Arbitration

Arbitration is now the ordinary forum for high-value commercial disputes in India and, increasingly, for cross-border matters involving Indian parties. It offers confidentiality, decision-makers chosen for their familiarity with the subject matter, procedural flexibility, and in most cases a shorter route to a determination than a suit.

It also forgives very little. An arbitral award is not appealable on the merits. The grounds on which it can be set aside are narrow and are construed narrowly. A case that is under-prepared at the pleadings stage, or that leaves the record incomplete before the tribunal, is generally beyond repair by the time it reaches Section 34. Arbitration rewards early work and punishes deferred work.

August Attorneys LLP acts for claimants and respondents in domestic, institutional and international arbitration, and in the court proceedings that surround it — appointment, interim relief, challenge and enforcement.

What We Do

  • Pre-arbitration assessment — construction of the arbitration agreement, whether the dispute falls within it, the seat and venue, the applicable institutional rules, limitation, and whether arbitration is in fact the right route
  • Appointment and constitution — applications under Section 11 for appointment of an arbitrator, challenges to appointment, and objections to jurisdiction under Section 16
  • Ad hoc arbitration — proceedings under the Arbitration and Conciliation Act, 1996 as amended in 2015, 2019 and 2021
  • Institutional arbitration — DIAC, ICC, LCIA, SIAC and other institutional rules
  • Pleadings — statements of claim and defence, counterclaims and set-off, built on the documents rather than on assertion
  • Interim relief — applications under Section 9 before the court and Section 17 before the tribunal, and appeals under Section 37 against orders granting or refusing interim measures
  • Hearings — examination and cross-examination of factual and expert witnesses, and written submissions
  • Challenge and enforcement — petitions under Section 34 to set aside an award, enforcement under Section 36, and appeals under Section 37
  • Foreign awards — enforcement under Part II of the Act; Chapter I governs New York Convention awards and Chapter II governs Geneva Convention awards
  • International arbitration — Indian law advice to parties in arbitrations seated abroad, and representation of foreign parties in India-seated international commercial arbitration

The Statutory Framework

The Arbitration and Conciliation Act, 1996 has been amended three times — by the Amendment Act of 2015, the Amendment Act of 2019, and the Amendment Act of 2021. Each shifted the balance between tribunal autonomy and court supervision. The 2015 amendment introduced Section 29A on timelines, Section 31A on costs, and the patent illegality ground in Section 34(2A). The 2019 amendment altered the timeline structure and introduced Section 23(4). The 2021 amendment provided for an unconditional stay of enforcement where the award or the underlying agreement is induced by fraud or corruption, and omitted the Eighth Schedule.

Timelines under Section 29A.  For arbitrations other than international commercial arbitration, the award must be made within twelve months of the completion of pleadings under Section 23(4) — not, as was the position before 2019, from the date the tribunal enters upon the reference. The parties may extend that period by consent by a further six months, and thereafter only by application to the court. For international commercial arbitration the twelve-month period is not mandatory: the proviso to Section 29A(1) requires only that the award be made as expeditiously as possible, with an endeavour to conclude within twelve months. The Supreme Court confirmed this reading in Tata Sons v. Siva Industries and Holdings.

Section 23(4) itself requires the statement of claim and defence to be completed within six months of the arbitrators receiving written notice of their appointment. In practice the pleadings timetable therefore drives the award timetable, which is a reason to treat the first two months of an arbitration as decisive rather than preliminary.

Setting Aside and Enforcement

Section 34 is not an appeal. The grounds are those in Section 34(2) — incapacity of a party, invalidity of the arbitration agreement, want of proper notice, the award dealing with matters beyond the scope of the submission, irregular composition of the tribunal or irregular procedure, non-arbitrability, and conflict with the public policy of India. Section 34(2A) adds, for domestic awards only, that an award may be set aside if vitiated by patent illegality appearing on the face of the award; the proviso to that sub-section expressly bars setting aside merely for an erroneous application of law or on a reappreciation of evidence.

We advise candidly on challenge prospects. Most awards survive Section 34, and a challenge brought without a ground that fits the section consumes time and costs while the award accrues interest. Where a ground does exist, it must be identified precisely and pleaded precisely — a challenge drafted as a general complaint about the tribunal’s conclusions is unlikely to succeed however strongly it is felt.

Cross-Border Matters

For arbitrations seated outside India, we advise on the Indian law elements — the enforceability of the eventual award in India, interim protection of Indian assets, and the position of Indian parties and Indian-law contracts — and co-ordinate with independent law firms in Dubai, Singapore, the United Kingdom and the United States. Advice on the law of the seat is given by lawyers qualified there.

Mr. Shailendra Singh is additionally registered in Part II of the DIFC Courts’ Register of Practitioners in Dubai (provisional, pending first appearance), which is of direct relevance to enforcement and to disputes with a Gulf dimension.

Where Arbitration Is Not the Answer

Not every commercial dispute is best resolved by arbitration. A structured negotiation, a mediation, or a properly drafted pre-action notice sometimes achieves more, faster and at lower cost — particularly where the commercial relationship is worth preserving. Mr. Singh is a mediator trained under the Mediation and Conciliation Project Committee of the Supreme Court of India and empanelled with the Supreme Court Mediation Centre, and the firm assesses at each stage whether the arbitration continues to serve the client’s objective or whether an alternative should be put on the table.

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Can an arbitration clause be enforced if the contract containing it is disputed?

Generally yes. The doctrine of separability, given effect by Section 16 of the Act, treats the arbitration clause as an agreement independent of the contract in which it sits. A challenge to the validity of the main contract does not by itself displace the arbitration clause, and the tribunal is competent to rule on its own jurisdiction.

The grounds are confined to Section 34(2) — and, for domestic awards, patent illegality on the face of the award under Section 34(2A). Indian courts construe these narrowly, and an award is not open to challenge merely because the court would have decided the dispute differently.

For arbitrations other than international commercial arbitration, Section 29A requires the award within twelve months of the completion of pleadings, extendable by six months with the parties’ consent and thereafter only by the court. Pleadings must themselves be completed within six months of the tribunal receiving notice of appointment. For international commercial arbitration the twelve-month period is an endeavour rather than a mandate.

Enforcement abroad depends on the law of the enforcing jurisdiction. India is a party to the New York Convention, and awards may be enforced in other Convention states subject to the grounds of refusal recognised there. We advise on enforcement strategy in co-ordination with lawyers qualified in the relevant jurisdiction.

This page is provided for general information about the firm’s areas of practice. It is not legal advice, and no advocate–client relationship arises from reading it or from an enquiry. The law stated is current as at the date of publication and may change.