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-  Parvati Arun [1] Sustainability is becoming a key driving factor in the way maritime contracts are set up and, therefore, the way they are executed. Previously, the majority of the issues related to the execution of maritime contracts could be attributed to eithercommercial or logistical factors; however, that model is changing and now the execution of maritime contracts is alsobeginning to include environmental provisions that have been implemented by means of international governing agenciessuch as the International Convention for the Prevention of Pollution from Ships (MARPOL) that have establishedregulations pertaining to environmental emissions and fuel standards. Due to these regulatory pressures and increasing commitment by corporations to Environmental, Social and Governance (ESG) activities, environmental compliance has been shifted from being a peripheral activity that could potentially causebusinesses damage to become a key obligation arising under maritime contracts between commercial parties such as  shipowners, charterers, operators and bunker suppliers  who allocate regulatory risk by employing express warranty and indemnity clauses. Consequently, disputes arising from alleged breaches of environmental obligations such as standards for fuel quality, emissions limits, and energy efficiency benchmarks have increasingly been viewed as a private commercial dispute between shipowners, charterers, and suppliers. Disputes of this nature are commonly within the scope of arbitration contracts contained in maritime contracts. This blog details the approach taken to adjudicate environmental claims in the context of the maritime industry; analysesboth the basis for the arbitral jurisdiction over these environmental claims; and assesses whether or not the arbitral processis able to continue to provide an effective forum for resolving disputes and promoting sustainability in that environmentwhile simultaneously meeting the traditional commercial objectives for which it was established.   1. ENVIRONMENTAL OBLIGATIONS IN MARITIME CONTRACTS:  FROM REGULATORY COMPLIANCE TO CONTRACTUAL DUTY The incorporation of environmental obligations into a maritime contract has developed over time from an implicitregulatory aspect to express and distinct contractual obligations, and in so doing, created an increasing number of disputes which can be resolved via arbitration. 1.1  The Regulatory Backdrop The International Maritime Organization (IMO) is the primary international organization responsible for regulatingshipping-related environmental issues. The IMO has developed an internationally recognised policy framework to preventmarine pollution from ships, which is outlined in MARPOL 73/78. Most noteworthy is MARPOL Annex VI, the part ofMARPOL that outlines the requirements and standards for regulating air emissions of sulphur oxides (SOx),     nitrogen oxides (NOx) and the amount of sulphur in the fuel used by a commercial vessel. The introduction of the global 0.50% sulphur cap on marine fuels by the International Maritime Organization constituted a major regulatory change that required ship-owners and charterers to either use cleaner fuels or implement alternative compliance methods . While these regulations are legally binding under public international law, the impact of these regulations will be most severely felt within the private contractual framework of the shipping industry. 1.2  Contractual Environmental Clauses in Practice Contracts for commercial maritime activities often specifically state that vessels used for those activities must comply with MARPOL regulations as part of the terms of the contract, typically incorporated through express clauses. For example, charterparties frequently have a clause requiring the vessel(s) to comply with "all applicable environmental laws," which includes limits on sulphur in fuel and emissions. Standard time charter clauses including the BIMCO 2020 Marine Fuel Sulphur Content Clause require fuel supplied by charterers to permit the vessel to comply with sulphur limits and other MARPOL Annex VI requirements . Likewise, bunker supply contracts typically contain fuel quality and sulphur content warranties that guarantee compliance with Annex VI regulations. The terms within bunker supply contracts commonly contain provisions which indicate that suppliers of bunkers must guarantee that those products will comply with MARPOL Annex VI, provide a compliant bunker, and a supply of representative samples. Through the use of Industry Model Clauses developed by trade associations and shipping organizations, we can see another example of how environmental compliance can be contractually operationalised. Through these clauses,responsibility and risk for non-compliance with regulation are allocated to the appropriate contracting party by way of contractual provisions that specifically relate to Fuel Standards and Emissions Control (using INTERTANKO Model Clauses ). When these clauses are included in Contracts, environmental regulation compliance becomes an obligation ofthe contracting parties rather than just an expectation of the Regulator. 1.3  From Soft Law to Enforceable Duties Once a State ratifies international Maritime Organisation (IMO) conventions, they become binding treaty obligations forthat State and thus constitute a form of international law. The enforcement of these treaties typically occurs through domestic regulations and implementation procedures. However, private maritime contracts may also incorporate byreference IMO treaties or other related standards. When this occurs, those treaties/standards serve as benchmarks forperformance rather than being directly enforceable as public law obligations. The conventions of the International Maritime Organization (IMO) are not classified as soft law, but rather the soft law elements are found within the IMOframeworks, such as associated guidelines, technical codes, and non-mandatory standards, which obtain binding force onparties to a contract once they are included in that contract. Whether or not a party is subject to performance obligations arising from the incorporation of soft law elements into a contract depends ultimately on how the contract itself is drafted, including how the requirement for compliance with soft law elements is delineated (e.g., as a warranty, condition, covenant, or continuing obligation). Like other examples of ESG-related contracting, the introduction of obligations related to sustainable managementthrough treaty and contract has been implemented through contracts between private sector entities. In maritime contracts specifically, if the environmental standards of fuel composition, emission performance or vessel efficiency, as required by these treaties, are not achieved or maintained by either party, the other party could have a claim for breach, to receive indemnification, or otherwise seek compensation for these failures . As such, these claims are of a commercial nature and exist between the two parties, rather than as a function of an individual’s or the company's conduct and satisfyingregulatory requirements and/or penalties imposed by a regulatory body. 1.4  Implications for Arbitration Understanding the transition of environmental compliance into a contractual obligation provides insight into why environmental issues are more commonly arising in maritime arbitration. Disputes that arise from whether a party hasfulfilled their obligations under a contract for environmental standards involve rights in personam, which are created through private agreements, rather than the enforcement of public environmental laws by state organisations. In many cases, technical information (such as testing fuel samples, measuring pollution, or conducting analyses ofregulatory compliance by experts) is at the centre of these types of legal disagreements; therefore, arbitration allows forvarying ways of approaching these types of cases, as well as having experts within the industry available to assist in the resolution. The contractual nature of the relationship between the parties (the shipper and the shipping company) forms a legal argument for viewing most environmental claims that arise out of a transport contract as an arbitrable businessdispute. While this agreement is pertinent to arbitrability, it is  imperative to note that it limits the disputes to only thoseof inter-se allocations of risk and liability between parties without doing away with public authorities' continued involvement in enforcing environmental regulations on behalf of the public. Subsequent portions of this blog will reviewthis argument further. Failure to meet the above-mentioned contractual environmental clauses will result in various private law repercussions, including a breach of warranty, a claim for indemnity, a claim for damages resulting from off-specification fuel, the ability to recover costs for regulatory fines/penalties against one party by the other, and, potentially (in some circumstances) theability to terminate the contract where compliance is a condition precedent. This methodology corresponds with standard risk-allocation mechanisms which are present in most contemporary charterparty and bunker supply contracts, including those that rely on the BIMCO and INTERTANKO standard model clauses. The precise ramifications that result from afailure to comply with the clause will depend on how the clause is drafted and what has been agreed to in terms of risk allocation between the parties. Nevertheless, it does not follow that every instance of non-compliance will lead to an arbitration. Often, agreements contain clauses that allow for the adjustment of minor or technical breaches, the settlement of such breaches on acommercial basis, or the resolution of claims without resorting to formal dispute resolution. Arbitration arises normallyafter it has been determined that there are commercial consequences resulting from a noncompliance that cannot be resolved by mutual agreement, or where the parties have a disagreement over who is responsible for an exposure to a fine, financial loss or breach of contract under an agreement, as a result of a non-compliance.   2. ARBITRABILITY OF ENVIRONMENTAL CLAIMS IN MARITIME DISPUTES A primary concern in resolving environmental claims through arbitration is the arbitrability of such claims. While environmental laws and regulations are typically associated with public law, environmental claims associated withobligations set forth in maritime contracts are often viewed as private, bilateral, and compensatory in nature. The distinction between public enforcement of environmental law and contract disputes surrounding environmental non-compliance in international arbitration case law lies in how claims are interpreted and handled. Claims that arise out of contractual agreements - for example, those pertaining to non-compliant fuel, violations of emissions warranties or theallocation of costs related to pollution - will be viewed as property rights in personam; therefore, they would be brought forth to arbitration. The framework established by the Indian Supreme Court for determining whether cases may go through arbitration is based on whether the dispute arises from the contractually defined private legal rights of one party against another, or from an action taken against a state actor exercising sovereign power or performing regulatory functions. Claims relating to the environment found in maritime contracts are generally considered to be arbitrable claims because they do not resultfrom regulatory sanctions but instead request damages or indemnities. 3. TREATMENT OF ENVIRONMENTAL CLAIMS BY MARITIME ARBITRAL FORUMS With the rise in environmental compliance related disputes in maritime law, especially with respect to ship charterparties and bunker supply contracts, maritime arbitral institutions are increasingly acting as the forum for these types of disputes. The various forums operated by the London Maritime Arbitrators Association (LMAA) have been regularly used to resolve claims concerning the quality of fuel used by vessels, compliance with emission standards, and the liability for pollution. While India does not possess a separate maritime arbitration body akin to the LMAA, there has been an increasing prevalence of environmental compliance disputes arising from shipping contracts before  Indian arbitrationforums. These disputes are typically pursued either by way of ad hoc arbitration or through more general institutional frameworks and take the form of different types of contractual claims, including claims for breach of contract, indemnity and cost allocation. It is significant to note that the underlying issues which may give rise to environmental compliance claims, and/or non-compliance with air and water pollution, are likely also to attract the attention of various relevant Port Authorities, Custom Officials and/or maritime regulatory authorities. The coexistence of contractual arbitration and regulatory oversight in this context reflects the practical separation between private dispute resolution and public enforcement in Indian maritime practice. Disputes of this nature typically involve a significant amount of detail and require significant expertise in assessinglaboratory reports, compliance documents, and expert testimony relating to environmental standards. The arbitration process has a high level of procedural flexibility, enabling tribunals to appoint technical experts or develop customised evidential procedures that reflect the nature of disputes. Simultaneously, the tension that arbitrations preferred feature of confidentiality presents in relation to environmentaldisputes that include a wide variety of community or environmental factors. In addition to being attractive to the parties to a business transaction, the issue of privacy raises serious concerns regarding the future of environmental andsustainability protocols, and the degree of lack of transparency for maritime arbitrations will continue to be an increasing issue in maritime arbitrations. 4.  SUSTAINABILITY AND “GREEN” ARBITRATION PRACTICES Arbitration is also being viewed through the lens of sustainability apart from the subject matter of disputes. The shippingindustry has recently started aligning its arbitration practices with the environmental goals of the broader shippingindustry by implementing Green Arbitration practices. This encompasses utilizing technology to conduct the arbitration process without needing paper (a paperless process),using virtual hearings, and reducing the reliance on travel (decreasing greenhouse gases emitted during travel) whilecontinuing to protect parties' due process rights . Many of these practices have seen an increase in popularity in the context of international disputes related to shipping, where the location of the parties involved and/or the arbitrators may bewidely dispersed geographically. In addition, there has been a noticeable increase in tribunals’ tendencies to develop commercially pragmatic remedies that incentivise an offending party into compliance over punitive measures such as cost shifting mechanisms and/or performance-directed orders. In doing so, it has created a new perception of arbitration, which is no longer just seen toresolve environmental disputes, but also as a process that can support the development of sustainable outcomes. 5. THE ROAD AHEAD: ESG, CLIMATE RISK, AND MARITIME ARBITRATION With the growing trend for ESG-related clauses being included in all shipping contracts, it is likely that environmentalfactors will play a more important role in future maritime arbitration. Examples of variables that continue to become integral components of businesses' commercial expectations include climate risk, emission performance, and sustainability reporting; therefore, compliance with environmental regulations has now become one of the primary issuesin allocating risks. Arbitrators may become more highly specialized because of this evolution, and the present trend toward reliance on scientific expertise may result in the development of institutionalized resources to aid in the resolution of environment-related disputes. As a means of addressing complex, multifaceted international maritime issues that arise from climatechange obligations through arbitration, the flexibility of the arbitration process will continue to attract users. In conclusion, arbitration cannot serve as a substitute for public enforcement of environmental legislation; however, it can function alongside public agencies to create a viable, legally enforceable mechanism to compel compliance with theenvironmentally sustainable practices. By providing businesses with a binding agreement to follow through with theircommitments, arbitration will allow the increased enforceability of environmental sustainability initiatives in the maritime commerce sector. [1] Fifth Year BA LLB (Hons) student at Institute of Law, Nirma University, Ahmedabad [E-mail parvathyarun93@gmail.com ]. Her academic interests include arbitration and maritime law.

