- Gaurav Rai [1] & Avni Shrivastava [2] Part I - Evolution of the Law Link to PDF for Part I: Evolution of the Law Part I of the paper traces the doctrinal evolution of Indian arbitration law on impleading non‑signatories, beginning with Chloro Controls, the judgment that first recognised composite transactions as a basis for binding entities who had not formally signed the arbitration agreement. The Supreme Court observed that multiple agreements forming part of a single commercial arrangement may be “so interdependent on each other that they could not separate or perform without reliance on the other,” thereby justifying composite reference. This principle laid the foundation for later developments in the Group of Companies doctrine and the broader inquiry into implied consent. The Article then follows the jurisprudential trajectory through Cheran Properties, MTNL v. Canara Bank, and Ameet Lalchand Shah, examining how the courts expanded the understanding of intention and participation. These decisions demonstrate that consent may be inferred from conduct, relationships, performance, and participation in a unified commercial venture. Ameet Lalchand was particularly significant in recognising that multiple agreements, including one without an arbitration clause, may nevertheless be referred to a single arbitration where they form part of a “single commercial project.” The discussion then turns to ONGC v. Discovery Enterprises, which consolidated the factors relevant to determining whether a non-signatory is a veritable party, The Article then turns to Cox & Kings II as the critical point of doctrinal consolidation. The authors examine how the Constitution Bench reasserted consent as the cornerstone of arbitration, clarifying that a non-signatory cannot be compelled to arbitrate without consent, while recognising that consent may be express, implied, or inferred from conduct and surrounding circumstances. The authors clarify how it did not overrule Chloro Controls in its entirety; rather, it clarified that “without prior consent” refers to the absence of prior formal consent, since consent may be inferred from conduct and surrounding circumstances. Finally, the Article examines the shift in determining who is a “veritable party”: from the greater role accorded to referral courts under Chloro Controls, to the present position under Ajay Madhusudan and ASF Buildtech, where the substantive determination is principally left to the arbitral tribunal under Section 16, with referral courts undertaking only a limited prima facie examination. Part I ultimately demonstrates that composite transactions remain a distinct basis for impleadment, independent of the Group of Companies doctrine, and sets the stage for examining how these principles operate in multi‑party, single‑project disputes. Part II - Single Project and Multiple Parties Link to PDF for Part II : Single Project and Multiple Parties Part II is based on the premise that complex infrastructure and EPC projects increasingly involve multiple interconnected contracts executed by different parties, creating disputes that extend beyond the formal signatories to a single agreement. This paper examines the tension between the consent-based foundation of arbitration and the practical need to resolve disputes arising from a single commercial project through a consolidated proceeding. This problem is particularly evident in the recent IIT Mandi and IIM Jammu cases, where the universities took different views regarding their role as an ultimate beneficiary of construction projects and whether the same qualified as ground for impleadment in the arbitrations between the Public Works Department (as a tenderer) and the private contractors. Building upon Part I of the series, the paper then critically examines these cases on various aspects, inter alia, the difficulties created by a strict application of consent principles where the ultimate beneficiary of a project is not a signatory to the underlying contract. While the IIT Mandi and IIM Jammu decisions emphasise that mere status as an ultimate beneficiary does not establish consent to arbitrate, the authors argue that a rigid application of the consent requirement may overlook the broader principles recognised in Cox & Kings II, particularly commonality of subject matter, composite transactions and the interconnected performance of multiple agreements. In support of the criticism, the paper relies on the longstanding principle of avoiding multiplicity of arbitral proceedings. The authors argue that avoiding fragmented adjudication is integral to the objectives of efficient arbitration examines the jurisprudence favouring composite references and a single arbitral tribunal, including P.R. Shah, KGPS Mechanical, Ganpati Technology and Gammon India. While the authors agree that consent must remain the primary basis for impleadment, they contend that it should not operate as an inflexible rule where fragmented proceedings may result in incomplete adjudication, inconsistent findings, and multiplicity of proceedings. To address this gap, the authors propose two limited exceptions. First, they advance a “Single Project Exception”, under which parties substantially connected with a single, interdependent commercial project may, in appropriate circumstances, be impleaded notwithstanding the absence of conventional indicia of consent. Second, they propose importing the “proper party” doctrine under Order I Rule 10 of the CPC into arbitration, particularly where the presence of an ultimate beneficiary would enable the tribunal to completely and effectively adjudicate the dispute. The paper ultimately argues for a calibrated approach: preserve consent as the cornerstone of arbitration while permitting narrowly defined exceptions grounded in commercial reality, effective adjudication, and the avoidance of multiplicity of proceedings. It concludes that such an approach represents a principled next step in the evolution of Indian arbitration law towards greater efficiency and responsiveness to complex multi-party, multi-agreement, commercial projects. [1] Gaurav Rai is an Independent Advocate and Arbitration Consultant based in Delhi. He can be reached at gaurav@thearbitrationconsultant.in [2] Avni Shrivastava is a third-year B.A. LL.B. (Hons.) student at the National Law University Odisha. She is also a member of the ADR Board, NLUO. She can be reached at avnishrivastava25@gmail.com.

