WhatsApp Agreements: Reimagining Arbitration in the Global Age

-Anshika Kaushik^[1]

Introduction and Background

Arbitration has always been at a higher pedestal over traditional litigation primarily due to its speed, cost-effectiveness and flexibility. The advantages of dispute resolution are further propelled by the integration of technology. The emergence of digital communication has moved commercial dealings from the boardroom to email exchanges. This transformation was particularly seen by the unprecedented COVID-19 pandemic, which saw a large-scale use of technology in the resolution of disputes, especially high-stakes commercial disputes. While a message or email may constitute a valid binding contract if it fulfils the essential requirements,[2] issues arise as to the legal recognition of communications exchanged on platforms like WhatsApp, particularly in the context of arbitration agreements. Unlike emails, WhatsApp provides end-to-end encryption, ensuring that all communication is highly secure, making it ideal for commercial practice. It has been observed to be frequently used for operational decisions, contractual negotiations and even dispute resolution mechanisms.

The recent Delhi High Court judgment in Belvedere Resources DMCC v. OCL Iron & Steel Ltd 2025 SCC OnLine Del 4652 held Whatsapp messages and email constituted a valid arbitration agreement under Section 7(4)(b) of the Arbitration and Conciliation Act, 1996 (¶ 55). This raises critical questions about the binding nature of an unsigned arbitration agreement formed over a Whatsapp conversation. The judgement authored by Justice Jasmeet Singh has reaffirmed the principles of arbitration in Section 7(4)(b). It is intended by the legislature that it reflects modern commercial practices in line with international standards. The courts must not enforce rigid formalities but what matters is the recorded intent to arbitrate irrespective of whether it is in formal ink. This article examines how WhatsApp messages may constitute valid arbitration agreements under the UNCITRAL Model Law, while also analyzing judicial trends and evidentiary considerations surrounding the use of such digital correspondences in arbitration proceedings.

Requirement of Writing

The attributes of a valid arbitration agreement is it must be in writing showing^[3] 1) a clear and unambiguous intention to arbitrate 2) an obligation to submit disputes to arbitration 3) it must ensure that disputes are resolved by an independent arbitral tribunal^[4] and 4) lastly, that the arbitral award would be final and binding on the parties.  The first essential of a valid arbitration agreement is it must be in writing save as it may be in the form of a clause in a contract or an agreement. Section 7(4)(b) of the Arbitration and Conciliation Act, 1996 provides that this essential is fulfilled through an exchange of letters, telegrams or means of other telecommunication which provide a record of the agreement. The phrase telecommunication was further amended to include communication through electronic means by way of the Arbitration and Conciliation (Amendment) Act, 2015. The broader concept of electronic communication (through means of WhatsApp, emails, etc.) is captured through Section 7(4)(b) and (c) as other means of communication which provide a record.  A record of agreement means a bilateral record of consent^[5] hence a situation where consent of one party is not recorded would not fulfil this essential. Further, the consent of party cannot be culled out in absence of formalities like signatures^[6], affixing a seal ^[7] etc. if ad idem between the parties^[8] can be shown through correspondence or conduct.

The section is based on Article 7 of the UNCITRAL Model Law^[9] that an arbitration agreement may be made by electronic communication if the information therein is accessible for later reference. Thus, the evidentiary value of a digital arbitration agreement is valid so far as it is accessible for the arbitral tribunal or court of law. Hence, if such communication via instant messages, voice notes, or teleconferencing provides a record of the agreement, it can constitute a valid arbitration agreement. The blue tick mark indicates the read receipt by the receiver and such can also serve as a evidence ^[10] of successful transmission and receipt of the arbitration agreement. A WhatsApp message constitutes valid legal evidence under Indian law, falling within the meaning of “electronic records ” defined under Section 2(1)(t) of the Information Technology Act, 2000.

Acceptance of WhatsApp as a means of communication

A perusal of judgments recognising arbitration agreements under Section 7(4)(b) shows a pragmatic approach of Indian courts in adopting modern communication as a valid mode of forming an agreement. The Supreme Court in Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899, In re, (2024) 6 SCC 1^[11] affirmed the proposition that an arbitration agreement exists if it satisfies the statutory requirements of both the Indian Contract Act and the Arbitration Act. The Hon’ble Supreme Court have held email exchanges can be a valid arbitration agreement^[12] in the absence of a signed arbitration agreement by inferring from the conduct of the parties. Hence, the courts have done away with the conventional sense of a binding arbitration agreement.^[13]

The use of WhatsApp in arbitration is illustrated both substantially and procedurally by Indian courts. A Delhi High Court judgment held that there was a valid service of arbitral notice effected by email and WhatsApp. The Bombay High Court upheld an arbitral award where WhatsApp messages acknowledging liability were relied upon by the tribunal under Section 18 of the Limitation Act. The judicial trend of recognising electronic arbitration agreements and digital evidence in arbitral proceedings cautions parties to preserve their digital trail and communicate about arbitration clauses early to avoid rounds of litigation.