-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.   [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 2006 https:// 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

Pranjal Srivastava [1]   and Pragati Yadav [2]   Introduction Imagine this: An arbitrator, one of the most respected law professors in her field, is appointed to a billion-dollar dispute turning on one question: Can a state's new data privacy law, which unintentionally guts the value of a foreign tech investment, count as indirect expropriation? The parties appoint a leading law professor, chosen specifically for her deep expertise on the subject. The wrinkle? Her most recent book argues, quite persuasively, for a legal interpretation that happens to favor the state. She has no financial interest in the outcome. No personal connection to the parties. Her only link to the case is her own public, intellectual commitment to a particular legal view. This puts the parties in a bind: have they appointed the perfect expert, or someone who is already predisposed to rule against them, Further, this situation raises the questions whether the principles of party autonomy, independence and impartiality of the arbitrator are truly being upheld in the guise of expertise. This is the heart of an 'issue conflict,' and it may be one of the most difficult ethical tests in modern arbitration. While the existing rules handle financial conflicts well, they offer little guidance on the fuzzier problem of intellectual bias . In an age that demands deep specialization, the system actively seeks out arbitrators with well-defined opinions. It seems a new framework is needed to manage that reality. The Problems: When Expertise Ends and Bias Begins Defining an 'issue conflict' requires some precision. Learned Justice Tomka whilst deliberating upon the merits of the challenge in CC/Devas vs India observed that “The basis for the alleged conflict of interest in a challenge invoking an "issue conflict" is a narrow one as it does not involve a typical situation of bias directly for or against one of the parties. The conflict is based on a concern that an arbitrator will not approach an issue impartially, but rather with a desire to conform to his or her own previously expressed view… To sustain any challenge brought on such a basis requires more than simply having expressed any prior view; I must find, on the basis of the prior view and any other relevant circumstances, that there is an appearance of prejudgment of an issue likely to be relevant to the dispute on which the parties have a reasonable expectation of an open mind.”   In the words of Sinclair : … an ‘issue conflict’ in arbitration describes the existence of actual or apparent bias on the part of the arbitrator stemming from his or her previously expressed views on a question that goes to the very outcome of the case to be decided. It denotes the arbitrator’s relationship to the subject matter of the dispute, and his or her perceived capacity to adjudicate with an open mind”.   There are primarily three situations which may be circumscribed under the ambit of issue conflict: conflicts arising (i) where the arbitrator has previously acted in the capacity of a counsel in the pertaining subject matter, (ii) where, acting as an arbitrator, he has ruled on similar subject matter/issues, and (iii) , when an arbitrator has already taken a firm, public stance—in an academic paper, a book. Now, it is important to note that this is not a rigid categorization and often, overlaps arise, where a conflict is not falling under one of the above categories. For example, an individual might act as an arbitrator and he has also written articles about the similar subject matter. Still, the broad purview of what an issue conflict is remains the same. The present article, for the sake of brevity will focus its discussion on the third category of issue conflict arising primarily due to a previous scholarly disposition of the arbitrator. This category of conflicts creates a true paradox of specialization. As commercial and treaty disputes become more complex, involving everything from cryptocurrency to CRISPR gene-editing technology, parties desperately need decision-makers who understand the subject matter deeply . A generalist judge simply won't do. Yet, the more of an expert someone is, the more likely they are to have researched, analyzed, and formed strong conclusions on the key issues in their field. The very quality we seek in an arbitrator—deep expertise—appears to be inextricably linked to the potential for pre-judgment. We are hiring them for their opinion, but what if they’ve already given it? Our primary tool for navigating arbitrator ethics, the IBA Guidelines on Conflicts of Interest in International Arbitration (especially Part II) , wasn't really built for this problem. The Guidelines’ color-coded lists (the Non-Waivable Red List, the Orange List, and the Green List) are brilliant for mapping conflicts arising from financial and professional relationships. They tell us what to do if an arbitrator’s firm has advised a party or if they hold shares in a subsidiary. But they offer virtually no guidance on what to do if an arbitrator is the world's leading intellectual proponent of a legal theory that will decide the entire case. This seems to be a significant gap in our ethical framework. Ambiguity in Law and Practice Without clear rules, parties and institutions are left navigating this territory with a vague and unreliable compass: the universal "justifiable doubts" standard. Found in virtually every major arbitration law, including the UNCITRAL Model Law , this standard asks whether circumstances exist that give rise to justifiable doubts as to an arbitrator's impartiality or independence. But what is "justifiable" when the source of the doubt is the very expertise for which an arbitrator was chosen? The standard may be too blunt an instrument for such a delicate task. This uncertainty has resulted in unpredictable outcomes. The pivotal UK Supreme Court case, Halliburton Company v Chubb Bermuda Insurance Ltd , offers a valuable point of reference. Though the case focused on an arbitrator's lack of disclosure regarding multiple roles in related matters, its primary insight is significant. The Court highlighted that the duty to disclose is essential and should be evaluated from the perspective of the "fair-minded and informed observer." It’s difficult to contend that a fair-minded observer, upon discovering that their adjudicator had already reached a definitive conclusion on the most crucial legal issue in the case, wouldn’t wish to be informed about it in advance. The battleground for issue conflict is most active in investment arbitration, where these tensions are on full display. A quintessential example is the challenge brought against a leading academic, Professor Vaughan Lowe, in Caratube International Oil Company LLP v. Republic of Kazakhstan . The Challenge in Caratube v. Kazakhstan The dispute concerned an oil exploration contract. The claimant, Caratube, alleged that Kazakhstan had violated its obligations under the Energy Charter Treaty, particularly the standard of Fair and Equitable Treatment (FET) . Professor Lowe, a highly respected public international law scholar from Oxford, was appointed to the tribunal. Kazakhstan challenged his appointment, arguing not that he had a financial interest, but that his academic writings revealed a pre-formed and "narrow" view on the doctrine of legitimate expectations, a key component of the FET standard. This was a classic issue conflict scenario: the very expertise that made Professor Lowe a desirable candidate—his extensive scholarship on international investment law—was being used as a weapon to question his impartiality. In its Decision on the Proposal for Disqualification , the tribunal rejected the challenge. The decision is illuminating. The two other arbitrators acknowledged that an arbitrator should not have a "closed mind," but astutely observed that "jurists do not live in ivory towers; they live in the real world." They reasoned that requiring arbitrators to have no pre-existing views on any legal issue would be an impossible standard. It would disqualify virtually every experienced academic, judge, or practitioner from serving. The tribunal found that Professor Lowe's writings, while demonstrating a clear viewpoint, were academic in nature and did not suggest he would be unable to consider the specific facts and arguments of the case before him. The Caratube decision highlights the immense difficulty here. While Professor Lowe was not disqualified, the fact that such a challenge was mounted based purely on his scholarly work shows how contentious this area is. If academics fear their scholarly work will disqualify them from future appointments, they may simply stop writing on controversial topics, impoverishing legal debate for everyone. A Proposed Solution: The 'Spectrum of Predisposition' Test What appears to be needed, then, is a more sophisticated tool—a framework that provides clarity while preserving the vital role of expert arbitrators. A "Spectrum of Predisposition" could serve as a three-tiered test, designed not as a rigid rulebook, but as a guide for disclosure and, in rare cases, disqualification. Level 1: Permissible Expertise (Green Light) This is the baseline and covers the vast majority of situations. An arbitrator has general expertise and has written or spoken on the broad area of law relevant to the dispute. For example, an arbitrator in a construction case has authored a textbook on construction law. This is precisely why they were selected. No disclosure should be required, and it cannot be grounds for a challenge. Level 2: Mandatory Disclosure (Yellow Light) This is the crucial middle ground where our current framework fails. This level is triggered when an arbitrator has expressed a firm, published view on a specific, narrow, and potentially dispositive legal issue in the present case. For example, a dispute turns on whether an AI system can be legally recognized as an "inventor" on a patent application. The appointed arbitrator recently published a law review article titled, "Why AI Can Never Be an Inventor: A Doctrinal Analysis." Under this test, this does not mean automatic disqualification. However, it triggers a mandatory duty of disclosure . The arbitrator must proactively inform the parties of their specific published position. This respects the principle from Halliburton and empowers the parties, who can then accept the arbitrator or raise a challenge based on a complete set of facts. Level 3: Presumption of Disqualification (Red Light) This highest level is reserved for the rare case where an arbitrator has crossed the line from academic to activist . This isn't just about having an opinion; it's about actively campaigning for it. This could involve lobbying governments to adopt their legal interpretation, serving as an expert witness for another party on the exact same legal point, or using language so extreme and one-sided ("no reasonable person could ever conclude otherwise") that it demonstrates a palpably closed mind. In these exceptional circumstances, a presumption of partiality should arise , shifting the burden to the arbitrator and the party who appointed them to prove they can still be impartial. Conclusion The nature of global disputes is evolving, and our ethical standards for those who resolve them must evolve too. The issue conflict conundrum is not a fringe problem; it strikes at the heart of the promise of arbitration: to provide fair, impartial, and expert justice. We cannot simply ignore the paradox that our search for expertise creates. By adopting a more nuanced framework like the 'Spectrum of Predisposition,' we can move beyond the outdated balance sheet approach to conflicts. This could bring clarity to a murky area of law, reduce tactical challenges, and, most importantly, reinforce the legitimacy of the arbitral process for an increasingly complex world. [1] Pranjal Srivastava  is a fourth year BBA LLB (Hons.) student from MNLU Nagpur. [2] Pragati Yadav  is a fourth year BA LLB (Hons. in Adjudication and Justicing) student from MNLU Nagpur.

-       Abdul Haseeb [1] Introduction Foreign commercial awards are enforced in India under Part II of the Arbitration and Conciliation Act, 1996  (“ Arbitration Act ”), which incorporates the New York Convention. A foreign award is defined under Section 44  as an arbitral award on commercial differences made in a New York Convention country under a written arbitration agreement. To enforce such an award, the award-holder must file an application in the appropriate High Court, usually where the award-debtor resides or holds assets, producing the original award and arbitration agreement or certified copies. Section 47  requires the award-holder to prove the award’s authenticity and status as a foreign award. If satisfied, the High Court treats the award as a decree under Section 49  and can order its execution. The Act also incorporates a strict time‑bar: enforcement proceedings must be brought within three years of the accrual of the right to apply. In a 2020 judgement, Vedanta Ltd. v. Government of India [ AIR 2020 SC 4550], the Supreme Court held that Section 5  of the Limitation Act applies to foreign awards, allowing three years from accrual to apply for enforcement. The Court emphasized that an enforcement court can only refuse  enforcement under Section 48  and has no power to set aside a foreign award, as only the courts of the place of arbitration (seat) have that power. In practice, therefore, enforcement involves filing a Section 47 petition with the High Court and proving formal requisites. The court then applies Section 48(1)‐(2), which lists narrow conditions under which enforcement may  be refused. Common procedural grounds include incapacity of a party or invalid agreement, lack of notice, award beyond scope, or improper tribunal composition. Additionally, if an award has been set aside at its seat, the enforcement court may adjourn or refuse enforcement. Section 48: Grounds of Refusal – “Public Policy” and Fraud The key substantive grounds for refusing enforcement of a foreign award are in Section 48(2) of the act. First, the subject-matter of the dispute must be arbitrable under Indian law. [2] Second, and most critically, enforcement can be refused if it is “contrary to the public policy of India”. [3]   The Arbitration Act’s 2015 amendment  significantly narrowed this exception. Section 48(2)(b) provides that enforcement may be refused if it is contrary to fundamental policy or justice/morality or if the award was induced by fraud or corruption. [4] The Explanation to Section 48 makes clear that an award is “in conflict with the public policy of India” only if  it was induced by fraud or corruption, or violated key arbitration provisions, or if it contravenes the fundamental policy of Indian law  or shocks the “most basic notions of justice or morality”. [5] Crucially, the Act expressly bars reviewing the merits of the case in determining “fundamental policy”. In short, Indian law today recognizes only  three kinds of public-policy breach: (i) serious impropriety in obtaining the award, such as fraud, (ii) contradiction of a fundamental national policy, or (iii) violation of basic justice or morality. All other objections, such as an alleged legal error by the tribunal, do not  by themselves violate public policy. These provisions largely mirror the New York Convention’s Article V(2)(b) with a restrictive gloss. Judicial Interpretation of Section 48 – Evolving Jurisprudence The Hon’ble Supreme Court in 1993 in the case of Renusagar Power v. GE [AIR 1994 SC 860] (“ Renusagar ”) set the foundational standard. The Supreme Court held that “public policy” under the prior Foreign Awards Act (and now Section 48) means Indian public policy, but only its fundamentals. An award offends public policy only if enforcement would  contravene (i) “a fundamental policy of Indian law,” (ii) India’s interests, or (iii) justice or morality. Mere violation of a statute or contract alone was deemed insufficient to refuse enforcement. This decision established a pro‑enforcement regime, emphasizing that review must be minimal. Subsequent cases in this era reaffirmed Renusagar’s  limited view. For example, Shri Lal Mahal Ltd. v. Progetto Grano Spa  AIRONLINE 2013 SC 191 explicitly overruled the intermediate case Phulchand Exports v. OOO Patriot  [2011] 10 SCC 300, which had allowed courts to consider “patent illegality” in foreign awards. In Shri Lal Mahal , the Court declined to re-open the merits of the award and reaffirmed that an enforcement court cannot re-examine the arbitrators’ findings. Likewise a 2020 judgement, Vijay Karia v. Prysmian  [AIR 2020 SC 1807], applied these principles to foreign LCIA awards: the Court held that contravention of India’s foreign-exchange law (FEMA) was not  a breach of fundamental policy, distinguishing the civil-compliance orientation of FEMA from the draconian FERA regime. Thus, Vijay Karia  reinforced that only truly fundamental legal norms and not routine regulatory violations fall within the public-policy exception. The Court noted that enforcing these foreign awards did not offend India’s basic policy. Notably, Vijay Karia  also imposed heavy costs (₹5,000,000) on the award-debtors for abusing enforcement proceedings, signalling that dilatory or strategic objections like re-litigating settled issues will be penalized. In Government of India v. Vedanta Ltd.  [AIR 2020 SC 4550], the Hon’ble Supreme Court further underscored minimal interference. Dealing with a large UNCITRAL award (USD 278,871,668), the Court reiterated that an enforcement court cannot  set aside a foreign award; only the court at the place of arbitration has that power. Accordingly, Indian courts will enforce awards unless a narrow Section 48 ground is clearly met. The apex Court’s latest pronouncement  came in the year 2024 in the case of Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd.  [2024] 7 SCC 197. In Avitel, a Singapore‐seat SIAC award was challenged on the sole ground that the presiding arbitrator had undisclosed affiliations thus asserting bias. The Supreme Court unanimously upheld  enforcement, emphasizing the international standard for public policy. It held that while bias can, in principle, violate public policy, a narrow  and internationally-aligned test applies. Only in exceptional  cases where “the most basic notions of morality or justice are violated” should enforcement be refused on bias grounds [¶23-24]. The Court noted that Avitel never raised the conflict in the Singapore proceeding, and the facts did not even meet the IBA guidelines for disqualification, so no “wholesale violation” of justice occurred [¶39]. Crucially, it restated that foreign awards merit “minimal judicial interference”: merely alleging bias without a clear nexus to public policy will not succeed [¶24]. The Court also underscored that challenges to arbitrator bias belong primarily in the seat jurisdiction, not India [¶35]. In short, Avitel confirms that Indian courts will enforce foreign commercial awards except in truly egregious circumstances. Common Grounds of Resistance and Key Authorities Public Policy – Section 48(2)(b) Consistent with Renusagar  and its progeny, Indian courts treat the public-policy exception in enforcement very restrictively. Aside from fraud and basic morality, courts interpret “fundamental policy” narrowly. For example, Vijay Karia  held that a regulatory breach is remediable  and not a fundamental policy breach. Similarly, challenges based on allegations of “patent illegality”, as once allowed under Phulchand Exports , are now foreclosed after Shri Lal Mahal . In practice, only violations of constitutional or legislative touchstones (e.g. national security, violation of a fundamental legislative objective) are likely to qualify. A useful distillation is that Section 48(2)(b) has been narrowed by statute to the three categories in the Explanation. Indian courts will not entertain broad notions of public policy that would require re-trying the dispute. As the Supreme Court puts it, an enforcement court may refuse a foreign award “only if the most basic notions of morality or justice are violated”. As laid down in Perma Container (UK) Line Ltd. v. Perma Container Line (India) (P) Ltd.  [2014 SCC OnLine Bom 575] and also followed in Mercator Ltd. v. Dredging Corpn. of India Ltd.  [2024 SCC OnLine Del 3075]. This aligns India with the international norm that public-policy review of foreign awards is limited. For instance, biases or conflicts will be disregarded absent extreme facts, as in Avitel . Likewise, India’s interest and justice/morality tests track Article V(2)(b) of the New York Convention. Fraud and Corruption The Act explicitly lists fraud and corruption as public-policy grounds. If an award is tainted by bribery or fraud on the arbitral process itself, enforcement may be refused. However, fraud must be proven as directly affecting the award. Indian courts will be cautious: a mere allegation of contract fraud does not automatically defeat enforcement unless it rises to the level of corrupting the arbitration. In Avitel , for example, HSBC had alleged fraudulent misrepresentation by the debtor and had won a USD 60m award for fraud; the enforcement court enforced the award without re-litigating whether fraud occurred. By contrast, if an award were obtained by bribing an arbitrator or similar misconduct, Section 48 clearly permits refusal. Overall, post-2015 the fraud exception is the main way to challenge enforcement on merits. But the courts generally require clear and pleaded evidence of fraud affecting the award. Claims of mere contractual fraud or misrepresentation, as opposed to fraud on the tribunal, have not been allowed to upset enforcement. [6]  As the SC notes, the fraud exception under Section 48(2)(b) is meant to address “common sense” situations, it does not reopen the case on ordinary misstatements. [7] Complications in Enforcement: Interim Relief and Parallel Proceedings Even with a pro-enforcement stance, practical obstacles can arise. One issue is interim relief  pending enforcement. Unlike domestic arbitrations where Section 17  and 9 empower courts to grant interim measures, foreign arbitrations have no counterpart interim-protection provision in Part II. However, parties have persuaded courts that Section 9  still applies to foreign‑seat arbitrations absent an express opt-out. In Aircon Beibars Fze v. Heligo Charters , the award-creditor obtained urgent injunctive relief over the debtor’s sole Indian asset by invoking Section 9. The court held that Section 2(2)  of the Act, which limits Section 9 if parties agree to exclude Indian interim relief, requires clear language in the contract to oust Section 9. This position was further affirmed by the Supreme Court in a 2021 judgement, PASL Wind Solutions Private Limited v. GE Power Conversion India Private Limited  [AIR 2021 SC 2517], which clarified that the court's power to grant interim relief under Section 9 for foreign-seated arbitrations can only be excluded through a clear and express agreement to the contrary. Thus, unless the arbitration agreement explicitly rules out Indian emergency relief, award‑holders may apply under Section 9 to preserve assets pre-enforcement. This underscores the need for careful clause-drafting: a foreign company might expressly reserve Section 9 rights if desired, or exclude it if not. “Overlapping domestic proceedings” can also complicate enforcement. Parties sometimes file parallel suits or petitions in Indian courts, to declare a contract void, obtain ad-hoc injunctions, or frustrate enforcement. Indian courts generally resist such forum-shopping. [8] For example, Section 45  obliges a court seized of a domestic suit to refer the matter to arbitration if a valid agreement exists. If a losing party sues in India on the same dispute, the court should either refer it to arbitration or stay the suit. Similarly, once an arbitration award exists, courts will not entertain collateral attacks beyond Section 48 grounds. [9]  In Avitel , HSBC obtained orders freezing Indian assets pending enforcement, and the Bombay HC refused to entertain repeated challenges. The Supreme Court later chided the debtors for using enforcement proceedings as a surrogate appeal, stressing that bias or other objections should have been raised in the arbitration at the seat [¶56]. This can also lead to contractual disputes, for instance, Indian parties have at times resisted enforcement by arguing that the arbitration agreement itself was invalid or the contract was void. The courts have been firm that such arguments fall squarely within Section 48(1) or (2) grounds. In Avitel , the debtors argued the share‑subscription contract was insufficiently stamped under Indian law, but the Bombay HC, and ultimately the Supreme Court, rejected this as a bar to enforcement. Unless the procedural formalities are so egregiously violated as to invalidate the arbitration agreement itself, technical irregularities will not usually impede enforcement. Practical Impact and Drafting Considerations The evolving Indian law has made enforcement of foreign commercial awards increasingly reliable. For Indian companies, this means that if they obtain foreign awards, Indian courts will generally honour them barring narrow exceptions thus increasing the confidence in business with the foreign company on the ground that foreign awards will be upheld. [10] The emphasis on minimal interference and seat-competence encourages confidence in international arbitration. On the other hand, losing parties in arbitration must recognize that protracted “guerrilla” litigation will be disfavoured. [11] The courts’ imposition of heavy costs (as in Vijay Karia ) and pointed rebukes (as in Avitel ) indicate that dilatory tactics will be penalized. To maximize enforceability, contracting parties should draft arbitration clauses with caution and care. Key considerations include: choosing a neutral seat and applicable law, expressly clarifying which provisions of the Arbitration Act apply, and addressing interim relief. If avoidance of Indian intervention is desired, they might expressly waive Section 9. [12]   [13]   [14] The clause should also name the law governing the agreement and confirm the scope of arbitrable disputes. Ensuring the contract complies with Indian formalities such as proper stamping, etc. and avoids technical defences. In cross-border contracts, it is prudent to have an arbitration agreement in a form that meets Indian requirements, that includes written record and is in no conflict with public policy at formation. Finally, parties should be aware of enforcement logistics. A foreign claimant should promptly apply in the correct High Court and be ready to submit the required documents and translations. [15] An Indian respondent should present any objections under Section 48 early and with clear proof (e.g. evidence of fraud). [16] Given Section 48’s discretionary language (“may refuse”), courts sometimes have restored awards despite technical objections. [17] Thus, strategic considerations include preparing for limited appeals and potential security requirements. Conclusion In sum, Indian law now adopts a strongly pro-enforcement stance toward foreign commercial awards. The Arbitration Act’s Part II (as amended in 2015 and 2019) and recent Supreme Court jurisprudence make clear that enforcement will be refused only on strictly limited grounds – essentially fraud, corruption, or violation of fundamental national policy/morality. Landmark decisions (Renusagar, Shri Lal Mahal , Vijay Karia , Avitel ) uphold this narrow reading of “public policy”. The Avitel  ruling, in particular, reinforces minimal court interference and emphasizes that challenges such as arbitrator bias must meet a high threshold. At the same time, practical hurdles like delay, parallel litigation, or interim disputes, require vigilance. Indian companies and foreign investors alike must plan thoughtfully: drafting clear arbitration clauses, understanding Section 48’s contours, and diligently prosecuting or defending enforcement actions. With recent reforms and jurisprudence, India’s enforcement regime now aligns closely with global norms, enhancing predictability for cross-border commerce. [1]  Abdul Haseeb is a Fourth Year Law Student, at Dr. Ram Manohar Lohiya National Law University, Lucknow [2]  Booz-Allen & Hamilton Inc v. Sbi Home Finance Ltd, AIR 2011 SC 2507. [3]  National Agricultural Cooperative v. Alimenta S.A., AIR 2020 SUPREME COURT 2681. [4]  Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705. [5]  Swiss Timing Ltd v. Organizing Committee Commonwealth, AIR 2014 SUPREME COURT 3723. [6]  A. Ayyasamy v. A. Paramasivam & Ors,, AIR 2016 SC 4675. [7]  Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., 2024 7 SCC 197. [8]  Indian Oil Corporation Ltd. v. SPS Engineering Ltd., (2011) 3 SCC 507. [9]  Vijay Karia v. Prysmian Cavi E Sistemi SRL, (2020) 11 SCC 1. [10]  Agrud Partners, Enforcement of Foreign Arbitral Awards in India: A Guide, Agrud Partners (May 9, 2025), https://agrudpartners.com/enforcement-of-foreign-arbitral-awards/ (last visited Sept. 06, 2025). [11]  Ahuja, N.G. (2022). Mechanisms to Control Guerrilla Tactics in International Arbitration. In: Taming the Guerrilla in International Commercial Arbitration. International Law and the Global South. Springer, Singapore. https://doi.org/10.1007/978-981-19-0075-4_5 . [12]  As in Bhatia International v. Bulk Trading S.A. [AIR 2002 SC 1432] the Supreme Court took a purposive (holistic) approach and held that Part I could, in certain circumstances, be applied to international arbitrations even if the seat/place was outside India, unless the parties had expressly excluded Part I. Bhatia effectively allowed Indian courts significant supervisory jurisdiction over some foreign-seated arbitrations. [13]  Bharat Aluminium Co. v. Kaiser Aluminium Technical Servs.[Civ App 3678 of 2007 (6 September 2012)] overruled Bhatia International (prospectively) on the specific point of territorial application: the Court held that Part I of the Act does not apply to arbitrations whose seat/place is outside India; the seat (place) of arbitration is the key territorial touchstone (the “centric of gravity”), and judicial powers under Part I are territorially limited. Consequently, applications under Part I (including s.9) are not maintainable in India in relation to foreign-seated arbitrations. BALCO thus restored a strict territorial approach in line with the Model Law. [14]  Raffles Design International v. Educomp [2016 SCC OnLine Del 5521] held that after the 2015 Amendment, Section 9 can be invoked in relation to foreign-seated arbitrations unless there is an agreement to the contrary. The Court recognised that emergency/EA awards from a foreign seat may not be directly enforceable in India but that an Indian court could nonetheless grant interim relief under sec 9. (Usefully illustrates how Indian courts interpret the proviso liberally to allow interim relief.) [15]  Bank of Baroda v. Kotak Mahindra Bank Ltd., 2020 SCC OnLine SC 324. [16]  Perfint Healthcare Pvt. Ltd. v. California Institute, 2019 SCC OnLine Mad 1. [17]  The Branch Manager, Magma Leasing and Finance Limited and Anr. v. Potluri Madhavilata and Anr, MANU/SC/1672/2009.

Shivanshi Shukla [1] I. Introduction Arbitration, as a form of Alternative Dispute Resolution ( ADR ) is intended to offer a speedy, cost-effective, and efficient alternative to tedious Court litigation. Yet, recent judicial trends show a rise in the bar on procedural compliance-related issues in Court-related proceedings of arbitration. Recently, a full judge bench of the Hon’ble Delhi High Court comprising Justice Rekha Palli, Justice Navin Chawla, and Justice Saurabh Banerjee,  in Pragati Constructions Consultants V/s Union of India, 2025 : DHC : 717-FB addressed two such compliance related issues being firstly , the absence or defect in the Statement of Truth, and secondly , the effect of non-filing of the Arbitral Award rendering such Petition as non-est.   The critical pitfall of a non-est filing lies in its impact on limitation. Under the Arbitration and Conciliation Act, 1996 (“the Act” ), a petition to set aside an arbitral award must be made within 90 days, extendable by a further 30 days at the Court’s discretion, with no scope for condonation beyond this 120-day outer limit. If a petition is treated as non-est, the initial filing offers no safeguard, as the limitation clock continues to run, and the challenge may be irretrievably barred. This article critically analyses the Delhi High Court’s reasoning, statutory intent, and the implications for India’s efforts to promote arbitration as a preferred mode of dispute resolution. II. Non-est Filings and Requirements under Section 34 In Sunny Abraham v. Union of India, (2021) 20 SCC 12 , the Supreme Court interpreted “non-est” as something treated in law as non-existent due to a fundamental legal lacuna going beyond mere procedural irregularity. Applied to a case of challenging the award, this means that even if a petition is filed within the limitation prescribed under Section 34(3) of the Act, it may still be disregarded as non-est filing, with the limitation clock continuing to run and any subsequent filing barred. Section 34 enables a party to challenge an arbitral award on specific grounds within the time limit and also prescribes a rigid limitation period of 90 days, which can be further extended by 30 days at the Court’s discretion in the presence of a sufficient cause.  The Supreme Court, in Union of India v. Popular Construction Co, (2001) 8 SCC 470, described this limit as “inelastic and inflexible,” a view reinforced in by the Supreme Court in State of West Bengal v. Rajpath Contractors and Engineers Ltd, (2024) 7 SCC 257 , the Apex Court, relying on Popular Construction , dismissed an appeal on the ground that the challenge to set aside the award was filed beyond the statutory period. What remains uncertain, however, is whether defects such as non-filing of the award, Vakalatnama, or Statement of Truth render a petition non-est or whether they may be treated as curable irregularities. Courts have reached divergent conclusions,  where such petitions were held to be non-est , relying on provisions of the Civil Procedure Code 1908 (“CPC”) and the Commercial Courts Act 2015 (“CC Act”). This question was addressed in Pragati Constructions Consultants , where a full bench was constituted to answer the reference made by the learned Single Judge, and the reference was based on two conflicting judgments of the Division Bench in the cases ONGC v. Sai Rama Engineering Enterprises, 2023 SCC OnLine Del 63 , and ONGC V. Planetcast Technologies Ltd, 2023 SCC OnLine Del 8490 In Sai Rama Engineering , the Delhi High Court held that for a petition to be considered as non-est, the Court must conclude that it cannot be regarded as an application for setting aside the arbitral award. For a petition under Section 34, the Court is required to assess the grounds of challenge, and without a copy of the award, it is difficult to appreciate such grounds. The Court further noted the importance of the material procedural formalities, such as the application being signed by the parties and the application being affixed by an affidavit and statement of truth by virtue of Order XI of CPC and Section I of the CC Act authenticates such petitions. However, while these defects, such as the absence of an affidavit or Statement of Truth, are material, the Court held they were curable and did not nullify the petition altogether. In contrast, the division bench in Planetcast Technologies adopted a stricter view and observed that petitions under Section 34 of the Act fell within the jurisdiction of the Commercial Division of the High Court, making the CC Act applicable to such petitions. The pre-requisite of filing a statement of truth has been emphasized in Order XI Rule 1 of the CPC as amended under the CC Act.  Departing from the view that such defects are merely procedural requirements, the Court examined this issue through the lens of an attempt made by the parties to pause the limitation period and noted that the petitioner cannot claim the benefit of a non-est filing and later make a proper filing after the limitation period has lapsed. A similar approach was adopted by the Division bench of Delhi High Court in Delhi Development Authority v. Durga Construction Co,  2013 SCC OnLine Del 4451 , where it was held that petitions which are hopelessly inadequate or lacking in substance may be treated as non-est, and curing defects later cannot retrospectively validate the original filing. This non-application of the time limit on re-filing was also observed by the Supreme Court in Northern Railway v. Pioneer Publicity Corporation Pvt. Ltd. (2017) 11 SCC 234 , further clarified that re-filing does not amount to fresh institution but will be termed as re-filing. The non-applicability of Section 34(3) limitation to re-filing leads us to a fundamental question wherein the defects, such as non-filing of the statement of truth and arbitral award, are considered as a curable defect for the purposes of re-filing, or whether such a petition would be rendered as non-est and the limitation period would be stringent, not giving the Court a chance to condone or allow the re-filing beyond the prescribed period. III. Observations of the Court The Court in Pragati Constructions Consultants observed two key principles applicable to a Section 34 petition, firstly, arbitration being an ADR mechanism and has to be disposed expeditiously which is also embodied in Section 5 and Section 34(3) of the Act. This object cannot be undermined by allowing petitions that fail to meet basic filing requirements to stall the limitation period from running. Secondly, while Section 34 provides a sole remedy for challenging an arbitral award, mere technicalities should not affect the substantive rights of the parties. The Court further noted that even in the absence of expressly stated mandatory requirements, a petition cannot be made in any form or manner, leaving the Court helpless. Terming the non-filing of an arbitral award a fatal defect, the Court held that filing of an arbitral award is not a mere procedural requirement but an essential one, the absence of which renders the application “non-est” in the eyes of law. The Court reasoned that without a copy of the award, it becomes impossible for the Court to appreciate the grounds of the challenge. Regarding the non-filing of the Statement of Truth, the Court held that whether such an omission renders a Section 34 petition defective depends on the facts of each case and lies within the Court’s discretionary power. By virtue of Section 10 of the CC Act, jurisdiction is not only conferred upon the Commercial Division or Commercial Court in arbitration matters, but the procedural rules of such courts are also made applicable to arbitration-related proceedings. Accordingly, Section 16 of the CC Act read with Order VI Rule 15A of CPC applies to petitions filed under Section 34 of the Act. Applying general principles under Order VI Rule 15A of the CPC, which applies to a suit involving a commercial dispute of a specified value, the Court noted that non-filing of the statement of truth is a curable defect. However, determining the question of condonation of delay in re-filing of the application under Section 34 depends on the nature of the defect, and the Court must assess, based on the facts and circumstances of each case, whether such delay can be condoned. IV. Way Forward The judgment in Pragati Constructions Consultants v. Union of India underscores the pressing need for legislative clarity on procedural requirements under the Arbitration and Conciliation Act, 1996. While the Court rightly emphasized the necessity of filing a copy of the award to appreciate the grounds of challenge, its case-by-case approach to elements such as the Statement of Truth leaves significant room for judicial discretion, perpetuating uncertainty. Combined with the rigid limitation regime of Section 34(3), this uncertainty risks depriving parties of their only statutory remedy against arbitral awards on account of curable procedural lapses. The divergence between Sai Rama Engineering and Planetcast Technologies illustrates the consequences of such ambiguity, especially given that the Delhi High Court (Original Side) Rules, 2018 do not prescribe clear procedural standards for Section 34 applications. Inconsistencies in judicial treatment raise the possibility of petitions being declared non-est, undermining predictability and access to justice. As India aspires to be a global arbitration hub, procedural safeguards must be maintained without becoming barriers. A balanced framework is needed—one in which procedure serves the ends of justice rather than obstructs them. The legislation should therefore lay down clear, uniform procedural requirements for Section 34 petitions, closing gaps that currently allow conflicting interpretations, and ensuring the Arbitration Act remains a complete code in itself. [1] Shivanshi Shukla is a fourth-year law student from the Institute of Law Nirma University, Ahmedabad (ILNU).

