2021-2022 Arbitration Summary

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Page 1 Sunday, September 03, 2023

Printed For: Mr. Rahul IAS
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© 2023 EBC Publishing Pvt. Ltd., Lucknow.
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2022 SCC OnLine Blog Exp 88
Arbitration Dossier (2021-22)| A Snapshot of Major

Developments in Lex Arbitri
ARBITRATION DOSSIER (2021-22)| A SNAPSHOT OF MAJOR

DEVELOPMENTS IN LEX ARBITRI
by
Chakrapani Misra†, Sameer Bindra†† and Varshini Sunder†††
Introduction
The landscape of arbitration in India has undergone significant
developments in the past year. From the introduction of recent
amendments vide the Arbitration and Conciliation (Amendment) Act,
2021 to the Arbitration and Conciliation Act, 1996 (the “IAAC”), to the
landmark court decisions fortifying the principle of party autonomy, this
dossier seeks to unfold and shed light on some of the crucial judgments
that were passed in the last year, with specific emphasis on judgments
rendered by the Supreme Court of India, and High Courts situated in
major cities which act as an arbitration hub Bombay High Court, Delhi
High Court, Madras High Court and Calcutta High Court. In addition to
this, the dossier also briefly touches upon a few important judgments
that were rendered in jurisdictions such as United Kingdom and
Singapore, being the leading jurisdictions for international arbitrations.
Arbitration in the Indian Regime
I. The seat-venue tide settles
India has seen its fair share of divergent cases on the point of choice
of seat and venue.
In the landmark judgment of Inox Renewables Ltd. v. Jayesh
Electricals Ltd.1 delivered by the Supreme Court, the seat-venue debate
was reignited.
However, this time around, the court, instead of creating new
currents in already electric waters, decided to ride an existing wave.
The parties to this case had, vide an arbitration clause in a purchase
order agreed to the following:
3. … The venue of the arbitration shall be Jaipur.
***
In the event of arbitrators' award being not acceptable to either
party, the parties shall be free to seek lawful remedies under the law
of India and the jurisdiction for the same shall be courts in the State
of Rajasthan.
A dispute having arisen, the respondent initiated arbitration by filing
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a Section 11 application in the High Court of Gujarat. The sole arbitrator

appointed passed an award in favour of the respondent, directing the
appellant to pay certain sum towards the principal, interest and costs.
The arbitrator recorded in the award that parties had mutually agreed
to change the “venue” of arbitration. The operative portion of the award
read as follows:
10. As per arbitration agreement, the venue of the arbitration was
to be Jaipur. However, the parties have mutually agreed, irrespective
of a specific clause as to the (venue, that the place) of the
arbitration would be at Ahmedabad and not at Jaipur. The
proceedings, thus, have been conducted at Ahmedabad on
constitution of the Tribunal by the learned nominee Judge of the
High Court of Gujarat.
The point of law before the Supreme Court was whether this change
in venue was, in effect a change in the “juridical seat” of arbitration.
If it were merely a change in the venue and not the seat, then
exclusive jurisdiction would remain with the courts of Rajasthan by
virtue of their arbitration clause.
However, if it were a change in the juridical seat, it would, by
extension result in the courts of Ahmedabad having jurisdiction, as
opposed to the Courts of Rajasthan. This follows directly from the
court's decision in BGS SGS Soma JV v. NHPC Ltd.2 (BGS Soma case),
which held that choosing a seat is akin to choosing the court of
exclusive jurisdiction.
The appellant argued for the latter while the respondent argued for
the former.
The court acknowledged that it has already analysed the point of law
in an exhaustive fashion in the BGS Soma case3 . It cited with approval
certain relevant excerpts of the case which mentioned the instances
where the reference to venue would be a reference to the juridical seat.
Going by that, the court held that the parties intended to effectively
change the “seat” of arbitration, thereby directing the parties to the
courts of Ahmedabad.
While it seems that the court has applied an existing principle, an
argument could be made that it was misapplied, and that the parties
only intended to change the “venue” and not “seat” as there is no
correspondence with respect to changing the exclusive jurisdiction
clause that is present in the clause cited above. This could also be
buttressed by the fact that the arbitrator specifically records the change
as a change in “venue”, and states that “the venue of the arbitration
would be at Ahmedabad and not at Jaipur”, which could also indicate
that parties only wished to change the venue clause, and nothing else.
Subsequently the Supreme Court in BBR (India) (P) Ltd. v. S.P.
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Singla Constructions (P) Ltd.4 relied on the decision in Inox

Renewables5 to clear the stance that a change in seat of the arbitration
owing to relocation of the venue could only be effected when parties
mutually consent to such a change. Therefore, if the seat of the
arbitration has been fixed by the first arbitrator, a party cannot
unanimously claim a change of seat on grounds that by a subsequent
appointment, the venue has been changed.
II. The tussle between constitutional rights and non-obstante
clauses
Parties go into arbitration with the intent of resolving their disputes
with little to no court intervention. The IAAC strives to achieve a
balance between keeping this intent intact without encroaching on an
individual's judicial remedies. For this reason, there are adequate
provisions of appeals to courts mentioned in the IAAC itself. Further,
Section 5 of the IAAC states that “notwithstanding anything contained
in any other law for the time being in force, in matters governed by this
part, no judicial authority shall intervene except where so provided in
this part”. This solidifies the intent of reducing court intervention and
works towards making arbitration a speedy and efficacious dispute
settlement mechanism.
However, non-obstante clauses also have their Achilles heel, namely,
constitutional rights.
Most recently, the Supreme Court, in Bhaven Construction v. Sardar
Sarovar Narmada Nigam Ltd.6 , had the opportunity to re-evaluate
whether the arbitral process could be interfered under Articles 226 and
227 of the Constitution of India.
In the instant case, the respondent preferred an application under
Section 16 of the IAAC and disputed the jurisdiction of the arbitrator.
The arbitrator held that he had jurisdiction. The respondent, aggrieved
by this order, filed a special leave petition under Articles 226 and 227
of the Constitution of India before the Gujarat High Court. While the
Single Bench held that such an application is not maintainable, the
Division Bench reversed the order and allowed the appeal, which was
then appealed by way of special leave petition before the Supreme
Court.
It must be noted that the respondent has also challenged the final
award of the arbitrator under Section 34 of the IAAC.
The court quoted with approval the case of Deep Industries Ltd. v.
ONGC Ltd.7 which evaluated the interplay of Section 5 of the IAAC and
Article 227 of the Constitution of India and held that “interference
(under Article 227) is restricted to orders that are passed which are
patently lacking in inherent jurisdiction”.
The Supreme Court held that a legislative enactment cannot curtail a
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constitutional right and thus remedy under Articles 226 and 227 would
still be available despite the mandate of Section 5 of the IAAC but held
that it is prudent for a Judge to not exercise discretion to allow judicial
interference beyond the procedure established under the enactment.
The court held that power under Articles 226 and 227 needs to be
exercised in exceptional rarity, wherein one party is left remediless
under the statute, or a clear “bad faith” is shown by one of the parties
and held that this high standard set by this court is in terms of the
legislative intention to make the arbitration fair and efficient. The court
emphasised that parties should take the legal recourse that is provided
for in the legislation.
Viewed in this perspective, the court did not find either of the two
exceptional circumstances existing in the case at hand and set aside
the order of the Division Bench of the High Court where the High Court
had exercised jurisdiction under Article 226 to set aside the order of the
arbitrator passed under Section 16 of the IAAC.
This case reiterates the importance of non-intervention by the
courts, thereby making India a more lucrative seat for arbitration.
III. A pro-enforcement approach for emergency arbitrations
On 6-8-2021, the Supreme Court in Amazon.com NV Investment
Holdings LLC v. Future Retail Ltd.8 (FRL) allowed an emergency award
passed by an emergency arbitrator to be enforced under Section 17(2)
of the IAAC. The Court's decision puts to rest the heavily debated issue
of enforceability of emergency award. The Supreme Court recognised
that full party autonomy is given by the IAAC to have a dispute decided
in accordance with the institutional rules which can include emergency
arbitrators delivering interim orders, described as “awards”.
A dispute had arisen between Amazon.com NC Investment Holding
LLC (Amazon) and Future Coupons Pvt. Ltd. and Amazon invoked the
arbitration agreement which provided for institutional arbitration under
Singapore International Arbitration Centre (SIAC) rules, Indian seat
and Indian governing law. Before the Arbitral Tribunal could be formed,
Amazon sought for emergency interim relief under Rule 30.2 of
Arbitration Rules of the Singapore International Arbitration Centre
(SIAC Rules) as protective measure to restrain FRL from alienating
assets which was granted by the emergency arbitrator. Due to non-
compliance of the order of the emergency arbitrator, Amazon initiated
proceedings before Delhi High Court seeking enforcement of the
emergency order, which the court granted. Against the order of the
Single Bench, Future Group appealed before the Division Bench of the
Delhi High Court. Against the order of stay by the Division Bench of the
Delhi High Court, Amazon filed special leave petition (SLP) in the
Supreme Court.
The main question to be decided by the Supreme Court was whether
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an “award” delivered by an emergency arbitrator under the SIAC Rules

