehensive legal framework for domestic arbitration, international commercial arbitration, and conciliation in India. It was enacted to modernize Indian arbitration law and align it with global standards, making arbitration a preferred mode of dispute resolution.

The Act is largely based on the UNCITRAL Model Law on International Commercial Arbitration, 1985, with modifications to suit India's legal and commercial environment. It incorporates key principles of the Model Law, such as minimal court intervention, party autonomy, the competence-competence principle, and recognition and enforcement of arbitral awards. The grounds for setting aside an arbitral award under Section 34 of the Act closely follow those under Article 34 of the Model Law.

Despite its foundation in the UNCITRAL Model Law, the Act has some notable deviations. It includes specific provisions for domestic arbitration, which the Model Law does not address. Additionally, India initially had an automatic stay on arbitral awards upon challenge under Section 34, a provision removed by the 2015 amendment. The interpretation of "public policy" as a ground for challenging enforcement is also broader in India compared to the Model Law.

Overall, the Act of 1996, while inspired by the UNCITRAL Model Law, has been adapted to meet India's specific legal and economic needs, ensuring both efficiency and fairness in arbitration proceedings.

2. What conventions have India ratified on the Recognition and Enforcement of Foreign Arbitral Awards?

India is a signatory to the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention), and Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention). Below is a combined overview that outlines the scope of each convention along with the reservations or qualifications India has attached to them:

(i) Geneva Convention (1927)

India is a party to the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927. The framework for its implementation was originally established under the Arbitration (Protocol and Convention) Act, 1937, and later the relevant provisions were incorporated into the Arbitration and Conciliation Act, 1996.

Although India remains a party to the Geneva Convention, in practice its significance has diminished because the New York Convention's broader acceptance and more streamlined mechanisms for enforcement have largely superseded it.

(ii) New York Convention (1958)

India signed the New York Convention on June 10, 1958, ratified it on July 13, 1960, and it came into force in India on October 11, 1960.

India has attached two primary reservations under the New York Convention:

• Reciprocity Reservation: India applies the Convention only to the recognition and enforcement of awards made in the territories of contracting states that have been officially notified as reciprocating under the Indian Official Gazette. As a result, only awards from these recognized countries are enforceable. It is relevant to add that the Government of India has notified all key international arbitration hubs such as Switzerland, China, the United States, Sweden, Singapore, the United Kingdom, and France.
• Commercial Reservation: The Convention is limited to disputes arising out of legal relationships, whether contractual or not – that qualify as commercial under Indian law. This ensures that only commercial arbitral awards are recognized and enforced.

These qualifications are codified in PART-II of the Arbitration and Conciliation Act, 1996, which governs the enforcement of foreign arbitral awards in India.

In essence, while India remains bound by both conventions, the New York Convention, with its reciprocity and commercial reservations, is the primary instrument for enforcing foreign arbitral awards. The Geneva Convention, although still in force, is subject to similar commercial restrictions and specific territorial exclusions, and is now of lesser practical relevance compared to the New York Convention.

GENERAL INTRODUCTION

3. How does Indian legislation distinguish domestic arbitration from international commercial arbitration?

The Arbitration and Conciliation Act, 1996, is divided into several parts. PART-I governs the conduct and procedures of arbitration and is primarily directed toward domestic arbitration, while PART-II lays down the regime for the enforcement of foreign awards.

So, the said Act distinguishes domestic arbitration from international commercial arbitration primarily by the nationality of the parties to the arbitration. While, there is no specific definition in the act to define Domestic Arbitration, Section 2(f) defines Internation Commercial Arbitration as –

This clear definition underscores that if any party to the arbitration falls within one of the above categories, the arbitration is classified as international.

Additionally, to distinguish an international commercial arbitration and from domestic arbitration, the deciding factor to be looked at is - whether the parties involved in disputes are Indian? If yes, the same would come under the umbrella of domestic arbitration. This means that such arbitration process, which includes the appointment of arbitrators, obtaining interim relief and the enforcement of awards before the concerned court, might change depending on whether the arbitration is considered to be 'domestic arbitration' or 'international commercial arbitration'.

It is also pertinent to note that in India-seated arbitrations, whether domestic or international, only PART-I of the Act of 1996, applies. This encompasses provisions related to arbitrability, appointment of arbitrators, obtaining evidence through court assistance, interim relief, and other aspects.

On the other hand, international commercial arbitration is subject to additional procedural safeguards and the framework of international conventions such as the New York Convention, to ensure that awards are recognized and enforced across borders, while domestic arbitration remains within the purview of India's internal legal system.

4. Is foreign-seated arbitration distinct and different from international commercial arbitration under Indian legislation?

Yes, under the Act of 1996, there is a difference between foreign-seated arbitration distinct international commercial arbitration depending upon the facts of the case. The primary difference lies in the applicability of different parts of the Act.

The term "international commercial arbitration" as defined under Section 2(f) is in PART-I of the Act, which governs arbitrations where the seat/place of arbitration is in India.

While, if the arbitration is foreign-seated i.e. seat/place of arbitration is outside India, then only PART-II of the Act applies. Thus, once an award is passed in such foreign-seated arbitration, the powers of the Indian Courts are limited to only its enforcement in India, governed solely by PART-II, in accordance with the New York Convention or Geneva Convention, as the case may be. The Supreme Court judgement in BALCO v. Kaiser Aluminum; Civil Appeal No. 7019 of 2005, overruled the earlier decisions in Bhatia International v. Bulk Trading S.A. (2002) and Venture Global Engineering v. Satyam Computer Services Ltd. (2008), which had permitted Indian courts to exercise jurisdiction over foreign-seated arbitrations under PART-I of the Arbitration and Conciliation Act, 1996. In BALCO case, the Supreme Court clarified that PART-I applies exclusively to arbitrations seated in India, thereby limiting the intervention of Indian courts in foreign-seated arbitrations.

So, even if one of the parties to the arbitration is a foreign entity, and the arbitration thereby qualifies as an international commercial arbitration, it would not be considered a foreign-seated arbitration if the seat of arbitration is in India.

