Court’s decision
The Delhi High Court dismissed an appeal challenging an interim anti-arbitration injunction and upheld the Single Judge’s order restraining continuation of an ongoing ICC arbitration. The Court held that deliberate non-disclosure by a nominated arbitrator of his prior professional involvement with the appellant and its promoter vitiated the arbitral process, rendering its continuation oppressive and unconscionable. It further ruled that despite Singapore being fixed as the “place” of arbitration by the ICC Court, the juridical seat remained New Delhi by virtue of the exclusive jurisdiction clause, thereby preserving the supervisory jurisdiction of Indian courts .
Facts
The dispute arose out of a sub-contract executed in September 2015 between an Indian public sector enterprise and an Oman-based defence systems integrator for execution of a border security project on the Oman–Yemen border. The agreement contained an arbitration clause providing for arbitration under ICC Rules, exclusive jurisdiction of courts at New Delhi, and left the place of arbitration to be mutually agreed.
Disputes arose regarding delays and performance, leading to invocation of arbitration in April 2023. The appellant nominated a Singapore-based Senior Counsel as its co-arbitrator. In his mandatory declaration under the ICC Rules, the arbitrator disclosed that he had nothing to declare.
The ICC Court later fixed Singapore as the place of arbitration. Proceedings continued and a First Partial Award was rendered in June 2024, imposing a financial liability of approximately ₹30 crore on the respondent.
In January 2025, the respondent discovered that the nominated arbitrator had earlier acted as a co-arbitrator in a separate arbitration involving the appellant and its promoter, a fact not disclosed at the time of appointment or thereafter. This led to challenges before the ICC Court and the Singapore High Court, both of which declined to terminate the arbitrator’s mandate, though the ICC Court termed the non-disclosure “regrettable”.
Apprehending bias and alleging abuse of process, the respondent instituted a civil suit in Delhi seeking an anti-arbitration injunction. The Single Judge granted interim relief restraining continuation of the arbitration, prompting the present appeal.
Issues
The core issues before the Division Bench were whether Indian courts had jurisdiction to grant an anti-arbitration injunction despite Singapore being fixed as the place of arbitration, whether the arbitration seat was India or Singapore, and whether non-disclosure by an arbitrator justified injuncting arbitral proceedings at an interim stage.
Appellant’s arguments
The appellant contended that Singapore was the seat of arbitration and therefore Indian courts lacked jurisdiction. It argued that the respondent had already invoked remedies before Singapore courts and ICC forums, and the suit in India amounted to forum shopping. Reliance was placed on Supreme Court precedents on foreign-seated arbitration to argue that anti-arbitration injunctions were impermissible. It was also argued that the issue of bias had already been adjudicated by the ICC Court and Singapore courts, attracting principles of res judicata and judicial comity.
Respondent’s arguments
The respondent submitted that the agreement expressly vested jurisdiction in courts at New Delhi, making India the juridical seat. It argued that fixation of Singapore as the “place” of arbitration was only for convenience and could not override the contractual jurisdiction clause. On merits, it was contended that deliberate suppression of a prior professional relationship by an arbitrator was per se fatal under Indian law, especially after the 2015 amendments to the Arbitration and Conciliation Act. Continuation of arbitration with a tainted tribunal, it was urged, would cause irreparable prejudice.
Analysis of the law
The Court undertook a detailed analysis of arbitration jurisprudence distinguishing seat and venue. It reiterated that the seat determines the supervisory court and applicable public law standards governing arbitration. Where an agreement confers exclusive jurisdiction on Indian courts and leaves the place of arbitration open, later fixation of a venue by an arbitral institution does not displace the juridical seat.
The Court further examined Section 12 of the Arbitration and Conciliation Act, emphasising that disclosure obligations are mandatory, continuous, and objective, and cannot be diluted by institutional rules or an arbitrator’s subjective assessment of materiality.
Precedent analysis
The Bench analysed leading Supreme Court authorities including BGS SGS Soma, BALCO, Mankastu Impex, and Brahmani River Pellets, distinguishing them on facts. It held that those decisions did not bar civil court jurisdiction where the seat is in India or where fundamental principles of impartial adjudication are violated. Reliance was also placed on Dhulabhai to reaffirm plenary civil jurisdiction in absence of express statutory exclusion.
Court’s reasoning
The Court found that the arbitration clause, read holistically, clearly designated New Delhi as the seat by conferring exclusive jurisdiction on its courts, while ICC Rules governed only procedure. Article 19.2 dealing with Omani law was held to relate only to performance of the contract, not dispute resolution.
On non-disclosure, the Court took a strict view, noting that the arbitrator consciously withheld disclosure even after becoming aware of the conflict, stating that disclosure might invite a challenge. This, the Court held, struck at the very foundation of neutrality. Under Indian law, non-disclosure itself is sufficient to vitiate the process, irrespective of whether actual bias is proved.
The Court also upheld the Single Judge’s finding that the appellant’s conduct demonstrated a pattern of procedural aggression, rendering the arbitration oppressive and justifying an exceptional anti-arbitration injunction.
Conclusion
Dismissing the appeal, the Delhi High Court upheld the interim injunction restraining continuation of the ICC arbitration. It affirmed that Indian courts had jurisdiction, that New Delhi was the juridical seat, and that deliberate non-disclosure by an arbitrator warranted judicial intervention to preserve the integrity of the arbitral process. The appeal and connected applications were disposed of accordingly .
Implications
This judgment is a landmark reaffirmation that arbitral autonomy cannot override mandatory standards of impartiality under Indian law. It clarifies that institutional decisions on venue or challenges do not oust the supervisory role of courts at the seat. The ruling will have significant impact on international commercial arbitrations involving Indian parties, particularly on disclosure norms and the availability of anti-arbitration injunctions in exceptional cases.
Case law references
- BGS SGS Soma JV v. NHPC – Distinguished on determination of seat versus venue.
- BALCO v. Kaiser Aluminium – Held inapplicable where seat is in India.
- Dhulabhai v. State of Madhya Pradesh – Reaffirmed plenary civil court jurisdiction.
- Brahmani River Pellets v. Kamachi Industries – Interpreted “place” in arbitration clauses contextually.
FAQs
1. Can Indian courts grant anti-arbitration injunctions in ICC arbitrations?
Yes, in exceptional cases where arbitration is oppressive or violates fundamental principles, especially when the seat is in India.
2. Does fixing a foreign place of arbitration make it a foreign-seated arbitration?
No. Venue fixation by an institution does not override an exclusive jurisdiction clause indicating an Indian seat.
3. Is non-disclosure by an arbitrator sufficient to stop arbitration?
Yes. Under Indian law, deliberate non-disclosure itself can vitiate arbitral proceedings.