Anvita Sharma & Vidhi Gala[1] Introduction In Nagreeeka Indcon Products Pvt. Ltd. v. Cargocare Logistics (India) Pvt. Ltd. (17 April 2026) (“Nagreeeka/Nagreeeka Indcon”), the Supreme Court held that usage of the word ‘can’ in a dispute resolution clause does not constitute a binding arbitration agreement under Section 7 of the Arbitration and Conciliation Act, 1996 (“the act”). The Court is of the view that such language is a mere indication of possibility of arbitration and does not disclose the clear determination and obligation necessary to establish arbitral consent. The dispute arose from a commercial contract containing a dispute resolution clause providing that disputes “can be settled by arbitration”. Upon invocation of this clause, Cargo Logistics resisted reference to arbitration on the ground that the clause was not mandatory or obligatory. The Bombay High Court declined to appoint an arbitrator under Section 11, and this view was later affirmed by the Supreme Court. The Court held that the clauses which merely contemplate arbitration as a matter of future agreement, rather than present obligation, fall short of constituting enforceable arbitration agreements, as they require fresh consensus between the parties at the stage of dispute. This post analyses the decision on three aspects. Firstly, it examines the Court’s insistence on textual precision as determinative of arbitral consent, particularly its distinction between permissive and mandatory language. Secondly, it situates the judgment within India’s pro-arbitration jurisprudence, arguing that it reflects a shift from facilitation to threshold scrutiny of consent. Thirdly, it evaluates the broader implications to commercial contracting, including the extent to which strict reliance on drafting formalism may influence litigation strategy and access to arbitration. Background While Section 7 of the act does not prescribe any formal requirements for the framing of an arbitration agreement, jurisprudence[2] suggests that judicial interpretation has consistently elevated language as the decisive indicator of arbitral consent. The author suggests that the enquiry is therefore not directed at reconstructing commercial expectation, but determining whether the clause, as drafted, evidences a concluded intention to arbitrate. The Apex Court in Nagreeeka Indcon reinforces this position by adopting a strictly textual approach. The Court treats the arbitration clause as a self-contained expression of consent and declines to read into it any broader commercial understanding between the parties. The authors contend that this approach reflects a conscious preference for certainty over flexibility. By anchoring the analysis in the ordinary meaning of the words used, the Court limits the scope for interpretative interpretation at the referral stage. This is consistent with BGM & M-RPL-JMCT (JV) v. Eastern Coalfields Ltd.[3] and Jagdish Chander v. Ramesh Chander [4]where clauses requiring further agreement were held insufficient to constitute enforceable arbitration agreements. The underlying principle is clear, that arbitration cannot be imposed through implication, it must be demonstrable from the clause itself. At the same time, the decision marks a departure from the more pragmatic approach adopted in Enercon (India) v. Enercon GmbH,,[5] where the Court was willing to preserve arbitral intent despite drafting delicences. In Nagreeeka, such corrective interpretation is expressly rejected. It is pertinent to note that even in contextual indicators such as the heading of the clause, are treated as insufficient to cure indeterminacy in the operative language. The judgment in paragraph no. 9.6 also recalibrates the pro-arbitration principle articulated in the landmark case of Vidya Drolia v. Durga Trading Corporation,[6]However, Vidya encouraged courts to lean in favour of arbitration in cases of interpretative doubt, Nagreeeka confines this presumption to situations where an arbitration agreement is prima facie established. While if the existence of such agreement is itself in question, the Court adopts a more restrained posture. The authors argue that this shift has broader implications. Firstly, by prioritising textual certainty, the court effectively raises the threshold for establishing arbitral consent, thereby reducing the scope for judicial facilitation at the Section 11 stage. Secondly, while this might strengthen doctrinal clarity, it simultaneously narrows the interpretive space within which courts can accommodate imperfect drafting, which is an issue of particular relevance in standard-form commercial contracts. Road Ahead: Pro Arbitration to Pro Consent In the recent years, India has adopted a pro-arbitration approach over lengthy and time consuming litigation. Scholars[7]have praised this shift towards greater judicial restraint especially at key stages including referral to arbitration, conduct of proceedings, and post-award scrutiny. The authors critically question whether this judgment is truly ‘pro’ arbitration or forms another litigation hurdle for parties. Firstly, the implications for foreign clientele are significant. In cross-border transactions, arbitration clauses which are typically drawn from institutional model clauses, such as those of International Chamber of Commerce (ICC) or the Singapore International Arbitration Centre (SIAC). These model clauses employ unequivocal language, for instance, providing that disputes “shall be finally settled by arbitration”. However, scholars[8] suggest that in commercial practice, such clauses are frequently adapted or incorporated into broader contractual frameworks, particularly in multi-tier dispute resolution clauses or industry standard agreements. Gary Born[9] notes that arbitration agreements are often embedded within complex contractual structures and may vary in formulation depending on commercial context, giving rise to disputes over their binding nature. Similarly, Redfern and Hunter[10] observe that poorly drafted or ambiguous clauses often the result of modification or hybrid drafting are a recurring source of jurisdictional challenges. This concern is also reflected in judicial practice. In Fiona Trust & Holding Corp v. Privalov,[11] the House of Lords adopted a commercially sensible approach to