It is further pertinent to note that on the other hand, the nationality or origin of the parties i.e. whether Indian or foreign, has no bearing on the applicability of PART-II of the Act. If the parties have agreed to a foreign-seated arbitration, then, the arbitration will be governed by PART-II of the Act.

5. What provisions under the Arbitration and Conciliation Act, 1996, will apply to the foreign-seated arbitration?

As pointed-out above, the Act of 1996 is broadly divided into several parts. PART- I governs the conduct and procedures of arbitration (covering Sections 2 to 43) and is primarily directed toward arbitrations conducted in India, while PART-II (Sections 44–60) lays down the regime for the enforcement of foreign awards. Although the foundational definitions in Section 2 are found in PART-I, many of these terms such as "arbitration," "arbitration agreement," "arbitral award," "arbitral tribunal," "court," and "international commercial arbitration", may set the interpretive framework for the entire Act depending upon the facts.

Furthermore, the several provisions under the Act i.e. Section 9 - Interim measures, etc., by Court, Section 27 - Court assistance in taking evidence and, Section 37(a)(1) - Appeal against Order of refusing to refer the parties to arbitration & Section 37(3) - No second appeal, shall also apply to foreign-seated arbitration i.e. place of arbitration is outside India, and an arbitral award made under such arbitration is enforceable and recognised under the provisions of PART-II of this Act.

PART-II of the Act is dedicated to the enforcement of foreign awards. Here, a separate definition under Section 44 & Section 53, is introduced with respect to interpretation of the term 'foreign award'.

Unlike the definitions of other core terms (which though continue to influence interpretation in PART-II), the definition of "foreign award" is unique to PART-II. This demarcation reflects the fact that while PART-I governs the conduct and formation of arbitration proceedings within India, PART-II is structured around the recognition and enforcement of awards rendered by tribunals outside of India in international commercial arbitration.

6. Are the provisions prescribed in Indian arbitration law mandatory, or do they allow for contractual flexibility, freedom, and separability?

The Act of 1996, incorporates both mandatory provisions that parties must follow and non-mandatory provisions that allow flexibility and contractual freedom. This approach aligns with international arbitration standards while ensuring procedural fairness and efficiency.

1. Mandatory Provisions in Indian Arbitration Law
   
   • Equal Treatment of Parties (Section 18) – Ensures that both parties are treated fairly and given a full opportunity to present their case.
   • Judicial Intervention (Section 5) – Courts are restricted from intervening in arbitration matters except where explicitly permitted by the Act.
   • Grounds for Challenge of an Arbitral Award (Section 34) – Provides the exclusive grounds for setting aside an arbitral award, such as violation of public policy or lack of proper notice. To read more about section 34 click here.
   • Enforcement of Awards (Section 36) – Specifies that an arbitral award shall be enforced as if it were a court decree unless set aside under Section 34.
   • Appointment of Arbitrators (Section 11, post-2015 Amendment) – While parties can choose their arbitrators, the courts may intervene if there is a failure in the appointment process. To read more about Section 11 click here.
   • Independence and Impartiality of Arbitrators (Schedule V & VII) – Arbitrators must be impartial and free from conflicts of interest; certain relationships with parties or counsel disqualify them.
2. Flexible Provisions
   
   • Choice of Seat and Venue (Section 20) – Parties are free to decide whether arbitration will be conducted in India or abroad.
   • Procedure and Rules (Section 19) – Unless agreed otherwise, arbitrators are free to determine the procedure. Parties can also opt for institutional rules.
   • Number of Arbitrators (Section 10) – While the default is a sole arbitrator, parties can decide on any number of arbitrators (provided it is an odd number).
   • Language of Arbitration (Section 22) – The parties may decide the language in which proceedings will be conducted.
   • Interim Measures (Section 17) – Parties can agree on whether the arbitral tribunal should have the power to grant interim relief, instead of relying on courts under Section 9.
   • Fast-Track Arbitration (Section 29B) – If agreed, parties can opt for an expedited process with a single arbitrator, requiring an award within six months.

Doctrine of Separability

Under Section 16(1) of the Act, the arbitration agreement is treated as separate from the main contract. This means that even if the underlying contract is declared void or terminated, the arbitration clause remains valid unless specifically found to be invalid. This doctrine ensures that arbitration remains effective even in cases of contractual disputes.

Overall, the Arbitration and Conciliation Act, 1996, provides significant contractual freedom in arbitration proceedings while retaining essential mandatory provisions to uphold fairness and enforceability. This balance allows parties to customize their arbitration framework while ensuring procedural integrity under Indian law.

7. How does India's arbitration framework, including judicial intervention practices, measure up to those of other prominent arbitration-friendly jurisdictions?

India has made significant strides in becoming an arbitration-friendly jurisdiction, particularly with the amendments to the Arbitration and Conciliation Act, 1996 in 2015 & 2019. However, when compared to other major arbitration-friendly jurisdictions such as Singapore, the United Kingdom, France, and Hong Kong, there are some key differences in the legal framework and level of judicial intervention.

In jurisdictions like Singapore and the United Kingdom, arbitration laws are strongly aligned with international standards such as the UNCITRAL Model Law. These jurisdictions offer minimal court intervention, robust enforcement mechanisms, and specialized commercial courts that ensure arbitration-friendly judicial policies. Singapore's International Arbitration Act provides extensive party autonomy and limits judicial interference, making it one of the most preferred arbitration hubs. Similarly, the United Kingdom, under the Arbitration Act 1996, allows very limited scope for judicial review of arbitral awards.

India, through amendments in 2015 and 2019, has significantly reduced judicial intervention by restricting the scope of interference in arbitral proceedings and award enforcement. Provisions like those limiting court involvement to specific circumstances, fast-track procedures, and the promotion of institutional arbitration have aligned India with global arbitration standards. However, despite these improvements, Indian courts have occasionally been criticized for inconsistent interpretations of arbitration clauses and enforcement delays.

Another critical distinction lies in the role of institutional arbitration. Singapore and Hong Kong actively promote institutional arbitration through leading arbitral institutions such as SIAC and HKIAC, which ensure efficient dispute resolution. India has traditionally relied on ad hoc arbitration, which often leads to inefficiencies and delays. The establishment of the Arbitration Council of India aims to address this gap, but institutional arbitration is still developing compared to its global counterparts.