Vaishnavi Agrawal [1]   Introduction As India attracts greater investment and aspires to establish itself as a leading global economy, a surge in cross-border transactions is inevitable. This mandates the existence of an efficacious cross-border dispute resolution mechanism. A direct result of this was the emergence of International Commercial Arbitration as the most commonly opted machinery. In such a scenario, the need for an economy to be pro-arbitration or arbitration-friendly becomes indispensable.   Against this backdrop, India has certainly evolved into a pro-arbitration jurisdiction with numerous judicial decisions and legislative actions. However, in light of the recent events, such as the ‘copy-paste’ judgement, Public Works Department (‘PWD’) of Delhi’s removal of the arbitration clause from all future contracts, the Gayatri Balasamy judgement wherein interference with arbitral awards was allowed though with caution and care eventually casting uncertainty over the finality of an arbitral award, and others, the perception of India as an arbitration-friendly jurisdiction stands tarnished. These developments necessitate a closer examination of whether the label of a ‘pro-arbitration’ jurisdiction is merely a strategic narrative to attract investors and global influence, or whether it genuinely withstands the test of time and practice. In light of these recent trends, this article aims to examine the trajectory of arbitration in the Indian judicial landscape. It suggests that these events not only deviate from global norms but also occur at a time when India is trying to establish itself as a global arbitration hub. This article provides an overview of the events that transpired, analyses their impacts on India’s ambitions and highlights the persistent concerns.   The events in question and their implications With the onset of 2025, not one but several such incidents that question India’s sanctity as a pro-arbitration jurisdiction have come into light, most of these being in and around April 2025. In this section, the author aims to delve into the implications of these events on the Indian arbitration landscape.   The first in question is the annulment while deciding the case of DJO v DJP by the Singapore Court of Appeal on 8 th April, 2025, of an international arbitral award made by a former CJI, Deepak Misra , on discovering that almost half the decision was copied verbatim from earlier awards he had authored in separate but related disputes. The dispute arose from a contract involving a special-purpose vehicle tasked with managing freight corridors in India and a consortium of three infrastructure companies. The core issue was the interpretation of a 2017 notification issued by the Indian government regarding revised minimum wages, which the consortium argued entitled them to higher payments. After negotiations failed, the matter proceeded to arbitration in Singapore under the International Chamber of Commerce (ICC) Rules . In November 2023, the Arbitral Tribunal, led by Justice Misra and including co-arbitrators Justices Krishn Kumar Lahoti and Gita Mittal, ruled in favour of the consortium. However, this ruling was subsequently contested before the Singapore International Commercial Court, which found that significant sections of the award were closely derived from two earlier arbitration decisions authored by Justice Misra in similar cases. The Court of Appeal has since affirmed this finding. Such incidents cast doubt on the credibility and competence of Indian arbitrators, particularly given that many are retired judges. Their authority and impartiality as arbitrators come under scrutiny, raising broader concerns about the standards of arbitration practice in India. Such an award was seen as a compromise of fairness and integrity and therefore a violation of the ‘principles of natural justice’. This is not only a question of individual reputation, but also raises apprehensions about the procedural fairness and quality of Indian-seated arbitrations, effectively deterring parties from choosing India for the resolution of their conflicts or from opting for Indian arbitrators.   The second event in line is the notification issued on 21 st April, 2025, by the PWD of Delhi, eliminating arbitration as a dispute resolution method for all future contracts. This decision aligned with a 2024 guidance from the Ministry of Finance, which outlines the drawbacks of arbitration, though the latter only restricted arbitration for disputes valued up to INR 10 crores. In contrast, the PWD’s notification imposes a comprehensive ban on arbitration, amending clause 25 of the General Conditions of Contract to require that all disputes be resolved through the courts. This move portrays a lack of trust in arbitral institutions and the arbitration framework in India. Further, such a decision dissuades parties from engaging in contractual relations with the public sector enterprises or state instrumentalities, where the sanctity of the contract is not preserved and creates tensions in the pre-existing contractual relations, while also undermining trust, which is the very foundation of any investment. In light of this notification, it appears that the pro-arbitration narrative is merely a catchy phrase, whilst the reality portrays a completely contrary picture.   Lastly, on 30 th April, 2025 in the landmark decision in the case of Gayatri Balasamy v ISG Novasoft Technologies Limited , t he Hon’ble Supreme Court in a 4:1 majority held that courts have a limited power to modify an arbitral award under Sections 34 and 37 of the Arbitration and Conciliation Act, 1996 and listed instances wherein such power of modification could be exercised in certain circumstances the most relevant here being ‘ by exercising great care and caution while utilising the powers under Article 142 of the Constitution, within its constitutional limits .’ The judgment essentially allowed interference with arbitral awards if the same is deemed fit under Art. 142 , thereby undermining the sanctity and finality of the arbitral award. The same stands contrary to legislative reforms in 2015, 2018 and 2021 , which had systematically narrowed the judicial interference with arbitral awards, providing procedural clarity and creating a predictable dispute resolution landscape, restoring investor confidence. The decision highlights the need for immediate legislative intervention to fill the statutory void.   Deviation from global norms India with its aspirations of emerging as a global arbitration hub by virtue of Draft Arbitration And Conciliation (Amendment) Bill, 2024 , several other judicial and legislative reforms seek to harmonise its domestic arbitration practices with international best practices in line with frameworks like the New York Convention and the Geneva Convention , both of which facilitate the enforcement of arbitral awards, thereby creating investor confidence and boosting its commercial relationships. The development of strong institutional arbitration, such as the Delhi International Arbitration Centre (DIAC) and the Mumbai Centre for International Arbitration (MCIA), similar to Singapore and London, has further enhanced India’s credibility as an arbitration-friendly jurisdiction. However, these recent events reveal a more uncertain future in terms of the Indian arbitration landscape. These events not only deviate from the established global norms but also trigger the need for a more synchronised pro-arbitration framework.   Firstly, for instance,   the New York Convention’s harmonization of arbitral enforcement  reinforces investor confidence in cross-border transactions. Weakening the arbitration framework by either introducing a lack of finality of the arbitral award or ‘copy-pasting’ arbitral awards from parallel awards without due regard to the difference in the factual scenarios or by removing arbitration as a means of dispute resolution by the state machinery not only affects the domestic commercial transactions, but also repulses the investors from viewing India as a prospective jurisdiction to invest and trusting it with the resolution of their dispute. Such development, therefore, is at divergence with India’s aspirations of emerging as the global arbitration hub.   Secondly, the legislative reforms of   2015, 2018 ,  2021 and even the latest Draft Arbitration And Conciliation (Amendment) Bill, 2024 , aim to confine judicial interference in arbitral awards and introduce procedural clarity, introducing predictability in India’s arbitration landscape. However, the Gayatri Balasamy judgement allows for cautious yet undefined interference with the arbitral awards, thereby introducing an element of unpredictability, which might act as a repellent for investors and is contrary to international practices in jurisdictions like Singapore and the United Kingdom, wherein stringent provisions exist for timely and effective enforcement of arbitral awards.   In contrast to the above-mentioned events,  India’s recent amendment  to its bilateral investment treaty with the UAE reveals a notable reduction in the time period for exhausting local remedies, indicating an intention to expedite access to international arbitration. However, it is hard to shield investor confidence in a scenario where arbitration as a means to resolve disputes is banned despite a contractual agreement, or where, despite obtaining an award, the same may be subjected to litigation. An incident such as this stands in deep contrast with the progressive Indian practices, exposing inconsistency with its international practices.   Conclusion The author contends that India’s aspiration to emerge as a pro-arbitration jurisdiction is undermined by its recent actions that reveal a disconnect between policy intentions and actual practices, and is ultimately likely to deter foreign investment and foster uncertainty in its dispute resolution mechanisms. To align with international standards, India must establish consistency between its legislative framework and judicial behaviour, which can primarily be achieved by way of legislative intervention in reinforcing the finality of arbitral awards and implementing capacity-building initiatives for arbitrators, particularly ones with judicial backgrounds. Furthermore, ensuring that public sector entities adhere to arbitral commitments is vital for rebuilding confidence. A credible and principled commitment to arbitration is essential for India to reshape its image into a genuinely arbitration-friendly jurisdiction in the global legal landscape. [1] Final year law student at the Institute of Law, Nirma University.

Piyush Singla [1] Introduction The Indian real estate market, which contributes the third-largest portion of the country's GDP, encompasses the residential, commercial, retail, and hospitality sectors . While urbanisation, communication, better transportation, technological advancements, and participation in global markets have all contributed to progress, they have simultaneously revealed structural deficiencies. Disputes in real estate, which often involve delays or battles over ownership across national borders, are becoming more common in India. However, regular courts do not always handle matters swiftly or with the right expertise, which frustrates buyers, developers, and investors. Alternative Dispute Resolution (ADR) methods, such as arbitration, are discussed in this blog, along with their advantages in dealing with disputes. Unlike going to court, arbitration allows flexibility, confidentiality, and access to experienced advisors, which aids complex real estate transactions. The blog explains how arbitration functions in real estate, why its importance is increasing, and what challenges exist with using it. The main contribution is actionable changes at the legal, technological, and organizational levels, helping arbitration become the main choice for settling disputes in real estate. As such, the main question that this paper attempts to answer is: In what ways is arbitration a viable model of resolving real estate disputes in India, and what are the reforms that need to be introduced to neutralise its present shortcomings? THE ARBITRABILITY OF REAL ESTATE DISPUTES Arbitration is indeed gaining popularity in the real estate industry, but not all disputes have the opportunity to be solved legally by this method. In Vidya Drolia v., the Supreme Court held that a state is required to order the seizure of a property that is subject to a specific concern of the national interest of the Republic of India. In Durga Trading Corporation (2020), it was explained that rights in rem (rights that have an effect against the outside world, such as ownership or tenancy governed by special enactments) are usually non-arbitrable, whereas rights in personam (reasonable disputes that fall within the domain of general contract law) are arbitrable. The examples of real estate arbitrable disputes are: ·      Controversies between the developers and the contractors over the construction delays or flaws. ·      Cases between land avenues and developers associated with the contract in joint development. ·      Conflicts that come up based on financing, investment, or revenue-sharing arrangements. Areas of non-arbitrable disputes are: Cases that represent the exclusive jurisdiction of special forums (e.g., homebuyer complaints regarding delay in possession), which fall under the jurisdiction of RERA authorities or consumer courts. ·     Rent control eviction or tenancy-related issues. ·     Disputes concerning title to real estate, which imply the implication of third-party rights and thus can not be subject to the arbitration. The availability of numerous adjudicatory platforms, including RERA and consumer commissions, civil courts, and arbitral tribunals, contributes to the redundancy and confusion. So, definite rules in the legislation on the arbitrability of real estate disputes are needed that do not allow any contradictory decision and the development of delays. Arbitration In Real Estate: Resolving Disputes Arbitration is a form of alternative dispute resolution (ADR) in which independent arbitrators hear the evidence and make a typically binding decision. It is arguably faster and more effective than traditional litigation systems. Theincreasing complexities in the real estate sector, including joint ownership conflicts, cross-border conflicts, technology-driven disputes, and construction-related disputes, have necessitated arbitration. The practicality, affordability, and time efficiency of arbitration make it an efficient technique for overcoming the complexities of real estate legal issues, as highlighted in the case of Chopra Fabricators & Manufacturers (P) Ltd. v. Bharat Pumps & Compressors Ltd . The story of Chopra Fabricators & Manufacturers (P) Ltd. v. Bharat Pumps & Compressors Ltd. brings out how the delays in enforcing the award can end up defeating the effect of arbitration, and this is more so when the arbitration is involved in the real estate or construction industry, where immediate resolution is of the essence. In the view of the Supreme Court, it was a bright case of undermining the arbitration process despite an award being given in 1992, but the execution petition came in 2003. The Court also noted that despite the lapse of 30 years, the party that has the benefit of the Award being granted is not in a position to reap the fruit of the litigation/Award. This reasserts the fact that although arbitration is itself a progressive, efficient system to resolve complex cases like cross-border and construction cases, delays in their enforcement can be a major deterrent to them unless judicial interventions are introduced to have prompt action in derivation. · Cross-Border Disputes In a globalized world, real estate companies from various countries clash over multiple disputes, such as contract violations. Unlike litigation, which involves jurisdictional and delay issues, disputes in arbitration can be resolved without these challenges and promptly. In Eitzen Bulk A/S vs Ashapura Minechem Limited & Anr , the court, in its opinion, divided the panel into two groups and held that the panel is liable to one group and not the other.  The Supreme Court upheld the New York Convention and its application towards enforcing a foreign arbitral award even in cases where the Indian party is opposed to the award. The Court made it clear that on the fulfillment of conditions under Section 47 of the Arbitration and Conciliation Act, 1996, the award should be enforced unless it comes under rare exceptions under Section 48. In focusing on the notion that there exists a pro-enforcement bias, it was noticed that the public policy objections have to be interpreted narrowly. The Court added that the enforcing court is not entitled to practise on the merits of the award being enforced overseas or internationally, but to merely examine whether the award fits into the narrow grounds prescribed in section 48. This further ascertains the effectiveness of arbitration as a tool to settle even intricate international disputes, such as real estate and construction disputes. ·  Construction Related Disputes Disputes during construction are usually more complicated and complex. Technical problems, for example, fixing the wrong materials, facing construction delays due to design obstacles, delays caused by labor problems, and extenuating circumstances such as force majeure events, are very common in such cases. The traditional court system is not flexible and lacks specialists in technological advancements field and thus, it struggles to deal with such multifaceted cases promptly. On the other hand, arbitration can adjust the process and bring in experts in the involved field. A party might determine in the arbitration clause that certain hearings will be fast-tracked or that interim relief can be quickly granted for ongoing projects. An arbitrator who has experience in construction, design, or engineering can check blueprints, inspection records, or charts. Additionally, arbitration offers options like examining the site, using digital models, and questioning experts simultaneously. The Supreme Court, in McDermott International Inc. v. Burn Standard Co. Ltd. & Ors . , observed that the technical and construction disputes are well-suited to arbitration since parties are permitted to select arbitrators on the basis of relevant legal as well as subject-matter expertise. The Court made it clear that arbitrators possess the role of final judges of fact and law and that courts must not use the facts or even make a reappreciation of the evidence or replace their opinions with the technical findings. It held: The jurisdiction of the court is not an appeal jurisdiction; the award is not liable to be challenged because the arbitrator has uncritically come to his own conclusions or because he has ignored facts. This demonstrates how arbitration offers the flexibility, specialisation, and swiftness of a specialised method of handling construction disputes that demand technicality as well as legal adjudication. In conclusion, Arbitration simplifies construction disputes, takes into account the technical and legal issues, and issues decisions that are both right and valuable for business. While arbitration has proven effective in addressing