can be said to be an order under Section 17(1) of the IAAC.
Section 17(1) provides that a party may apply to the Arbitral
Tribunal during the arbitral proceedings by an Arbitral Tribunal for
interim measures. This shall be deemed to be an order of the court by
virtue of Section 17(2) of the IAAC.
Emergency arbitrators appointed by the arbitral institutions under
respective rules enable parties to seek interim measures before the
constitution of the Tribunal which usually takes time. Further, such
orders do not finally determine the issues between the parties and can
be overruled by the subsequent main Arbitral Tribunal. The question
then arises if the word “Arbitral Tribunal” and “arbitral proceedings” is
wide enough to cover emergency order/award given by the emergency
tribunal constituted before the appointment of arbitrators.
The word “Arbitral Tribunal” has been defined under Section 2(1)(d)
of the IAAC as a sole arbitrator or a panel of arbitrators. Further,
Section 21 of the IAAC provides that arbitral proceedings commence
when the notice of arbitration has been received by the respondent.
However, both Sections 2 and 21 of the IAAC begin with “unless the
context otherwise requires” and “unless otherwise agreed by the
parties” which provide scope for parties to derogate from the standard
meaning of Arbitral Tribunal and decide when an arbitration proceeding
commences.
This recognises that party autonomy has been tightly woven in the
fabric of IAAC. Parties are free to choose their own procedure and also
authorise any person including an institution to determine an issue that
arises between the parties. In fact, arbitration rules referred to in an
arbitration agreement are considered part of the arbitration agreement
itself. If the institutional rules agreed by the parties provide for
emergency arbitrator, then parties are bound by the ruling of the
emergency arbitrator.
Pursuant to the 2015 amendment to the IAAC, Section 9 (dealing
with interim orders of the court) and Section 17 when read together,
suggest that once the arbitral proceedings begin, the court will decline
to entertain application for grant of interim measures unless the
remedy of interim measure before Arbitral Tribunal would not be
efficacious. Effectively, a party can only apply for interim measure
before the Arbitral Tribunal once arbitral proceedings have commenced.
The legislative intent behind this is to obtain interim orders from an
Arbitral Tribunal constituted to decongest courts and free them from
the burdens of Section 9 applications/petitions being filed before them.
The court recognised this intent and held that emergency arbitrator's
“award” is a step in the right direction and would undoubtedly further
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the objectives of decongesting the court system and to give the parties
urgent interim relief.
The court has cleared the way for parties to opt for additional
expedited recourse under institutional rules and the aggrieved party
from the emergency award can be appeal the award under Section 37
of the IAAC. The decision also throws a word of caution that if the
parties wish not to be bound by the provisions of emergency arbitration
under the institutional rules then the parties should expressly exclude
applicability of provisions of emergency award.
Arbitration in the International regime
United Kingdom
1.Halliburton Co. v. Chubb Bermuda Insurance Ltd.
UK Supreme Court9 —
The dispute arose out of the appointment of a sole arbitrator who
was also subsequently appointed as arbitrator for a dispute with a
common party. Since the arbitrator failed to disclose the same,
Halliburton approached the court for removal of the arbitrator, which
was dismissed. The Court of Appeal noted that the disclosure
concerning appointment should have been made, but lack thereof does
not necessarily imply that there was a “real possibility of bias”.
Therefore, on appeal, two questions arose before the Supreme Court:
(a) Does an arbitrator have a duty to disclose information to parties
in circumstances where there have been multiple appointments in
related arbitrations?
(b) What test should be applied to issues of apparent bias once that
information has been disclosed or, where that information has not
been disclosed?
The UK Supreme Court held that disclosure is a legal duty under
English law unless waived by the parties. On the issue of multiple
arbitral appointments, It held that acceptance of arbitral appointments
concerning the same or overlapping subject-matter with only one
common party may give rise to an appearance of bias, as inequality of
knowledge between the common party and the other party or parties
may confer an unfair advantage. On the facts, the UK Supreme Court
determined that the arbitrator had breached his obligation to the
parties to make disclosure. The court reiterated that the test of bias laid
down in Porter v. Magill10 would apply, which is as follows:“The
question is whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility
that the Tribunal was biased.”
2.Republic of Sierra Leone v. SL Mining Ltd.
UK High Court11 —
The arbitration clause that was part of the mining licence agreement
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between the parties contained a clause requiring parties to “endeavour