While India is moving towards a more arbitration-friendly framework, challenges such as judicial delays and inconsistent enforcement remain areas for improvement. In comparison, leading arbitration hubs have successfully implemented a pro-arbitration legal environment with limited court intervention, making them more attractive for international commercial arbitration.

ARBITRABILITY OF DISPUTES

8. Which types of disputes are considered non-arbitrable under Indian law?

Under the current legal framework in India, arbitrability is considered the norm while non-arbitrability is the exception. The Act of 1996, largely based on the UNCITRAL Model Law, does not itself define arbitrability or explicitly list non-arbitrable disputes. Instead, it leaves open the possibility that certain disputes, by virtue of other laws or public policy considerations, may not be suitable for resolution through arbitration. The Act expressly preserves any other law by which disputes may be excluded from arbitration and provides that an arbitral award can be set aside if it relates to a dispute that is not capable of being settled by arbitration under the law in force.

Landmark decisions such as the Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd.; 2011 (5) SCC 532, Vidya Drolia & Others v. Durga Trading Corporation; AIRONLINE 2020 SC 929, etc., have played a critical role in shaping the contours of arbitrability in India.

The Supreme Court in Booz Allen Case, clarified that dispute involving rights in rem, i.e. rights enforceable against the world at large – are non-arbitrable, and actions for the enforcement of such rights, like a mortgage enforcement action, must be resolved in public courts because they involve rights which are not confined to the parties to a private arbitration agreement. The Supreme Court further held that: - (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes, are all examples of non-arbitrable disputes.

While the Supreme Court in Vidya Drolia case, laid down four-fold test for determining when the subject matter of a dispute in an arbitration agreement is not arbitrable:

• when cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem.
• when cause of action and subject matter of the dispute affects third party rights; have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;
• when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and
• when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s).

Thus, certain categories of disputes have been judicially and statutorily recognized as non-arbitrable in India:

• Disputes involving rights in rem, such as property ownership or mortgage enforcement.
• Criminal offenses, as they concern offenses against the state rather than private contractual matters.
• Matrimonial disputes, including divorce, judicial separation, restitution of conjugal rights, child custody, and guardianship.
• Insolvency and bankruptcy matters, as they involve collective proceedings affecting creditors and the public interest.
• Testamentary matters, such as probate, letters of administration, and succession disputes.
• Disputes governed by special legislation, including recovery of debts under the Recovery of Debts Due to Banks and Financial Institutions Act.
• Matters involving sovereign functions of the state or requiring judicial determination under public law.

Overall, while arbitration is broadly encouraged in India, the courts have consistently held that disputes touching on public rights, third-party interests, sovereign functions, or those explicitly governed by specific statutory regimes fall outside the ambit of arbitrability.

9. Are employment, consumer, or other specialized disputes deemed arbitrable in India?

In India, the arbitrability of disputes is determined by the nature of the right involved i.e. whether it is a right in rem (affecting the public at large) or a right in personam (affecting specific parties). Generally, only disputes involving rights in personam are considered arbitrable, while disputes involving rights in rem are excluded from the scope of arbitration. Under this framework, employment and consumer disputes are treated differently in terms of arbitrability.

In employment disputes there is no straitjacket formulae regarding whether the arbitration can be done or not as it all depends upon the type of dispute, the statutory protections involved, and the nature of the rights at issue. The Bombay High Court in the case of Kingfisher Airlines v. Prithvi Malhotra and Others; Writ Petition No. 2585 of 2012, ruled that employment disputes are not arbitrable because such matters fall exclusively within the jurisdiction of the forums constituted under the Industrial Disputes Act, 1947 and allowing arbitration in these cases would contravene public policy considerations.

Nonetheless, it is also acknowledged that not all disputes arising under an employment contract are automatically non-arbitrable (Weiss Technik India Private Limited v. Ms. Bollupalli Madhavilata; AIR 2021 TELANGANA 142). Purely contractual issues such as disputes over non-disclosure obligations or non-compete/non-solicitation or other performance-related matters that do not implicate core statutory rights, may be appropriate for arbitration if the arbitration clause was validly incorporated and the dispute does not affect public policy.

However, disputes involving independent contractor agreements or consultancy contracts may be arbitrable if they are primarily commercial in nature and do not involve statutory employment rights.

Consumer disputes have also been regarded as non-arbitrable by Indian courts. In National Seed Corporation Ltd. v. M. Madhusudan Reddy; (2012) 2 SCC 506, the Supreme Court ruled that the Consumer Protection Act, 1986, is a special legislation intended to protect consumer rights, and thus, consumer disputes fall under the jurisdiction of consumer courts rather than arbitral tribunals. However, if the dispute arises from a purely commercial agreement and the consumer voluntarily agrees to arbitration, such an agreement may be enforceable, although statutory consumer protections will still apply.

Other specialized disputes, such as insolvency, criminal matters, matrimonial issues, and probate matters, are generally considered non-arbitrable as they involve public interest or statutory rights. However, disputes arising from commercial contracts that have elements of these specialized disputes may still be arbitrable if they are primarily commercial in nature. Indian courts have consistently drawn a distinction between the underlying commercial relationship and statutory rights to determine arbitrability, reinforcing the principle that arbitration is intended to resolve private commercial disputes rather than issues involving broader public interest.

10. How does the law determine whether a particular dispute should be resolved through arbitration or whether it falls within the exclusive jurisdiction of the courts?

Under Indian law, determining whether a dispute should be resolved through arbitration or falls under the exclusive jurisdiction of the courts involves a careful balance between party autonomy, statutory mandates, public policy considerations, and the nature of the rights involved.

When parties explicitly agree to arbitrate their disputes, the principle of party autonomy generally favours arbitration. For example, in a commercial contract containing a clear arbitration clause, a breach of contract dispute between two corporations is typically resolved through arbitration. However, even with an arbitration agreement, courts examine the subject matter to ensure it is suitable for private resolution. Disputes that primarily involve rights in personam i.e. those affecting the individual contractual relationship, such as disputes over payment terms in a service contract, are usually arbitrable.