a range of real estate conflicts, from cross-border investment disputes to construction-related complexities, its growing use has also revealed several persistent challenges. These barriers, unless addressed, may undermine the efficiency and reliability of arbitration as a dispute resolution mechanism in the real estate sector. Barriers to Effective Arbitration Arbitration is unquestionably a more practical and favored approach than the conventional litigation system. However, it has  some challenges and problems, some of which are listed below: ·  Multiple Party Disputes Most real estate projects have developers, landowners, investors, buyers, and contractors working together, and some of their agreements include arbitration clauses, but not all do. So, there are jurisdictional issues, cases are tried in more than one venue (civil courts, consumer tribunals, RERA, arbitrators), and the decisions vary. Examples are: Disputes between landowners and developers in township projects being decided by arbitrators, and buyers of flats turning to consumer courts when their buildings are delayed, leading to slow and divided dispute handling. ·  Outdated Laws of Arbitration   The Arbitration and Conciliation Act, 1966 was last modified in 2019. Since then, no further changes have been made, leaving the law outdated for the new challenges created by technological advancements. With the introduction of Artificial Intelligence (AI) and blockchain technologies, the inadequacy of laws has become more pronounced. For Instance, The Rise of Proptech and Smart Contracts in the Indian Real Estate sector has transformed how real estate transactions are completed, verified and followed. Many land registration services and digital contract negotiation platforms are now built with the assistance of blockchain and AI. At the same time, these new technologies have worsened cybersecurity problems, including unauthorized data theft, changes to blockchain records, digital land title fraud, and AI errors in contract execution. Despite the increasing prevalence of such issues, the existing statutes lack a comprehensive framework to address technology-driven difficulties, which is one of the pressing concerns in the real estate industry. Strengthening Arbitration for Real Estate Disputes There are indeed problems or challenges with the arbitration process, but we cannot reject its benefits in resolving disputes. With some suggestive and practical approaches, we can resolve these disputes. For instance, amending the Arbitration and Conciliation Act,1963, and adding descriptive arbitration clauses in contracts under RERA, additionally improving the system with modern technologies and algorithms. Some of the suggestions that make arbitration more effective are listed below: ·  Creating Consolidated Arbitration Systems Especially for Real Estate Projects Construction contracts are structurally different, although at the core they are similar to ordinary ones as they are governed by the principles of contract law, such as the liquidated damages, termination clauses, or the performance aspects. Unlike bilateral construction disputes, the real estate projects involve various contracts and various parties: developers, landowners, contractors, investors, and numerous buyers. Such a multiplicity leads in most cases to concurrent proceedings before arbitral tribunals, consumer forums, civil courts, and RERA authorities, leading to conflicting results. That’s why India should have a special arbitration framework for this sector. One can implement this in these two main ways: a) As an alternative to simply mandating all agreements to be subject to standard arbitration provisions, India could also set up project-specific arbitrating bodies in real estate mega-projects. These panels would have a consistent panel of arbitrators specialising in real estate, construction, and finance disputes, and serve as a single tribunal to all disputes that occur in a project, regardless of the specific contract in question. They may hold parallel hearings on the related controversies, say, buyer-developer or contractor-developer disputes, to uphold consistency in the awards. b) Real estate arbitration institutions ought to set clear guidelines to handle consolidation and allow parties to join, even when not all have an existing arbitration agreement. SIAC and ICC have these tools, and India should also have them for its domestic real estate arbitration. ·  Modification of Law Regarding Digital and Electronic Contracts in Arbitration, by amending the Arbitration and Conciliation Act to explicitly accept arbitration agreements formed via emails or chats or paper documents stamped electronically, when there is a clear agreement and both sides consent. As a result, many property transactions that presently cannot use arbitration would become legal through arbitration clauses. Because new PropTech applications use things such as smart contracts, AI, and blockchain technology, the law should be changed to accept them as valid in arbitration cases. Provisions need to state that blockchain data can be used as evidence, and permission is given to arbitrators to take interim measures for cases involving digital fraud, data breaches, or automated contract mistakes. It would also be helpful if arbitration institutions set up panels made up of experts in technology and let digital forensics experts aid in the process. Because of these reforms, arbitration will continue to be useful and important even as real estate goes digital. Conclusion Alternative dispute resolution through arbitration is now considered highly reliable for settling real estate issues. Since it provides flexibility, takes privacy into account, and involves experts knowledgeable in special sectors, it is widely used for construction issues, foreign investments, and involves many parties. Arbitration allows for a different method in the legal system, since it is often faster and more convenient than litigation. Due to its ability to use current technology, arbitration remains an attractive method for managing real estate deals. However, to untapped its full potential, it needs updated laws, improved contractual processes, and changes like setting up peer review and confidential databases of support. With necessary amendments, arbitration becomes more effective to support the real estate industry’s progress and stability and provide useful and prompt solutions. [1] He is a second-year law student of B.A.LL.B (Hons.) Course at Rajiv Gandhi National University of Law, Punjab. E-Mail: piyushsingla24011@rgnul.ac.in .

Prabhas Kumar [1] & Surya Prakash Swain [2] Introduction The Supreme Court’s (“ SC ”) majority ruling in Gayatri Balaswamy v. ISG Novasoft Technologies Ltd. (2025) ( “ Gayatri Balaswamy ” ) holds that Indian courts may, in narrow circumstances, modify arbitral awards under Section 34 of the Arbitration and Conciliation Act, 1996 ( “ the Act ” or “ the 1996 Act ” ). The erstwhile Chief Justice Sanjeev Khanna, while writing for the 4:1 majority bench, reasoned that the existing recourses available to the court when an award is challenged essentially leave the parties at three difficult positions — (i) to have the award annulled in its entirety, (ii) severed and enforced in part, or (iii) be sent back for re-arbitration upon their consensus. This, as per the Majority, negates the raison d’être of the arbitral process, i.e. , cost-effective and expeditious dispute resolution, and hence necessitates the Courts to “ hammer out the creases ” through a limited power of modification. The dissenting opinion by Justice Viswanathan, now the cornerstone of most criticism against this landmark judgment, contends that the absence of an explicit statutory power to modify awards under the 1996 Act constitutes a clear bar on such judicial intervention and flags multiple concerns regarding this new power. The present article engages with and responds to the principal criticisms of the judgment, addressing each in turn, effectively demonstrating how the Apex Court has chosen pragmatism over pedantry while strengthening India's Arbitration Regime. A Jurisprudence of Contradiction: The Road to Gayatri Balaswamy To understand the monumental significance of the ruling in Gayatri Balaswamy, one must first journey through the jurisprudential wilderness that plagued the Indian arbitration regime for the last three decades. The Arbitration Act of 1940 dominated the landscape preceding the present statute. It treated arbitral tribunals as junior partners in the judicial process. Its provisions, particularly Sections 15 and 16, armed courts with sweeping powers to " modify or correct " awards , effectively turning arbitration into a mere dress rehearsal for protracted court battles, and fostered a culture of excessive judicial meddling. The 1996 Act, inspired by the principles of the UNCITRAL Model Law of 1985 , was intended to be a revolutionary departure from this inconsistency. Its stated objective , " to minimise the supervisory role of courts in the arbitral process ," was a clear legislative mandate to break from the interventionist past. The conscious excision of the word "modify" from its text was the boldest symbol of this new, pro-arbitration philosophy. However, the ghost of modification, fuelled by judicial discomfort with absolute powerlessness in the face of injustice, refused to be banished. This led to a deeply schizophrenic jurisprudence, where the judiciary's actions often stood in stark contradiction to its stated principles. In McDermott International Inc v Burn Standard Co Ltd , the Court declared that it " cannot correct errors of the arbitrators ," only to paradoxically modify the award on the question of interest by invoking its plenary powers under Article 142 . Conversely, in Project Director, NHAI v M Hakeem, a different bench drew a stark " Lakshman Rekha ,"   declaring with rigid finality that the power to modify was utterly non-existent under Section 34. This created a jurisprudential black hole, forcing courts into an untenable choice between complete abdication—rubber-stamping an award with patent errors—and total annihilation—setting aside the entire award for a single, rectifiable flaw. Beyond the Black Letter: Purposive Interpretation and Legislative Intent Arguably, the most outspoken critique of Balaswamy is rooted in textualist fundamentalism. Sceptics posit that the Parliament's silence on modifying arbitral awards in the Act is an exclusive prohibition. This issue thus crystallises into a difficult doctrinal question: Can judicial inference fill a deliberate legislative omission? This rhetoric, eloquently championed by Justice Viswanathan in his dissent, elevates the form over the substance and ignores the very purpose for which the 1996 Act was conceived . The Act's raison d'être is to promote an efficient, speedy, and fair dispute resolution mechanism. It is an affront to this core objective to suggest that a multi-million-rupee award, the product of years of tedious proceedings, must be entirely invalidated due to a patent mathematical error that could be rectified in a single court hearing. We thus assert that the majority’s purposive interpretation does not usurp Parliament's role but rather breathes life into it. The legislative intent was to preclude a merits-based, appellate-style review, not to forbid the corrective intervention essential to cure a self-evident and outcome-altering blunder. Forcing parties back to square one imposes unnecessary hardship and financial burden upon the parties that chose this process for its cost-effective and expeditious nature, thereby defeating the statute's very purpose. The dissent argues that courts cannot touch an arbitral award unless the statute gives them clear authority. On paper, this may sound faithful to legislative limits. But in practice, it traps the judiciary in procedural paralysis. Imagine an award with a simple interest miscalculation. The party must either accept the incorrect figure or spend months getting consent from all signed parties to reopen the arbitration just to correct a clerical error. The majority takes a more practical approach. It lets courts fix such obvious mistakes, not to change the law, but to make arbitration function as Parliament intended. The Inevitable Corollary: How Severability Paved the Way for Modification Furthermore, the ability to modify is not a new idea created out of nothing. It is a logical and unavoidable result of the established principle of severability, a principle that has deep roots in the Court's decisions under the 1996 Act. This principle draws its vitality from the judicial landscape shaped by the landmark decision in ONGC Ltd v Saw Pipes Ltd , which empowered courts to review awards for 'patent illegality.' The logical consequence of finding such illegality in only one part of a multi-claim award was demonstrated in cases like J.G. Engineers (P) Ltd v Union of India , where the Court held that if a matter is severable, the court must segregate the award and set aside only the problematic part . The majority took this established practice to its logical conclusion, stating unequivocally that "the limited and restricted power of severing an award implies a power of the court to vary or modify the award." The dissent’s attempt to distinguish between "severing" (permissible) and "modifying" (impermissible) is an exercise in semantic gymnastics that collapses under the weight of practical reality, a point extensively debated in legal commentary . A Surgical Scalpel, not a Sledgehammer: Defining "Manifest Error" The fear that permitting courts to correct “manifest errors” would surreptitiously introduce a merits review rests on two faulty premises – that judges cannot exercise restraint and that the threshold of intervention is low. We argue that both are misplaced apprehensions. As a starting point, we need to remember the limitation that the court sets for modification :  a. Courts can correct clear clerical or typographical errors, but only if this correction does not reopen the main issue and lead to a trial focused on the merits.  b. If a problematic part of an award can be separated, only that part may be changed.  c. Courts can change post-award interest only in exceptional cases, while pendente lite interest stays within the tribunal’s authority.  d. In rare situations, the Supreme Court may use Article 142 to adjust an award to achieve complete justice. This conjecture is not entirely new. Arbitral tribunals have already held similar power under Section 33 of the Act . The court’s role here does not involve interference; it focuses on efficiency. The goal is to prevent the delay and duplication that a formal remission under the statute would cause. History shows that courts have used their authority to correct arbitral awards responsibly. The ruling in J.C. Budharaja is one example where the Supreme Court reduced an award that exceeded the relief sought, effectively lowering it to the appropriate amount. Following the formal process for a remission in this case and gathering the consent of the parties to re-establish the tribunal would have been unnecessary. Similarly, the benchmark for "patent illegality" is authoritatively laid by the Supreme Court in Associate Builders v Delhi Development Authority . It is not just any error of law, but something that " goes to the root of the matter. " A manifest error is a species diluted within this genus of patent illegality. It is an error that is self-evident and requires no comprehensive submissions or re-appreciation of evidence. On realisation of this defect, the courts are already allowed to set aside in entirety or sever and enforce an award in part under s.34. We support the court on the conclusion that the presence of manifest error shall also be a legitimate ground for the limited modification of an award within the contours of s.34. This is obviously not the same as rewriting the award due to unpalatable reasoning. Such intervention is liable to scrutiny as it crosses the lines s.34 and s.37 draw. Balaswamy, however, creates a functional tool that can be used only where sending the award back would be unnecessary or harmful. The line between a rectifiable error and a merit-based finding is clear, and the courts have identified and undisputably respected that line for decades. To illustrate, if a contract specifies liquidated damages at ₹1 lakh per day and the arbitrator correctly finds a 20-day delay but calculates the damages as ₹2 lakh instead of ₹20 lakh, that is a manifest computational error ripe for modification. However, if the arbitrator, after weighing evidence, determines the delay was only 10 days, not 20, that finding on the merits is sacrosanct and beyond the court's modifying power. This distinction is the bedrock of the majority’s ruling, a surgical scalpel designed to excise a cancerous error, not a sledgehammer to demolish the entire edifice. A Pragmatic Distinction: The Power to Modify Post-Award Interest Nowhere is the majority’s pragmatic approach more evident than in its nuanced handling of interest modification, a point often seized upon by critics as the prime example of judicial overreach. This criticism, however, ignores the crucial firewall the Court has erected between different periods of interest, thereby safeguarding the arbitrator's core domain. The judgment draws a bright line between pendente lite interest (from cause of action to the award) and post-award interest (from award to payment). The Court holds that pendente lite interest, being a matter of the arbitrator’s discretion based on the merits and evidence presented, cannot be modified by a court under Section 34. If found to be patently illegal (e.g., contravening an express contractual bar), the court’s only power is to set it aside, not to substitute with its own rate. This finds resonance in the judicial self-restraint shown in cases like Krishna Bhagya Jala Nigam Ltd v G Harischandra Reddy , where the Supreme Court, to modify an interest rate, had to invoke its extraordinary powers under Article 142, implicitly acknowledging that no such general power vests in courts hearing a Section 34 petition. The true innovation lies in the court's handling of post-award interest, which is not an adjudication on past events but a provision for future compliance. The majority rightly recognized that an arbitral tribunal is not clairvoyant; it cannot foresee extensive delays during prolonged challenge proceedings under Sections 34 and 37. An interest rate that is compensatory at the time of the award can become grossly punitive over time due to supervening circumstances like a drastic fall in commercial lending rates. This is not a hypothetical fear; in Vedanta Ltd v Shenzden Shandong Nuclear Power Construction Co Ltd , the Supreme Court itself modified post-award interest to reflect commercial realities and prevent an unjust windfall. The power to modify post-award interest, therefore, is not about second-guessing the arbitrator’s finding but about ensuring the remedy remains equitable in light of post-award events. A court cannot modify this interest simply because it disagrees with the rate; the modification must be justified by circumstances arising after the award that render the original rate so unconscionable as