uphold arbitration agreements despite drafting imperfections. Secondly, from a public policy perspective, the judgment reaffirms consent as the cornerstone of arbitration, consistent with international norms. Nagreeeka’s text-centric approach raises concerns about India’s pro arbitration approach. The UNCITRAL Model Law which underpins the act, adopts a pro- enforcement bias, encouraging courts to uphold arbitration agreements where reasonably possible. Thirdly, an overly stringent approach may have spill over effects on enforcement of foreign arbitral awards in India. Under the New York Convention, to which India is a signatory, courts are required to recognise and enforce foreign awards subject to limited exceptions, including the absence of a valid arbitration agreement and violation of public policy. A heightened insistence on linguistic precision at the stage of determining arbitral consent could expand the scope of challenges under these grounds. As Gary Born[12] notes, enforcement regimes depend fundamentally on judicial restraint and consistency in recognising arbitration agreements across jurisdictions. If Indian courts subject arbitration clauses to stricter scrutiny than that applied at the seat of arbitration, it may lead to increased threshold objections and enforcement delays, even where the award is otherwise valid. Conclusion The authors contend that the approach adopted in Nagreeeka reflects a shift that may sit uneasily with India’s broader pro arbitration trajectory. While reaffirming the centrality of consent, an overly stringent reliance on textual precision risks undermining recent efforts aimed at enhancing ease of doing business and strengthening India’s position as an arbitration friendly jurisdiction. While the authors have laid down their views, the current position of under Indian Law remains firmly textual. The 2026 decision of Supreme Court in Nagreeka states that’s permissive language being can, may cannot be rendered binding by reference to commercial context, transactional intent, or the general judicial preference for arbitration; the clause's own wording remains dispositive. [1] Anvita Sharma is a final year student at Jindal Global Law School and Vidhi Gala is an associate at Dhruve Liladhar & Co. [2] https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1095&context=nlsblr [3] BGM & M-RPL-JMCT (JV) v. Eastern Coalfields Ltd., 2024 SCC OnLine Cal 486 . [4] Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719. [5] Enercon (India) Ltd. v. Enercon Gmbh, (2014) 5 SCC 1. [6] Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1. [7] Rajat Singla, “Arbitration Environment in India- From the User’s Perspective” (Australian Disputes Centre, 2021) https://disputescentre.com.au/wp-content/uploads/2021/10/ARBITRATION-ENVIRONMENT-IN-INDIA-FROM-THE-USERS-PERSPECTIVE-Final.pdf [8]Editor. “‘Consent’ in Arbitration Agreement — Substance Prevails Over Form: Crystallisation of Indian Jurisprudence.” SCC Times, 18 Sept. 2025, https://www.scconline.com/blog/post/2025/09/18/consent-arbitration-agreement-indian-jurisprudence [9]Born, Gary B. “International Commercial Arbitration.” WIPO Knowledge Repository, https://tind.wipo.int/record/44313 Accessed 2 July 2026. [10]Nigel, Blackaby. REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION. https://www.international-arbitration-attorney.com/wp-content/uploads/Prelim-Pages-from-Redfern-and-Hunter-5th-Edn.pdf [11] [2007] UKHL 40. [12] Gary Born. International Law In American Courts. https://www.wolterskluwer.com/en/solutions/kluwerarbitration/born

By- Anchal Kanthed[1] The judgment of the Cox and Kings Ltd. v. SAP India Pvt. Ltd.,[2] settled around 30 years of doctrinal confusion regarding the Group of Companies Doctrine (hereinafter “GOCD”) by affirming it as a consent-based principle enshrined in Sections 2(1)(h) and 7 of the Arbitration and Conciliation Act, 1996 (hereinafter “A&C Act”). The judgment adjudged the “claiming through or under” in Chloro Controls[3] as erroneous, confirmed that non-signatories can be parties in their own right and established a five-factor test for invocation of arbitration. Though this is a remarkable judgment, it has left open two loopholes. First, at the Section 11 stage, directing courts to conduct only a prima facie review of the non-signatory party, leaving the full determination at the behest of the tribunal, making it a double-adjudication, which increases procedural costs. Secondly, regarding Section 9, imposing a condition on the non-signatory for a prior tribunal determination for an interim relief. The paradox is that a non-signatory cannot invoke Section 9 until the tribunal has ruled, as Section 9(3) bars the court. This article examines these loopholes and argues that both can be resolved through purposive judicial interpretation, without any legislative amendment. Introduction The basis of arbitration is consent between the parties. However, it becomes complicated when questions like whose consent and how to identify consent arise. The law answers these questions through the doctrine of GOCD, which means that when a non-signatory party has participated so substantially in the negotiation, performance or termination of a contract that circumstances reveal a mutual intention to be bound, then that party can be drawn into the arbitration even without signing the agreement. The judgment in Cox and Kings Ltd. v. SAP India Pvt. Ltd.[4] [hereinafter “Cox & Kings II”] resolved long-standing disputes on the validity of the doctrine, corrected errors from Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc.[5] (hereinafter “Chloro Controls”) and provided a clear framework for the application of the doctrine. But the judgments left two fault lines open, one at the Section 11 referral stage and second around Section 9 interim relief, which collectively undermine the very purpose of the doctrine of GOCD. I. The Framework: What Cox & Kings II Settled Non-signatories were not included in arbitration before Chloro Controls. The cases like Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya[6] and Indowind Energy Ltd. v. Wescare (I) Ltd.