Conversely, if the dispute involves rights in rem, which are enforceable against the world at large, arbitration may not be appropriate. A classic example is mortgage enforcement. In the landmark decisions such Booz Allen case & Vidya Drolia Case, the Supreme Court held that right in rem must be resolved by public courts rather than through arbitration, as they have an erga omnes effect and impact third-party rights.

Statutory provisions also play a critical role. Certain disputes are expressly reserved for resolution by specialized forums established by statute. For instance, consumer disputes under the Consumer Protection Act, 2019 are generally excluded from arbitration because the Act mandates that such disputes be resolved in consumer forums. Similarly, disputes under the Recovery of Debts Due to Banks and Financial Institutions Act are required to be resolved by designated tribunals, ensuring that issues affecting a broader public interest are handled by judicial bodies.

The law further considers whether a dispute touches upon matters of public policy or involves sovereign functions. For example, disputes involving criminal offenses or challenges to legislative or executive actions, such as tax disputes that question state functions, are deemed non-arbitrable because they require public oversight and cannot be delegated to a private arbitrator.

Finally, the explicit language of the arbitration agreement is crucial. If the agreement unambiguously provides for arbitration and does not exclude any particular categories of disputes, courts will generally enforce it. However, if the agreement is ambiguous or if the dispute falls within areas explicitly reserved for judicial adjudication such as family law matters like divorce or child custody, the courts will assert their exclusive jurisdiction.

In essence, the law determines the appropriate forum for dispute resolution by weighing the contractual intent of the parties against statutory exclusions and public policy imperatives, with numerous judicial precedents such as those in Booz Allen for mortgage disputes, consumer disputes under the Consumer Protection Act, and insolvency cases under the Insolvency and Bankruptcy Code, guiding the interpretation of arbitrability.

11. How do Indian courts determine arbitrability when a dispute involves allegations of fraud or criminal misconduct?

Indian courts determine the arbitrability of disputes involving allegations of fraud or criminal misconduct by analysing whether the nature of the dispute remains essentially civil or if it involves issues that require judicial intervention. The courts consider whether the fraud allegations are serious, impact the validity of the arbitration agreement, or involve complex criminal elements that necessitate court adjudication. The Supreme Court in A. Ayyasamy v. Parmasivam; 2016 (10) SCC 386, clarified that mere allegations of fraud do not render a dispute non-arbitrable. If the core transaction is contractual and the allegations do not directly affect the arbitration agreement, the matter can be resolved through arbitration. However, in cases where fraud is so serious that it vitiates the contract itself or involves public law elements like forgery or criminal conspiracy, the courts retain exclusive jurisdiction.

In Avitel Post Studioz Ltd. v. HSBC PI Holdings; AIRONLINE 2020 SC 691, the Supreme Court reiterated that fraud-related disputes are arbitrable unless the allegations directly challenge the arbitration agreement or have criminal implications. If a claim is based purely on a contractual dispute with fraud as an incidental allegation, it can proceed to arbitration. However, if the fraud is so significant that it invalidates the contract itself or involves criminal wrongdoing beyond the contract (such as public fraud or misrepresentation affecting third parties), courts will step in.

For instance, if a party alleges that the contract itself was obtained through fraud and is void ab initio, courts may refuse arbitration. Similarly, if allegations involve criminal misconduct such as forgery, misappropriation of public funds, or fraud affecting third parties, the matter is non-arbitrable and must be adjudicated by a court.

Thus, Indian courts follow a nuanced approach i.e. contractual disputes with incidental fraud claims remain arbitrable, while serious fraud allegations affecting the validity of the arbitration clause or involving public law elements require judicial intervention.

FORMATION & FUNDAMENTALS OF ARBITRATION AGREEMENTS

12. What are the key elements required for a valid and enforceable arbitration agreement under Indian law?

Under Indian law, specifically Section 7 of the Act of 1996, a valid and enforceable arbitration agreement must include the following key elements:

• Agreement to Arbitrate: The parties must mutually consent to submit all or certain disputes to arbitration. These disputes can be existing or potential and must arise from a defined legal relationship, whether contractual or not.
• Written Form: The arbitration agreement must be in writing. This requirement is satisfied if the agreement is:
• • Contained in a document signed by the parties;
  • Established through an exchange of letters, telex, telegrams, or other means of telecommunication, including electronic communication, that provide a record of the agreement;
  • Evident from an exchange of statements of claim and defence in which one party alleges the existence of the agreement, and the other party does not deny it.
• Incorporation by Reference: A contract can refer to a separate document containing an arbitration clause. Such a reference constitutes an arbitration agreement if the contract is in writing and the reference is sufficient to make that arbitration clause part of the contract.

These elements ensure that the arbitration agreement is clear, consensual, and legally binding, thereby facilitating the arbitration process.

13. Are there specific formal requirements such as writing or signatures for an arbitration agreement to be recognized in India?

Under Indian law, an arbitration agreement must be in writing to be recognized and enforceable, as stipulated by Section 7(3) of the Act of 1996. However, the Act does not mandate that the arbitration agreement be signed by the parties. The requirement for a written form can be satisfied through various means, including:

• Documentary Evidence: The agreement can be contained in a document signed by the parties.
• Exchange of Communications: An arbitration agreement is considered valid if it is established through an exchange of letters, telex, telegrams, or other means of telecommunication that provide a record of the agreement.
• Pleadings in Legal Proceedings: If, in an exchange of statements of claim and defence, one party asserts the existence of an arbitration agreement and the other party does not deny it, this can constitute a valid arbitration agreement.

Therefore, while a written form is essential for an arbitration agreement under Indian law, a signature is not a mandatory requirement. The existence of the agreement can be inferred from the conduct of the parties and the context of their communications, provided there is clear evidence of their intention to arbitrate disputes.