to reach an amicable settlement”. Further, it stated that “in the event
that the parties shall be unable to reach an amicable settlement within
a period of 3 (three) months from a written notice by one party to the
other specifying the nature of the dispute and seeking an amicable
settlement, either party may submit the matter.…” Since the request
for arbitration was filed before the expiry of the three-month period,
Sierra Leone challenged the jurisdiction of the Tribunal on the grounds
that the arbitration cannot commence before such expiry. This
challenge was rejected by the Tribunal stating that the multi-tier
dispute resolution clause had been complied with and rendered a
partial award. This award was challenged by Sierra Leone in the English
Commercial Court which had to decide on the following:
(a) Whether the Arbitral Tribunal lacked jurisdiction when the parties
failed to follow the multi-tier dispute resolution clause which
provided for parties to make “good faith endeavours to reach
amicable settlement”?
(b) Whether question of pre-jurisdictional issues was a jurisdictional
question or question of admissibility?
The UK High Court concluded that the question as to compliance
with a multi-tier dispute resolution clause is a question of admissibility.
The Court held that the question was not whether the claim is
arbitrable or whether there is another forum in which it should be
decided (which would be jurisdictional matters), but whether the
arbitration has been presented too early. Burton, J. agreed with the
Tribunal's reasoning in its jurisdiction award that if reaching the end of
the settlement period provided in the arbitration agreement is to be
treated as a condition precedent at all, it could only be a matter of
procedure (i.e. admissibility of the claim) and not a matter of
jurisdiction. Pre-arbitration procedural issues are capable of being
resolved by the Tribunal and indeed required to be submitted to the
Tribunal for determination.
Singapore
Westbridge Ventures II Investment Holdings v. Anupam Mittal
Singapore High Court12 —
Despite the existence of an arbitration agreement between parties,
the defendant, Anupam Mittal, instituted proceedings against the
plaintiff before the National Company Law Tribunal (NCLT). His
contention was that as per the laws of India (the law of the seat), the
subject-matter of the dispute before the NCLT is non-arbitrable.
Therefore, while determining the relevance of the anti-suit injunction
filed by the plaintiff, the Singapore High Court had to determine the
following:
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What is the law that applies (at a pre-award stage) to determine

whether a claim is arbitrable? Is it (a) the law of the seat; or (b) the
law of the arbitration agreement?
The Singapore High Court held that the question of law applicable to
arbitrability of the dispute is governed by the law of the seat. The
following justifications were given:
(1) subject-matter arbitrability is a function of the State's public
policy;
(2) in setting aside or resisting enforcement proceedings, the seat or
enforcing court applies its own laws in deciding whether non-
arbitrability as a ground of challenge is made out; and(3)
applying the law of the seat promotes arbitration.
Thus, the law of the arbitration agreement, being a law that is
essentially expressly or impliedly agreed between the parties, cannot
determine whether the parties have the power to confer on the Tribunal
absolute jurisdiction over the disputed subject-matter. Only the law of
the seat can give the answer.
Snapshot of important Supreme Court and High Court judgments
Sr. Case details Issue(s) Summary
No.
Supreme Court
1. Bhaven When can High The Supreme Court (the
Construction Courts exercise “Court”) held that a
v. Sardar jurisdiction under legislative enactment
Sarovar Articles 226 and 227 cannot curtail a
Narmada to interfere with constitutional right and
Nigam Ltd.13 arbitral award? thus remedy under
(Article 226, Articles 226 and 227
Constitution of would still be available
India) despite the mandate of
Section 5 of the IAAC but
held that it is prudent for
a Judge to not exercise
discretion to allow judicial
interference beyond the
procedure established
under the enactment.
The Court held that power
under Articles 226 and
227 needs to be exercised
in exceptional rarity,
wherein one party is left
remediless under the
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statute or a clear “bad

faith” is shown by one of
the parties and held that
this high standard set by
this Court is in terms of
the legislative intention to
make the arbitration fair
and efficient.
Viewed in this
perspective, the Court did
not find either of the two
exceptional circumstances
existing in the case at
hand and set aside the
order of the High Court
where the High Court had
exercised jurisdiction
under Article 226 to set
aside the order of the
arbitrator passed under
Section 16 of the IAAC.
2. Sanjiv Whether detailed The Supreme Court held
Prakash v. examination of plea that the issue of novation
Seema of novation of of a contract requires
Kukreja14 contract cannot be detailed consideration of
done by court at the clauses of the
Section 11 stage? memorandum of
(Section 11, IAAC) understanding and the
shareholders agreement,
together with the
surrounding
circumstances in which
these agreements were
entered into, and a full
consideration of the law
on the subject. It held
that such exercise cannot
be done given the limited
jurisdiction of a court
under Section 11 of the
IAAC.
It is further stated that
detailed arguments on
whether an agreement
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which contains an
arbitration clause has or
has not been novated
cannot possibly be
decided in exercise of a
limited prima facie review
as to whether an
arbitration agreement
exists between the
parties.
It held that the court
cannot, at this stage,
enter into a mini trial or
elaborate review of the
facts and law which would
usurp the jurisdiction of
the Arbitral Tribunal.
3. BNSL v. Whether period of The Supreme Court held
Nortel limitation for filing that period of limitation
Networks application under for filing an application
India (P) Section 11 of the under Section 11 of the
Ltd. 15
IAAC would be IAAC would be governed
covered by Article by Article 137 of the First
137 of the Limitation Schedule of the Limitation
Act, 1963 and would Act, 1963. The Court held
begin to run from period of limitation will
date of failure to begin to run from the date
appoint? when there is failure to
(Section 11, IAAC appoint the arbitrator. The
and Article 137, court made a distinction
Limitation Act, between jurisdictional
1963) issues (such as issues
with respect to the
existence, scope and
validity of the arbitration
agreement) and
admissibility issues which
relate to procedural
requirements (such as a
breach of pre-arbitration
requirements, for
instance, a mandatory
requirement for mediation
before the
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commencement of
arbitration, or a challenge
to a claim or a part of the
claim being either time-
barred, or prohibited, until
some precondition has
been fulfilled). It further
held that limitation is an
admissibility issue and in
rare and exceptional
cases, where the claims
are ex facie time-barred,
and it is manifest that
there is no subsisting
dispute, the court may
refuse to make the
reference under Section
11 of the IAAC.
4. Pravin Whether orders The court while dealing
Electricals under Sections 8 with an appeal from a
(P) Ltd. v. and 11 are brought petition under Section 11
Galaxy Infra on par qua (6) of the IAAC observed
and Engg. appealability as well that by a process of
(P) Ltd.16 after the judgment judicial interpretation, this
of Vidya Drolia v. Court in Vidya Drolia v.
Durga Trading Durga Trading Corpn.18 ,
Corpn.17 , (Vidya Drolia)has now
[Sections 11(6), 11 read the “prima facie test”
(7) and 37 of the into Section 11(6-A) so as
IAAC] to bring the provisions of
Sections 8(1) and 11(6)
read with Section 11(6-A)
of the IAAC on par,
whereas in cases decided
under Section 8, a refusal
to refer parties to
arbitration is appealable
under Section 37(1)(a), a
similar refusal to refer
parties to arbitration
under Section 11(6) read
with Sections 6(A) and 7
is not appealable. The
Court, thus, observed that
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in the light of what has

been decided in Vidya
Drolia19 , Parliament may
need to have a relook at
Sections 11(7) and 37 so
that orders made under
Sections 8 and 11 are
brought on par qua
appealability as well. On
facts of the case, the court
held that there were
enough facts which cast a
doubt on the existence of
arbitration agreement and
would require further
examination by an
arbitrator upon leading of
evidence and thus upheld
the order appointing
arbitrator but set aside
the findings of the High
Court upholding existence
of arbitration agreement.
5. N.N. Global Whether insufficient The Court held that the
Mercantile payment of stamp arbitration agreement is
(P) Ltd. v. duty will invalidate an independent
Indo Unique the arbitration agreement between the
Flame Ltd.20 agreement? parties, and is not
(Section 33 of the chargeable to payment of
IAAC) stamp duty. The non-
payment of stamp duty on
the commercial contract
would not invalidate the
arbitration clause since it
has an independent
existence. However, the
court also held that
adjudication of the rights
and obligations under the
substantive commercial
contract would however
not proceed before
complying with the
mandatory provisions of
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the Stamp Act.