[7] held that a written agreement was required to initiate arbitration proceedings/ arbitration was possible amongst the signatories of the agreement, as was mentioned in Section 7. Chloro Controls changed this position by introducing a phrase, “any person claiming through or under” as given under Section 45 of the A&C Act, including non-signatories to the agreement in a derivative capacity. But the judgment created a doctrinal error by treating this derivative capacity phrase as the very basis for the doctrine of GOCD itself. It was Cox & Kings II that later reversed this position, holding that a non-signatory joined through GOCD is bound as a principal party in its own right, by its own consent and not by derivation. Cox & Kings II corrected this error by holding that a conjoint reading of Sections 2(1)(h) and 7 of the A&C Act accommodates non-signatories as parties without requiring their signatures. A written agreement under Section 7(4)(b) ensures that there is a record of consent, but it does not limit the forms consent may take. Consent to arbitrate can be gathered from conduct, participation and surrounding circumstances. Moreover, the Court also listed five factors, citing ONGC v. Discovery Enterprises Pvt. Ltd.,[8] to determine consent: (i) mutual intention between the parties; (ii) the relation between signatory and non-signatory; (iii) commonality of the subject matter; (iv) composite nature of the transaction; and (v) performance of the contract. Mere membership of a corporate group was not enough on its own. The Court held that the concept of ‘single economic unit’ could not be used on its own to justify pulling a non-signatory into arbitration under GOCD. Moreover, the Court also explained that Canara Bank[9] had not relied solely on that reasoning and to the extent it had been interpreted otherwise. This interpretation was expressly overruled. The Court made a differentiation between the doctrine of GOCD and veil piercing, while the former is consent-based and preserves the separateness of the parties, the latter is equity based that overrides it. Now the doctrine has a principle-backed foundation that it previously lacked. The chart below places the doctrine of GOCD post Cox & Kings II within a broader spectrum of doctrines that extend arbitration to non-signatories, illustrating the focus of the judgment on consent as an anchor and its rejection of veil-piercing as a basis, representing a non-technical/principled position. Chart 1: Doctrinal Spectrum from fully consensual (agency) to fully non-consensual (veil piercing). GOCD sits at the midpoint by preserving corporate identity and finding consent through conduct. Cox and Kings II confirmed that it cannot migrate rightwards into the territory of veil-piercing. II. Section 11 Problem: Prima Facie Review And Double Adjudication If the agreed procedure to appoint arbitrators fails, Section 11 of the A&C Act empowers the courts to appoint arbitrators. The scope of examination at this stage has been narrowed down through judgments like Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd.[10] and NTPC v. SPML Infra Ltd.[11] The Supreme Court consistently held that the examination is limited to only whether a valid arbitration agreement exists, on a prima facie basis and the rest of everything is examined by the tribunal under the kompetenz-kompetenz principle under Section 16 of the A&C Act. Cox and Kings II applied this to the doctrine of GOCD and held that the question of whether a non-signatory can be impleaded is to be determined by the tribunal and not the referral court. At the Section 11 stage, the court must only determine that the non-signatory is not a complete stranger to the transaction. This understating unknowingly creates a double-layer procedure that Cox and Kings II did not fully acknowledge. This is because when either of the parties seeks to add a non-signatory at Section 11 stage, the court makes a prima faciefinding and constitutes a tribunal based on the agreement between the signatory parties. The non-signatory is now involved in the arbitration, but with an unresolved status. Then, before any substantial hearing, the tribunal must take up the joinder question as a preliminary issue, which requires both signatory parties to brief the facts about the involvement of the non-signatory. If tribunal rejects the joinder, the non-signatory question is litigated twice and if it accepts the joinder, the preliminary hearing is an additional cost without any benefit. Either way, the outcome results in more litigation than necessary, defeating the purpose of the doctrine of GOCD. The chart depicted below explains this double-adjudication loop with a proposed solution to this problem. Chart 2, which highlights the double-adjudication loop, indicates that two-stage litigation occurs regardless of the tribunal’s prima facie finding on joinder. The proposed solution is that a prima facie review under Section 11 creates a baseline for the tribunal that can be built upon, rather than a restart. The Bombay HC in Cardinal Energy and Infra Structure Pvt. Ltd. v. Subramanya Construction and Development Co. Ltd.,[12] held that a tribunal may implead a non-signatory even without a prior court order, offering some flexibility. However, it does not address the fundamental question of the evidentiary threshold at Section 11 stage. In author’s view, a better approach is a ‘structured prima facie’ review. Rather than just answering whether arbitration agreement exists or not, the Section 11 court should also assess whether at least two of the five factors to determine mutual consent exist, specifically, whether there is a direct relationship between signatory & non-signatory and whether the subject matter of the dispute is common to both. This becomes consistent with J. Narasimha’s concurring observations in Cox & Kings II that existence of arbitration agreement and identification of parties to the agreement are “inextricably connected.”