The UAE Federal Supreme Court in 2019^[14] had ruled that an arbitration agreement via WhatsApp would be binding provided that they fulfil the statutory requirement of electronic transactions. Further, a Dubai Cassation Court held that an arbitration agreement can be concluded if the WhatsApp message exchange has evidence of receipt (indicated by “blue ticks”) before or during the subject matter agreement or after its nullity.

Issues and Challenges

The use of WhatsApp in forming arbitration agreements and conducting arbitral proceedings reflects the digitisation of dispute resolution mechanisms, but also reflects key legal issues and practical concerns. Primarily, the issue of interpretating “agreement in writing” is strict in Article II of the New York Convention^[15] (ratified by 172 countries) that does not accept arbitration agreement made through electronic means, hence there are potential risks in the Convention based enforcement proceedings. The UNCITRAL 2006 Recommendation regarding interpretation of Article II(2) of the New York Convention suggests that the form of arbitration agreement listed in the Article is not exhaustive and should be understood to include modern electronic communications.^[16] The adoption of this recommendation has produced almost a unanimous support by various judicial authorities in support of arbitration agreement made by exchange of emails etc. This includes the decision of Czech Supreme Court that held that arbitration clause contained in exchange of emails as valid. The court in its judgement approved the recommendation in its decision holding that the list of form in Art II(2) of the Convention is not exhaustive. The same analogy was applied by the Indian Supreme Court in Great Offshore Ltd. v. Iranian Offshore Engineering 2008 (14) SCC 240 that concerned exchange of faxes. Similar cases are found in the US in its decision of Glencore Ltd. v. Degussa 2012 WL 223240 (S.D.N.Y.) where court decided that a sales contract containing an arbitration agreement sent over email communication validly meets the writing requirement and that it qualifies as “letters and telegrams” within the meaning of the Convention.

An electronically concluded arbitration agreement would still require closer scrutiny by courts to ascertain whether the electronic communication reliably evidence a clear intention to arbitrate, if person communicating consent was authorised to do so, and whether the communications be authenticated and admitted as evidence. In cross-border disputes, digital evidences in the form of emails, text messages, recordings may be subjected to local data protection laws that can restrict data access e.g European Union’s General Data Protection Regulation (GDPR).

Conclusion

Digital communication platform like Whatsapp has reshaped contract formation and dispute resolution mechanism. The Indian jurisprudence has increasingly become pro-arbitration and courts have begin aligning themselves with international norms on arbitration agreements formed digitally. It is essential for arbitration to reimagine itself in tech age by streamlining digital authentication and calibrating legal frameworks with pragmatism and foresight. The Draft Arbitration and Conciliation (Amendment) Bill, 2024 seeks to validate digitally signed arbitration agreements and incorporating technological know-how into arbitral proceedings. A digitally signed arbitration agreement will help avoid frivolous claims on the validity of the agreement. This would in consonance with the Section 5 of the Information Technology Act, 2005 that recognises digital signatures on par with physical signatures. Further, by integrating more techno- legal utilities, it would make arbitration more accessible and promote digital contracting in businesses. In the tech age, arbitration can retain its strengths if the existing mechanisms evolves in tandem with the way parties communicate and transact.  

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^[1] Anshika Kaushik, third year law student at Symbiosis Law School, NOIDA. The author can be reached out at anshika.kaushik@symlaw.edu.in

^[2] Ambalal Sarabhai Enterprise Limited v. KS Infraspace LLP, (2020) 15 SCC 585.

^[3] Bihar State Mineral Development Corpn. v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418.

^[4] K.K. Modi v. K.N. Modi AIR 1998 SCC OnLine SC 745.

^[5] P.T. Tirtamas Comexindo v. Delta International Ltd., 1998 SCC OnLine Cal 300.

^[6] Shakti Bhog Foods Limited v. Kola Shipping Limited 2009) 2 SCC 134.

^[7] Encon Builders (n 3)

^[8] Rickmers Verwaltung GMBH v. Indian Oil Corpn. Ltd., (1999) 1 SCC 1.

^[9] United Nations, UNCITRAL Model Law on International Commercial Arbitration 1985: with amendments as adopted in 2006https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf

^[10] SBI Cards and Payment Services Pvt. Ltd. v. Rohidas Jadhav 2018 SCC OnLine Bom 1262.

^[11] Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899, In re, (2024) 6 SCC 1, ¶63-64

^[12] Trimex International FZE Ltd. Dubai v. Vedanta Aluminium Ltd., India (2010) 3 SCC 1.

^[13] Cox & Kings Ltd. v. SAP India (P) Ltd., (2024) 4 SCC 1, ¶ 76.

^[14] Waseem AlWasil & Rami Wasel, Supreme Court Ruling: Agreeing to Arbitration by E-mail and Instant Messaging, WASEL & WASEL ARB. (July 4, 2019), https://waselandwasel.com/articles/supreme-court-ruling-agreeing-to-arbitration-by-e-mail-and-instant-messaging/.

^[15] United Nations, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 29 December 1958 https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards.

^[16] United Nations, General Assembly. Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/a2e.pdf