to shock the conscience of the court and thus become patently illegal in its effect . This carefully calibrated power is a necessary tool for justice, not a license for interference, ensuring that the fruits of arbitration are not poisoned by the passage of time. Debunking the Myth of International Unenforceability Finally, the concern regarding the enforceability of a modified award under the New York Convention is the ultimate red herring; the primary objection raised was that a modified award would "merge" with the court's order, becoming a "court decree" and thus unenforceable under the Convention, which applies only to "arbitral awards." [1] Firstly, the idea of courts stepping in to make limited corrections to arbitral awards is well-established internationally. Other Model Law jurisdictions allow similar, limited court variation. Section 49(8)(b) of Singapore’s Arbitration Act 2001 lets courts vary awards where a question of law substantially affects the parties’ rights and the tribunal’s decision is “obviously wrong”, “raises serious doubt”, or where court intervention is “just and proper”. The Singapore Academy of Law’s 2020 report even urged extending that approach to international cases by amending the International Arbitration Act 1994. Australia follows a similar path: the Commercial Arbitration Act 1986 contains parallel modification provisions in sections 38(3)(a) and 38(7). Secondly, the claim that an internationally enforceable award becomes vulnerable once a court makes limited modifications also does not hold. The Court dismantled this by noting that the doctrine of merger does not apply to s.34 proceedings, which are not appellate in nature but are for setting aside an award. More crucially, the Court focused on the precise language of Article V(1)(e) of the Convention , which allows refusal of enforcement if an award "has not yet become binding on the parties" under the law of the seat. The Court reasoned that an award, once modified by the supervisory court at the seat, is the only version that is legally "binding" in India. Therefore, for international enforcement, the award "as modified by the judgment/order under Section 34" is the final, binding arbitral award. The Court correctly concluded that to hold otherwise would create an absurd situation where an award found to be partially illegal by the seat court would still have to be enforced abroad in its original, flawed form. Much Ado About Nothing The majority opinion in Gayatri Balaswamy is a deliberate shift away from a rigid, binary interpretation of the scope of powers under Section 34. Though concerns about statutory limitations hold are persuasive, these reasons are compelling enough to believe that narrowly circumscribed powers of modification can align with the broader structure of the 1996 Act, while also advancing its raison d'être of expeditious dispute resolution. Post-1991 liberalisation, arbitration was rebranded to appeal to international commercial players. These users prize predictability: in both process and outcome. That’s why they prefer arbitration over traditional courts. The present ruling helps in clarifying on how the courts may tweak awards. Courts aren’t outsiders to arbitration; they’re integral to its architecture. Their job is to ensure the system works smoothly, not to bounce parties back to square one. By limiting the scope for correction, the court has improved predictability. Now, parties know exactly what errors can be addressed during an appeal. How these new judicial powers play out indeed remains to be settled through future rulings; however, an examination of existing jurisprudence suggests that these developments do not necessarily risk branding India as hostile to arbitration. India needs carefully calibrated judicial oversight that remedies chronic challenges plaguing its arbitration landscape. Although it is really unlikely that the tension between judicial oversight and the principle of arbitral finality will be resolved once and for all, the efforts to recalibrate this tussle into a workable equilibrium are nevertheless praiseworthy. [1] First Year BA LLB (Hons) Student at Gandhinagar National Law University [E-mail: prabhaskumar2607@gmail.com ] [2] Second Year BA LLB (Hons) Student at National Law University Odisha [E-mail: 24ba097@nluo.ac.in ] [1]  Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958, entered into force 7 June 1959) 330 UNTS 38 (New York Convention).

Shirin Sarkar * Introduction: Setting Sail The maritime industry, much like the vast oceans it sails upon, is no stranger to turbulent waters, especially when financial disputes surface. Such disputes can leave ships stranded in a storm of legal complexities, with no clear direction in sight. However, in India, the convergence of two powerful legal forces – the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, and the Arbitration and Conciliation Act, 1996 – offers a navigational chart to guide the way through these rough seas. This blog embarks on a voyage through the intersection of these two vital laws, uncovering how they work in tandem to resolve maritime claims and facilitate arbitration. The Admiralty Act serves as a beacon, providing a specialized legal framework for addressing disputes related to ships, freight, ownership, and damages. Meanwhile, the Arbitration Act acts as a lifeboat, offering parties an alternative, quicker, and often more cost-effective route to resolution, away from the heavy anchor of traditional court proceedings. The Admiralty Act - Enforcing Maritime Claims The  Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017  serves as a crucial legal framework for addressing maritime disputes in India. This Act consolidates various existing laws and empowers admiralty courts to protect the rights and interests of claimants, akin to a crew navigating through turbulent waters in search of justice. Notably, these courts possess the authority to arrest vessels, a significant legal mechanism that enables claimants to secure their claims by immobilizing a ship's operations. This tool is particularly vital in cases involving unpaid wages or damages, where prompt intervention is essential to prevent further losses. Under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 , admiralty jurisdiction is vested in several High Courts across India, extending to their respective territorial waters. This expansion allows for comprehensive oversight and enforcement of maritime claims. For instance, if a shipping company defaults on cargo payments or fails to address damages during transit, the aggrieved party can petition an admiralty court for an arrest order. Such action not only provides a strategic negotiating advantage but also ensures that the vessel remains under the court’s jurisdiction until the dispute is resolved. The Act clarifies the conditions under which courts can exercise this authority, encompassing claims related to vessel ownership, mortgages, and other maritime liabilities, thereby streamlining the legal process for addressing maritime disputes effectively. The Arbitration Act - Alternative Resolution at Sea In contrast, the Arbitration and Conciliation Act, 1996 offers an efficient and confidential alternative dispute resolution mechanism favoured by businesses, particularly in shipping contracts. These contracts often include arbitration clauses, allowing parties to resolve disputes outside of traditional litigation. The Act promotes finality and expedience, essential for the fast-paced nature of international trade. It governs both domestic and international arbitration, enabling Indian businesses to engage confidently in global markets. However, the interaction between arbitration and admiralty law raises important questions, especially when disputes occur simultaneously with arbitration proceedings. The Maritime Arbitration Rules further clarify the framework for resolving maritime disputes under the Arbitration Act. While Indian courts increasingly support arbitration agreements and foreign arbitral awards, challenges remain in enforcing these agreements amid ongoing admiralty proceedings. Striking a balance between judicial independence and a pro-arbitration environment is crucial for fostering confidence among international stakeholders. The Collision Course: When Admiralty Meets Arbitration The intersection of ship arrests and arbitration clauses creates a complex legal landscape. A key scenario arises when parties seek to freeze a vessel while engaging in arbitration negotiations. Although it is permissible to arrest a ship even during ongoing arbitration, this can lead to jurisdictional conflicts and procedural challenges. Claimants often view ship arrests as a form of legal insurance, ensuring that assets remain available should they prevail in arbitration or litigation. The International Convention on Arrest of Ships allows for such arrests specifically for maritime claims, reinforcing the notion that a ship may be arrested to obtain security even if the merits of the claim are to be adjudicated elsewhere due to an arbitration clause. This mechanism becomes particularly critical in international contexts where vessels are often registered under different flags, complicating enforcement. However, the arrest can complicate arbitration proceedings , as courts must balance the interests of both parties while navigating overlapping jurisdictions. Judicial decisions play a pivotal role in this dynamic; courts act as mediators, striving to ensure that neither party is left adrift amid conflicting legal obligations. Recent rulings have clarified that while courts can uphold arbitration agreements, they also retain the authority to grant arrest orders when justified by maritime claims. This duality emphasizes the necessity for careful consideration of both admiralty principles and arbitration agreements, ensuring that the rights of claimants are protected without undermining the arbitration process. Case Studies: Tales from the Courtroom Seas Two notable cases illustrate the complexities at the intersection of admiralty law and arbitration: 1. In Raj Shipping Agencies v. Barge Madhwa [ Raj Shipping Agencies v. Barge Madhwa, 2020 SCC OnLine Bom 651 ], the Bombay High Court addressed the interplay between the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 and arbitration principles within the context of insolvency proceedings. The court ruled that an Action-in-rem could be initiated even during a winding-up order or moratorium under the Insolvency and Bankruptcy Code, 2016 (IBC) , clarifying that no leave under Section 446(1) of the Companies Act, 1956 , is required to commence or continue admiralty actions. The court emphasized that actions in rem target the vessel itself, allowing claimants to secure their rights independently of a corporate debtor's insolvency status. This ruling affirms that the Admiralty Act operates as a special law governing maritime claims, coexisting with the IBC. Ultimately, the judgment safeguards maritime claimants' interests while ensuring that admiralty courts retain exclusive jurisdiction over maritime matters, even amid insolvency proceedings. 2.     The Bombay High Court's judgment in Altus Uber v. Siem Offshore Rederi AS [Altus Uber v. Siem Offshore Rederi AS, 2019 SCC OnLine Bom 1327] sheds light on the compatibility of admiralty jurisdiction with arbitration proceedings under Indian law. The court clarified that the presence of an arbitration agreement does not preclude the institution of an admiralty suit for securing claims through mechanisms like ship arrests. It emphasized that any security obtained in an admiralty action could be retained, even if the suit is stayed in favor of arbitration. Furthermore, the court highlighted the broader scope of Section 5(2) of the Admiralty Act, 2017, which permits the arrest of a ship owned or demise-chartered by the liable party, diverging from the 1999 Arrest Convention's limitations. This decision underscores a pragmatic approach that balances the needs of maritime commerce with the principles of arbitration, ensuring claimants can effectively safeguard their interests while resolving disputes through arbitration. These two cases emphasize the nuanced relationship between admiralty law and arbitration, demonstrating that both legal frameworks can coexist while serving distinct yet complementary purposes. Raj Shipping Agencies v. Barge Madhwa underscores the autonomy of admiralty courts to address maritime claims as actions in rem, even amidst insolvency proceedings, safeguarding claimants’ rights to secure their interests irrespective of the debtor's financial status. Meanwhile, Altus Uber v. Siem Offshore Rederi AS highlights the flexibility of admiralty jurisdiction to coexist with arbitration, enabling the arrest of ships to secure claims without undermining the arbitration process. Together, these cases showcase the adaptability of Indian maritime law in balancing the interests of claimants, creditors, and international commerce, while fostering confidence in India’s legal system as a reliable forum for resolving maritime disputes. Challenges: Stormy Waters Ahead Despite advancements in maritime law, several challenges persist, particularly regarding jurisdictional ambiguity, which often leads to confusion in maritime arbitration. This ambiguity complicates efforts to resolve disputes efficiently, as different jurisdictions may interpret laws and arbitration agreements differently. Additionally, legal bottlenecks can arise when ship arrests delay arbitration proceedings, further complicating the resolution process for all parties involved. As global trade continues to evolve, it is imperative for India’s maritime laws to adapt to international standards. Aligning Indian practices with UNCLOS will effectively clarify most jurisdictional ambiguities in maritime disputes. UNCLOS can potentially clarify maritime boundaries in a significant way, as in the case of the arbitral award over the maritime boundary in the Bay of Bengal between Bangladesh and India . Under Annex VII of UNCLOS, the award for and against the two war parties established simple legal frameworks that assign specific entitlements for each country for about 406,833 square kms of maritime territory. Based on the tribunal's decision, Bangladesh received about 106,613 square kms and India around 300,220 square kms, which is a good case in proving how effective UNCLOS can be in delimiting boundaries and reducing conflicts. By allowing for the structured disposition of any maritime claims, UNCLOS also enables India to exercise its sovereign right over the control of its resources and work with cooperating neighbouring states. Such an alignment would reaffirm India's sovereignty regarding its territorial waters and EEZ and regain its credibility among the other nations, thereby promoting regional goodwill and default stability in maritime governance. The interaction between admiralty courts and arbitration forums must be streamlined to ensure that legal proceedings do not become protracted due to jurisdictional disputes. Legislative reforms are urgently needed to harmonize domestic regulations with global benchmarks. This alignment will not only enhance the efficiency of dispute resolution but also ensure that India maintains its position as a competitive and attractive hub for maritime commerce. By addressing these challenges, India can better facilitate international trade and protect the interests of stakeholders in the maritime industry. Charting a New Course: Recommendations To address the challenges and improve the interplay between admiralty law and arbitration in India, several recommendations emerge: ·  Clearer Maps: Legislative amendments should be made to align the Admiralty Act and Arbitration Act more closely. Amendments could clarify admiralty court jurisdiction with arbitration clauses, streamline ship arrest procedures to align with arbitral outcomes, enhance foreign award enforcement, and adopt international best practices for maritime arbitration, ensuring efficiency and consistency. This alignment would provide clearer guidelines on how these laws interact in practice, reducing jurisdictional ambiguity that currently complicates dispute resolution. · Smoother Sailing: Implementing comprehensive training programs for maritime lawyers and arbitrators would enhance their understanding of both areas of law. Such education could lead to improved dispute resolution outcomes and foster a more cohesive legal environment for maritime arbitration. · Learning from Lighthouses: Insights from jurisdictions like Singapore and the UK can inform best practices in navigating maritime disputes effectively. Singapore’s SCMA offers a specialized, flexible framework for maritime disputes, supported by courts that enforce arbitration awards with minimal interference. Similarly, the UK’s LMAA emphasizes procedural efficiency, confidentiality, and enforcement under the New York Convention, showcasing arbitration-friendly environments that integrate seamlessly with maritime laws. By studying these models, India can adopt strategies that streamline arbitration processes, enhance enforcement of awards, and ensure that maritime claims are handled efficiently. This proactive approach will not only strengthen India's legal framework but also bolster its position as a competitive hub for international maritime commerce.  By implementing these recommendations, India can better navigate the complexities of maritime law and arbitration, ensuring a more robust framework for resolving disputes in the shipping industry. Conclusion: Anchoring Clarity In conclusion, the successful harmonization of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, with the Arbitration and Conciliation Act, 1996 is crucial for bolstering India's legal framework in resolving maritime disputes. The interplay between these two laws plays a pivotal role in facilitating timely, efficient, and equitable dispute resolution in the maritime sector. However, jurisdictional ambiguity and procedural challenges continue to pose significant obstacles. To address these issues and improve the current system, legislative amendments are essential. By aligning the Admiralty Act more clearly with the Arbitration Act and establishing uniform guidelines for handling ship arrests during arbitration proceedings, India can eliminate jurisdictional conflicts and streamline the legal process. Furthermore, enhancing the training of maritime lawyers and arbitrators will ensure a deeper understanding of both legal systems, promoting more effective dispute resolution. Drawing lessons from global jurisdictions such as Singapore and the UK will enable India to adopt best practices, enhancing both the enforcement of arbitration awards and the overall efficiency of maritime dispute resolution. These steps will not only safeguard the interests of maritime claimants but will also strengthen India's position as a reliable and competitive hub for global trade. Ultimately, implementing these reforms will ensure that India’s maritime legal system remains dynamic, responsive, and in harmony with international standards, paving the way for smoother sailing in resolving maritime disputes. *Shirin Sarkar is a 2nd Year student at Maharashtra National Law University, Aurangabad.

