F&M Arbitration Playbook

This Playbook presents a curated selection of recent rulings that have significantly shaped the arbitration ecosystem in India, spanning the full arbitration lifecycle from contract formation and tribunal constitution to interim measures, and post-award challenges. The compendium is designed to serve as a ready reference guide for both lawyers and non-legal readers who are engaged in, or contemplating arbitration proceedings in India.

FOREWORD

The 'F&M Arbitration Playbook' presents a carefully curated selection of recent judicial decisions that have significantly shaped the arbitration ecosystem in India, spanning the full arbitration lifecycle from contract formation and tribunal constitution to interim measures, and post-award challenges.

The compiled decisions reflect the Indian judiciary's evolving approach toward arbitration, marked by a strong emphasis on party autonomy, procedural fairness, and neutrality of arbitral tribunals, alongside a consistent commitment to minimal and principled judicial interference.

The compendium is designed to serve as a ready reference guide for both lawyers and non-legal readers who are engaged in, or contemplating arbitration proceedings in India.

ARBITRATION AGREEMENTS

Enforceability of pre-arbitral conciliation steps in case of termination of a contract

Gajendra Mishra v. Pokhrama Foundation
Delhi High Court
2024 SCC OnLine Del 267

The Delhi High Court held that a party terminating a contract without performing pre-arbitral procedures could not later require the other party to complete those steps. Contract termination extinguishes the obligation to follow contract-based conciliation mechanisms.

Key takeaways

• Drafting clear termination and dispute resolution provisions that address post-termination obligations can prevent procedural ambiguities and potential litigation.
• Legal strategies should balance between contract termination benefits and potential waiver of procedural safeguards to mitigate risks effectively.

WhatsApp and email communication may constitute a valid arbitration agreement

Belvedere Resources DMCC v. OCL Iron and Steel Ltd
Supreme Court of India
2025 SCC OnLine Del 4652

Binding arbitration agreements may arise from clear digital communications and conduct, even without a concluded and signed contract.

WhatsApp and email exchanges capturing the parties' intent to arbitrate through factors such as assurance to sign the final contract containing an arbitration clause and acknowledgement of the counterparty's contractual performance, would constitute a valid and binding arbitration agreement.

Key takeaways

• The intent to arbitrate may be inferred from communications and conduct (reassurances to sign, participation in execution steps, or silence during performance), even without a signed contract.
• Parties should determine their preferred dispute-resolution mechanism at the outset of negotiations, as the forum for resolving disputes may become legally fixed well before contract execution.
• An express condition limiting recourse to arbitration until formal contract execution may be stipulated.

Test to determine the governing law in an international arbitration agreement

Disortho SAS v. Meril Life Sciences Pvt Ltd
Supreme Court of India
2025 SCC OnLine SC 570

The Supreme Court formulated a 3-fold test for determining the law governing an arbitration clause in a contract containing inconsistent and unclear dispute resolution clauses:

• Start with any express choice of law.
• If the above is absent, consider the law implied by the main contract (lex contractus), which would be a strong indicator of the applicable law when the arbitration clause is part of the substantive contract.
• If still unclear, identify the system with the closest connection to the dispute.

Key takeaways

• Instead of vague clauses regarding the applicable laws, ideally the parties should distinctly specify the law governing different facets where they so intend i.e. the arbitration procedure, arbitration agreement, arbitration-related Court processes such as appointment, interim relief, and challenges; and the substantive law of the contract.
• Drafting dispute resolution clauses to harmonise substantive and procedural aspects of dispute resolution minimises ambiguity and legal conflicts.

Whether the venue could be regarded as the seat of arbitration?

Arif Azim Co Ltd v. Micromax Informatics FZE
Supreme Court
2024 SCC OnLine SC 3212

The Supreme Court set out 3 factors to determine the seat of arbitration:

• The agreement must designate a single place.
• Proceedings must be anchored to that place without flexibility.
• There should be no contrary indication negating it as the seat.

Thus, if an agreement specifies a place and subjects the contract to its governing law, that place will be the seat, even if termed a 'venue'. Where multiple places are designated, Courts may decline jurisdiction based on factors such as the nature of the agreement, the dispute, and the parties' intentions.

Key takeaways

• Parties should draft arbitration clauses with precision, clearly specifying one legal seat to ensure certainty and minimise future challenges.
• Referring to multiple locations or creating ambiguity in the clause can trigger expensive jurisdictional disputes and delay resolution, especially in cross-border contracts.
• A single place named as the 'venue' may be viewed as the legal seat, thereby conferring exclusive supervisory jurisdiction on its Courts.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.