Further, the Court
observed that the finding
in SMS Tea Estates (P)
Ltd. v. Chandmari Tea Co.
(P) Ltd.21 , and Garware
Wall Ropes Ltd. v. Coastal
Marine Constructions &
Engg. Ltd.22 that the non-
payment of stamp duty on
the commercial contract
would invalidate even the
arbitration agreement, is
not the correct position in
law, and referred the issue
to a larger Bench.
Recently, in the decision
of Intercontinental Hotels
Group (India) (P) Ltd. v.
Waterline Hotels (P)
Ltd.23 , the Supreme Court
relied on the decision of
N.N. Global Mercantile24
while holding that
pending adjudication on
this issue before the
constitutional bench,
courts should ensure that
arbitrations are carried on,
unless the issue clearly
indicates existence of
deadwood i.e. when the
matter is non-arbitrable.
6. Dakshin Relevance of The Court held that in an
Haryana Bijli dissenting opinion Arbitral Tribunal
Vitran Nigam given by Arbitral comprising of a panel of
Ltd. v. Tribunal three members, if one of
Navigant (Section 34 of IAAC) the members gives a
Technologies dissenting opinion, it
(P) Ltd.25 must be delivered
contemporaneously on the
same date as the final
award, and not on a
subsequent date, as the
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Tribunal becomes functus

officio upon the passing of
the final award. The
period for rendering the
award and dissenting
opinion must be within
the period prescribed by
Section 29-A of the IAAC.
The Court held that at the
stage of judicial scrutiny
by the court under Section
34, the court is not
precluded from
considering the findings
and conclusions of the
dissenting opinion of the
minority member of the
Tribunal. On the facts of
the case, Court held that
award was pronounced on
27-4-2018 but only a
copy of the award was
provided to the parties to
point out any computation
error, any clerical or
typographical error. The
signed copy of the award
was provided to the
parties only on 19-5-2018
and Court held time under
Section 34(3) would be
reckoned from 19-5-2018
and not 27-4-2018.
7. Oriental Whether omission to The Court upheld the
Structural fill blank providing award passed by the
Engineers (P) rate of interest in arbitrator and set aside
Ltd. v. State agreement is not the judgments of the
of Kerala26 active exclusion of District Court and High
payment of interest? Court which had set aside
(Section 34 of the the award. The Court held
IAAC) that once there was a
specific term of the
agreement executed
between the parties which
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provided for payment of

interest on delayed
payment, the mere fact
that rate of interest was
not specified or that blank
space has been left where
rate was to be provided
cannot be construed as
cancellation of the clause
providing for payment of
interest of delayed release
of funds. The Court held
that that to come to such
an inference, active
exclusion of payment of
interest under that head
was necessary to have
been incorporated in the
agreement. The Court
upheld the award granting
interest on delayed
payments but reduced the
rate of interest awarded
by the arbitrator.
8. NHAI v. M. Whether power of a The Court held that
Hakeem27 court under Section Section 34 of the IAAC
34 of the Act to “set cannot be held to include
aside” an award of within it a power to
an arbitrator would modify an award. It held
include the power to that position under the
modify such an Arbitration Act, 1940 was
award. different but the IAAC was
(Section 34 of the enacted based on the
IAAC) UNCITRAL Model Law on
International Commercial
Arbitration, 1985 and it
makes it clear that, given
the limited judicial
interference on extremely
limited grounds not
dealing with the merits of
an award, the “limited
remedy” under Section 34
is coterminus with the
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“limited right”, namely,

either to set aside an
award or remand the
matter under the
circumstances mentioned
in Section 34 of the IAAC.
However, while the court
set aside the High Court
judgment on law, it did
not interfere with the
judgment on facts, as it
found the justice of the
case does not require
interference under Article
136 of the Constitution of
India.
9. P. Mohanraj Whether moratorium The Supreme Court held
v. Shah Bros. would be imposed that moratorium under
Ispat (P) on proceedings Section 14 of the IBC
Ltd.28 under Section 34 of would be imposed on
the ACA? proceedings under Section
(Section 34 of the 34 of the IAAC. It
IAAC and Section 14 reasoned that Section 34
of the IBC) proceeding is a
proceeding against the
corporate debtor in a court
of law pertaining to a
challenge to an arbitral
award and would be
covered just as an
appellate proceeding in a
decree from a suit and
such a proceeding which
may result in an arbitral
award against the
corporate debtor being
upheld, as a result of
which, monies would then
be payable by the
corporate debtor. The
Supreme Court, inter alia,
held that judgment in
Power Grid Corpn. of India
Ltd. v. Jyoti Structures
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Ltd.29 , which held that a

Section 34 application will
not be covered by Section
14 of the IBC, does not
state the law correctly.
10. State of What is the The Supreme Court stated
Maharashtra limitation period for that the Commercial
v. Borse appeals under Courts Act, 2015 which
Bros. Section 37 of the establishes a stipulated
Engineers & IAAC? value for application,
Contractors (Section 37 of the would only apply to
(P) Ltd.30 IAAC and Section 13 appeals under Section 37
of the Commercial of the IAAC if the
Courts Act, 2015) specified value exceeded
three lakh rupees. The
limitation period would be
60 days in such situations
when an appeal under
Section 37 of the IAAC
was directed by Section
13 of the Commercial
Courts Act, 2015.
Where the Commercial
Courts Act does not cover
an appeal under Section
37 of the IAAC because
the stated value is less
than three lakhs, the
provisions of Articles 116
and 117 of the Limitation
Act, 1963 apply.
According to Article 116 of
the Limitation Act, if an
appeal was brought to the
High Court from an order
of a subordinate court, the
term of limitation was set
at 90 (ninety) days from
the day the order was
passed by the subordinate
court. Similarly, if an
appeal is brought from a
High Court order to the
same court or a court
-----------------------------------------------------------------------------------------------------------------------------------------------------------
other than the High Court,

the term of limitation is
30 (thirty) days under
Article 117 of the
Limitation Act. However,
any delay beyond such
period is to be condoned
by way of exception and
not by way of rule.
11. Gemini Bay Whether foreign The Supreme Court held
Transcription arbitral awards can that a reading of Section
(P)Ltd. v. bind non-signatories 44 of the IAAC would
Integrated to an arbitration show that there are six
Sales Service agreement and can ingredients to a foreign
Ltd.31 be enforced against award.
them? 1. It must be an
(Section 44 of the arbitral award
IAAC) rendered on
differences between
persons arising out
of legal
relationships.
2. These differences
may be in contract
or outside of
contract, for
example, in tort.
3. The legal
relationship of
parties ought to be
considered
“commercial” under
the law in India.
4. The award must be
made on or after the
11th day of October
1960.
5. The award must be a
New York Convention
award.
6. It must be made in
one of such
territories which the
Central Government
-----------------------------------------------------------------------------------------------------------------------------------------------------------
by notification
declares to be
territories to which
the New York
Convention applies.
The Supreme Court held
that all requirements
posed under Section 44
(1) were procedural in
nature and the object of
which was to satisfy that
an award was indeed a
foreign award.
The Supreme Court
observed that Section 47
(1)(c) being procedural in
nature did not go to the
extent of requiring
substantive evidence to
“prove” that a non-
signatory to an arbitration
agreement can be bound
by a foreign award. In
fact, Section 47(1)(c) only
spoke of evidence as may
be necessary to prove that
an award is a foreign
award.
The Supreme Court, while
stating the difference
between Sections 44 and
48 of the IAAC observed
that, since Section 44
refers to “persons” and
not “parties”, a foreign
award could be binding on
the “persons” not being
signatories to such an
arbitration agreement.
12. PASL Wind Whether two Indian The Supreme Court held
Solutions (P) parties can choose a that the following four
Ltd. v. GE foreign seat? ingredients are essential
Power (Sections 47 and 49 for an award to be
Conversion of the IAAC) designated as a foreign
-----------------------------------------------------------------------------------------------------------------------------------------------------------
India (P) award under Section 44 of

