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

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

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

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

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

- Khyati Maurya [1] & Saransh Sood [2]   Introduction The new Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) that came into force in July 2022, is a comprehensive revision of the 2006 Arbitration Rules brought with a view to bringing efficiency and cost-effectiveness in the investor-state resolution process. Major changes like mandating disclosure of third-party funding, providing different timelines to the tribunal to give its decision at various stages and expressly providing the power to grant security for costs align with broader concern for increasing transparency and efficiency in the system of investor-state dispute resolution. But particularly it is the purported omission of the provision allowing the investment tribunals to draw adverse inferences in the 2022 rules which raises questions. Adverse inference refers to an indirect conclusion drawn by a tribunal as a sanction against a party that refuses to provide direct evidence. Essentially, it assumes that the withheld evidence would have been unfavourable to the party's case. For example, in Feldman v. Mexico , the claimant accused Mexico of discriminatory tax treatment against foreign taxpayers. The tribunal ordered Mexico to produce evidence against discrimination between foreign and domestic taxpayers. However, Mexico failed to provide this evidence citing confidentiality concerns. As a result, the tribunal inferred that the withheld evidence likely demonstrated unfair treatment of domestic taxpayers, which would have supported the claimant’s allegations. Adverse Inferences are essential in international arbitration to ensure fairness and effectiveness by compensating for the tribunal's lack of coercive power, to compel evidence from sovereign states. For instance, unlike courts, tribunals cannot enforce contempt charges or impose penalties for failing to comply with orders for document production. Adverse inferences help address this limitation by drawing conclusions unfavourable to the non-complying party. 2022 Arbitration Rules & the Ensuing Conundrum In the erstwhile 2006 rules, Rule 34(3) allowed the parties to request the tribunal to ‘take a formal note of the parties refusal’ to produce evidence as ordered by the tribunal. However, these words, i.e. ‘take formal note of the parties refusal’ contained in Rule 34(3) of the 2006 Rules have been omitted from the Rule 2022 Rules without any explicit explanation as to its deletion in the working papers. The only reference to adverse inferences is found in the comments given by China and Armenia . While it was proposed by China that the power to take adverse inferences should be formally omitted, Armenia argued in favour of the formal inclusion of this power. However, no discussion was recorded on these proposals. It becomes even more intriguing to see a similar omission from Note 13 on Document Production of UNCITRAL Notes on Arbitral Proceedings wherein an explicit reference to the power to draw adverse inference has been deleted in 2016 notes that was earlier contained in the erstwhile 1996 notes. Although, there has long been a debate surrounding the potential risk of ‘false positives’ associated with reliance on such a mechanism, the recent revision prompts the question of whether the Tribunals still have the power to draw adverse inferences under Arbitration Rules 2022. To begin with, the general principle regarding use of inferences in international dispute resolution has been explained by ICJ in the Corfu Channel Case . In the said case, the ICJ was to decide upon the liability of Albania in laying the underwater mines. However, there was no direct evidence establishing that the mines were laid by Albania. Despite this, while holding Albania liable for the loss caused due to the mines, based on inferences, the court reasoned that when a state exercises exclusive control, the victim of an international law breach often lacks access to direct evidence to establish state responsibility. Therefore, the reliance of the victim on inferences and circumstantial evidence should be construed liberally, and the tribunal should be allowed to draw inferences when the party to the dispute fails to provide the required direct evidence (Page 18). This practice is now accepted across legal systems and is acknowledged by international courts and tribunals. For example, in the case of William J Levitt v. Islamic Republic of Iran , the Iran-US Claims Tribunal noted that it is free to draw inferences from the parties' non-compliance with its order to produce documents (¶ 61). However, since the ICSID Arbitration Rules 2022 omits the reference to the power of an arbitral tribunal to take formal note of the failure to produce documents, which was earlier expressly contained in Rule 34(3) of the ICSID Arbitration Rules 2006, the question as to whether or not the ICSID tribunals continue to possess this power becomes relevant. Although, in most instances, the tribunals have assumed the power to draw adverse inferences without any justification, it has sometimes referred to power in Rule 34(3) as the source of the power to draw adverse inferences. Illustratively, in the case of Rompetrol v. Romania , the tribunal ruled that the power to take formal note under Rule 34(3) is the source of the tribunal’s discretionary power to draw adverse inferences. In RSM v. Saint Lucia , the tribunal ruled that the “ Rule 34(3) reflects the common principle that a fact-finder can draw inferences from a failure to produce evidence” (¶ 56). Similarly, in the case of Feldman v. Mexico , the arbitral tribunal ruled that it is empowered to draw appropriate inferences from any party's failure to comply with the document production order (¶ 8). At this juncture, it is important to look at the source of the words ‘take formal note of the refusal’ as contained in the ICSID Arbitration Rules 2006 . A similar use of these words can be seen in the Statute of the International Court of Justice (ICJ), which, under Article 49 deals with the Evidence taking the power of the ICJ. It also uses the words ‘Formal note shall be taken of any refusal’ (to comply with the evidence production order), and commentators have interpreted this as the source of the power of ICJ to attach such consequences as it deems necessary for the non-compliance with the document production order.  In such a scenario, it can be argued that the omission of the power to take formal note of the refusal to comply with the document production order, is tantamount to the omission of the power to attach negative consequences to non-compliance with the document production order, thereby excluding the power of arbitral tribunal to draw adverse inferences from the non-production of documents.  A similar case against adverse inferences is also reflected in the UNCITRAL Notes on Arbitral Proceedings, wherein the explicit reference to the power to draw an adverse inference in its Note 13 on Document Production contained in the erstwhile 1996 notes has been deleted in the 2016 notes.  To the contrary, it can be argued that a tribunal possesses an inherent authority to draw adverse inferences from the non-production of the documents that is embedded in its power to determine the admissibility, relevance, and weight of the evidence presented. This view is also supported by Nathen D. O’ Malley, in his treatise “ Rules of Evidence in International  Arbitration .” Accordingly, it can be concluded that the power to draw adverse inferences remains intact despite the change in arbitration rules (¶ 7.37). A similar approach was also followed by the tribunal in the case of Sevilla Basheer B.V. v. The Kingdom of Spain , where the tribunal, while relying on the power to admit and weigh evidence, contained in Rule 34(1) of the 2006 Rules, concluded that it did possess the power to draw adverse inferences from the non-compliance with the document production order (¶ 550).  Under the 2022 Arbitration Rules, the tribunal continues to possess the power to admit and assign weight to the evidence under Rule 36 . Here, the tribunal is empowered to admit direct and indirect evidence as the provision does not specifically omit the indirect evidence. It is important to note that this distinction, between the direct and indirect evidence, pertains to the weight of the evidence rather than its admissibility , thus, both the direct and the indirect evidence can be admitted. Since, adverse inferences, are, by their very nature, indirect evidence only, they should be admissible under Rule 36(1) of the ICSID Arbitration Rules 2022, and the only question for the tribunal to decide is regarding the weight to be attached to it. Further, it is well-established that tribunals possess the authority to resolve procedural matters . Article 44 of the ICSID Convention grants tribunals the power to address any procedural issues not expressly covered by the ICSID Convention, Rules, or Regulations. This principle was reaffirmed in the case of Libananco Holdings Co. v. Republic of Turkey , wherein it was reiterated that the tribunal ‘must be regarded as endowed with the inherent powers required to preserve the integrity of its process – even if the remedies open to it are necessarily different from those that might be available to a domestic court of law.’ Additionally, this position is in consonance with the procedural laws of most legal regimes where courts can assess the value of any evidence. Even in international arbitration, arbitration clauses rarely address the issue of weighing evidence directly.  It can hence be argued that the inherent and unquestionable authority to draw adverse inferences unless otherwise agreed by the parties, stems from the arbitrator’s wide discretion in admitting and evaluating the relevance of evidence, as well as their power to establish and manage arbitration procedures. Further it cannot be argued that the power to draw adverse inferences results in a shifting of the burden of proof ( onus probandi ) since the request to draw adverse inference is often made by the opposing party, thereby violating the general principle in international arbitration of actori incumbit probatio . If an opposing party fails to provide evidence that challenges claimant’s case, then it will be a matter of procedural non-compliance and will not affect the burden of proof.   As Jeremy K. Sharpe explains, referencing the arbitral award in Feldman v. Mexico , once the party bearing the ultimate burden of proof establishes a prima facie case, the burden of production ( onus proponendi ) shifts to the responding party to counter that evidence. In other words, if the party with the burden of proof presents evidence sufficient to create a presumption of truth, the burden shifts to the opposing party, which must then produce adequate evidence to rebut the presumption. This approach, adopted in other cases as well, as Sharpe rightly notes, does not shift the burden of proof itself but rather the burden of production or evidentiary burden. Moreover, it is essential to recognise that the authority to draw adverse inferences has historically been a discretionary prerogative rather than a default sanction. Even IBA Rules present adverse inference as a possible sanction and subject this power to certain requirements that must be met under Article 3.3 and Article 4.10. Due to the discretionary nature of this power, it is drenched in subjectivity but applying such clear conditions and criteria can introduce greater objectivity. For example the standard of reasonableness, consistency with the facts in the record, logical nexus of inference and the missing evidence, which has been inspired by the scholarship of Jeremy Sharpe and Bin Cheng [3] and presently contained in IBA rules as well laid down by various tribunals like in Frederica Lincoln Riahi v. Government of the Islamic Republic of Iran . Arbitrators should explicitly show in their award that these criteria were followed and provide reasons for assigning or withholding weight to the adverse inference. They must also ensure that the defence rights are upheld throughout the process. Moreover, adverse inference as a form of indirect evidence in itself carries very limited evidentiary value. The Arbitral jurisprudence has developed several cautions before an adverse inference is taken. Therefore, in the opinion of the author, instead of omitting the said power itself, which has continued to be a tool balancing the subjective role of the tribunal in weighing evidence and the need for objective fairness in the process, the focus must be on better institutionalizing these safeguards. Conclusion   In the light of the foregoing discussion, it can be concluded that the omission of the power to take ‘formal note’ of the parties' refusal to comply with the document production order does not conclusively take away the power of arbitral tribunals to draw adverse inferences in case of non-compliance with the document production order. Since no arbitral award based on the 2022 rules has discussed the power of arbitral tribunals to draw adverse inferences, it remains to be seen how the tribunals interpret this omission. However, in the opinion of the authors, the tribunals must rule in favour of power to draw adverse inferences because it is the most potent arrow in the quiver of the arbitral tribunal to enforce its document production orders, especially when it lacks the other sanctions available with the domestic courts to compel the production of evidence. This power with ICSID tribunals becomes even more important because investor-state disputes always involve a much more powerful sovereign state that possesses various key evidence for the fair adjudication of the disputes, and it is seldom possible to marshall the evidence against the sovereign.  [1] Khyati is a Third-Year BA.LLB. Student at Gujarat National Law University, Gandhinagar and can be reached at khyati22bal037@gnlu.ac.in [2] Saransh is a Third-Year BA.LLB. Student at Gujarat National Law University, Gandhinagar and can be reached at saransh22bal069@gnlu.ac.in [3] Bin Chen, General Principles of Law as applied by International Courts and Tribunals p. 333-335 (Cambridge University Press 2006).