[13] Thus, logically, if parties are inextricably connected to the existence of agreement, the Court’s prima facie review cannot leave the question of party-identification untouched. III. Section 9 Paradox: Interim Relief and the Frozen Window Cox & Kings II held that a non-signatory, found to be a party by the tribunal, may seek an interim relief under Section 9 of the A&C Act. This observation is based on the assumption that there will be a prior tribunal determination. The reason was to fix the anomaly created by the ‘claiming through or under’ framework under Chloro Controls where a non-signatory could be referred to arbitration under Sections 8 or 45, but could not access Section 9, as it applied only to the “parties”. By re-categorising the non-signatory as a party in its own right under Section 2(1)(h), the Court made Section 9 available to the non-signatory. However, the language created a new and arguably worse problem. Section 9 is designed to provide interim protection of assets and subject matter during the period of pre-constitution of an arbitral tribunal because at this stage, the risk of dissipation is at its highest. The utility of this provision is undermined if a party is required to wait for the constitution of tribunal and to decide the issue of jurisdictional competence before being entitled to invoke Section 9 relief, since by that stage the very window of protection that the provision contemplates has already lapsed. This difficulty increases due to the fact that Section 9(3) bars the jurisdiction of the Court to entertain a Section 9 application once the tribunal has been constituted except the relief under Section 17 would be rendered inefficacious. The result is a jurisdiction paradox: the determination of party status is condition precedent to invocation of Section 9 by non-signatory, which can only render post-constitution of tribunal by which time Section 9(3) has already divested the Court of jurisdiction necessary to grant such relief. The non-signatory, thus, is trapped in an irresolvable procedural loop, wherein the determination is required invoking of Section 9 jurisdiction simultaneously operating to extinguish it. This is illustrated below: Stage Position of non-signatory Pre-tribunal Since, the party status is not determined, it cannot seek Section 9 relief. Post-constitution of tribunal Tribunal takes up preliminary issue of joinder Tribunal holds the non-signatory as a party Theoretically, Section 9 relief can be sought but it is barred by Section 9(3) Result Procedural limbo during a most critical stage A partial solution to this problem is Section 17, wherein the tribunal can order interim protection after finding the non-signatory to be a party and such orders are enforceable as court decrees under Section 17(2). But the issue is: first, Section 17 does not cover the pre-tribunal window and second, since post Arbitration and Conciliation (Amendment) Act, 2015, orders under Section 17 are in parity with orders under Section 9,[14] a tribunal’s jurisdiction under Section 17 extends only to parties to the arbitration agreement, so relief against non-signatory third parties, such as financial institutions, may still require recourse to Section 9. Moreover, Emergency arbitration, as upheld in Amazon.com NV Investment Holdings LLC v. Future Retail Limited,[15]provides another solution, but the problem is that it applies only in institutional arbitrations with emergency procedure provisions. In the author’s view, Cox & Kings II held that Section 2(1)(h) includes non-signatories as parties. Moreover, Section 11 court makes a prima facie determination of the party status of a non-signatory. Thus, a non-signatory who has received a prima facie recognition of party-status from the Section 11 court has, in effect, been provisionally identified as a party by a court. Now, there is no reason why that provisional recognition should not be sufficient to satisfy the “party” requirement under Section 9 during the pre-tribunal constitution. The conditioning language of the judgment should be read to establish the party-status and not as a jurisdictional bar to access Section 9 for interim relief. Conclusion Cox & Kings II is a landmark judgment that provided the doctrine of GOCD the statutory recognition it had always required. The five-factor test, the rejection of veil-piercing as a basis for invoking the doctrine of GOCD and the correction of erroneous reliance on “claiming through or under” in Chloro Controls, these are durable contributions to arbitration jurisprudence. However, the judgment left two structural loopholes that, in combination, jeopardise the purpose of the doctrine. Section 11 gap produces double adjudication on non-signatory joinder and Section 9 gap deprives non-signatories of interim protection when they need it most. This article argues that both can be addressed without legislative amendment through a structured prima facie review at Section 11 and a purposive reading of Section 2(1)(h) for Section 9. This would restore the doctrinal coherence that Cox & Kings II sought to achieve. Until a subsequent judgment fills these gaps, contracting parties would do well to name all intended arbitration participants as signatories from the outset, because the doctrine of GOCD, for all its post-Cox & Kings II clarity, still leaves non-signatories requiring recognition from the court without the procedural key to make use of it. [1] Advocate. [2] Cox and Kings Ltd. v. SAP India Pvt. Ltd., (2023) INSC 1051. [3] Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc., (2013) 1 SCC 641. [4] Cox and Kings Ltd. v. SAP India Pvt. Ltd., (2023) INSC 1051. [5] Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc., (2013) 1 SCC 641. [6] Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya, (2003) 5 SCC 531. [7] Indowind Energy Ltd. v. Wescare (I) Ltd., (2010) 5 SCC 306. [8] ONGC v. Discovery Enterprises Pvt. Ltd., (2022) 8 SCC 42. [9] MTNL v. Canara Bank, (2020) 12 SCC 767. [10] Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., (2021) 7 SCC 657. [11] NTPC v. SPML Infra Ltd., (2023) 9 SCC 385. [12] Cardinal Energy and Infra Structure Pvt. Ltd. v. Subramanya Construction and Development Co. Ltd., MANU/MH/2164/2024 [13] Cox and Kings Ltd. v. SAP India Pvt. Ltd., (2023) INSC 1051. The relevant extract from J. Narasimha’s concurring opinion is quoted as under: “15(iv). ‘Party’ is defined in Section 2(1)(h) as “a party to an arbitration agreement”. The determination of the arbitration agreement and its parties are inextricably connected with one another, their existence is based on the written agreement.” (emphasis supplied) [14] Amazon.com NV Investment Holdings LLC v. Future Retail Limited, (2022) 1 SCC 209. [15] Amazon.com NV Investment Holdings LLC v. Future Retail Limited, (2022) 1 SCC 209.