Avesta Vashishtha [1] INTRODUCTION The integrity and effectiveness of arbitration as an alternative dispute resolution mechanism rely on the fair and informed decisions rendered by arbitral tribunals. However, there are instances where arbitral awards fail to address crucial and contentious issues, leading to a miscarriage of justice and violation of public policy. In such cases, the appellate court sets aside the arbitral award delivered by the tribunal without considering a crucial claim, while exercising its powers of setting aside an award under Section 34 (hereinafter ‘Sec. 34’). The continuous affirmation of the same by various High Courts, after the principle was established by the Supreme Court in the case of I-Pay Clearing Services , necessitates the recognition of violation of the basic intent of ‘The Arbitration and Conciliation Act, 1996’ if such awards are not set aside. This article entails a discussion on the infringement of rights in such situations and the aid of Sec. 34, analysing the perspective of various High Courts in dealing with set-aside applications. Further, it has been suggested how remitting such perverse awards back to the tribunal can be an efficient recourse. PERVERSITY DUE TO DISREGARD OF CONTENTIOUS ISSUE The general concept in view of various precedents in arbitration law has been that a flaw that can be corrected or removed from the award, shall be referred back to the tribunal for such correction under Sec 34(4), instead of simply setting it aside. But in numerous cases, the flaw is not curable, and the same is caused due to the sheer lackadaisical approach of the tribunal in recognising, acknowledging, and then discussing the major issues related to a dispute. The rights of the parties are so gravely affected that the award cannot be corrected by referring it to the same tribunal. The scope of Sec. 34 is set by the Supreme Court to allow the setting aside of such awards which are ‘perverse’ and patently illegal in nature due to disregard of a contentious issue. The term perverse has been interpreted widely to include a finding based on “no evidence at all or an award which ignores vital evidence” in arriving at its decision would be perverse and liable to be set aside on the grounds of patent illegality. CREATION OF CONUNDRUM W.R.T CONTENTIOUS ISSUES AND EVIDENCE The challenges posed by tribunals' ignorance of pertinent issues and evidence manifest in two ways: neglecting crucial evidence despite acknowledging the issue and completely overlooking a pertinent issue in the award. Either the tribunal acknowledges the issue, but fails to base its award on the evidence presented during the proceedings, or it altogether does not recognise a pertinent issue in the award. The former illegality is discussed frequently by courts when crucial evidence is ignored by the tribunal while passing an award. When the parties have put on record certain important aspects of the dispute, which are essential for concluding their rights, but the tribunal neglects such evidence, such award has been termed perverse in several judgements. In the latter situation, the tribunal is unable to conclusively determine the enforceable rights of the parties, let alone grant a legitimate award. For eg., an issue of limitation in a time-barred dispute would be a contentious aspect of the dispute, and passing an award without considering this issue would render the award patently illegal. If the award is given without any discussion on this issue, it would be unjust for the party against whom the award is passed, since the award holder would have taken advantage of the tribunal’s mistake by enforcing a right that has been statutorily prohibited. Another example is, if a party has surrendered a right and has been estopped from enforcing the same, or the Court has restricted it from raising certain claims during arbitral proceedings, but the unreasonable findings of the tribunal, wholly disregarding the existence of such facts, presents an award that goes against judicial orders of the court. JUDICIAL APPROACH TOWARDS SUCH AWARDS The Supreme Court, in the I-Pay Clearing Services case, conclusively decided the question of patent illegality when the tribunal failed to examine certain contentious issues, and held “in absence of any finding on contentious issues, no amount of reasons can cure the defect in the award”. Therefore, in such cases, the award cannot be remitted back to the tribunal for curing the same. This ruling has been followed in numerous High Court judgements. The Delhi High Court has recognised that such awards would be liable to be set aside under Sec. 34, and stated “While the Arbitral Tribunal had also duly taken notice of the contentious issue, unfortunately, the award is entirely silent on this issue. In the considered opinion of this Court, the Ld. Arbitral Tribunal has committed a manifest error in not coming to any finding on this issue.” It has been held in Inox Air Products (P) Ltd. v. Air Liquide North India (P) Ltd , “The learned arbitrator cannot reconsider his conclusion, or that Sec. 34(4) of the Act cannot be resorted to in a situation where the award itself may change as a result.” It has also been commented that such awards suffer from ‘incurable defects’ by not dealing with a party’s contentions [2] . Further, “a finding is based on no evidence, or an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.” The same perspective was also held in the landmark judgement of Ssangyong Engg. & Construction Co. Ltd. v. NHAI . UNNECESSARY MEDDLING BY COURTS The author opines that the argument where the arbitrator would not be able to appreciate the evidence a second time if it was ignored the first time, seems vividly exaggerated. If the award is remitted back to the tribunal, the arbitrators would be aware of the missing gaps in the award, and the same can be rectified specifically. Additionally, in numerous cases, arbitrators from non-legal backgrounds are appointed to deal with the technicalities of the subject matter that might be involved in the dispute. They are sometimes not aware of the procedural aspects of the legal system. An opportunity shall be given to them to rectify their errors and learn from the procedure so that they may render better awards in the future, without setting aside the whole award. Further, it has been abundantly established that the intent of Sec. 34 is to eliminate any curable defects from the award, which can only be done by the arbitral tribunal , and not by the court due to the principle of minimal judicial interference. Therefore, it is essential to remit the award back to the tribunal for deciding a pertinent issue. However, a problem exists where the court has to determine whether the lack of consideration given to certain evidence or contentious issue by the arbitrator renders the award totally incurable, or it can be remitted back to the tribunal for removing flaws. The test of perversity lies in the reasonableness of the decision of the arbitrator. The appellate courts have to determine perversity as follows -: “If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with”. The ambiguous and wide scope in Sec 34(4) exercised in such cases can create discrepancies in different cases, where the court is burdened with the discretion to decide the contentious issues of the dispute, and whether the same should be referred back to the tribunal owing to their curable/incurable nature. The court’s powers are restricted to determining the same, and not entering the merits of the case that has already been heard at length. Hence, the court is left with the sole alternative of setting aside the award. The approach of determining reasonableness in the award is followed while evaluating perversity, but the same does not have any set standard of rules that govern ‘reasonableness’ in an award. Therefore, the appellate courts have to conclude whether an award is reasonable, and there is sufficient scope correcting the award by remitting it back to the tribunal even where a contentious issue has been omitted. One of the standards for remitting back an award is whether the arbitrator failed to determine an issue because of ‘ pure oversight ’, and if the same can be corrected, it should be remitted back to the tribunal. This would be a subjective test based on factual circumstances of different cases. CONCLUSION The award should be sent back to the tribunal for the arbitrators to consider the relevant issue or evidence, and alter the award if needed. The same would be based on the legal intent of arbitration, wherein enforcement of awards is given a superior pedestal with due relevance than simply abrogating the award. There might be certain aspects of a dispute which, if ignored, would lead to grave injustice and biases in the award rendered by the arbitrator. The recent developments in the judicial sphere concerning awards omitting ‘contentious issues’ has been inclined towards setting aside such awards. But at the same, the courts must restrain itself from setting aside each award instantly. Striking the right balance between setting aside awards and allowing tribunals to rectify curable defects can uphold the integrity of arbitration and ensure justice prevails. [1] Avesta Vashishtha is a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. [2] Indian Oil Corpn Ltd v FEPL Engineering Ltd 2023 SCC OnLine Del 1617.

Dalima Pushkarna [1] Introduction The Singapore International Commercial Court (hereinafter “SICC”) in CZT v CZU , dated 28 June 2023, clarified that an Arbitral Tribunal’s discussions/deliberations were confidential in nature, and the principle of confidentiality allows for the disclosure of these documents solely under highly exceptional circumstances. The exception to this rule of confidentiality is that only in extremely exceptional circumstances can these documents be produced. This landmark decision highlights Singapore’s pro-arbitration approach by marking the inaugural instance in which a Singaporean Court has addressed ordering the disclosure of deliberation records. The judgement strongly upholds the principle of confidentiality concerning tribunal deliberations and establishes that any departure from this confidentiality should only occur if the “interests of justice” substantially outweigh the policy considerations supporting confidentiality. Such an exception would necessitate (a) the presence of very serious allegations that attack the integrity of arbitration at its core and (b) a reasonable prospect of these allegations achieving success. This decision of SICC also aligns with the view adopted by the National Courts of other jurisdictions like the USA, UK, and Australia, where an exception to confidentiality is allowed depending on the circumstances of the case and the nature of the allegations made. With the help of this article, the author tries to analyse the confidentiality regime present in India and how India can follow the approach taken by the arbitration hubs of the world and derive certain exceptions to the confidentiality clauses in India. International Legal Framework on the Issue While it can be said that statutes on arbitration are silent on the issue of limitations to the rule of confidentiality, the courts across various jurisdictions have highlighted and developed exceptions to the confidentiality rule through case law jurisprudence. These exceptions are of limited nature, depend on a case-to-case basis and are made when there are serious or grave allegations and not upholding the principle of confidentiality is in the interest of justice. In the case of Vantage Deepwater Co. v Petrobras Am., Inc. , the client, represented by Tai-Heng Cheng, was awarded US$622 million along with 15.2% compound interest. However, a dissenting arbitrator raised allegations of unfairness during the proceedings. Subsequently, the party that lost the arbitration attempted to challenge the majority award and requested access to discovery from the dissenting arbitrator and the American Arbitration Association (the entity that conducted the arbitration). The Fifth Circuit, after reviewing the case, upheld the Lower Court’s decision to dismiss the motions for discovery. The Court emphasised that before granting such discovery, it is crucial to assess the asserted need for previously undisclosed information and its potential impact on the arbitral process . Hence, USA Court focused that depending upon the need and the interest of justice, an exception to the confidentiality regime can be made. Similarly, in the English case of P v Q & Ors ., a party made an application to remove two arbitrators on the grounds of misconduct. In support of this application, the party sought access to communications exchanged between the arbitrators and the tribunal secretary. Similar to the approach taken by the SICC, the English Commercial Court determined that disclosure would only be ordered if the allegation of misconduct had a reasonable likelihood of success. Moreover, the court considered whether the requested documents were strictly necessary for the fair adjudication of the application and whether it was appropriate, considering all circumstances, to exercise its discretion and grant the disclosure order. Further, in the case of Ali Shipping Corp v Shipyard Trogir , the UK Court laid down exceptions to confidentiality and cases where disclosure can be made: 1. Where the party who originally produced the material expressly or impliedly consents; 2. Disclosure pursuant to an order of the court or with leave of court; 3. Disclosure to the extent reasonably necessary for the protection of a party’s legitimate interests, in particular in establishing or defending a claim against or from a third party; and 4. Disclosure where the interests of justice require it. Furthermore, Part III of the International Arbitration Act (IAA) also outlines the limitations and exceptions to the confidentiality regime in Australia . Section 23C of the IAA provides that parties to arbitral proceedings commenced in reliance on an arbitration agreement must not disclose confidential information unless: the disclosure falls within one of the circumstances outlined in Sec. 23D of the IAA, including that all parties to the proceedings consent to the disclosure; the disclosure is to a professional or other adviser to any of the parties; or if the disclosure is necessary for the purpose of enforcing an arbitral award, and the disclosure is no more than reasonable for that purpose (Sec. 23D); the arbitral tribunal makes an order allowing the disclosure in certain circumstances (Sec. 23E), and no court has made an order prohibiting a party from disclosing confidential information (Sec. 23F); or a court makes an order allowing disclosure in certain circumstances (sect. 23G). Hence, National Courts all over the world have provided some exceptions to the general rule of confidentiality. When the case involves serious allegations, “is in the interest of justice”, and when the case has real prospects of succeeding, then limitations on confidentiality may be imposed. Indian Legal Framework In 2017, a distinguished High-Level Committee chaired by Justice B. N. Srikrishna was established with the purpose of conducting a comprehensive review of the institutionalisation of arbitration mechanisms in India. The Committee’s significant mandate involved proposing various reforms and amendments to enhance the Arbitration and Conciliation Act, 1996. One crucial recommendation by the Committee pertained to the incorporation of the principle of ‘confidentiality’ in arbitration proceedings. Subsequently, in alignment with these recommendations, the Arbitration and Conciliation (Amendment) Act of 2019 was enacted. This amendment introduced Section 42A , which effectively extended the application of the principle of ‘confidentiality’ to encompass arbitration proceedings. Section 42A of the Act herein follows: “ Notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution, and the parties to the arbitration agreement shall maintain the confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award .” It is important to note that this provision does not incorporate all the suggestions made by the B.N Srikrishna Committee. The Committee had suggested three exceptions to the issue of confidentiality, namely: Disclosure required by a legal duty; Disclosure to protect or enforce a legal right; To enforce or challenge an award before a court or judicial authority. The legislature, while making the amendments and incorporating the recommendations of the Committee, only included one exception to Section 42A that pertains to the disclosure of arbitral awards to facilitate their implementation. Therefore, it can be inferred without trouble that India’s stance on the exceptions and limitations to confidentiality does not align well with the practice of National Courts of other jurisdictions, according to which if the allegations are serious and there is a reasonable prospect of achieving success, then in those cases the exceptions to the confidentiality of the arbitration proceedings are applicable. Apart from deviating from the approach of other jurisdictions, the Indian provision also fails to consider certain instances where the disclosure of arbitration proceedings may be in the interest of the general public, especially in cases where the state is a party to the arbitration. Hence, in these cases, an exception must be made from the generally followed practice, and imposing restrictions on this via Section 42A might amount to violating the Right to Information of the general public. The High Court of Australia, in the case of Esso Australia Resource Ltd. v Plowman , dealt with an issue of violation of the Right to Information in an arbitration dispute where a state-owned entity was one of the parties. The Court recognized that the resolution of such a dispute has broader implications that affect the interests of the general public. Consequently, the Hon’ble High Court concluded that the public’s right to be informed about the affairs of public authorities was paramount in this context, and therefore, the public had a legitimate interest in knowing the intricacies and details of the arbitration proceedings. Conclusion Taking inspiration from its foreign counterparts, India should involve a comprehensive review and amendment of the current legal provisions to align with international practices and strike a balance between confidentiality and transparency. By incorporating exceptions to confidentiality like those recognized in other jurisdictions, India can ensure that in cases of serious allegations or when the public interest is involved, disclosure of arbitration proceedings can be permitted. This will enhance the transparency and accountability of the arbitral process, which is crucial for maintaining public trust in the legal system. However, providing exceptions to confidentiality in arbitration also comes with potential drawbacks. Care must be taken to define these exceptions precisely to prevent misuse or unwarranted disclosure of sensitive information. The interests of justice should be the guiding principle, and disclosure orders should be granted sparingly and only when necessary to protect legal rights or public interests. Additionally, ensuring that any disclosure is limited to the specific information needed and does not compromise the overall confidentiality of the arbitral process is essential. [1] B.A. LL.B. (Hons.) | Candidate of 2026 Dr. RML National Law University, Lucknow.