Ishant S. Joshi and Vatsala Tyagi* Introduction The inclusion of Appellate Arbitral Tribunals (hereinafter: “ AAT ”) under Section 34A of the Draft Arbitration and Conciliation Amendment Bill, 2024 (hereinafter: “ Draft Bill ”) marks a transformative step in India’s arbitration regime. By allowing arbitral institutions to establish AATs to entertain applications for setting aside arbitral awards under Section 34 of the Arbitration and Conciliation Act , 1996 (hereinafter: “ Act ”), the draft bill introduces a two-tiered arbitration mechanism. While this possible insertion has the potential to enhance arbitration practices and reduce judicial intervention, it also brings significant challenges and ambiguities that require careful examination before the draft bill is brought before the parliament. The AAT, as envisioned in the draft bill, will derive its authority from the parties' consent. If parties opt for this mechanism, they effectively transfer the power of setting aside awards from the courts to the AAT. Furthermore, the provision retains the right to appeal under Section 37 of the Act. Codifying Two-Tier Arbitration Section 34A of the draft bill (hereinafter: “ Section 34A ”) has in essence, codified the judgment in M/S Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd . . The Supreme Court, in this case, upheld the validity of two-tier arbitration clauses, affirming the parties’ right to an appellate mechanism. By codifying this right through Section 34A, the draft bill can eliminate ambiguity regarding two-tier arbitration. By offering an appellate platform, the draft bill enhances India’s attractiveness as an arbitration-friendly jurisdiction, particularly for international commercial disputes. Impartiality and Composition of AAT A question may arise as to what is going to be the composition of the AAT? Some might be sceptical of the AAT because the same institution will decide on the award when it goes to appeal. For example, when an award is decided by DIAC, then if the parties opt for Section 34A, that same institution will decide on the validity of the award. These concerns can be mitigated by introducing a clause outlining the AAT's composition, which shall include both domain experts (e.g., specialists in fields like cement or medicine, depending on the case) and legal professionals like retired judges and lawyers. This dual composition ensures balanced decision-making, addressing both legal and technical conflicts effectively. In lieu of this, there are two approaches for the constitution of the appellate tribunal: (i) either the parties participate in choosing the arbitrators for the AAT, or (ii) the arbitral institutions alone are given this power. The latter ensures impartiality and independence, as the tribunal is constituted purely for review purposes. Although this may raise eyebrows in a party-oriented arbitration process, it aligns with the need for objectivity in appellate adjudication. Further, this approach will also preserve the institutions independence, reducing scope for conflict of interests. Moreover, Section 34(1B) of the draft bill further supports this approach by mandating the AAT to formulate specific grounds for appeals based on the award passed by the original tribunal, enabling skilled and focused adjudication. This seemingly limits party autonomy in so far as their right to challenge awards on other grounds. However, it is essential to sustain the valued traits of finality and time efficiency of arbitration. Addressing Limitation Periods Another challenge is posed by absence of a clear limitation period for invoking the AAT. The absence of a defined timeline for invoking the AAT could lead to procedural abuse and unnecessary delays. This shall undermine the paramount objective of streamlining the appellate process. The draft bill must also clarify the interplay of this limitation period with the enforcement of the original award. Inspiration can be drawn from international models such as the JAMS Optional Arbitration Appeal Procedure (hereinafter: “ JAMS ”)  and the AAA Optional Appellate Rules (hereinafter: “ AAA ”), which suspend enforcement of the initial award until the appellate process is concluded. The limitation period for the initiating enforcement shall only commence after the appellate award. The Bill must delineate such intricacies to prevent procedural inefficiencies. Applicability to Ad-Hoc Arbitrations Section 34A is not applicable to ad hoc arbitrations but only to institutional arbitrations. This exclusion risks fragmenting the arbitration landscape and undermining the uniformity of arbitration jurisprudence. Section 34A should be made applicable to ad hoc arbitrations, provided that parties adopt agreed-upon institutional rules or engage an arbitral institution, ensuring consistency with institutional arbitration practices. It could be mandated that parties engaging in ad hoc arbitration utilize the same arbitral institution or adopt identical arbitral rules if they wish to include an AAT clause under Section 34A. Extending Section 34A to ad hoc arbitrations, with appropriate safeguards, would ensure that all parties, irrespective of the arbitration’s nature, can benefit from the AAT framework. In light of this, it appears unnecessary for the AAT to be inapplicable to ad hoc arbitration proceedings. There appears no practical reason for this exclusion. Cross-Appeals: An Overlooked Necessity A critical oversight in the draft bill is its failure to address the need for a cross-appeal mechanism. A cross-appeal occurs when one party triggers the appellate arbitration clause (AAT), but the opposing party believes that the appeal is unlikely to yield meaningful results or that the issue at hand is too trivial compared to the cost and time involved in constituting an AAT and undergoing the appellate process, which is typically expensive. In such cases, as the draft bill currently stands, the opposing party would have no recourse but to be drawn into a lengthy and costly appellate process, with limited impact. To ensure fairness, the Draft Bill could incorporate a cross-appeal provision, allowing the opposing party a fixed period from the date an appeal is filed under Section 34A to submit a cross-appeal, thereby mitigating the risks of unnecessary escalation and ensuring a more balanced appellate process. Inspiration can be drawn from procedures such as the JAMS and AAA appeal procedures, both of which provide a seven-day window for filing a cross-appeal after an application for appeal is submitted to the appellate tribunal. Interaction with Time Limits for Awards The interaction between Section 34A and Section 29A of the Act, which governs time limits for arbitral awards, also warrants reconsideration. Under the current provision, in cases of domestic arbitration, the tribunal is required to deliver its award within 12 months from the date of completion of pleadings, with the possibility of an extension if both parties consent. Further extensions may be granted by the court. However, the inclusion of a two-tier arbitration process necessitates a revaluation of these timelines. A significant legal gap exists here as there is a lack of clarity on how the timelines for the arbitral award and the appellate process will interact. An appellate arbitration system is an additional procedural layer to the existing regime, which must be provided its exclusive time outlines. Drawing from international practices, the Draft Bill might better outline how the timelines should be adjusted in the context of a two-tier system. Without such provisions, the Draft Bill risks introducing more uncertainty and procedural delays, contrary to its intent of streamlining arbitration. The draft bill must account for the extended procedural framework that a two-tier arbitration system entails, ensuring that the prescribed time limits are both realistic and conducive to an efficient resolution of disputes. Enforcement Challenges Another significant issue pertains to the validity of enforcing the initial award while it is under challenge before the AAT. Leaving the matter of enforcement to the discretion of the AAT would unnecessarily prolong the arbitration process. Therefore, the statute must explicitly clarify the status of the initial award—rendered by the arbitral tribunal in the first instance—when a second-tier arbitration clause under Section 34A is invoked. Guidance can be drawn from international arbitral frameworks, such as JAMS and AAA appeal procedures both of which stipulate that the initial award cannot be enforced while an appeal is pending. This principle could be further expanded to include a provision stating that the initial award cannot be enforced until the expiration of the limitation period for filing an appeal before the AAT, a limitation period that should also be clearly defined in the bill. Financial Implications and Accessibility The financial implications of AAT proceedings also merit attention as the Draft Bill misses a crucial legal gap—how cost regulation mechanisms should be integrated into the Draft Bill. The resource intensive nature of such proceedings limits its accessibility for smaller parties or less complex disputes. Without such regulation, the Draft Bill risks skewing arbitration in favour of well-resourced parties, undermining the principle of equal access to justice. The current version does not offer any substantial protections for smaller or less-resourced parties in terms of capping the fees associated with the AAT process. Legal systems like the ICC have addressed this issue by capping costs for arbitration proceedings, ensuring broader accessibility and the Draft Bill can incorporate a legal framework similar to it to mitigate financial barriers.   Ensuring Exclusivity of the Appellate Arbitral Tribunal AATs can significantly ease the burden on the courts. However, the draft bill must explicitly state that under Section 34A, appeals must be made to the AAT rather than the court. The Draft Bill should include provisions that ensure exclusivity of the AAT as the first point of appeal, with judicial intervention allowed only in exceptional circumstances. Drawing from international arbitration practices where appeals are exclusively handled by specialized appellate bodies (e.g., ICC), the Draft Bill could propose incorporating a similar exclusivity clause to prevent redundant judicial oversight and ensure the AAT's intended role. Providing parties with an option to choose authority of appeal would be redundant and will make Section 34A superfluous. Impact of the Appellate Arbitral Tribunal on Grading of Arbitral Institutions Another concern is how the AAT interacts with the grading of arbitral institutions. The Arbitration Council of India (ACI) is tasked with grading arbitral institutions according to quality and overall performance. Additionally, arbitrators will need to familiarize themselves with this new statutory right available to parties. The impact of AAT on the grading process and overall quality of arbitration is yet to be observed. Moreover, the grading criteria must devise consistent and specific standards for appellate proceedings requiring arbitral institutions to meet specific standards for appellate processes, which would impact their grading. This will ensure India to become an arbitration friendly place for International Commercial Arbitration. . Ensuring Consistency in Interpretations Another critical shortcoming is the scope for varied  interpretations of Section 34(2) of the Act by different arbitral institutions. For instance, ground for public policy under Section 34 of the Act, could be construed differently by AATs of different arbitral institutions. Hence, it is essential to ensure that various AATs do not end up creating their own interpretations of established law.  This divergence affects the predictability of arbitration outcomes as parties may not know what to expect when their dispute reaches an AAT. The said dilemma can be addressed by including clear guidelines on the standardization of grounds for setting aside awards across different arbitral institutions. The said grounds can be developed by following legal precedents, such as M/S Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. , to suggest how a uniform approach could be implemented. Without such clarity, the Draft Bill risks creating a fragmented arbitration system, where parties face uncertainty about how different AATs may apply the law. Conclusion In conclusion, the AAT as envisioned under Section 34A of the draft bill is an innovative step in India’s arbitration journey. By addressing the challenges of judicial overreach and promoting institutional arbitration, the draft bill paves way to position India as a global arbitration hub. The draft bill can reduce the burden on courts and prevent judicializing of arbitration. However, its success hinges on resolving key ambiguities, such as limitation periods, enforcement mechanisms, and interpretative consistency. By incorporating clear guidelines and stakeholder feedback, the draft bill can create a robust and efficient appellate mechanism. *The authors Ishant S. Joshi and Vatsala Tyagi are 4th year and 3rd year B.B.A L .L.B (Hons.) students at National Law University, Odisha.