- Qazi Ahmad Masood[1] 1. Introduction The Supreme Court in Nagaraj V. Mylandla v. PI Opportunities Fund reframes the enforcement inquiry under Section 48 of the Arbitration and Conciliation Act, 1996 (Act) by posing a preliminary threshold question : Whether a party can re-open, matters which have been definitively decided at the seat? The case thereby shifts the focus on the extent of the public policy to the issue of whether it can be invoked. The Court restricts the application of Section 48 to truly independent objections, by introducing transnational issue estoppel, which prevents Section 48 of the Act from being used to re-litigate issues. This article argues that the decision reshapes the operation of Section 48 not by narrowing public policy in substance, but by restricting how it may be invoked through transnational issue estoppel. To establish this, the article first examines the existing Section 48 framework developed in Renusagar, Shri Lal Mahal, and Vijay Karia, before tracing the emergence of transnational issue estoppel through Indian and comparative jurisprudence, particularly Republic of India v. Deutsche Telekom AG. It then analyses how the Supreme Court applies this doctrine across objections relating to buy-back, election of remedies, fraud, and public policy. The article ultimately evaluates whether this approach strengthens finality in foreign award enforcement without unduly limiting legitimate domestic public-policy review. 2. The real architecture: the factual and contractual architecture of SASHA. The dispute between the investors and the promoters can be viewed as the failure of a carefully structured exit architecture embedded in )the Share Acquisition and Shareholders Agreement (SASHA). The agreement was a time-constrained commitment to reach a Qualified Initial Public Offering (QIPO), otherwise a structured exit waterfall would be implemented. The controversy thus revolves around whether the remedies were cumulative, alternative or contingent. It was this architecture that failed that resulted in the arbitration: none of the exit routes materialised, triggering the effects of the material breach. The Court considered the SASHA a commercial framework, requiring a coherent reading instead of formalistic interpretation that would have treated the strategic sale, buy-back implications, and damages provisions as isolated remedies, thereby allowing the award-debtors to argue that the tribunal had created legally inconsistent or impermissible reliefs under Indian law The reason is that the strategic sale was seen by the Court as a contractual enforcement tool that only becomes effective in the event of the default of basic contract, the Court placed it in the risk-allocation context agreed upon by the parties. This prevented the relief being redefined as an externally imposed solution, and made it remain an internal element of the negotiated exit regime, which strengthened the importance of contractual design in transactions between investors and other investors. 3. The history of Transnational Issue Estoppel Transnational issue estoppel is based on the rule that issues that have been conclusively decided in the seat can't be raised again during the enforcement phase just under a different legal name. The doctrine, however, remains significant in international arbitration because it preserves the separation of curial and enforcement review, and permits enforcement courts to serve as essentially appellate bodies with independent and public-policy objections. The concept of transnational issue estoppel was further settled in Republic of India v. Deutsche Telekom AG, where the Singapore Court of Appeal acknowledged transnational issue estoppel in arbitration whilst introducing a very limited exception for concerns of independent enforcement-state public policy. The importance of the distinction was that objections raised did not simply reopen questions decided in the seats, but were raised on their own under the domestic public policy. The principles of this approach were evident in Cruz City 1 Mauritius Holdings v. Unitech Limited, a case where the Delhi High Court refused to allow enforcement-stage relitigation. Nagaraj V. Mylandla, however, expands upon this, adding the doctrine of transnational issue estoppel to the framework of Section 48 itself, and making a public policy objection depend upon whether the objection already had been finally resolved at the seat. 4. Section 48 of the Act and public policy and the slit-gateway to deny a foreign award. The enforcement of foreign awards under Part II of the Arbitration and Conciliation Act, 1996 is governed by a narrow framework under Section 48, consistent with India’s obligations under the New York Convention. Since Renusagar Power Co. Ltd. v. General Electric Co. through Shri Lal Mahal Ltd. v. Progetto Grano Spa to Vijay Karia v. Prysmian Cavi E Sistemi SRL the Supreme Court has repeatedly limited the meaning of the term public policy in relation to foreign awards, contrasting it with what is meant by the larger standard under Section 34 of the Act. The point has been that enforcement courts are not to review on the merits core legal principles are not to be understood as to non-compliance with statutes or even incorrect interpretation. The present judgment builds upon this framework by introducing transnational issue estoppel as a threshold restraint on the invocation of Section 48 itself. With transnational issue estoppel, the Court denies parties the opportunity to repackage an already resolved issue, like the interpretation of a contract or the design of remedies, as a new public-policy infraction. It limits the ability of the argument of public policy to be invoked. The section 48 is now a residual safeguard, rather than a disciplined threshold, so that it cannot be used as a camouflaged appellate process against foreign arbitral awards. 5. Interaction of Estoppel and Public Policy The analytical focus of the judgment is the application of transnational issue estoppel to bar across multiple objections each of which was designed to look like a separate statutory infraction but which, in fact, was a repetition of issues already adjudged at the seat. On the buy-back argument the attempt was to recast the economic impact of the award, payment of damages accompanied by surrender of shares, as a company law prohibited buy-back. The buy-back objection had already been substantially examined in the Singapore curial proceedings, where the award-debtors challenged the remedial structure of the award, including the strategic sale mechanism and surrender of shares, as being legally impermissible. The Singapore court rejected those objections and upheld the award’s characterization of the remedies, following which the Supreme Court held that Section 48 could not be used to reopen the same issues under the language of Indian public policy. The invocation of public policy was thereby revealed as a relabelling of an issue already decided, and not a new question barred by estopped. A similar objection was raised under the Specific Relief Act, 1963, where the award-debtors argued that the strategic sale mechanism amounted to impermissible specific performance despite the grant of damages. The Court rejected this by treating strategic sale as a contingent enforcement mechanism, not an independent decree of specific performance. The award granted damages in the first place and strategic sale as an enforcement tool was only incidental. The difference saved the remedial logic of the award and ensured that it was beyond the public-policy objection. When this construction was maintained at the seat the reconsideration of it in India under Section 48 would destroy the distinction between enforcement and appeal. This approach is also evidenced by the treatment of waiver and election of remedies. The Court did not consider these doctrines as separate matters of public-policy, but incorporated them into the contractual interpretation field that had been overturned in arbitration and in the seat court. The waiver and election objections were not separate objections in public policy. They were challenges to the tribunal’s interpretation and such interpretation had already been exhausted at the seat. Lastly, The fraud and natural-justice allegations were unsuccessful since they were untimely, unsubstantiated, and aimed at allowing the merits to be re-heard. That is not allowed in Section 48. 