Aparna Tiwari [1] Section 9 of the Arbitration and Conciliation Act, 1996 ("the Act, 1996") empowers courts to grant interim relief in arbitration matters, providing a crucial mechanism for parties to secure their interests during the arbitration process. The 2015 amendments to the Act, 1996 significantly curtailed judicial intervention, particularly after the constitution of an arbitral tribunal, while still allowing courts to intervene if the tribunal's remedy would be ineffective. This evolving nature of judicial scrutiny under Section 9 raises critical questions about the boundaries of court intervention and its implications for the efficiency and effectiveness of arbitration as a dispute resolution mechanism. Before the amendments, courts exercised extensive powers under Section 9, allowing for significant judicial intervention in arbitration matters. This included a more thorough examination of the merits of claims and the validity of arbitration agreements. The 2015 amendments introduced Section 9(3), limiting court intervention once an arbitral tribunal is constituted unless the tribunal's remedy is found to be ineffective. However, how the term ineffective has to be interpreted has not been defined. The recent judgments by the Supreme Court and High Courts in India mark a significant evolution in arbitration jurisprudence. By clarifying the scope of judicial intervention under Sections 9 and 11 of the Act, 1996, these decisions reinforce the importance of arbitration as a preferred mechanism for resolving commercial disputes. Its scope is progressively expanding, reinforcing the notion that courts possess wide discretionary powers to grant interim measures in aid of arbitration. Prior to the recent judgment, Indian courts adopted a relatively cautious approach to granting interim measures under Section 9. The prevailing view was that the court's powers were akin to those under Order 38 Rule 5 of the Code of Civil Procedure ("CPC"), which governs attachment before judgment. This restrictive interpretation often led to the denial of interim relief on technical grounds, hindering the effective conduct of arbitration proceedings. A NEW DAWN: THE SUPREME COURT’S EXPANSIVE INTERPRETATION The Supreme Court, in the case of Essar House Private Limited v. Arcellor Mittal Nippon Steel India Limited, articulated the essential criteria for granting interim relief under Section 9. The Court established that: Prima Facie Case : The applicant must demonstrate a good prima facie case for the relief sought. This standard requires the applicant to present sufficient evidence to support their claims, although it does not necessitate a conclusive determination of the merits. Balance of Convenience : The Court must assess whether the balance of convenience favours granting the interim relief. This involves evaluating the potential harm to the parties if the relief is granted or denied. Reasonable Expedition : The applicant should approach the Court with reasonable expedition, indicating that the request for interim measures is urgent and requires prompt attention. These criteria collectively underscore a shift towards a more pragmatic approach in granting interim relief, allowing for a broader interpretation of what constitutes sufficient grounds for intervention. Departure from Technicalities The Supreme Court has significantly expanded the contours of Section 9 of the Act, 1996, granting courts wider latitude in granting interim measures. The Court has decisively rejected the rigid application of procedural technicalities akin to those under Order 38 Rule 5 of the CPC. This liberal interpretation is rooted in the principle that procedural safeguards should not impede justice. By aligning with decisions from various High Courts, the Supreme Court has affirmed that the powers under Section 9 transcend those available under the CPC. Cases such as Saiyad Mohd. Bakar El-Edroos v. Abdulhabib Hasan Arab and Sardar Amarjit Singh Kalra v. Pramod Gupta underscore this judicial inclination to prioritise substantive justice over procedural formalities. Moreover, the Court has relaxed the evidentiary threshold for granting interim relief. A mere possibility of asset diminution, rather than an actual attempt to dissipate assets, is sufficient to warrant judicial intervention. This approach is in harmony with the overarching objective of the Act, 1996, to ensure the efficient and effective conduct of arbitral proceedings. The Supreme Court's decision marks a pivotal shift in the judicial approach to interim reliefs under Section 9. By dispensing with technical impediments and adopting a more flexible stance, the Court has empowered courts to play a proactive role in preserving the integrity of the arbitral process. Intervention by The Court Recent landmark judgments have explored the limitations imposed on courts at the pre-referral stage and their continued authority to grant interim relief during arbitration proceedings. Section 11(6) and the Limits of Pre-Referral Jurisdiction The Supreme Court's decision in NTPC Ltd. v. SPML Infra Ltd . circumscribed the scope of judicial intervention at the pre-referral stage. The Court has unequivocally stated that the role of a court is limited to determining the existence of a valid arbitration agreement and the arbitrability of the dispute. Any in-depth inquiry into the case's merits is premature at this stage and should be avoided. This ruling underscores the principle of party autonomy and the intent to expedite dispute resolution through arbitration. Section 9 and the Continuing Power of Courts In contrast, the Calcutta High Court's decision in   Jaya Industries v Mother Diary Calcutta and another has affirmed the ongoing power of courts to grant interim measures even after the commencement of arbitral proceedings. The Court has recognised the need for judicial oversight to safeguard the interests of parties involved in arbitration. This decision strikes a balance between the arbitral process's autonomy and the judiciary's protective role. Courts are now more active in safeguarding parties' rights through the liberal grant of interim relief. This shift and a streamlined pre-arbitration process have accelerated dispute resolution. These developments have positioned India as a more attractive destination for arbitration, fostering a business-friendly environment. However, this newfound efficiency must be balanced with caution. While the expanded powers of the courts are beneficial, there is a need for clear guidelines to prevent potential misuse. Striking the right balance between judicial intervention and arbitral autonomy is crucial to maintaining the integrity of the arbitration process. BALANCING JUDICIAL INTERVENTION AND ARBITRAL AUTONOMY IN INDIA The principle of  kompetenz-kompetenz , which allows arbitral tribunals to determine their own jurisdiction, is a cornerstone of arbitration law. In India, this principle is enshrined in Section 16 of the Act, 1996, empowering tribunals to rule on their jurisdiction, including objections regarding the validity of the arbitration agreement. However, the judiciary also plays a critical role in ensuring that arbitration proceedings are effective and not rendered futile. The Indian courts have navigated the delicate balance between respecting arbitral authority and exercising judicial oversight, particularly in the context of inefficacious arbitration proceedings. Understanding Inefficacious Arbitration Proceedings The term "inefficacious" in the context of arbitration refers to proceedings that are ineffective, unproductive, or incapable of achieving a resolution due to jurisdictional disputes or other procedural impediments. Courts have a responsibility to prevent such inefficacious proceedings, which can arise when parties challenge the validity of an arbitration agreement on grounds such as fraud, coercion, or lack of consent. In these scenarios, the courts must intervene to ensure that resources are not wasted on arbitration that may ultimately be deemed void. Judicial Intervention in Landmark Cases In  N.N. Global Mercantile Pvt. Ltd. v. M/S Indo Unique Flame Ltd. , the Supreme Court reaffirmed the  kompetenz-kompetenz  principle, emphasising that arbitral tribunals should be the first to address jurisdictional issues. This ruling reduces unnecessary court intervention and promotes efficiency in arbitration. However, the court also recognised its duty to prevent inefficacious proceedings. In  SBP & Co. v. Patel Engineering Ltd. , the Supreme Court held that courts could intervene when the arbitration agreement itself is in dispute. This ruling illustrates the judiciary's role in safeguarding the arbitration process from being initiated under flawed premises, thereby preventing inefficacious proceedings. The court's intervention in such cases ensures that parties do not expend time and resources on arbitration, which may not yield a valid resolution. The Role of Interim Relief under Section 9 The Supreme Court's ruling in  Jaya Industries v. Dalmia Cement (Bharat) Ltd.   further illustrates the balance between arbitral authority and judicial oversight. The court clarified that it could grant interim measures even when the arbitral tribunal has not yet been constituted, provided the applicant demonstrates a prima facie case, balance of convenience, and urgency. This ruling underscores that while the tribunal has the authority to rule on its jurisdiction, courts retain the power to intervene when necessary to prevent injustice or inefficacy in the arbitration process. The court's role is not to undermine the tribunal's authority but to complement it by ensuring that interim relief is available when parties face imminent harm. This approach fosters a cooperative relationship between the judiciary and arbitral tribunals, enhancing the overall effectiveness of the arbitration process. Defining Inefficacious Proceedings To further clarify what constitutes inefficacious proceedings, courts may consider several factors: Existence of a Valid Arbitration Agreement : Courts must assess whether the arbitration agreement is valid and enforceable. If the agreement is challenged on grounds such as fraud or coercion, the court's intervention is warranted to prevent initiating arbitration proceedings that may ultimately be deemed void. Potential for Resource Wastage : Courts should evaluate whether proceeding with arbitration would lead to the unnecessary expenditure of time and resources. Judicial intervention is justified if there is a significant likelihood that the arbitration will be rendered ineffective due to jurisdictional challenges. Urgency and Imminent Harm : In cases where parties face imminent harm, courts must act swiftly to provide interim relief, ensuring that the arbitration process does not exacerbate the situation. The reconciliation of  kompetenz-kompetenz  and judicial intervention in arbitration is a complex but essential aspect of the arbitration framework in India. The courts have demonstrated a commitment to respecting the authority of arbitral tribunals while also fulfilling their duty to prevent inefficacious proceedings. As the arbitration landscape in India continues to evolve, it is crucial to strike the right balance between judicial intervention and arbitral autonomy to maintain the integrity of the arbitration process. While the expanded powers of the courts are beneficial, clear guidelines are needed to prevent potential misuse. To prevent the misuse of judicial intervention, it is essential to establish clear guidelines that define the scope and limits of court involvement in the arbitration process. These guidelines should ensure that courts intervene only when necessary to protect the parties' rights or ensure the proceedings' fairness and efficiency. One key guideline should be that courts should not interfere with the arbitral tribunal's jurisdiction or decision-making powers unless there is a clear violation of the parties' rights or a serious procedural irregularity. Courts should also refrain from re-examining the merits of the dispute, as this undermines the finality and binding nature of arbitral awards. Some key recommendations could be as follows:- 1.  Limiting Judicial Intervention : - To expedite arbitration proceedings and respect the principle of party autonomy, judicial intervention should be restricted to a prima facie assessment of jurisdiction. This approach aligns with the competence-competence doctrine enshrined in Article 16 of the UNCITRAL Model Law , which grants arbitral tribunals the power to determine their jurisdiction. The English Arbitration Act of 1996 provides a similar framework by limiting court involvement to jurisdictional matters. 2. Clear Standards for Interim Relief : - Clear and objective standards must be established to prevent the misuse of interim relief and ensure its effective application. While arbitration rules like the International Chamber of Commerce (ICC)  and the London Court of International Arbitration (LCIA) offer general guidelines, more specific criteria are necessary. Courts can prevent delays by granting interim relief only in cases of demonstrable and irreparable harm and ensure that such measures are used judiciously. Courts should only grant interim measures when the arbitral tribunal cannot mitigate a demonstrable risk of harm. This principle is also reflected in the  Singapore International Arbitration Centre (SIAC) Rules , which require that any interim measures are proportionate and necessary. 3. Encouraging Comprehensive Disclosure and Case Presentation The Henderson doctrine , which prevents parties from raising claims that could have been previously asserted, is applicable in many common law jurisdictions. By mandating comprehensive disclosure, arbitrators can ensure that all relevant issues are addressed upfront, minimising the risk of subsequent claims that could disrupt the arbitration process. This approach aligns with the American Arbitration Association (AAA) rules , which emphasise the importance of presenting a complete case early in the proceedings. 4. Establishing Mechanisms to Prevent Abuse of Process The English Arbitration Act 1996 empowers courts to dismiss claims that are deemed to be an abuse of process. Similarly, the ICC Rules provide that the tribunal may dismiss claims that are manifestly inadmissible or abusive. Implementing mechanisms to prevent abuse of process can protect the integrity of arbitration. Courts should be vigilant in identifying and dismissing applications that lack merit or are intended to harass the opposing party. This proactive approach is crucial for maintaining the efficiency of arbitration as a dispute resolution mechanism. 5. Promoting Institutional Arbitration Institutional arbitration rules, such as those from the Hong Kong International Arbitration Centre (HKIAC) and Singapore International Arbitration Centre (SIAC), offer structured frameworks that guide the arbitration process. These rules often include provisions for the appointment of arbitrators, conduct of proceedings, and enforcement of awards. Promoting institutional arbitration can significantly reduce the need for judicial intervention. Institutional frameworks provide clear guidelines that help parties navigate the arbitration process effectively. For example, the Dubai International Arbitration Centre (DIAC) Rules explicitly outline the procedures for interim measures and the conduct of arbitrators, thereby minimising ambiguities that could lead to court involvement. 6. Training and Awareness for Judges and Arbitrators Many jurisdictions require ongoing training for judges and arbitrators to enhance their understanding of arbitration law and practice. For instance, the International Bar Association (IBA) provides resources and training programs on arbitration. Ensuring that judges and arbitrators are well-trained in arbitration principles reduces the likelihood of unnecessary court intervention. This training fosters a deeper understanding of arbitration and the importance of respecting arbitral autonomy. A delicate balance between judicial oversight and arbitral autonomy is crucial to optimise India's arbitration landscape. Clear guidelines, limiting judicial interference, establishing clear standards for interim relief, and promoting institutional arbitration are essential. This will enhance efficiency, predictability, and international appeal for India's arbitration regime. CONCLUSION The evolution of Section 9 of the Act, 1996 reflects India's journey towards establishing a robust and efficient arbitration regime. The judiciary's expansive interpretation of the section, coupled with the emphasis on judicial oversight, has significantly enhanced the efficacy of arbitration as a dispute resolution mechanism. By striking a balance between arbitral autonomy and judicial intervention, Indian courts have created a framework that promotes efficiency and fairness. However, the challenge lies in maintaining this delicate equilibrium. Clear guidelines and standardised procedures are essential to prevent the misuse of judicial intervention. By establishing clear standards for interim relief, encouraging comprehensive disclosure, and promoting institutional arbitration, India can solidify its position as a preferred arbitration hub. Ultimately, the success of arbitration depends on a collaborative approach involving the judiciary, arbitral institutions, and the legal community. By working together to refine the arbitration process, India can create a legal landscape that fosters trust, efficiency, and international recognition. The road ahead requires continuous refinement and adaptation. As the legal landscape evolves, the judiciary, legislature, and arbitration practitioners must remain vigilant in their pursuit of an arbitration regime that is both efficient and just. By embracing these principles, India can position itself as a global leader in arbitration, attracting domestic and international businesses to resolve their disputes through this effective and expeditious mechanism. [1] Aparna Tiwari is a 4th year student at Dr. Ram Manohar Lohiya National Law University, Lucknow.