Tushar Verma and Ayush Bajpai [1]   INTRODUCTION The core objective of commercial dispute resolution is to resolve business conflicts efficiently and fairly. However, the first line of defense against such disputes is a well-drafted contract i.e. clear, precise, and comprehensive. The fundamental principle in contract drafting is that no provision should be assumed, implied, or left to interpretation without explicit articulation. Disputes often arise when parties interpret the same clause in different ways, leading to conflicts that require formal resolution. This article critically examines the evolving application of the doctrine of implied terms within the framework of Indian commercial arbitration. Further, it analyses recent judicial developments and proposes a balanced approach that upholds the sanctity of contractual interpretation while preserving the autonomy of arbitral proceedings. Henceforth, it becomes essential to consider certain principles that form the basis of the interpretation of a commercial contract. This article seeks to examine the following key issues (a) the extent to which arbitral tribunals may imply terms into commercial contracts, (b) the legal standards governing such implication, and (c) whether judicial oversight is warranted where tribunals apply these standards incorrectly or arbitrarily. The answer to the above inquiry is rooted in a fundamental principle: courts and tribunals may only imply a term in a contract when the express terms are absent, ambiguous, or fail to align with commercial business sense. In such circumstances, tribunals and courts often invoke principles such as the Business Efficacy Test and the Officious Bystander Test to interpret contractual terms and imply provisions necessary to give effect to the intended commercial transaction between the parties. However, any interpretation by the courts or tribunals must remain consistent with the express terms of the contract, ensuring that no distortion or unintended modification occurs. Principle Surrounding Contractual Interpretation: A. Business Efficacy Doctrine: The Contracting Parties often mistakenly assume that the express terms of a contract will always prevail. However, even a well-drafted commercial contract may contain gaps or inconsistencies. Despite Even in the presence of such omissions, the courts and Tribunals proactively strive to achieve a business common sense that gives effect to the intended transaction envisioned at the outset of the contract. In such cases, courts and tribunals often endeavour to ensure that the contract operates effectively and aligns with the parties' commercial intent i.e. the principle for Business Efficacy. This principle allows the interpretation of unstated contractual terms that reasonable businesspersons would have intended to include from the outset, and the objective is to ensure that the contract functions effectively, without placing an undue burden on either party in unforeseen circumstances. Under this doctrine, the question is not what the actual parties subjectively intended but what a reasonable person in their position would have agreed upon at the time of contracting. A key precedent is The Moorcock (1889) 14 PD 64 , where Bowen L.J. held that courts may imply terms necessary for the effective execution of the contract . Further, recently Hon’ble Apex Court, in Nabha Power v. Punjab State Power Corporation & Satya Jain v. Anis Ahmed Rushdie , reaffirmed this principle , emphasizing “that commercial contracts should be interpreted in line with the presumed intent of rational businesspersons” . For e.g., a retailer contracts with a supplier to purchase perishable goods but the contract doesn’t specify refrigerated transport. The supplier delivers in a regular truck, causing spoilage and financial loss. The retailer argues for an implied term that goods must be transported properly. Applying business efficacy, a court may imply this term, as both parties must have intended the goods to arrive in a saleable condition. To uphold the presumed intention of the parties while ensuring that courts and tribunals do not imply terms in a manner that undermines the transaction's intended efficacy which the parties would have intended at all events, the Apex Court in Nabha Power (Supra) established a structured approach for implying contractual terms, known as the Five-Prong (Penta) Test . This test, later followed in Investors Compensation Scheme Ltd. v. West Bromwich Building Society and Attorney General of Belize v. Belize Telecom Ltd. , requires that an implied term: (1) be reasonable and equitable, (2) be necessary for business efficacy, (3) be one both parties would have agreed to (Officious Bystander Test), (4) be capable of clear expression, and (5) not contradict any express contract provision. B. The Officious Bystander Test Drafting a commercial contract is a complex and technical task that demands the expertise of skilled legal professionals from both sides. Given the intricacies involved, it is often impractical to explicitly include every possible term within the contract. However, certain terms are so inherently understood in the context of business transactions that courts and tribunals have the authority to imply them when necessary. These implied terms reflect what any reasonable third party would naturally assume to be part of the agreement, thereby ensuring fairness and practicality in the interpretation of the contract. Hence, another widely applied test in contractual interpretation is the Officious Bystander Test , first articulated in Shirlaw v Southern Foundries wherein LJ Mackinnon quoted “ If, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a common ‘Oh, of course.”. Henceforth, the same was reinforced in Nabha Power (Supra) . The essence of this test is that if an uninvolved but knowledgeable third party were to suggest an omitted contractual term during negotiations, both parties would instinctively respond, "Oh, of course!" However, the principles governing the implication of terms in a contract must be carefully balanced against the principle of party autonomy. In some instances, such implied terms may conflict with the express provisions of the contract—particularly in cross-border arbitration. Cases such as Terre Neuve Sarl v Yewdale and Etihad Airways PJSC v Flother illustrate the complexities involved in determining commercial expectations and assessing business efficacy in international commercial agreements. For instance, consider a scenario where a chef leases a commercial kitchen from a landlord, but the contract does not explicitly mention a functioning ventilation system. After taking possession, the chef discovers that the ventilation is defective, rendering the space unsafe for cooking. The landlord refuses to make repairs, arguing that the contract contains no such obligation. In interpreting the agreement, a court would assess Firstly, whether the need for a ventilation system was foreseeable to both parties at the time of contracting. Secondly, whether the ventilation was so essential and obvious that its inclusion could be presumed i.e. officious bystander test (if, during negotiations, an outsider had asked, “Shouldn’t the kitchen have proper ventilation?”, both parties would likely have replied, “Of course!”), Lastly , the court would evaluate whether the absence of such a system defeats the commercial purpose of the contract—invoking the business efficacy test. If all these questions are answered in the affirmative, the court would likely imply the term and rule in favour of the chef. Furthermore, the Courts have applied this reasoning in cases such as Enercon (India) Ltd. v. Enercon GMBH wherein the tribunal implied terms to clarify the supply agreement’s functional intent, with the court subsequently upholding this interpretation under the narrow scope of judicial review to reinforce business efficacy and address contractual omissions.In the majority of cases, the two above-discussed principles operate in tandem, as the primary objective of implying a term is to reflect the true intent of the parties at the time of contracting and to uphold the efficiency & purpose of business transaction. Contractual Interpretation in Arbitration: Balancing Intent and Judicial Restraint: In arbitration proceedings, party autonomy is paramount. However, the question of whether arbitral tribunals can or should imply terms into a contract raises complex legal and doctrinal challenges. As discussed above, the interplay between the business efficacy principle and the officious bystander test plays a crucial role in interpreting commercial agreements. These principles help tribunals resolve ambiguities by identifying terms that reflect the parties’ shared intentions, thereby preserving commercial purpose without compromising the parties’ autonomy. In this context, the judiciary has consistently emphasized that arbitral tribunals must adhere to the contractual framework when resolving disputes. As in Associate Builders v. Delhi Development Authority it was held, that an arbitral tribunal must resolve disputes strictly within the terms of the contract. Failure to do so renders the award patently illegal. However, a tribunal’s reasonable interpretation of a contract cannot be overturned merely on the possibility of alternative view on facts and interpretation, and the courts can exercise their jurisdiction only to evaluate the tribunals reasoning on the ground of perversity and arbitrariness. Similarly, in Vestas Wind Technology India Pvt. Ltd. v. Inox Renewables Ltd. , the Bombay High Court upheld an arbitral award applying business efficacy principles to contractual interpretation. However, the doctrine of Error Within Jurisdiction limits judicial intervention in the Tribunal’s decisions. While the interpretation of contractual terms falls within the arbitrator’s domain, courts will not interfere unless the arbitrator exceeds their jurisdiction or interprets the contract in an unreasonable and arbitrary manner. This issue was examined by the Delhi High Court in Reliance Industries v. GAIL (India) Ltd. , where the court held that the principle of Business Efficacy Test cannot be applied by an appellate court u/s 37 of the Commercial Courts Act for interpretation of contractual terms. As the Hon’ble court emphasized that such proceedings have a very narrow scope and do not allow for reassessment of evidence or substitution of judicial opinion over the arbitral tribunal’s findings. Conclusion   This article establishes that whenever a dispute arises, courts and arbitral tribunals are empowered to interpret and, where necessary, imply terms to give effect to the true intent of the contract. Foundational principles such as the officious bystander test and the business efficacy doctrine serve as essential tools to ensure that such interpretations are both just and equitable. However, the exercise of this power demands careful judicial restraint and doctrinal precision to avoid encroaching upon party autonomy and the foundational principles of arbitration. Recent judicial trend, as seen in cases like Vestas Wind Technology India Pvt. Ltd. (Supra) , M/S Adani Power (Mundra) Ltd.  Vs.  Gujarat Electricity Regulatory Commission & Ors , & Nabha Power(Supra) highlights the judiciary’s increasing reliance on these doctrines to uphold commercial reasonableness. While the doctrine of “error within jurisdiction” limits judicial interference u/s 34 & 37 of the Act, courts can still set aside awards that are arbitrary or unreasonable. Further, as contracts are increasingly drafted using AI, interpretation becomes more complex. While AI reduces human error, it also obscures the human intent and reasonableness that traditionally guide contract formation. This makes the application of principles for interpretation more challenging. Additionally, varying arbitration frameworks such as those for cross border arbitration, MSMEs and PSUs require context-specific approaches, rather than a uniform standard. Thus, only a principled and restrained application of interpretative doctrines can ensure that arbitration remains an effective, party-centric method for resolving modern commercial disputes. [1] Tushar Verma and Ayush Bajpai are fourth-year B.A. LL.B. (Hons.) students at Dr. Ram Manohar Lohiya National Law University, Lucknow. They have a keen interest in commercial arbitration and contract law, actively engaging in research and writing on related topics. Their academic journey has involved contributing to legal research projects and participating in seminars and workshops focused on dispute resolution and contract interpretation.