6. Why the decision settles the issue? The decision upholds the three-tier system of arbitration that has tribunal, seat court and enforcement court as a three-tier system with each having a unique and non-overlapping role. The tribunal adjudicated the merits; the seat court, curial supervision; and the enforcement court is limited to a narrow review by Section 48 of the Arbitration and Conciliation Act, 1996. The analytical risk that the Court faces is that should the enforcement court have the power to reconsider matters which have been determined by the seat court, the system would become one of repeated, multi-jurisdictional appeals, which undermines finality and efficiency. This embracement of transnational issue estoppel is not, therefore, only procedural and maintaining the hierarchy of the New York Convention. More importantly, the decision does not reduce public policy to estoppel, but alters the relationship between the two. The survival of public policy is as a substantive protection, but in the case of truly independent enforcement-state issues, those that the seat court could not have answered authoritatively. What is being foreclosed is the strategic repackage of issues that have been decided upon as a violation of fundamental policy. This is in line with comparative jurisprudence, in particular the Singapore method in Republic of India v. Deutsche Telekom AG that does not abolish a narrow space of public policy in the country but does not allow duplicative litigation. It does not abolish public policy, but deprives it of its power to serve as a surrogate appellate examination, and thus puts the enforcement-stage investigation back on its feet. 7. Implications of this to Indian arbitration. The sentencing increases the price of enforcement-stage hindrance. The Court enhances the number of barriers to challenging foreign awards materially by incorporating transnational issue estoppel into the analysis under Section 48, providing consistency with the pro-enforcement jurisdictions and strengthening predictability to foreign investors. Modern commentary in both legal and financial reporting has interpreted the decision in these terms, as a step to limit dilatory practices and rebuild trust in the enforcement regime in India. The fact that the Court is ready to consider SASHA as a coherent commercial code highlights the fact that consequences will be a follow-up to the design of a contract. Parties face the risk of judicial harmonisation to keep remedy clauses open to the narrower range of enforceability but not strict exclusivity, where the clauses are vaguely drafted. On the other hand, a deliberate attempt at clear drafting, be it on the side of mutually exclusive remedies or deliberately cumulative/controversies structures, will be upheld. The architectural layered exit in this instance helped the Court to describe the case as one involving contractual performance, rather than statutory illegality. However, the judgment raises a concern. When transnational issue estoppel is applied overboard, there is a risk that valid enforcement-state public policy interests may be prematurely excluded. Even in the comparative regime such as in Republic of India v. Deutsche Telekom AG, restricted objections on the basis of public-policy remain possible. The issue in the future will be keeping this balance, and finality without weakening the independence of domestic public policy review. Conclusion The ruling ultimately reinvents the place of the Section 48 in the system of international arbitration by clarifying that enforcement is not one in which a re-adjudication, but rather a stage that is characterized by finality. Its key point is that the real danger to arbitration is not the presence of public policy, but rather its abuse as a re-litigation tool. Placing transnational issue estoppel on the threshold the Court creates a solid line: once an issue has been decisively tried at the seat it can never be reopened in India under another name. What comes next is a more stringent sense of the concept of public policy that is limited to the more truly independent and fundamental objections, as opposed to derivative issues to matters that have already been resolved. This ruling thus does not merely support a pro-enforcement stance, but rather reorganizes the inquiry of enforcement as such, so that Section 48 becomes a safeguard of last resort, rather than an extension of the appeal, without restricting legitimate domestic interests. [1] Fourth-Year B.A. LL.B. (Hons.) Rajiv Gandhi National University of Law, Punjab. He can be reached at qaziahmadmasood22103@rgnul.ac.in

Namrata Ghosh [i] Introduction The apex Court in its recent ruling in the case of Hindustan Construction Company Ltd v. Bihar Rajya Pul Nirman Nigam Limited , noted, and importantly so, that “arbitration is often a friend in conferences, but a foe in practice”; this question is the very core of the condition of arbitration of disputes in the country. India’s arbitration framework has undergone various amendments to reduce judicial interference and promote arbitral autonomy. However, over the years, parties have tried to exploit procedural routes, intended to favour arbitration, to delay proceedings. Despite the statutory safeguards, the tug-of-war between judicial oversight and arbitral autonomy persists. Background of the present case In this case, Bihar Rajya Pul Nirman Nigam Limited ( hereinafter , “ The Respondent ”) entered into a construction contract with Hindustan Construction Company Ltd ( hereinafter , “ The Appellant ”). The contract contained a Clause providing for the settlement of disputes through arbitration . Subsequently, issues related to compensation for additional costs and losses arose between the parties, and the Respondent failed to appoint an arbitrator. Hence, an application under Section 11 of the Arbitration & Conciliation Act 1996 ( hereinafter , “ ACA ”) was filed, and a Sole Arbitrator was appointed. The award given by the arbitrator in this dispute was accepted by both parties. Consequently, issues related to the extension of time for completion of work and compensation for additional costs arose between the parties, and once again, a sole Arbitrator was appointed under Section 11 by the HC on the failure of the Respondent to appoint one. Despite participating in the arbitral proceedings for more than three years, the Respondent filed for review of the order under Section 11, which resulted in the stay of the arbitral proceedings. A total of seventy sittings were conducted in three years, and the proceedings have reached the stage of final arguments. The Respondent challenged the Section 11(6) appointment