Ltd.32 the IAAC:
(i) The dispute must be
considered to be a
commercial dispute
under the law in
force in India.
(ii) The award must be
made in pursuance
of an agreement in
writing for
arbitration.
(iii) There must be a
dispute that arises
between
“persons” (without
regard to their
nationality,
residence, or
domicile).
(iv) The arbitration
must conclude in a
country that is a
signatory to the New
York Convention.
In the facts of the instant
matter, the Supreme
Court held that all of the
ingredients mentioned
above were fulfilled.
Therefore, the impugned
award was a foreign award
in terms of Section 44 of
the IAAC.
Based on definition of
foreign award, the court
arrived at a conclusion
that two Indian parties
can select foreign seat.
13. Indus Whether the The Supreme Court held
Biotech (P) adjudicating that a dispute will be non-
Ltd. v. Kotak authority under IBC arbitrable when a
India refer the dispute to proceeding is in rem and a
Venture arbitration upon a IB Code proceeding is to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(Offshore) valid arbitration be considered in rem only

Fund33 agreement? after it is admitted. The
(Section 8 of the Court held that to
IAAC and Section 7 consider a proceeding in
of the IBC] rem, it is necessary that
the adjudicating authority
ought to have applied its
mind, recorded a finding
of default and admitted
the petition and it is on
admission, that third
party right is created in all
the creditors of the
corporate debtors and will
have erga omnes effect.
Mere filing of the petition
and its pendency before
admission, therefore,
cannot be construed as
the triggering of a
proceeding in rem.
The Court further held
that even if an application
u/Section 8 is filed, the
adjudicating authority has
a duty to advert to
contentions put forth on
the application filed
u/Section 7 of IB Code
and examine the material
placed before it by the
financial creditor and
record a satisfaction as to
whether there is default or
not and while doing so the
contention put forth by
the corporate debtor shall
also be noted to
determine as to whether
there is substance in the
defence and to arrive at
the conclusion whether
there is default. It held
that if the irresistible
-----------------------------------------------------------------------------------------------------------------------------------------------------------
conclusion by the
adjudicating authority is
that there is default and
the debt is payable, the
bogey of arbitration to
delay the process would
not arise despite the
position that the
agreement between the
parties indisputably
contains an arbitration
clause.
Ultimately, once the NCLT
is satisfied that the there
is a financial debt and a
default within the
meaning of Section 7 of
the IBC, any subsequent
application under Section
8 of the ACA is not
maintainable.
Only when the application
under Section 7 of the IBC
fails, the NCLT may refer
the dispute to arbitration.
14. Arcelor Mittal Whether a court has The Supreme Court held
Nippon Steel the power to that even after the
(India) Ltd. entertain an constitution of an Arbitral
v. Essar Bulk application under Tribunal, the court was
Terminal Section 9(1) of the not denuded of the power
Ltd.34 IAAC once the to grant interim relief
Arbitral Tribunal had under Section 9(1) of the
been constituted, IAAC. The Supreme Court
and if so, what is the clarified that once an
true meaning and Arbitral Tribunal is
purport of the constituted, the court
expression cannot take up an
“entertain” in application under Section
Section 9(3) of the 9 for consideration, unless
IAAC? the remedy under Section
Whether the court is 17 is inefficacious.
obliged to examine However, once an
the efficacy of the application is taken up for
remedy under consideration and the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Section 17 before court has applied its

passing an order mind, the court can
under Section 9(1) certainly proceed to
of the IAAC, once an adjudicate the application.
Arbitral Tribunal is The Supreme Court
constituted? accepted the respondent's
(Sections 9 and 11 submission that the intent
of the IAAC) behind Section 9(3) was
not to turn the clock back
and require a matter
already reserved for
orders to be considered in
entirety by the Arbitral
Tribunal under Section 17
of the IAAC. Even after an
Arbitral Tribunal is
constituted, there could
be myriads of reasons why
the Arbitral Tribunal may
not provide an efficacious
alternative to Section 9
(1).
15. Amazon.com Whether an The Supreme Court held
NV emergency that for Indian-seated
Investment arbitration award arbitrations, interim
Holdings LLC passed under Rules orders passed in an
v. Future of the Singapore emergency arbitration are
Retail Ltd.35 International enforceable as equivalent
Arbitration Centre to an order under Section
valid and recognised 17 passed by the
under Indian law? Arbitration Tribunal. No
(Section 17 of the appeal lies under Section
IAAC) 37 of the IAAC against an
order of enforcement of an
emergency arbitrator's
order made under Section
17(2) of the Act.
16. State of Whether the ground The Supreme Court
Chhattisgarh of patent illegality observed that having
v. SAL Udyog for setting aside an regard to the language
(P) Ltd.36 award under Section used in Section 34(2-A)
34(2-A) of the IAAC which uses the term “the
also apply to an court finds that”, enables
appealable order a court to test an
-----------------------------------------------------------------------------------------------------------------------------------------------------------
under Section 37? appealable order under

(Sections 34 and 37 Section 37 on the ground
of the IAAC) of patent illegality. A
failure on part of the
arbitrator to decide in
accordance with the terms
of the contract governing
the parties would
constitute patent
illegality.
Additionally, the Supreme
Court in NHAI v. P.
Nagaraju 37
recently held
that the Court cannot
modify the award but only
set aside the award and
remand the matter back
to the Tribunal in such
cases.
17. DLF Home What is the scope of The Supreme Court while
Developers review to be adjudicating on the scope
Ltd. v. exercised by courts of review to be exercised
Rajapura while adjudicating by the courts for an
Homes (P) an application under application under Section
Ltd.38 Section 11(6-A)? 11(6-A) observed that,
(Section 11 of the while appointing an
IAAC) arbitrator, the court must
not act mechanically. If
upon examination, it is
found that the arbitration
agreement does not
correlate to the dispute at
hand, the court can
decline the reference.
The Supreme Court
observed as follows:
17. There is no
gainsaying that by
virtue of the Arbitration
and Conciliation
(Amendment) Act,
2015, by which Section
11(6-A) was
introduced, the earlier
-----------------------------------------------------------------------------------------------------------------------------------------------------------
position of law as to the