- Abhay Raj & Shruti Avinash [1]   INTRODUCTION Blockchain technology and cryptocurrencies, with their decentralised structures and global reach, have reshaped economic interactions but also introduced complex legal challenges that demand tailored dispute resolution mechanisms. Arbitration, valued for its flexibility and confidentiality, has emerged as a preferred method for resolving blockchain-related disputes, yet it often struggles with enforcement and regulatory inconsistencies. This article critically examines the effectiveness of arbitration in addressing crypto and blockchain disputes, focusing on India while drawing insights from jurisdictions that have developed structured approaches, including the United Arab Emirates, Singapore, the United Kingdom, and the United States. By analysing regulatory frameworks such as the UAE’s Virtual Asset Regulatory Authority, Singapore’s Payment Services Act, the UK’s Financial Conduct Authority guidelines, and U.S. case law on digital assets, this article highlights key lessons for India. Additionally, it explores hybrid dispute resolution models that blend arbitration with litigation and online dispute resolution (“ ODR ”), aiming to develop more robust mechanisms that align with the evolving complexities of blockchain governance.   CHALLENGES IN BLOCKCHAIN DISPUTE RESOLUTION Unique Attributes of Blockchain Transactions Blockchain transactions present unique challenges for traditional arbitration, primarily due to the pseudonymous nature of participants and the decentralised structure of cryptocurrencies. The anonymity of parties makes it difficult to identify responsible entities, while the lack of clarity on jurisdictional boundaries complicates the application of legal frameworks. Platforms like Binance and Bybit , with their complex corporate structures, often blur lines of responsibility between different entities, further entrenching these issues.   Additionally, the rise of smart contracts, which execute autonomously based on pre-programmed code, introduces complexities in interpreting, executing, and enforcing agreements. The extreme volatility of crypto assets means that arbitration awards can quickly become irrelevant or outdated, undermining their effectiveness. With many arbitrators and judicial bodies unfamiliar with blockchain technology, traditional dispute resolution mechanisms struggle to adapt, highlighting the urgent need for more tailored approaches in the crypto space.   Arbitration – A Failed Method for Dispute Resolution Theoretically, arbitration is well-suited for resolving blockchain disputes due to its inherent flexibility, confidentiality, and the cross-border enforceability of awards under international frameworks. The ability to appoint arbitrators with expertise in blockchain technology and smart contracts ensures that complex technical issues are addressed by informed professionals.   However, as noted by practitioners like Panchamiya , these theoretical strengths often falter in practice. They argue that the pseudonymous nature of blockchain participants creates significant enforcement challenges , particularly in cases involving fraudsters or decentralised autonomous organisations, where identifying and holding responsible parties accountable is exceedingly difficult. This challenge is further compounded by the varying regulatory landscapes across jurisdictions, with some countries imposing strict regulations or outright bans on crypto assets. Such regulatory disparities add complexity to legal actions and the enforcement of arbitration awards, particularly when damages are ordered in cryptocurrency or fiat currency.   ODR Platforms - A Failed Method for Dispute Resolution  Emerging ODR platforms like Kleros and Aragon Court seek to overcome the limitations of traditional arbitration by harnessing blockchain technology and decentralised principles. These platforms use juror pools incentivised through game-theoretic mechanisms, where participants stake tokens to serve as decision-makers. Outcomes are rewarded or penalised based on alignment with majority rulings, providing a decentralised yet structured method for resolving disputes.   Although these systems have shown promise in resolving small-scale disputes, they face significant drawbacks . One major concern is the lack of legal expertise among jurors, which can lead to inconsistent and unpredictable outcomes, particularly in cases involving intricate contractual or technical issues. Moreover, ODR platforms typically incentivise jurors based on majority decisions, which undermines impartiality by encouraging jurors to align with the majority view rather than issuing an independent, fair verdict. This creates a situation where jurors may prioritise consensus over justice, especially in more complex cases.    For high-value or complex disputes, the absence of procedural rigor, institutional oversight, and enforceability significantly limits the practical utility of these platforms. Critics like Panchamiya , Chevalier and Schmitz argue that while ODR may align with blockchain’s decentralised ethos, it falls short of providing the institutional strength and reliability necessary to handle larger, more complex disputes effectively. These concerns highlight the need for a more balanced approach that incorporates the strengths of traditional dispute resolution mechanisms, such as arbitration and litigation, alongside the innovative potential of ODR.          Litigation – A Failed Method for Dispute Resolution Given the shortcomings of both arbitration and ODR platforms, scholars may advocate for litigation as the preferable option for resolving blockchain disputes. Litigation offers complementary strengths, especially in jurisdictions that recognise crypto assets as "property." Courts possess powerful tools for asset recovery, such as freezing orders and proprietary injunctions. This was exemplified in Fetch.ai Ltd v Persons Unknown , where the English courts granted injunctions to trace misappropriated crypto assets. Similarly, the Singapore High Court’s ruling in CLM v CLN and others highlighted the critical role of interim measures in preventing asset dissipation.    However, litigation is not without its challenges. Its public nature may deter parties seeking confidentiality, and cross-border enforcement remains a persistent issue . In India, for instance, the lack of specific procedural rules for crypto-related cases has led to inconsistent judicial outcomes, further discouraging stakeholders from viewing litigation as a reliable and effective option.   PROPOSING A HYBRID APPROACH TO BLOCKCHAIN DISPUTE RESOLUTION  The limitations of arbitration, ODR, and litigation as standalone solutions highlight the need for a hybrid approach to effectively resolve blockchain-related disputes. Arbitration, while flexible and confidential, often struggles with enforcement challenges and jurisdictional ambiguities. Similarly, ODR platforms, though aligned with blockchain’s decentralised ethos, frequently lack the expertise and procedural safeguards needed for complex disputes. Litigation, despite offering powerful tools like freezing orders and proprietary injunctions, is hindered by its public nature and inconsistent cross-border enforcement.    To address these gaps, a hybrid model must integrate the strengths of arbitration, courts, and online dispute resolution (ODR) while mitigating their weaknesses. Arbitration clauses should be drafted with greater clarity, explicitly defining governing laws, counterparties, and enforcement mechanisms to provide certainty in blockchain-related disputes, particularly in India, where regulatory uncertainty adds complexity. A well-crafted clause could specify that disputes be resolved under the rules of an institution like the Mumbai Centre for International Arbitration (MCIA), with the seat of arbitration in India and governing law aligned with the Information Technology Act, 2000, and relevant RBI or SEBI regulations. Given the technical nature of blockchain, arbitrators should have expertise in digital assets, and proceedings should allow blockchain-based evidence and smart contract executions as admissible proof. At the same time, ODR platforms must evolve with expert panels and procedural safeguards to ensure neutrality and competence, while courts refine tools for fraud prevention and cross-border asset recovery, enabling them to effectively tackle crypto-related enforcement challenges.   Harmonised international standards are essential to ensure the recognition and enforcement of blockchain-related decisions across jurisdictions. A promising innovation lies in embedding arbitration agreements directly within smart contracts. By enabling automated enforcement of awards, this approach can bridge the gap between traditional dispute resolution mechanisms and blockchain technology, streamlining processes and offering a tailored solution for the crypto space.    The Future of Blockchain Arbitration: Balancing Innovation with Practicality The future of blockchain arbitration depends on innovations that address its inherent limitations. Dincer’s concept of  Lex Cryptographia —a self-contained legal framework rooted in blockchain principles—presents a compelling vision for resolving disputes within the ecosystem. Embedding arbitration mechanisms directly into smart contracts could automate dispute resolution processes, offering unprecedented efficiency. For instance, a smart contract governing a token sale could include coded arbitration clauses that activate in the event of a breach, automatically appointing pre-selected arbitrators and executing their decisions without human intervention.   