14. How are agreements treated when they form part of unstamped or inadequately stamped contracts?

Under Indian law, agreements that form part of unstamped or inadequately stamped contracts are treated with specific considerations, particularly following the landmark ruling in In Re: Interplay Between Arbitration Agreements Under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, by the seven-judge Constitution Bench on December 13, 2023. This judgment overturned previous decisions, including N.N. Global Mercantile Private Ltd. v. Indo Unique Flame Ltd. (2023), SMS Tea Estates v. Chandmari Tea Co. Pvt. Ltd. (2011), and Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering (2019), which had held that an unstamped arbitration agreement was unenforceable and void ab initio.

The Court clarified that an unstamped arbitration agreement is not void ab initio but rather inadmissible as evidence in legal proceedings unless the required stamp duty is paid. This distinction is based on Section 35 of the Indian Stamp Act, 1899, which states that an unstamped instrument is inadmissible as evidence. However, Section 42 of the same Act provides that an insufficiently stamped instrument may become admissible once the necessary stamp duty and penalty are paid. Thus, an unstamped arbitration agreement represents a curable defect rather than an inherent invalidity.

A key aspect of the ruling was the doctrine of separability under Section 16 of the Act. This principle ensures that an arbitration agreement is treated as independent from the main contract in which it is embedded. Even if the underlying contract is found to be unenforceable due to lack of stamping, the arbitration agreement itself remains valid and capable of being enforced separately. This doctrine, which is widely recognized in international arbitration, ensures that the arbitration clause continues to operate even if the substantive contract is challenged.

The ruling also reinforced the principle of "arbitral autonomy" enshrined in Section 5 of the Act. This principle seeks to minimize judicial interference in arbitration proceedings, thereby preserving the integrity of the arbitral process. The judgment emphasized that courts should not impound an unstamped arbitration agreement at the pre-arbitral stage, as doing so would undermine the efficiency of arbitration. Instead, the arbitral tribunal itself has the power to examine whether the agreement has been duly stamped and decide on its admissibility.

From a broader perspective, the Court harmonized the interplay between three key statutes – the Arbitration and Conciliation Act, the Indian Stamp Act, and the Indian Contract Act. It held that the Arbitration Act, being a special law, takes precedence over the Stamp Act and Contract Act when dealing with arbitration agreements. The Court noted that when the Arbitration Act was enacted, the legislature was aware of the Stamp Act but did not impose stamping as a prerequisite for the validity of an arbitration agreement. This further supports the idea that stamping is a procedural requirement rather than a condition that affects the fundamental enforceability of an arbitration clause.

Another significant aspect of the ruling was its impact on past precedents. In SMS Tea Estates, the Court had previously held that an arbitration agreement in an unstamped contract was unenforceable and that courts had the power to impound such documents at the stage of appointing an arbitrator. Similarly, in Garware Wall Ropes, it was determined that an arbitration agreement in an unstamped contract lacked legal existence. The seven-judge bench rejected these interpretations, holding that both cases were wrongly decided and misinterpreted the law. The ruling affirmed that an unstamped arbitration agreement is not void but merely requires proper stamping before it can be relied upon as evidence.

In practical terms, the ruling ensures that arbitration agreements remain enforceable even if the underlying contract is unstamped. For instance, if two parties enter into a business contract with an arbitration clause, but the contract is not adequately stamped, the arbitration clause does not become void. Instead, if a dispute arises, the arbitral tribunal can proceed with arbitration while ensuring that the required stamp duty is paid before the award is enforced in court. It aligns with global arbitration practices, where courts generally recognize the separability of arbitration agreements and uphold their validity even when issues arise with the underlying contract.

CHOICE OF APPLICABLE LAW, SEAT & LANGUAGE

15. How is the governing law of the arbitration agreement determined in your jurisdiction? Do the parties have complete contractual freedom in making such a choice?

In India, the determination of the governing law of the arbitration agreement remains a subject of judicial debate, with courts adopting differing approaches over time. Indian law upholds party autonomy to choose applicable law in substance.

However, ambiguity arises when the parties have not expressly designated the governing law of the arbitration agreement. In such circumstances, courts are required to ascertain and give effect to the parties' intention at the time of entering into the arbitration agreement, in order to determine the law governing the arbitration agreement. To do so, courts have employed various methods, such as the "closest and most real connection" test, reference to the law governing the substantive contract, or the law of the seat of arbitration, depending on the facts and context of each case.

The Supreme Court in NTPC v. Singer; (1992) 3 SCC 551, held that if the contract has an expressly chosen substantive law, that law will typically govern the arbitration agreement as well, unless there is a clear intention to the contrary. However, where the governing law of the contract is not expressly stated, the law of the seat of arbitration may determine the governing law of the arbitration agreement.

On the other hand, in the case of Indtel Technical Services Pvt Ltd v. W.S. Atkins Rail Ltd; (2008) 10 SCC 308, the Supreme Court had observed that when an arbitration agreement is silent as to the applicable law, the law governing the such agreement would be the same as the law governing the contract itself. Similarly, the Delhi High Court in Carzonrent India v. Hertz International; 2015 SCC OnLine Del 10085, while applied the "closest and most real connection" test and observed that, since the contract was to be performed in India, the proper law governing the main contract would be Indian law. Consequently, the arbitration agreement was held to have its closest connection with India, making Indian law the governing law of the arbitration agreement. The Bombay High Court in Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse SA; (2014) 3 BOM CR 768, also held that the law governing the main contract should also govern the arbitration agreement.

This inconsistency has led to uncertainty in arbitration jurisprudence in India. In the absence of an express stipulation regarding the governing law, courts are compelled to undertake the above interpretative exercise which often involves considerable time and expense before the arbitration proceedings can even commence.

Therefore, to avoid ambiguity and litigation, it is always advisable that parties expressly specify the governing law of the arbitration agreement and the seat of arbitration.

16. Are there any limitations on selecting the seat of arbitration?

Under Indian law, parties have considerable autonomy in selecting the seat of arbitration. The Supreme Court of India in its recent judgement in the case of Arif Azim Co. Ltd. v. M/s Micromax Informatics FZE; Arbitration Petition No. 31 of 2023, observed that due regard must be given to every stipulation and choice made by the parties. The Court emphasized that courts are merely serve conduits of the arbitral process, and that the essence of arbitration lies in the autonomy and intentions of the parties as reflected in the arbitration agreement. Accordingly, it is the duty of the court to interpret such agreements in a manner that best upholds and gives effect to the choices and intentions expressed therein.