scope of interference by
this Court at the stage
of referral has been
substantially restricted.
It is also no more res
integra that despite the
subsequent omission of
Section 11(6-A) by the
Arbitration and
Conciliation
(Amendment) Act,
2019, the legislative
intent behind thereto
continues to be a
guiding force for the
courts while examining
an application under
Section 11 of the Act.
18. The jurisdiction
of this Court under
Section 11 is primarily
to find out whether
there exists a written
agreement between the
parties for resolution of
disputes through
arbitration and whether
the aggrieved party has
made out a prima facie
arbitrable case. The
limited jurisdiction,
however, does not
denude this Court of its
judicial function to look
beyond the bare
existence of an
arbitration clause to cut
the deadwood. A three-
Judge Bench in Vidya
Drolia39 , has eloquently
clarified that this Court,
with a view to prevent
wastage of public and
-----------------------------------------------------------------------------------------------------------------------------------------------------------
private resources, may

conduct “prima facie
review” at the stage of
reference to weed out
any frivolous or
vexatious claims.
***
20. To say it
differently, this Court
or a High Court, as the
case may be, are not
expected to act
mechanically merely to
deliver a purported
dispute raised by an
applicant at the doors
of the chosen
arbitrator. On the
contrary, the court(s)
are obliged to apply
their mind to the core
preliminary issues,
albeit, within the
framework of Section
11(6-A) of the Act.
Such a review, as
already clarified by this
Court, is not intended
to usurp the
jurisdiction of the
Arbitral Tribunal but is
aimed at streamlining
the process of
arbitration. Therefore,
even when an
exists, it would not
prevent the court to
decline a prayer for
reference if the dispute
in question does not
correlate to the said
agreement.
18. Haryana Whether The Supreme Court held
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Space appointment of the that Section 12(5) of the

Application Principal Secretary IAAC (as amended by the
Centre v. Pan to a State 2015 Amendment Act)
India Government as the provides that
Consultants nominee arbitrator in notwithstanding any prior
(P) Ltd.40 an arbitration where agreement to the
nodal agency of that contrary, any person
Government is a whose relationship with
party be valid under the parties, or counsel,
Section 12(5) of the falls within any of the
IAAC read with the categories specified in the
Seventh Schedule? Seventh Schedule, shall
[Section 12(5) read be ineligible to be
with Seventh appointed as an arbitrator.
Schedule of the Section 12(5) read with
IAAC] the Seventh Schedule is a
mandatory and non-
derogable provision of the
Act. In the facts of the
present case, the Principal
Secretary to the
Government of Haryana
was held to be ineligible
to be appointed as an
arbitrator, since he would
have a controlling
influence on the appellant
Company being a nodal
agency of the State.
19. Chintels Whether an order The Supreme Court held
(India) Ltd. refusing to condone that an appeal under
v. Bhayana the delay in filing an Section 37(1)(c) of the
Builders (P) application under IAAC would be
Ltd.41 Section 34, an maintainable against an
appealable order order refusing to condone
under Section 37(1) delay in filing an
(c) of the Act? application under Section
[Sections 34 and 37 34 of the IAAC to set
(1)(c) of the IAAC] aside an award. It was
emphasised by the court
that an order refusing to
condone delay in filing an
application under Section
34 has the effect of finally
-----------------------------------------------------------------------------------------------------------------------------------------------------------
disposing of the original

petition. Such an order
can, therefore, be treated
as an award, and hence is
appealable.
20. Amway Whether a sole The Supreme Court held
(India) proprietorship which that an analysis of Section
Enterprises carries on business 2(1)(f) would show that
(P) Ltd. v. through an office in whatever be the
Ravindranath India, falls under the transaction between the
Rao Sindhia42 scope of parties, if it happens to be
international entered into between
commercial persons, at least one of
arbitration, if the whom is either a foreign
proprietor is a national, or habitually
habitual foreign resident in, any country
resident? other than India; or by a
[Section 2(1)(f) of body corporate which is
the IAAC] incorporated in any
country other than India;
or by the Government of a
foreign country, the
arbitration becomes an
international commercial
arbitration
notwithstanding the fact
that the individual, body
corporate, or government
of a foreign country
referred to in Section 2(1)
(f) carry on business in
India through a business
office in India.
21. Ellora Paper If the neutrality of The Supreme Court held
Mills Ltd. v. the arbitrator is that the principles of
State of questionable, does it impartiality and
M.P.43 empower the court independence cannot be
to appoint an discarded at any stage of
arbitrator and the proceedings,
restrict the parties specifically at the stage of
from insisting upon constitution of the Arbitral
the appointment of Tribunal. The court noted
the arbitrator in that it would be
terms of the incongruous to say that
-----------------------------------------------------------------------------------------------------------------------------------------------------------
arbitration party autonomy can be

agreement? exercised in complete
[Section 12(5) of the disregard of these
IAAC] principles, even if the
same has been agreed
prior to the disputes
having arisen between the
parties. The concept of
party autonomy cannot be
stretched to a point where
it negates the very basis
of having impartial and
independent adjudicators
for resolution of disputes.
In fact, when the party
appointing an adjudicator
is the State, the duty to
appoint an impartial and
independent adjudicator
on the courts is that much
more onerous and the
right to natural justice
cannot be said to have
been waived only on the
basis of a prior agreement
between the parties at the
time of the contract and
before arising of the
disputes.
22. Cox & Kings Whether arbitration The Supreme Court, while
Ltd. v. SAP be invoked against a making observations on
India (P) non-signatory or non the group of companies
Ltd.44 -party to an doctrine, noted that:
arbitration 17. Doctrine of
agreement? group of companies is
(Sections 8 and 11 one such area which is
of the IAAC) utilised to bind third
parties to an arbitration
agreement.
Theoretically, the policy
consideration of
efficiency is argued to
allow such joinders.
However, until a legal
-----------------------------------------------------------------------------------------------------------------------------------------------------------
basis for the same is

provided, efficiency
cannot itself be the sole
ground to bind a party
to arbitration.
Justice Surya Kant, in his
concurring opinion,
framed the following
additional questions for
deliberation by a larger
Bench:
104. (A) Whether the
group of
companies
doctrine should
be read into
Section 8 of the
Act or whether it
can exist in indian
jurisprudence
independent of
any statutory
provision?
(B) Whether the
group of
companies
doctrine should
continue to be
invoked on the
basis of the
principle of
“single economic
reality”?
(C) Whether the
group of
companies
doctrine should
be construed as a
means of
interpreting the
implied consent
or intent to
arbitrate between
the parties?
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(D) Whether the

principles of alter
ego and/or
piercing the
corporate veil can
alone justify
pressing the
group of
companies
doctrine into
operation even in
the absence of
implied consent?
23. Morgan Whether the The Supreme Court held
Securities & arbitrator has the that the phrase “unless
Credits (P) discretion to grant the award otherwise
Ltd. v. post-award interest directs” in Section 31(7)
Videocon only on the principal (b) of the IAAC only
Industries sum due under qualifies the rate of
Ltd.45 Section 31(7)(b) of interest and if no post-
the Act. award interest is granted
[Section 31(7)(b) of by the arbitrator, the
the IAAC] award holder would be
entitled to post-award
interest at 18 % (eighteen
per cent).
The Supreme Court
further held that the
arbitrator enjoys the
discretion to award post-
award interest on a part of
the sum. However, such
discretionary power of
granting post-award must
be exercised reasonably
and in good faith. The
Supreme Court further
noted that the arbitrator's
discretion may only be
limited by an express
clause to this effect.
24. ONGC Ltd. v. (a) whether the Supreme Court held the
Afcons arbitrator(s) following in this case:
Gunanusa are entitled to (i) Arbitrators are not
-----------------------------------------------------------------------------------------------------------------------------------------------------------
JV46 unilaterally entitled to