However, as scholars such as Chevalier and Schmitz have cautioned, this technological efficiency must not come at the expense of fairness. Procedural safeguards must remain integral to ensure transparency and equitable outcomes. Moreover, Lex Cryptographia's reliance on decentralised enforcement mechanisms raises potential conflicts with traditional judicial systems, particularly regarding enforceability. These challenges highlight the need for a harmonised approach that blends the innovative potential of blockchain technology with the procedural integrity of established legal systems.   Towards a Cohesive Regulatory and Arbitration Framework for Blockchain Disputes Globally, jurisdictions have begun adapting to the unique challenges posed by crypto disputes, providing valuable lessons for India. The United Arab Emirates, emerging as a global hub for cryptocurrencies, demonstrates a forward-thinking approach. Regulatory bodies like the Virtual Asset Regulatory Authority have introduced guidelines that seamlessly incorporate arbitration into crypto governance frameworks. Additionally, the Abu Dhabi Global Market and the Dubai International Financial Centre have established mechanisms that facilitate blockchain arbitration, showcasing how proactive and robust regulatory infrastructures can effectively address the complexities of emerging technologies.    Additionally, Vietnam offers further lessons: while cryptocurrencies are not recognised as legal tender, disputes involving blockchain transactions are addressed through arbitration and litigation. Notable cases like  Case No. 22/2017/HC-ST  underline the importance of clear regulatory definitions, offering a potential roadmap for India to clarify the legal status of cryptocurrencies and establish effective dispute-resolution mechanisms.   Arbitration’s adaptability is particularly crucial in addressing cross-border disputes, where jurisdictional conflicts are common. Binance, for example, currently relies on arbitration clauses ( Clause 32.1, Terms of Use, 03 June 2024 ) through the Hong Kong International Arbitration Centre, showcasing how arbitration can provide a neutral forum for resolving disputes involving global stakeholders. This approach allows for a streamlined process and ensures that parties from different jurisdictions can resolve their disputes in an impartial and structured environment. However, these clauses also reveal the limitations of arbitration, particularly in enforcing awards against pseudonymous or non-cooperative parties. The challenge becomes even more pronounced when assets are held in jurisdictions that do not recognise or enforce the arbitral process, raising concerns about the practical efficacy of arbitration in certain cross-border contexts. This underscores the need for innovative solutions to enhance the enforceability and reach of arbitration in the evolving landscape of international disputes.   INDIA’S REGULATORY LANDSCAPE FOR CRYPTOCURRENCIES  India’s regulatory framework for cryptocurrencies is marked by uncertainty and an evolving legal landscape. Initially, the Reserve Bank of India imposed a blanket ban on cryptocurrency transactions in 2018. This ban, however, was overturned by the Supreme Court in the landmark case of Internet and Mobile Association of India v Reserve Bank of India , providing temporary relief to crypto stakeholders. Despite this significant ruling, subsequent regulatory measures have failed to establish a comprehensive framework for cryptocurrency governance.   The Finance Act, 2022 introduced taxation for virtual digital assets, signalling the government’s recognition of the crypto market’s existence, but it stopped short of clarifying their legal status. This piecemeal approach has left crypto businesses and users navigating an ambiguous regulatory environment, impacting investor confidence and long-term growth prospects in the sector.   The interplay between public policy and arbitration is equally significant, particularly in India, where landmark cases like Renusagar Power Co. Ltd. v General Electric Co. and ONGC Ltd. v Saw Pipes Ltd. have shaped the concept of public policy. When it comes to cryptocurrencies, public policy considerations can influence the enforceability of arbitration awards. For example, if cryptocurrencies are deemed illegal under Indian law, awards involving such transactions risk being set aside for violating public policy. To address these challenges, arbitration agreements must explicitly account for potential conflicts with local laws, ensuring awards remain enforceable while navigating the evolving legal landscape of blockchain technology.    India’s fragmented regulatory landscape highlights the urgent need for integrative approaches to foster trust and stability in its rapidly growing cryptocurrency sector. Hybrid dispute resolution models can play a pivotal role in bridging regulatory gaps. For instance, regulators could adopt frameworks that blend arbitration with court oversight, ensuring enforceable outcomes while retaining the flexibility required by blockchain stakeholders. Collaborative efforts between the Securities and Exchange Board of India and the Reserve Bank of India could further support the establishment of specialised tribunals for crypto disputes, harmonising financial regulations with modern arbitration practices.   In India's cryptocurrency market, dispute resolution mechanisms vary across platforms, with exchanges like WazirX implementing specific processes to address user conflicts. WazirX, for instance, has established a Peer-to-Peer (P2P) dispute resolution system designed to ensure secure and transparent transactions. This system employs an escrow mechanism where WazirX holds the seller's USDT (Tether) until the transaction is successfully completed and payment is confirmed by both parties. In cases where disputes arise, either party can raise a dispute after a specified period, prompting WazirX's dispute team to intervene. The team swiftly verifies proofs of payment from both the buyer and seller, following a multi-check process to ensure accuracy. This approach aims to provide a fair and final decision to settle disputes, typically within 48 hours. Additionally, in July 2022, WazirX introduced a Payment Proof Collection feature to streamline the process of collecting evidence from buyers and sellers in case of disputes. This enhancement mandates both parties to submit proof when raising a dispute, thereby reducing the time required for resolution and enhancing the overall efficiency of the P2P transaction process.   However, the Indian cryptocurrency landscape has faced significant challenges, as exemplified by the 2024 cyberattack on WazirX, which resulted in the loss of approximately $234 million. In response, WazirX proposed a Scheme of Arrangement under the Singapore Companies Act to restructure its liabilities and provide users with a clear path to optimised recoveries. The scheme includes rebalancing remaining cryptocurrency assets to match liabilities associated with the platform and aims to distribute assets efficiently to affected users.   This regulatory ambiguity also extends to the arbitrability of crypto-related disputes under the Arbitration and Conciliation Act, 1996 . As per the principles outlined in Vidya Drolia v Durga Trading Corporation , disputes that involve public interest or are classified as actions in rem are non-arbitrable. The unresolved classification of cryptocurrencies under Indian law—as property, securities, or commodities—further complicates this issue. Without clear legislative definitions, disputes involving crypto assets risk being categorised as non-arbitrable, undermining arbitration’s efficacy as a mechanism for resolving such disputes.   To address these challenges, India needs a clear regulatory framework that defines the legal status of cryptocurrencies, establishes governance guidelines, and ensures enforceability in dispute resolution. Collaboration between the RBI and SEBI is essential to classify cryptocurrencies and delineate regulatory oversight. Inspired by models like Singapore’s Payment Services Act, India could introduce licensing requirements, AML/KYC compliance, and consumer protection measures. Additionally, specialised crypto dispute resolution tribunals, integrated with arbitration and court oversight, could streamline enforcement. Incorporating blockchain-based mechanisms like smart contract arbitration could further enhance efficiency. A cohesive approach will foster trust, stability, and India’s leadership in the global crypto ecosystem.   CONCLUSION Blockchain’s decentralised nature fundamentally reshapes the way disputes are addressed, exposing limitations in traditional dispute resolution methods. While arbitration offers flexibility and neutrality, it must evolve to address procedural and enforcement challenges inherent in the crypto ecosystem. Technological advancements, such as blockchain’s transparency and immutability, present promising avenues for enhancing arbitration, but these innovations must ensure fairness and procedural rigour to gain widespread acceptance.   The integration of arbitration, litigation, and ODR into a hybrid model represents the most viable path forward, combining the strengths of each approach to address the complexities of blockchain-related disputes. India’s evolving regulatory landscape, supported by international examples and technological innovations, can serve as a foundation for creating robust and harmonised dispute resolution frameworks. As blockchain adoption accelerates, the legal community must prioritise the development of dynamic, hybrid solutions that balance efficiency, fairness, and enforceability. By embracing these innovations, stakeholders can ensure sustainable growth and legal certainty in the rapidly expanding digital economy. [1] Abhay Raj, an Associate at TLP Advisors and Senior Staff Editor at The Arbitration Workshop, can be reached at rajabhayuk@gmail.com . Shruti Avinash, a final-year student at NALSAR University of Law Hyderabad and Junior Editor at The Arbitration Workshop, can be contacted at shrutiavinash7@gmail.com .