order, seeking a review of the order. Acting on this, the High Court ( hereinafter , “ HC ”) reopened these issues that already attained finality under the original section 11 order. Subsequently, on the challenge by the Appellant, the Supreme Court ( hereinafter , “ SC ”) held that the HC had no jurisdiction to review or re-open a concluded Section 11(6) order because the Act reflects principles of party autonomy and minimum court intervention. Furthermore, it opined that once the arbitrator is appointed, the court becomes functus officio . Review powers cannot be used to revisit issues that have already been decided, particularly when the party has participated in the arbitration. Section 11 of the ACA and its statutory role Arbitration agreements impose an obligation on parties to arbitrate disputes within their scope. Section 11 gives effect to this obligation by providing a statutory mechanism for appointing arbitrators in the event of a deadlock, thereby keeping such disputes within the arbitral forum rather than the courts. Under the 1940 Act, the duty to appoint the arbitrators was done by the court, which often caused a delay in the process. The 1996 act, on the other hand, resorted to the judiciary only when necessary, as it allowed the parties to determine their own appointment process. The 2015 amendment further streamlined this process, and the 2025 Amendment has also emphasised arbitral autonomy and minimal court intervention. Further, courts have held in the cases of Narayan Prasad Lohia vs Nikunj Kumar Lohia and M/S. Gayatri Project Limited vs Madhya Pradesh Road Development , that once arbitration proceedings are underway, the parties cannot subsequently challenge the arbitral tribunal's jurisdiction, thereby emphasising the judiciary’s efforts to encourage arbitration.  These reforms gave the tribunal power to decide on arbitrability and the substantive issues of the dispute, thereby strengthening the Kompetenz-Kompetenz principle under section 16 of the Act, with the objective to reinforce the principles and spirit of arbitration by giving the tribunal the power to analyse its own jurisdiction.   Power of the Court to review decisions Courts have repeatedly held that they lack the power to review a decision made under Section 11. The SC observed in the case of Kamal Gupta vs M/S L.R. Builders Pvt. Ltd, that once an order to appoint an arbitrator under Section 11(6) of the Act is disposed of, the court cannot entertain any matter in relation to the case disposed of under Section 11(6). Further, under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 ( hereinafter , “ CPC ”), a civil court has limited review jurisdiction. The grounds are, namely, the discovery of new and important evidence which could not, with due diligence, be produced before the court; an error apparent on the face of the record; or any other sufficient reason of a similar nature. The above provision contains a corrective jurisdiction to avoid manifest injustice, but it is not expansive or tantamount to an appeal rehearing on merits. However, there is no specific provision in ACA that expressly allows a court to challenge an order passed under Section 11. While Section 19 provides procedural flexibility to arbitral tribunals, including limited application of CPC such flexibility is not applicable to the courts exercising appointment powers. As held in judicial precedent s, there is a difference between substantive review on merits and procedural review to cure basic procedural irregularities. In the absence of an explicit statutory provision, courts or institutions exercising powers under Section 11 are thus precluded from making any substantive review of their orders of appointment. At best, a limited procedural review may be upheld in rare cases where the order is rendered null and void due to jurisdictional invalidity or a grave procedural irregularity. In the present case, the SC has taken a similar stance to the Court that has put an end to the debate on review of a decision under Section 11 and upholds the principle of Finality in the absence of an explicit provision. Notwithstanding, in the case of In S.B.P. & Co. v. Patel Engineering Ltd., the  SC held that an order passed under Section 11 is appealable before it under Article 136 of the Constitution of India. Likewise, in the instant case, the Court held that the only remedy available to challenge an order passed under Section 11 is under Article 136 and Section 16 of the ACA. Although this trend aims at ensuring justice and avoiding arbitrary appointments, it further strengthens judicial intervention and rules out any review under the Act. Nevertheless, it may cause a delay in the arbitration process and may also counter the legislative spirit of minimal judicial intervention. Beyond the Case: Impact on Indian Arbitration This ruling confirms the finality of orders made under Section 11, but also acknowledges that in exceptional circumstances, such as fraud or partiality resulting in a probable miscarriage of justice, limited review may be warranted. The Court also deals with the increasing abuse of judicial forums as dilatory tactics, such as delayed objections under Section 16, challenges under Section 12(5), frivolous adjournments, and collateral writ or review proceedings. Through the reiteration of the need for the resolution of arbitral disputes within the regime of the ACA, the decision clearly establishes a normative demarcation line that protects party autonomy and impartiality while preventing unjustified judicial intervention. However, the Courts are dealing with an overwhelming number of over 66,995 pending arbitration cases. The decision is a much-needed systemic corrective, reminding all concerned parties that arbitration is a dispute resolution process that is based on expedition, finality, and autonomy. Although judicial doctrine can help limit abuse, change can only come about through legislation. First, the Parliament must remove the long-standing uncertainty in the Section 11 scheme. As has been widely observed, Sections 8 (reference to arbitration) and 11 (appointment of arbitrators) have similar roles, but only Section 8 orders are appealable under Section 37. This asymmetry is “anomalous”. The Law Commission’s 246th Report had proposed amending Section 37 to allow appeals against Section 11 orders, but Parliament did not implement it. A legislative solution would thus specifically empower appellate review of Section 11 orders (perhaps with tight timelines), or at least confirm that the sole challenge after appointment is in the Section 34 scenario. Another critical aspect is the functus officio impact. This would prevent attempts to recharacterize finality as a “review” or new petition. Second, India needs statutory disincentives against forum-shopping and dilatory tactics. A promising model is the expanded costs regime recently proposed in the Draft Arbitration (Amendment) Bill, 2024 .  That draft would broaden Section 31-A to penalise frivolous claims as well as counterclaims, lifting the existing requirement to show delay.  The tribunals will gain an express power to order an adverse costs award in respect of any meritless or obstructive pleadings. In effect, the courts and tribunals should be required to make an award of indemnity costs and interest against the parties who bring unwarranted Section 11 claims or involve the tribunal in collateral disputes. [i] Namrata Ghosh is a fourth-year BA LLB (Hons.) student from NLU Odisha.

-  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 .