determine their unilaterally
own fees; determine their own
(b) whether the fees as it would be
term “sum in violative of the
dispute” in the principle of party
Fourth autonomy and the
Schedule doctrine of the
means the prohibition of in rem
cumulative suam decisions,
total of the meaning, arbitrators
amounts of cannot be a judge of
under the their own cause.
“claim” and (ii) Further, the Court
“counterclaim”; held that the term
(c) whether the “sum in dispute”
ceiling of Rs shall be considered
30,00,000 in septely for the
the entry at amount in dispute in
Serial No. 6 of the claim and
the “Fourth counterclaim. As a
Schedule” of result, arbitrators
the Act is would be entitled to
applicable only charge septe fees for
to the variable the claim and
amount of the counterclaim.
fee or the (iii) On the INR
entire fee 30,00,000 ceiling,
amount; and the Court held that
(d) whether the the ceiling is
ceiling of Rs applicable to the
30,00,000 cumulative amount
applies as a of the base and
cumulative fee variable amount,
payable to the and in the case of a
Arbitral sole arbitrator it
Tribunal or it would be INR
represents the 37,50,000 (including
fee payable to the additional
each arbitrator. component
(Sections 31, 31-A, prescribed in the
and Schedule IV of Act). This would
the IAAC) mean that the
highest fee to be
-----------------------------------------------------------------------------------------------------------------------------------------------------------
charged by an
Arbitral Tribunal
(except in the case
of a sole arbitrator)
shall be INR
30,00,000, which is
in line with the
legislative intent,
which was also
indicated in the
commission report.
(iv) The Court held that
the ceiling is
applicable to each
individual arbitrator,
and any other
interpretation would
lead to absurd
consequences.
Delhi High Court
1. KLA Const. 1. Whether the The Delhi High Court,
Technologies prior consent of answering in the negative,
(P) Ltd. v. Central summarised the position
Embassy of Government is of law as follows:
Islamic necessary 44. The prior
Republic of under Section consent of Central
Afghanistan47 86(3) of the Government is not
Civil Procedure necessary under
Code to enforce Section 86(3) of the
an arbitral Civil Procedure Code to
award against enforce an arbitral
a Foreign award against a foreign
State? State.
2. Whether a 45. A foreign State
foreign State cannot claim a
can claim sovereign immunity
sovereign against enforcement of
immunity an arbitral award
against arising out of a
enforcement of commercial transaction.
arbitral award 46. Section 36 of the
arising out of a Arbitration and
commercial Conciliation Act treats
transaction? an arbitral award as a
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(Sections 36 of the ‘decree’ of a court for

IAAC and Section 86 the limited purpose of
of the Civil enforcement of an
Procedure Code, award under the Civil
1908) Procedure Code which
cannot be read in a
manner which would
defeat the very
underlying rationale of
the Arbitration and
Conciliation Act,
namely, speedy,
binding and legally
enforceable resolution
of disputes between
the parties.
47. Section 86 of the
Civil Procedure Code is
of limited applicability
and the protection
thereunder would not
apply to cases of
implied waiver. An
in a commercial
contract between a
party and a foreign
State is an implied
waiver by the foreign
State so as to preclude
it from raising a
defence against an
enforcement action
premised upon the
principle of sovereign
immunity.
48. In a contract
arising out of a
commercial transaction,
such as the
transactions which are
subject-matter of the
present petitions, a
foreign State cannot
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seek sovereign
immunity for the
purpose of stalling
execution of an arbitral
award rendered against
it. Once a foreign State
opts to wear the hat of
a commercial entity, it
would be bound by the
rules of the commercial
legal ecosystem and
cannot be permitted to
seek any immunity,
which is otherwise
available to it only
when it is acting in its
sovereign capacity. It is
the purpose and nature
of the transaction of
the foreign State which
would determine
whether the
transaction, and the
contract governing the
same, represents a
purely commercial
activity or whether the
same is a manifestation
of an exercise of
sovereign authority.
49. Arbitration being
a consensual and
binding mechanism of
dispute settlement, it
cannot be contended
by a foreign State that
its consent must be
sought once again at
the stage of
enforcement of an
arbitral award against
it, while ignoring the
fact that the arbitral
award is the
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culmination of the very

process of arbitration
which the foreign State
has admittedly
consented to.
50. This proposition
is in consonance with
the growing
international law
principle of restrictive
immunity, juxtaposed
with the emergence of
arbitration as the
favoured mechanism of
international dispute
resolution in the past
few decades. It needs
no gainsaying that
international
commercial arbitration
has witnessed
increasing adoption
across the world over
the past few decades
on account of it being a
flexible yet stable,
efficient, and legally
binding mechanism of
dispute resolution for
entities engaging in
global and cross-border
transactions while
eschewing the
particularistic
difficulties and
complexities
encountered in
domestic legal
systems. However, if
foreign States are
permitted to stymie the
enforcement of arbitral
awards, which are the
ultimate fruits of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
above consensual
process, on the
specious ground that
they are entitled to
special treatment
purely on account of
being foreign States,
then the very edifice of
international
commercial arbitration
would collapse. Foreign
States cannot be
permitted to act with
impunity in this regard
to the grave detriment
of the counterparty in
the arbitration
proceedings.
The Embassy of Islamic
Republic of Afghanistan
filed a special leave to
appeal before the
Supreme Court against
the impugned final
judgment and order dated
18-6-2021 passed by the
High Court. However, this
SLP was withdrawn on
grounds of compromise.
2. Golden Tobie Whether disputes The High Court of Delhi
(P) Ltd. v. involving held that while
Golden assignment of grant/issue of patents and
Tobacco trademark registration of trade marks
Ltd.48 arbitrable? are exclusive matters
(Section 8 of the falling within the
IAAC) sovereign and government
function and are non-
arbitrable but disputes
arising from trade mark
licence or assignment
agreements are disputes
under contract and do not
involve exercise of any
sovereign function and are
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thus arbitrable. The court

thus allowed the
application u/Section 8
and referred the disputes
pertaining cancellation of
assignment to arbitration.
3. Tantia Whether delay in The High Court of Delhi
Construction preferring the held that unlike Section
Ltd. v. Ircon application under S. 34, Section 33(1) does
International 33(1) would not be not contain any provision
Ltd.49 condonable permitting condonation of
(Section 33 of the the period of limitation
IAAC) stipulated therein. The
Court held that it cannot
read into Section 33(1), a
power of condonation of
delay, where none exists.
Further held, the fact that
delay cannot be
automatically condoned
by the Arbitral Tribunal, in
the case of application
under Section 33(1), also
stands underscored by the
stipulation contained by
the words “unless another
period of time has been
agreed upon by the
parties” in Section 33(1).
It held the intent of the
legislature is that the
period of 30 days,
stipulation in Section 33
(1), is relaxable only if the
parties agree to another
period for filing the
application thereunder. In
absence of any such
mutual agreement
between the parties, the
period of 30 days in
Section 33(1) is
sacrosanct and is not
relaxable.
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Madras High Court