*Vaibhav Yadav This article discusses the interrelationship between investment arbitration and environmental issues. The subject of environmental protection in arbitration has been overlooked. However, with time, it has become evident that examining the link between environmental protection and arbitration is significant. Initially, arbitral tribunals ignored environmental concerns in arbitration, but recently, tribunals have started considering these issues more seriously. Environmental matters in investment matters are raised either through a claim or a counterclaim. The integration of environmental concern into arbitration is complex and lacks flexibility. It is crucial that environmental issues are no longer ignored in matters related to investment arbitration. This article examines how arbitral tribunals address the integration of environmental concerns and investment arbitration, drawing on the landmark case of Perenco v. Ecuador. It emphasises the need to strike a balance between investment arbitration and environmental protection. It also explains how the tribunal awarded compensation to the investor while at the same time holding the investor accountable for environmental harm. Introduction The issue of investment arbitration and the environment is emerging as an important concern at the global level. Environmental concerns were ignored in most bilateral investment treaties which were signed before 2000. Most treaties from that period lack provisions for environmental protection. However, bilateral treaties signed after 2000 have included provisions for environmental protection, granting the host state the right to make the rules for protecting the environment. For example, the Morocco and Nigeria Bilateral Investment Treaty includes provisions for environmental preservation. The definition of investment now expressly includes sustainable development. Environmental principles are gradually becoming a responsibility for investors in bilateral investment treaties. [1] For instance, the Brazil-Malawi Bilateral Investment Treaty imposes responsibilities on investors to protect the environment. Tribunals are increasingly prioritising sustainable development in cases where conflicts arise between investment arbitration and environmental concerns. For example, in the case of Chemtura v. Canada, the tribunal ruled that the investor must adhere to sustainability principles and avoid harming the host state's environmental resources. Perenco v. Ecuador  is a landmark case which addresses the conflict between environmental protection and investment arbitration. [2]   Background Perenco, a French oil company, and Burlington, another foreign oil company, had contracts with Petroecuador, Ecuador's national oil company controlled by the Ecuadorian government. Perenco oil company operated two oil blocks and began earning substantial profits due to the oil prices. However, subsequently, Ecuador enacted Law No. 42, imposing a 99 per cent tax on Perenco earnings. Perenco initially paid the tax but later opposed it. The Ecuador Government terminated Perenco's contract and sought to negotiate a new one.  The Ecuadorian government wanted to formulate a new contract with Perenco. Petroeuador took control of the oil block previously operated by Perenco. The Ecuador Government also filed a case in a local court to recover taxes from Perenco. [3] Main Issue Perenco alleged that the Ecuadorian government had violated the France-Ecuador Bilateral Investment Treaty by imposing a disproportionate tax of 99 per cent on its earnings and committed illegal expropriation. Perenco had made allegations against Ecuador that it had committed illegal expropriation. Consequently, Perenco had filed a claim with ICSID for arbitration. Ecuador countered, alleging that Perenco caused environmental damage and polluted the oil block sites. Accordingly, Ecuador had filed a counterclaim against Perenco in ICSID for arbitration. [4] Proceedings of  the Tribunal An arbitral tribunal consisting of three arbitrators was established. The tribunal granted an interim measure to Perenco, directing Ecuador to halt the local court case against Perenco. In 2011, the tribunal confirmed its competence to hear the matter. In 2014, the tribunal determined that Ecuador was held liable for disproportionate treatment. [5] According to the Tribunal, Ecuador violated provisions of the bilateral investment treaty by imposing an unreasonable tax on Perenco's earnings. The Tribunal also found Ecuador liable for Expropriation due to the cancellation of the Perenco contract. The Arbitral Tribunal held Perenco liable for the environmental damage caused by its operations, which disturbed the natural resources of the Amazon region. [6] Award by Arbitral Tribunal Perenco had sought $ 1.5 billion in damages from the Ecuadorian government for breaching the bilateral investment treaty.  However, the tribunal awarded $ 449 million to Perenco for disproportionate treatment by the Ecuadorian government and illegal expropriation. An important factor for higher compensation was Ecuador's failure to adhere to the interim measures of the tribunal, and Ecuador had continued legal proceedings against Perenco in its local courts. [7] The Tribunal awarded Ecuador $54 million for its counterclaim against Perenco. In the related Burlington case, Ecuador had already been awarded $ 39 million. The Burlington case is connected to the Perenco case, which is why the tribunal granted Ecuador an award of $54 million in the Perenco case. [8] Ecuador had also filed a counterclaim for damage to the oil block, but the tribunal denied it, stating that an award for damages to the oil block had already been granted in the Burlington case. The Burlington and Perenco cases are connected with each other because both companies operated similar oil blocks and faced similar issues. [9] Appointment of Expert by the Tribunal The Tribunal appointed an independent expert to determine environmental damages. The tribunal appointed an independent expert for a fair assessment of the environmental damages, without any prejudice or partiality. Both Perenco and the Ecuador government had appointed their expert for the assessment. The tribunal awarded environmental damages based on evidence provided by its appointed expert. The Tribunal also referenced Ecuador’s constitution and local law, which emphasised strict liability for environmental damage, highlighting the priority given to environmental conservation in Ecuador. [10]   Counterclaim in ICSID Article 46 of the ICSID Convention states that a counterclaim can be filed in a matter which is connected with a substantial issue of a case. It means that if parties agree to ICSID arbitration, then a counterclaim can be filed only if it is connected with a substantial issue of the case. In the case of Perenco v. Ecuador , the environmental counterclaim was allowed because it was directly related to the investment issues raised in the arbitration. [11] A. Issue of Environmental Counterclaim in Perenco v. Ecuador The case of Perenco v. Ecuador is unique for addressing an environmental counterclaim. This case is a rare example where an environmental counterclaim has been held in favour of the host state. The Tribunal has given various reasons for the imposition of environmental damage. The tribunal observed that states have significant freedom to formulate and amend environmental rules to conserve their environment. [12] The Tribunal highlighted the impact of the 1992 Rio Declaration on Ecuador’s domestic environmental laws. In the Burlington case, the tribunal observed that there is a stronger environmental rule in the local law of Ecuador. In the Burlington case, the tribunal awarded $93 million for environmental damage and also granted damages for harm caused to the oil block sites. The Burlington and Perenco cases were interconnected to their issues and operations, resulting in awards of $ 54 million and $ 39 million, respectively, for environmental damages. [13] B. Approach of the Tribunals Regarding Environmental Counterclaim Tribunal adopted various approaches to deal with environmental counterclaims. In the Burlington case, the tribunal ordered an inspection of the damaged oil block areas to determine the impact of the oil company's operations on the soil and land. On the other hand, in the Perenco case, the tribunal was actively involved in environmental matters. [14] In the case of  David   Aven et al v. Costa Rica , the issue of environmental counterclaim was raised. In this case Costa Rica had filed a counterclaim against the foreign investor's claim for damage caused to the environment. In this case, the tribunal refused to deal with the matter of the environmental counterclaim due to procedural errors and the counterclaim was not presented within a reasonable period of time. All the above cases prove that there has been an evolution of tribunals for dealing with matters of environmental counterclaims. Now, tribunals are imposing liability on foreign investors for causing damage to the environment and this can also deter foreign investors from causing damage to the environment. [15] C. Environmental Restoration Fund When the tribunal awarded Ecuador damages for environmental harm, Perenco suggested the creation of an environmental restoration fund to restore the damaged Amazon sites. Ecuador agreed to the suggestion of Perenco. The tribunal had not agreed to the suggestion and said that it is competent only to award environmental damage. The tribunal said it is not competent to give direction for the creation of the environmental restoration fund. [16] Although both parties agreed to the creation of an environmental redemption fund, the tribunal should have considered issuing an order for the establishment of an environmental restoration fund. If there is a proper check of the tribunal, then it could ensure that an environmental restoration fund could be effectively used for the restoration of damaged Amazon sites. Without oversight, awarded damages may not be used for restoring damaged Amazon sites. It would be commendable that tribunals award environmental damages and provide further guidance on their enforcement and utilisation in order to enhance their effectiveness. [17] Conclusion The determination of Perenco v. Ecuador exhibits that environmental issues are significant to investment arbitration. Previously, when issues were related to environmental damage, the tribunals generally ruled in favour of the foreign investor. But the recent approach of tribunals is showing that they are increasing support for host states when environmental damage is caused. The Perenco case emphasised that there can be a complex interplay between investment arbitration and environmental protection. Bilateral investment treaties should expressly include sustainability provisions, such as environmental impact assessment, responsibility of the investor for the protection of the environment etc. Provisions related to sustainability should be favourable for the host state and the foreign investor. Foreign investors should be actively involved in discussions about sustainability rules to be included in treaties. [18]   The Tribunals should adopt a uniform approach in connection with matters related to environmental counterclaims. There should not be contradictory approaches of tribunals while dealing with matters of environmental counterclaim. The tribunals should address environmental damage in investment arbitration after properly examining the evidence provided by the parties to the case. [19] *Vaibhav Yadav is an LLM student at NLU Delhi. [1]  Nikolaos Voutyrakos ‘Investment Arbitration and Environmental Protection: A Critical Look?’’ Arbitration Academy [2]  Id., [3]  Jason Rudall, ‘The Tribunal with a Toolbox: On Perenco v. Ecuador, Black Gold and Shades of Green’(2020) 11 Journal of International Dispute Settlement 485-500. [4]  Id., [5]  Id., [6]  Id, [7]  Id., [8]  Id., [9]  Id., [10]  Id., [11]  ICSID Convention, art 46. [12]  Id., [13]  Id., [14]  Supra at 13. [15]  Id., [16]  Id., [17]  Id., [18]  Id., [19]  Kirtin Bahaguna and Likshika Sahni, ‘Harmonising Profit and Planet:Rethinking Environmental Counterclaims in Investor- State Arbitrations’ ( Cambridge International law Journal, November 23, 2023).