The seat of arbitration is crucial because it determines the procedural law governing the arbitration and the jurisdiction of courts for supervisory and enforcement purposes. If the arbitration is seated in India or the law governing the arbitration agreement are the laws of India, it will be governed by PART-I of the Act, including provisions related to interim relief, setting aside awards, and enforcement. Conversely, if it is a foreign-seated arbitration, only the provisions of PART-II will apply for enforcement of foreign award, and PART-I will generally not apply unless the parties expressly agree to its application.

Indian courts have emphasized that the seat of arbitration must be clearly designated to avoid jurisdictional confusion. In BALCO case and even in Mankastu Impex Pvt. Ltd. v. Airvisual Ltd.; AIR 2020 SUPREME COURT 1297, the Supreme Court clarified that mere reference to a location as a "venue" does not necessarily mean it is the "seat" unless there is clear intent from the parties.

Recently, the Supreme Court of India in Arif Azim case has clarified the approach to determining the "seat" of arbitration. Few key principles laid down are reproduced hereunder: -

• Part I of the Arbitration and Conciliation Act, 1996 and the provisions contained therein apply only where the arbitration takes place in India. This is either where the seat of arbitration is in India or where the law governing the arbitration agreement is Indian law.
• Once the seat of arbitration is identified, it operates in a manner similar to an exclusive jurisdiction clause. In effect, only the courts at the seat of arbitration will have the jurisdiction to supervise and regulate the arbitral proceedings.
• The "closest connection test" as a method for determining the seat of arbitration i.e. examining the law with which the agreement to arbitrate has the closest and most real connection, is no longer a valid criterion in view of the principle laid down in the Shashoua principle. The seat of arbitration cannot be ascertained by applying abstract choice of law rules or connecting factors relating to the main contract.
• When an arbitration agreement expressly designates a place of arbitration, and there are no contrary indications in the agreement, such designation will determine the seat of arbitration. This is true even if the agreement uses the term "venue" instead of "seat".
• Merely because the agreement uses the word "venue" without expressly identifying it as the "seat" of arbitration, the courts must not override or disregard the express choices made by the parties. The language used in the arbitration clause must be interpreted in accordance with the parties' intent and cannot be presumed to be inadvertent or accidental in terms of the seat designation.

While, there were previously certain restrictions placed on Indian parties when selecting the seat of arbitration, such that if the arbitration involves purely domestic disputes (i.e., between two Indian parties with no foreign element), the courts have debated whether parties can choose a foreign seat. In TDM Infrastructure Pvt. Ltd. v. UE Development India Pvt. Ltd.; 2008 (14) SCC 271 (2008), the Supreme Court observed that two Indian parties cannot derogate from Indian law by choosing a foreign seat.

However, more recent judgments, such as PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd.; AIRONLINE 2021 SC 213, clarified that Indian parties are not barred from choosing a foreign seat, though enforcement of foreign awards in India will still be subject to scrutiny under the New York Convention or the Geneva Convention.

In conclusion, while parties have broad discretion in selecting the seat of arbitration, their choice must align with Indian legal principles. If arbitration is domestic, selecting a foreign seat may be subject to legal challenges, and even in international arbitrations, the seat should be chosen carefully to ensure clarity in procedural law and enforceability.

17. If parties have not explicitly agreed on the seat or language of arbitration does Indian law provide default rules?

If parties have not explicitly agreed on the seat or language of arbitration, Indian law provides certain guiding principles to determine these aspects. The Act of 1996 does not prescribe strict default rules but offers a framework under which courts and tribunals can infer the seat and language based on the circumstances of the case.

For the seat of arbitration, Section 20 of the Act allows parties to determine the place of arbitration. If the parties have not specified the place, it falls upon the arbitral tribunal to determine it, considering the convenience of the parties and the nature of the dispute. Indian courts have emphasized that the determination of the seat is crucial because it decides the procedural law applicable to arbitration. In the Arif Azim case, the Supreme Court observed that the closest connection test is suitable for determining the seat of arbitration, where there is no express or implied designation of a place of arbitration in the agreement either in the form of 'venue' or 'curial law'.

For the language of arbitration, Section 22 of the Act states that parties are free to agree on the language to be used in the proceedings. If there is no agreement, the arbitral tribunal decides the language, considering the nature of the contract and the languages commonly used by the parties in their communication. In practice, tribunals generally select a language that aligns with the contract's language or the dominant language of the parties involved.

In conclusion, while the Act does not provide fixed default rules, it ensures that gaps regarding the seat and language of arbitration are addressed through the discretion of the arbitral tribunal or, in some cases, the courts. The approach taken by Indian courts prioritizes party autonomy while also ensuring that arbitration remains efficient and enforceable.

18. Can arbitration proceedings be conducted in a language other than the local language(s)?

Yes, arbitration proceedings in India can be conducted in a language other than the local language(s).

The Act of 1996 grants parties the autonomy to decide the language of arbitration. Section 22 of the Act explicitly states that parties are free to agree on the language or languages to be used in the proceedings. If there is no agreement, the arbitral tribunal determines the language based on the circumstances of the case. This flexibility allows arbitration to be conducted in widely used languages such as English, which is often preferred in commercial disputes, especially those involving international parties.

Once the language is determined, it applies to all written statements, hearings, orders, and awards unless the tribunal decides otherwise. If any document is in a different language, the tribunal may require a translation. This provision ensures that arbitration remains accessible and efficient, even in cross-border disputes where parties may not be fluent in the local languages of India.