1. ADM What are the The Madras High Court
International grounds on which observed as follows:
Sarl v. anti-arbitration “22. … The principles
Sunraja Oil injunction be relating to the grant of
(P) Ltd.50 granted? anti-suit injunctions
(Section 45 of the were examined and
IAAC) formulated in p 24 of
Modi Entertainment,
wherein the Supreme
Court held, inter alia,
that an anti-suit
injunction would not be
granted to forbear the
exercise of jurisdiction
by the forum chosen by
the parties. Likewise,
the law on anti-
arbitration injunctions
was considered in
McDonald's India (P)
Ltd. v. Vikram Bakshi51
(McDonalds) by a
Division Bench of the
Delhi High Court,
wherein the Court
underscored the fact
that the threshold tests
for an anti-arbitration
injunction are more
exacting than that
applicable for an anti-
suit injunction and
concluded that the
principal considerations
would be those
underpinning Section
45 of the Arbitration
Act i.e. whether there
is an arbitration
agreement; and
whether such
agreement is null and
void, inoperative or
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incapable of being
performed.
I respectfully concur with
the principles set out
therein. Therefore, these
tests should be applied to
the case at hand.”
Calcutta High Court
1. Sirpur Paper Does an application The High Court held that
Mills Ltd. v. for setting aside of it was the obligation of
I.K. award under Section the award holder to take
Merchants 34 become active steps under the IBC
(P) Ltd.52 infructuous if the instead of waiting for the
management of the adjudication of the
award debtor is application under Section
taken over by a new 34 of the IAAC. Merely
entity following the because a Section 34
procedure under petition was filed, does
IBC? not imply that award
[Section 34 and holder was stayed from
Insolvency and filing claim as an
Bankruptcy Code, operational creditor under
2016 (IBC)] IBC.
The court noted that an
operational creditor who
fails to lodge a claim in
the CIRP literally missed
boarding the claims bus
for chasing the fruits of an
award even where a
challenge to the award is
pending in a civil court.
Therefore, the petition
was dismissed as
infructuous.
Concluding remarks
The IAAC has been shaped by various amendments and judicial
pronouncements. The 2019 amendments to the IAAC rectified several
lacunae in both, parts I and II of the IAAC thereby making India a
more arbitration-friendly jurisdiction. The 2021 amendments that are
currently underway also attempt to further that objective, although
their practical implications remain to be seen.
The above judgments indicate that India has taken many steps
towards becoming a pro-arbitration jurisdiction, thereby making it a
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viable seat for international commercial arbitrations. However, it is

important that the courts remain consistent in their stance in order to
make India a global arbitration hub.
———
† Partner, Khaitan & Co.
††
Senior Associate, Khaitan & Co.
†††
Associate, Khaitan & Co.
1 2021 SCC OnLine SC 448.
2 (2020) 4 SCC 234.
3
(2020) 4 SCC 234.
4
2022 SCC OnLine SC 642.
6
(2022) 1 SCC 75.
7 (2020) 15 SCC 706.
8
(2022) 1 SCC 209.
9
[2020] 3 WLR 1474 : 2020 UKSC 48.
10 [2002] 2 A.C. 357.
11 [2021] Bus LR 704 : 2021 EWHC 286.
12
2021 SGHC 244.
13 (2022) 1 SCC 75.
14
(2021) 9 SCC 732.
15
(2021) 5 SCC 738.
16 (2021) 5 SCC 671.
17 (2021) 2 SCC 1.
18
(2021) 2 SCC 1.
19 (2021) 2 SCC 1.
20 (2021) 4 SCC 379.
21
(2011) 14 SCC 66.
22 (2019) 9 SCC 209.
23 (2022) 7 SCC 662.

-----------------------------------------------------------------------------------------------------------------------------------------------------------
24
(2021) 4 SCC 379.
25
(2021) 7 SCC 657.
26 (2021) 6 SCC 150.
27
(2021) 9 SCC 1.
28 (2021) 6 SCC 258.
29 2017 SCC OnLine Del 12189 : (2018) 246 DLT 485
30
(2021) 6 SCC 460.
31 (2022) 1 SCC 753.
32 (2021) 7 SCC 1.
33
(2021) 6 SCC 436.
34 (2022) 1 SCC 712.
35 (2022) 1 SCC 209.
36
(2022) 2 SCC 275.
37
2022 SCC OnLine SC 864.
39
(2021) 2 SCC 1.
40
(2021) 3 SCC 103.
41 (2021) 4 SCC 602.
42
(2021) 8 SCC 465.
43 (2022) 3 SCC 1.
44 (2022) 8 SCC 1, 14 and 41.
47 2021 SCC OnLine Del 3424.
50
(2021) 4 Mad LJ 147 (Mad).

-----------------------------------------------------------------------------------------------------------------------------------------------------------
52 2021 SCC OnLine Cal 1601.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
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2021-2022 Arbitration Summary

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Sunday, September 03, 2023

2022 SCC OnLine Blog Exp 88

Arbitration Dossier (2021-22)| A Snapshot of Major

ARBITRATION DOSSIER (2021-22)| A SNAPSHOT OF MAJOR

a Section 11 application in the High Court of Gujarat. The sole arbitrator

Singla Constructions (P) Ltd.4 relied on the decision in Inox

an “award” delivered by an emergency arbitrator under the SIAC Rules

between the parties contained a clause requiring parties to “endeavour

What is the law that applies (at a pre-award stage) to determine

statute or a clear “bad

in the light of what has

the Stamp Act.

Tribunal becomes functus

provided for payment of

“limited right”, namely,

Ltd.29 , which held that a

other than the High Court,

India (P) award under Section 44 of

(Offshore) valid arbitration be considered in rem only

Section 17 before court has applied its

under Section 37? appealable order under

position of law as to the

private resources, may

Space appointment of the that Section 12(5) of the

disposing of the original

arbitration party autonomy can be

basis for the same is

(D) Whether the

JV46 unilaterally entitled to

(Sections 36 of the ‘decree’ of a court for

culmination of the very

thus arbitrable. The court

Madras High Court

viable seat for international commercial arbitrations. However, it is

1 2021 SCC OnLine SC 448.

2 (2020) 4 SCC 234.

5 2021 SCC OnLine SC 448.

7 (2020) 15 SCC 706.

10 [2002] 2 A.C. 357.

11 [2021] Bus LR 704 : 2021 EWHC 286.

13 (2022) 1 SCC 75.

16 (2021) 5 SCC 671.

20 (2021) 4 SCC 379.

22 (2019) 9 SCC 209.

23 (2022) 7 SCC 662.

26 (2021) 6 SCC 150.

28 (2021) 6 SCC 258.

29 2017 SCC OnLine Del 12189 : (2018) 246 DLT 485

31 (2022) 1 SCC 753.

34 (2022) 1 SCC 712.

35 (2022) 1 SCC 209.

38 2021 SCC OnLine SC 781.

41 (2021) 4 SCC 602.

44 (2022) 8 SCC 1, 14 and 41.

45 2022 SCC OnLine SC 1127.

46 2022 SCC OnLine SC 1122.

47 2021 SCC OnLine Del 3424.

48 2021 SCC OnLine Del 3029.

49 2021 SCC OnLine Del 2640.

51 2016 SCC OnLine Del 3949.

52 2021 SCC OnLine Cal 1601.