Gargi Bindal [1] Introduction The Indian jurisprudence has taken commendable steps to establish a pro-arbitration stance . However, the deviation from this pro-arbitration stance has been displayed in SC’s recent judgment, Delhi Metro Rail Corporation v. Delhi Airport Metro Express Private Limited [“ DMRC v. DAMEPL ”]. This judgment has raised concerns as an arbitral award was set aside at the fifth level of scrutiny by invoking curative jurisdiction. . This concern has become more pronounced following the ruling in Gayatri Balasamy v. ISG Novasoft , where the Supreme Court held that courts possess limited powers to modify arbitral awards under Sections 34 and 37 of the Indian Arbitration and Conciliation Act, 1996. In Gayatri Balaswamy , while the majority recognised instances like severability, clerical errors, and post-award interest modifications, the dissent by Justice Viswanathan strongly cautioned against merit-based intervention, echoing the very apprehensions that surfaced in DMRC v. DAMEPL . This judgment, therefore, both reaffirms and restricts the contours of court involvement, providing new interpretive clarity to the phrase ‘judicial interference’. Background In 2008, DMRC awarded the Airport Metro contract to DAMEPL, but disputes led to arbitration. In 2017, INR 3000 crore award was passed in DAMEPL’s favour, eventually set aside by the SC in its curative jurisdiction.   Stage Timeline Description Stage 1 March 2018 Challenge to the arbitral award Under Section 34 of the Arbitration Act, 1996 [" the Act "], DMRC contested the award before a single judge of the Hon’ble High Court of Delhi [" DHC "]. The DHC rejected the challenge and upheld the arbitral award observing that the award was reasonable and no intervention was necessary. Stage 2 Jan 2019 Appeal under Section 37 The award passed in favour of DMRC was partially set aside by the Ld. Division Bench of DHC due to patent illegality after DMRC challenged the Judgment passed by the Ld. Single Bench of the DHC under Section 37 of the Act. Stage 3 September 2021 Special Leave Petition [“SLP”] before SC DAMEPL, aggrieved with the order passed by Ld. Division Bench exercising its jurisdiction under Section 37 of the Act, filed a SLP. The SC upheld the DMRC award, stating that it was neither blatantly unlawful nor perverse. Stage 4 November 2021 Review Petition before SC DMRC filed a Review Petition which was dismissed. Stage 5 April 2024 Curative Petition before SC SC allowed the Curative Petition [“CP”] filed by DMRC and set aside the award on the ground of patent illegality. At the stage of CP, the SC conducted a merit-based evaluation of the award, finding the Tribunal had ignored key evidence and contractual terms. After seven years, it set aside the award, directing DAMEPL to return INR 2800 crores received from DMRC during execution. Deconstructing the matter In the DMRC case , the judgment debtor managed to get the award set aside by SC in the exercise of the CP on the grounds of miscarriage of justice and perverse illegality. However, this interpretation overlooks several essential factors being:- 3.1 Jurisdictional Overreach The CP should not have been allowed in the instant case to overturn the arbitral award, which was upheld after three rounds of litigation. The judgment in Rupa Hurra v. Ashok Hurra outlined two exhaustive grounds for allowing a CP: a breach of natural justice principles or the presence of bias on the part of the judge.  It also introduced the test of ‘manifest injustice’, emphasizing that a CP should only be entertained in rare cases. In this context, the reasons cited by DMRC for contesting the award in the CP, such as assertions that the defects did not significantly impact obligations under the Agreement and that DMRC had taken practical steps to address the deficiencies, were purely factual in nature and thus outside the inherent power of SC . However, the SC allowed the CP by analysing the facts afresh to conduct a factual analysis, ultimately reaching a conclusion that could be viewed as an alternative perspective. In doing so, the Court exceeded its restricted jurisdiction and overlooked its established precedents , which have consistently upheld that contract interpretation is solely the responsibility of the arbitrator. Further, by applying the test of manifest injustice, the court intervened and deviated from the principles of Rupa judgment. 3.2 Delay in Enforcement The fifth round of review in the DMRC case contradicts the principle of prompt enforcement of arbitral awards. The parties chose arbitration with the expectation that their case would be resolved quickly . However, the present case compounds the challenges faced by the decree-holder, who remains entangled in multiple rounds of litigation despite receiving a favourable award. The SC, while considering the SLP in the DMRC case , underscored the significance of prompt enforcement of arbitral awards. It duly noted that under Article 136 , the interference must be spare and only when exceptional circumstances exist. However, it went against that principle while considering the CP. This brings India back to the position of the White Industries case , whereby despite having the ICC award in favour of White Industries and against Coal India, the award could not be enforced for approximately 10 years. More recently, the Antrix- Devas dispute has similarly highlighted persistent challenge in the enforcement of foreign arbitral awards in India. 3.3  Impact on Business Climate The DMRC judgment would negatively impact the cost of doing business in India. The SC's observation of not burdening the public utility with significant financial liability is exceptionally flawed because if the public exchequer argument were applied to commercial disputes, private companies would lose trust in Arbitration Such an approach effectively adopts a differential standard of enforcement for public sector undertakings, compromising the neutrality and finality that arbitration is designed to provide. This not only distorts the level playing field between public and private parties but also compromises investor confidence in India’s arbitration framework, as private firms might view arbitration against government entities as inherently biased. This ruling may also deter foreign investors from selecting arbitration seated in India, leading them to prefer arbitration in other jurisdictions in their contracts with Indian Government companies, with the hope of limiting the interference of Indian Courts. Pro enforcement approach of SC India has sought to establish itself as a pro-arbitration jurisdiction by reversing infamous decisions such as Venture Global ,   Phulchand Exports , and Bhati Case . To emphasise judicial non-interference, several judgments have been delivered- such as Vijay Karia , where the principle of non-interference with foreign awards was upheld. In Vedanta , it was reiterated that minimal judicial intervention should be the objective, while Avitel reaffirmed India’s pro arbitration stance, emphasising the need for limited judicial interference in the enforcement of foreign arbitral awards. The Court set a high threshold for challenging awards based on alleged arbitrator bias and underscored the importance of timely objections and robust enforcement mechanisms in international arbitration. Despite these efforts, the DMRC judgment deviates from India’s pro-enforcement trajectory. The rationale behind such deviation was that the Court concluded that the Tribunal had not properly given due consideration to contractual provisions and important evidence under the concession agreement. This extensive merits review and intervention deviated from contemplated minimal judicial intervention under the Act departed from the prevailing pro- arbitration approach. By allowing such intervention and delay, the judgment risks setting a precedent that undermines the finality of awards, thereby weakening the confidence of investors in India’s arbitration framework. Comparative analysis with other jurisdictions While Indian Courts have made significant strides towards a pro-arbitration approach, their practice is still inconsistent, particularly in the case of public policy or claims of procedural infirmity. A comparative analysis helps illustrate the spectrum of judicial mindsets around the world and provides benchmarks for assessing India’s arbitration regime. 5.1  Singapore The Singapore Courts adopt a narrow and rigorous interpretation of the statutory grounds for setting aside awards. The Pacific Richfield Marine case , encapsulates Singapore's stance by stating that the power to set aside awards should be exercised rarely.  Further, enforcement policy in Singapore is so vigorous that in cases like CHY v. CIA , the Singapore Courts rejected the application to set aside any award even when the award was contrary to Singapore’s Public Policy. This approach reflects the prevailing judicial philosophy of minimal intervention in arbitral awards. However, Indian Courts have shown inconsistent approach with judicial intervention still being a huge concern. 5.2  China In recent years, China’s arbitration has experienced rapid growth, accompanied by significant efforts to foster a more arbitration-friendly judicial environment. A report analyzing data from 2012 to 2022 indicates that over the past decade, the courts in the People's Republic of China have fully recognized and enforced more than 90% of foreign awards presented to them, with nearly half of these cases being resolved within six months. Compared to India, China has shown a more structure approach towards enforcement of award. 5.3  United Kingdom The Commercial Court in the United Kingdom generally adopts a non-interference approach to arbitration whenever possible. The Court recognises that the primary aim of the Arbitration Act 1996 is to "significantly reduce the extent of court intervention in the arbitral process." Excessive court involvement undermines the finality of arbitral awards and reduces the effectiveness of international arbitration as a reliable dispute resolution mechanism. As a result, the success rate for applications challenging awards with a seat in London is relatively low, standing at approximately 11% for applications filed in 2019-2020. Judicial Intervention in India is more frequent compared to the UK, impacting its reputation as an arbitration hub. Conclusion The SC, by exercising its inherent power under the CP, has defeated the ends of pro-arbitration jurisprudence. The extreme interference of the court in conducting a merit-based analysis of an arbitral award defies the stance of the hands-off approach taken by the court in the last 10 years. Excessive judicial intervention and strict enforcement undermine the efficiency of arbitration and make it into unpredictable traditional litigation. Thereby reducing the trust of private parties and foreign investors in doing business in India. The judiciary has been promoting the culture of commercial arbitration and ought to take inspiration from countries such as Singapore, China, Hong Kong and the United Kingdom to adopt a hands-off approach with minimal judicial intervention. This would help prevent delays like those observed in the DMRC case and ensure the smooth enforcement of arbitral awards. [1] Gargi Bindal is a final-year law student at the Institute of Law, Nirma University. She has a keen interest in arbitration law, constitutional law, and commercial law. Gargi has honed her legal research and advocacy skills through participation in prestigious national and international moot court competitions, including the Willem C. Vis International Commercial Arbitration Moot (Vienna), the Herbert Smith Freehills Moot, and the B.R. Sawhney Memorial Moot etc. She can be reached at  gargibindal05@gmail.com .