PROCEDURE FOR INITIATING ARBITRATION

19. What are the practical steps for initiating arbitration under the Arbitration and Conciliation Act, 1996?

The Arbitration and Conciliation Act, 1996 provides a structured framework for initiating arbitration in India. Below are the key steps:

• Check the Existence and Validity of the Arbitration Agreement
• 1. Verify that the contract contains a valid arbitration clause or that the parties have executed a separate arbitration agreement.
  2. Ensure that the arbitration agreement complies with Section 7 of the Act, which mandates that it must be in writing.
  3. Confirm that the dispute is arbitrable under Indian law (e.g., disputes involving criminal offenses, insolvency, or oppression & mismanagement under company law are non-arbitrable).
• Issue a Notice of Arbitration
• 1. The party intending to initiate arbitration must send a written Notice of Arbitration to the opposing party, invoking the arbitration clause under Section 21 of the Act. To read more about Section 21 click here.
  2. The notice should include:
     
     • Reference to the arbitration agreement.
     • A brief description of the dispute.
     • The relief or remedy sought.
     • Proposed arbitrator(s) (if applicable).
  3. The arbitration proceedings officially commence when the respondent receives this notice.
• Appointment of Arbitrator(s)
• 1. If the arbitration clause specifies an institution (e.g., SIAC, ICC, MCIA), follow the institutional rules for appointing arbitrators.
  2. If it is an ad hoc arbitration, the parties must mutually agree on an arbitrator(s).
  3. If there is no agreement or the opposing party fails to appoint an arbitrator within 30 days, the party invoking arbitration can approach the High Court or Supreme Court under Section 11 of the Act for appointment.
  4. In case of multi-member tribunals, each party appoints one arbitrator, and these arbitrators appoint the presiding arbitrator.
• Preliminary Meeting and Terms of Reference
• 1. The arbitrator(s) may conduct a preliminary hearing to:
     
     • Establish procedural timelines.
     • Clarify jurisdictional issues.
     • Fix the language, venue, and governing law of arbitration.
  2. If required, the parties may execute Terms of Reference to define the scope of arbitration.
• Submission of Statements and Evidence
• 1. The claimant submits a Statement of Claim (SoC) outlining the facts, legal arguments, and relief sought.
  2. The respondent submits a Statement of Defence (SoD) and may file a counterclaims, if applicable.
  3. The tribunal may allow documentary and oral evidence, and cross-examination may be conducted.
• Conduct of Arbitration Proceedings
• 1. Arbitration hearings may be conducted physically, virtually, or based on documents.
  2. The proceedings should follow the principles of natural justice, ensuring both parties get a fair opportunity to present their case.
  3. Interim reliefs under Section 17 can be sought from the tribunal (or under Section 9 from the courts before the tribunal is constituted).
• Final Arguments and Award
• 1. After the hearings, parties submit written arguments.
  2. The tribunal issues a reasoned award within 12 months (extendable to 18 months with party consent) as per Section 29A.
  3. The award is final and binding, subject to challenge under Section 34 (limited grounds like fraud, violation of public policy, lack of jurisdiction, etc.).
• Enforcement of the Award
• 1. A domestic award is enforced as a decree of the court under Section 36 of the Act.
  2. A foreign award is enforced under PART-II i.e. under Section 49 & Section 58 of the Act, following the New York Convention or Geneva Convention. However, the enforcement of the foreign award may be resisted under the conditions laid down in Sections 48 and 57.

Initiating arbitration under the Act of 1996 requires strict compliance with procedural and contractual obligations. To avoid delays, parties should clearly draft arbitration clauses, promptly invoke arbitration, and adhere to procedural timelines. Institutional arbitration can further streamline the process by ensuring transparency and efficiency.

RESISTING ARBITRATION

20. Can a party can object to the tribunal's jurisdiction, and what procedures must be followed?

Under the Act of 1996, a party must object to the tribunal's jurisdiction at the earliest possible stage to avoid being deemed to have waived its right to object. The relevant provision is Section 16 of the Act.

• When to Object?
• A party must raise an objection to the tribunal's jurisdiction:
• • Before submitting the statement of defence – As per Section 16(2), a jurisdictional objection must be raised no later than the filing of the statement of defence. If a party fails to do so, it may be deemed to have waived its objection.
  • Objection to Tribunal's Authority at Any Stage – Under Section 16(3), an objection regarding the tribunal exceeding its scope can be raised as soon as the matter alleged to be beyond jurisdiction arises.
• Procedure for Raising an Objection
• 1. Filing a Written Objection:
     
     • The party must submit a written objection to the tribunal, explaining why the tribunal lacks jurisdiction.
     • This could be based on:
     • • Absence or invalidity of the arbitration agreement.
       • The dispute being non-arbitrable (e.g., criminal matters, insolvency, oppression & mismanagement).
       • The arbitration agreement being incapable of being performed.
       • The tribunal acting beyond the agreed scope.
  2. Tribunal's Decision:
     
     • The tribunal will decide on its jurisdiction as a preliminary issue or in the final award (Section 16(5)).
     • If the tribunal rejects the objection, the arbitration continues.
     • If the tribunal accepts the objection, the proceedings terminate.
  3. Appeal to Courts:
     
     • If the tribunal rejects the jurisdictional challenge, the party cannot appeal immediately but must wait for the final award and challenge it under Section 34 (set-aside application).

If the tribunal accepts the challenge and rules that it lacks jurisdiction, the aggrieved party can immediately appeal to a court under Section 37(2)(a).

21. Can a party refuse to participate in arbitration on the grounds that the agreement was obtained through fraud, coercion, or undue influence?

Yes, a party can refuse arbitration by arguing that the arbitration agreement was procured through fraud, coercion, or undue influence. Under Indian law, an arbitration agreement, like any other contract, must meet the essentials of a valid contract as per the Indian Contract Act, 1872. If a party claims that the agreement was obtained through fraud (Section 17), coercion (Section 15), or undue influence (Section 16), they may challenge its validity before an arbitral tribunal or a court.

Section 16 of the Act of 1996, which embodies the principle of Kompetenz-Kompetenz, allows an arbitral tribunal to rule on its own jurisdiction, including objections to the validity of the arbitration agreement. However, if a party raises allegations of fraud that go to the root of the contract and require extensive evidence, Indian courts have, in certain cases, ruled that such disputes should be adjudicated by courts rather than through arbitration. This is particularly relevant in cases involving serious allegations of fraud affecting the entire contract rather than just the arbitration clause.