- Arnav Doshi & Jugaad Singh I. Introduction The much awaited Draft Arbitration and Conciliation (Amendment) Bill, 2024 (‘ Draft Amendment ’) carried with it high expectations to bolster the pro-arbitration regime in India. The enforcement of interim measures by foreign-seated tribunals in India has been one such issue which was expected to be rectified by the Expert Committee – as it remained unaddressed in earlier amendments and discussions.   The current framework suffers from a disparity between interim measures passed by arbitral tribunals governed under Part I of the Arbitration and Conciliation Act, 1996 (‘ Act ’) (Indian-seated tribunals) and those passed by arbitral tribunals governed under Part II of the Act (Foreign-seated tribunals). While interim measures by Indian-seated tribunals can be directly enforced under Section 17(2) of the Act, to the extent that it has been deemed to be an order of the Court under the Code Of Civil Procedure, 1908 (‘ CPC ’), there exists a legislative vacuum for the enforcement mechanism exists for interim measures by foreign-seated tribunals. This has been acknowledged by the Delhi HC in Raffles Designs International India v Educomp Professional Education (para 98).   The Bombay HC judgment in HSBC PI Holdings (Mauritius) Limited v Avitel Post Studioz Limited   had provided much needed respite by allowing parties to a foreign-seated arbitration to seek relief for such interim measures before the courts under Section 9 of the Act. Alas, cases such as Bharat Aluminum Co. v. Kaiser Aluminum Technical Services (‘ BALCO ’) ensured that Section 9 would apply only to arbitrations under Part I of the Act. The 246th Law Commission Report took cognizance of this vacuum and a proviso was inserted to Section 2(2) by the Arbitration and Conciliation (Amendment) Act, 2015, making Section 9 the established route for enforcement of interim measures by foreign-seated tribunals.   Unfortunately, in a bid to minimize recourse to the courts in arbitration matters, the Draft Amendment completely obviates any recourse for the enforcement of interim measures passed by a foreign-seated tribunal, by limiting the parties from filing an application under Section 9 during the pendency of an arbitral proceeding. The authors seek to examine the existing framework (II) in contrast with the proposed amendment and its potential consequences on India’s reputation as an arbitration hub (III). The authors shall further examine the existing methods of enforcement in other jurisdictions and propose solutions to prevent a remediless situation for parties seeking the enforcement of interim measures (IV). II. Existing Framework on Interim Measures in Foreign-Seated Arbitration Within the existing framework under the Act, Section 17, akin to Section 9, empowers the arbitral tribunal to issue interim reliefs. However, the reliefs granted under Section 17 are confined to Part I of the Act, and thus, to Indian-seated arbitrations. As previously mentioned, prior to the 2015 Amendment, the challenges to the enforcement of interim measures by foreign-seated tribunals originated from the decision of the Constitutional Bench in BALCO . However, in deciding that the application of Section 9 would be circumscribed to Part I of the Act, the bench addressed the grievance that the exclusion of the application of Section 9 to foreign seated arbitrations, would result in great hardship to parties who were in need of interim measures – by tellingly observing that it was an issue to be redressed by the legislature.  The Delhi High Court in Shanghai Electric Group Company Limited v. Reliance Infrastructure Limited (‘ Shanghai Electric ’) succinctly encapsulated the issue at hand - “ Unlike Section 17, there is no corresponding provision under the Act for enforcement of interim orders passed by a foreign tribunal. The Act only contemplates enforcement of foreign awards (and not foreign interim orders). ”   Pertinently, Section 17H of the UNCITRAL Model Law on International Commercial Arbitration (‘ UNCITRAL Model Law ’) states that, “ An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal… ”. In the wake of BALCO , the 246th Report by the Law Commission of India proposed an amendment to Section 2(2) of the Act which was subsequently enacted vide the Arbitration and Conciliation (Amendment) Act, 2015 by way of a proviso to Section 2(2). The proviso allowed the provisions of Section 9 to apply to international commercial arbitration, even if the place of arbitration is outside of India (foreign-seated tribunals). Such application was subject to the underlying agreement, i.e., whether the agreement allowed recourse to Indian courts under Section 9. This amendment led to ambiguity regarding whether such an agreement must be implied or express and has resulted in multiple judgements by courts. However, a discussion on such exclusions is outside the scope of this discussion, which pertains to foreign seated arbitrations where the agreement does not exclude the applicability of Part I of the Act.   The Supreme Court in Mankastu Impex Private Limited v. Airvisual Limited  reaffirmed the intent of the newly amended Section 2(2) to allow for the application of Section 9 from Part I to international commercial arbitration. Thereby, resolving the “remediless” vacuum of enforcement of interim measures by foreign-seated tribunals by establishing Section 9 as the appropriate route for grievance redressal.   In a similar vein, the Division Bench in Ashwani Minda and Another v. U-Shin Limited and Another ruled that the principles of Section 9 of the Act are “ equally applicable when interim measures are sought in the Indian courts in connection with a foreign-seated arbitration .” The  Delhi HC too, in Shanghai Electric clarified that the import of Section 2(2) proviso of the Act specifically makes the provision of Section 9 applicable to foreign-seated arbitral tribunals. Therefore, in view of the ineffective remedy under Section 17 of the Act, Section 9 permits parties seeking interim relief before or during the arbitration. III. Analysis of the Proposed Amendment to Section 9 of the Act In the Draft Amendment, the proposed amendment to Section 9 of the Act (‘ Proposed Amendment ’) replaces the words “or during” with the words “the commencement of”. In doing so, it allows the courts to entertain an application under Section 9 of the Act only prior to the constitution of the arbitral tribunal and after the making of an arbitral award prior to its enforcement under the provisions of the Act. Therefore, parties would be restricted from approaching the court under Section 9 during the pendency of the arbitral proceedings. As discussed in the previous sections, this Proposed Amendment does not affect Indian-seated arbitrations as the Act deems an interim measure by an arbitral tribunal to be akin to an order by a court under the CPC in terms of its enforcement. However, for foreign-seated tribunals, which do not enjoy the benefit of direct enforceability of interim orders and had to rely on Section 9 of the Act, the change stymies enforcement of interim measures during the pendency of the arbitral proceedings. If the subject matter of the dispute or the concerned assets are located within India, there would be no recourse for the affected party to safeguard the same till after the arbitral proceedings are completed. While the intention behind this change might have been to streamline the arbitration process in India , it has come into conflict with practical challenges, leaving parties involved in foreign seated arbitration vulnerable and without recourse to Indian courts.   In light of these developments, a question arises whether such an amendment would be in line with India’s obligations under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘ New York Convention ’).  Article III of the New York Convention provides that each contracting state shall recognize arbitral awards as binding and enforce them as per the domestic rules of procedure. Despite the New York Convention being silent on the issue of interim orders , it allows for enforcement of such interim awards which have the characteristic of ‘finality’.         Further, the Proposed Amendment does not align with the principles of comity of international law and the New York Convention, which thereby impacts India’s aspirations to be an arbitration friendly jurisdiction for international commercial arbitration. The absence of a clear recourse to Indian courts for the enforcement of interim orders could be perceived by potential foreign investors as a major drawback. Such a perception may discourage them from choosing India as a seat for arbitration or from engaging in commercial transactions governed by Indian law. Additionally, this concern is not limited to foreign investors alone—it could also deter other parties who might otherwise prefer arbitration as their preferred mode of dispute resolution for commercial contracts. The resulting chilling effect could ultimately hinder the development of arbitration as a robust and reliable mechanism for resolving cross-border disputes within the country.   IV. Proposed Solutions for Direct Enforceability of Interim Measures by Foreign Tribunals To incapsulate the problem at hand, the Proposed Amendment will effectively curtail access to the courts during the duration of the arbitral proceedings to obtain an interim measure in a foreign-seated arbitration. This would be the final straw towards the dismantling of an enforcement mechanism which already lacks direct enforceability and, in its stead, even an adequate standard for adjudication of reliefs.   The simplest method of rectification to the Proposed Amendment would be to introduce a ‘carve in’ provision in the amendment to Section 9(1) which would allow parties in foreign-seated arbitrations to approach courts for interim relief at any stage of the arbitration.   This would retain the intention of circumventing unnecessary recourse to the courts during the pendency of domestic arbitral proceedings when the relief sought after could be provided by a directly enforceable order by the tribunal under Section 17 of the Act. Meanwhile, a ‘carve-in’ would allow enforcement of interim measures by a foreign-seated tribunals, and consequently, prevent such interim reliefs from becoming an ‘inefficacious remedy’. The act of resolving inefficacious remedies through Section 9 of the Act is one which has been carried out before by the Delhi High Court in Bhubaneshwar Expressways v. National Highways Authority of India . In this case, the HC allowed the petitioner to file a Section 9 application for interim relief as the tribunal was non-functional due to the recusal of one of the arbitrators. The HC explained the principle that if the alternative remedy is inefficacious and a party is suffering hardships, the courts can extend the remedy available to the parties.  A carve-in would greatly reinforce the principle of providing an efficacious remedy.   Despite a carve-in being introduced, the problem of direct enforceability of interim measures by foreign-seated tribunals still persists. Section 17H of the UNCITRAL Model Law provides for direct enforcement of interim measures by foreign seated tribunals. Within national legislations, only Section 61 of the Hong Kong Arbitration Ordinance , 2011 and Section 17L of the New Zealand Arbitration Act, 1996 make arbitral orders and directions directly enforceable in the same way as judgment of court. In contrast, despite being pro-arbitration hubs, several nations such as Singapore, the UK, and the USA reject the concept of direct enforceability of interim measures by an arbitral tribunal. It is a perfectly understandable stance for a sovereign State to disallow the same owing to complex international relations and the possibility of such measures having unintended or ‘inappropriate’ effects which may go against national interests or public policy of the State.   Therefore, adopting a mechanism of direct enforceability of interim measures by foreign seated tribunals, like that of Hong Kong or New Zealand, may not be apposite in the Indian arbitration milieu. Hence, by way of the proposed solution, a standard of adjudication could be adopted thereafter to allow for effective and efficient recognition and enforcement of interim measures by foreign-seated tribunals.   V. Conclusion The Draft Amendment was aspired to resolve the conundrum concerning the enforcement of interim measures granted by foreign-seated tribunals. However, not only has the Proposed Amendment disturbed the parchment safeguard implemented by the courts but also in effect estops parties from enforcing interim reliefs granted by a foreign-seated tribunal. Thus, the intended purpose of an amendment to Section 9 of the Act has been further diluted.   As a relief measure, the Draft Amendment is at the stage of public consultation with the possibility of rectification of the Proposed Amendment. In view of same, the authors urge reconsideration of the Proposed Amendment basis the prejudice and hinderance caused to parties on account of a direct bar on the enforcement of interim awards once the arbitration proceedings have commenced. Considering the Indian courts have ex facie allowed the enforcement of interim awards rendered by foreign-seated tribunals, the ‘carve-in’ recommendation to Section 9 of the Act, as a welcome change, would entail parties to approach courts at any stage to enforce interim awards.