In cases of fraud, coercion, or undue influence, the affected party must raise objections at the earliest possible stage, either before the tribunal under Section 16 or by resisting an application for reference to arbitration under Section 8 (in domestic arbitrations) or Section 45 or Section 54 (in foreign-seated arbitrations). If the challenge is upheld, the arbitration clause may be deemed invalid, and the dispute will be resolved by courts. However, if the tribunal finds the agreement valid, arbitration will proceed, subject to court review at the enforcement stage.

Thus, while Indian law allows parties to challenge arbitration agreements on these grounds, courts assess whether the allegations are serious enough to invalidate arbitration or whether the dispute can still be resolved through arbitration.

22. Can an arbitral tribunal determine its own jurisdiction, or is court intervention required under certain circumstances?

Under Indian law, an arbitral tribunal has the authority to determine its own jurisdiction under Section 16 of the Act of 1996, incorporating the Kompetenz-Kompetenz principle. This allows the tribunal to rule on the existence and validity of the arbitration agreement, the scope of arbitration, and the arbitrability of disputes. If a party objects to jurisdiction, it must do so before submitting its statement of defence. If the tribunal rejects the challenge, arbitration continues, and the party can challenge jurisdiction only after the final award under Section 34. However, courts may intervene in certain circumstances. At the pre-arbitration stage, courts examine the existence of a valid arbitration agreement when appointing arbitrators under Section 11 or staying judicial proceedings under Sections 8 & 45. At the post-award stage, courts can review jurisdictional errors under Sections 34, 48 & 57. Additionally, if a tribunal declines jurisdiction, an immediate appeal is allowed under Section 37(2)(a). Overall, while the tribunal has primary authority over jurisdiction, courts may step in under limited circumstances, ensuring a balance between autonomy in arbitration and necessary judicial oversight.

APPOINTMENT OF ARBITRATORS

23. What is the process for constituting an arbitral tribunal in India?

The constitution of an arbitral tribunal in India is governed by Section 10 and Section 11 of the Act of 1996. The process depends on the terms agreed upon by the parties in the arbitration agreement, and in the absence of such an agreement, the Act provides default rules.

Number of Arbitrators (Section 10)

• Parties are free to decide the number of arbitrators.
• If no specific number is agreed upon, the default rule is a sole arbitrator.
• The number of arbitrators must always be odd to prevent deadlock situations.

Procedure for Appointment (Section 11)

• Parties are free to decide on a procedure for appointing arbitrators.
• If they fail to do so, the default procedure is:
• • For Sole Arbitrator: If the parties cannot agree on a sole arbitrator within 30 days, either party can request the appropriate court to appoint one.
  • For Three Arbitrators: Each party appoints one arbitrator, and the two appointed arbitrators choose the third arbitrator, who acts as the presiding arbitrator. If they fail to do so within 30 days, the court may intervene.

Court's Role in Appointment

• If a party refuses to appoint an arbitrator or if there is a failure in the agreed appointment procedure, a party can approach the High Court (for domestic arbitration) or the Supreme Court (for international arbitration) for appointment under Section 11.
• The court's role is limited to ensuring that a valid arbitration agreement exists before making an appointment.

Institutional Arbitration and Default Appointing Authority

• If the arbitration is institutional (e.g., ICC, SIAC, MCIA), the institution's rules govern the appointment.
• Under the 2021 amendment, the Supreme Court and High Courts may designate arbitral institutions to appoint arbitrators instead of making direct appointments.

Once the tribunal is constituted, it assumes jurisdiction over the dispute and proceeds with arbitration as per the agreed procedure or the default rules under the Act.

Practical Tips (Detailed)

Draft clear, comprehensive arbitration clauses: Expressly identify the seat of arbitration, the governing law of both the contract and arbitration agreement, and whether the arbitration will be institutional or ad hoc. Clarity at the drafting stage significantly reduces later disputes over jurisdiction, curial law, and court supervision.

Manage stamping and formal validity issues early: Where Indian law, Indian parties, or India-seated arbitration are involved, ensure that the underlying contract is appropriately stamped and executed. Although recent Supreme Court jurisprudence treats stamping defects as curable, counterparties may still raise them tactically to delay the process.

Choose the right tribunal and procedure: Select arbitrators with experience in Indian arbitration and the relevant industry sector. Where appropriate, consider institutional rules (such as emergency arbitration, expedited procedures, or case management conferences) to control time and cost.

Plan for interim relief and asset protection: Consider at the outset whether you may need interim measures in India such as preservation of assets, injunctions, or security for claims. Section 9 (court-ordered interim measures) and Section 17 (tribunal-ordered interim measures) can be powerful tools when strategically deployed.

Design an enforcement-focused dispute strategy: Before initiating arbitration, map where the counterparty's assets are located and whether those jurisdictions are New York Convention reciprocating territories for India. Factor in India's approach to public policy, limitation periods, and procedural requirements so that a favourable award can be recognised and executed efficiently.

Practical Tips (Quick Preview)

Clearly specify the seat of arbitration, governing law of the contract and arbitration agreement, and institutional rules in any contract involving India.

Address stamping and formal validity issues at the contracting stage to avoid technical challenges to the arbitration agreement or award.

Choose arbitrators and/or arbitral institutions with experience in Indian arbitration law and enforcement practice.

Plan ahead for interim relief in India (for example under Section 9 of the Arbitration and Conciliation Act, 1996) wherever assets or counterparties are located in India, even if the seat is foreign.

Think through enforcement strategy from day one, including where assets are located and how Indian courts approach public policy and other New York Convention defences.

For more detailed, practice-focused guidance, see Practical Tips (Detailed) at the end of this document.

This Q&A compilation helps you quickly navigate India's evolving arbitration framework. Click any question below to jump directly to that section.

About the Author

Ravish is a dual-qualified lawyer and solicitor licensed to practice in India and on the roll of the Solicitors Regulation Authority (England and Wales). He specialises in international arbitration and international taxation, and holds the Advanced Diploma in International Taxation (ADIT) from the Chartered Institute of Taxation (CIOT).

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