International commercial arbitration has grown dramatically as the preferred mechanism for resolving cross-border disputes involving Indian parties. The reasons are well-understood: party autonomy, confidentiality, enforceability of awards under the New York Convention, and the ability to select a neutral forum and law. But navigating arbitration involving India — whether seated in India or abroad — requires a detailed understanding of the Arbitration and Conciliation Act, 1996, as amended multiple times, and India's evolving judicial approach to arbitration.
The Seat vs Venue Distinction: Why It Matters Enormously
One of the most litigated issues in Indian arbitration is the distinction between the seat and venue (or place) of arbitration. The seat determines the curial law — the procedural law governing the arbitration — and the supervisory jurisdiction: the court that has supervisory jurisdiction over the arbitration is located at the seat. The venue is merely the physical location where hearings are held.
Indian courts, after significant judicial development culminating in the Supreme Court's landmark ruling in BGS SGS Soma JV v. NHPC Ltd. (2019), have firmly adopted the principle that where parties have designated a seat, that court has exclusive supervisory jurisdiction. This has resolved years of uncertainty but also makes seat selection in arbitration clauses critically important for Indian contracts.
Popular Institutional Rules for India-Related Arbitrations
SIAC (Singapore International Arbitration Centre) rules remain the most commonly used institution for India-related international arbitrations, particularly in private equity, M&A, and technology transactions. ICC (International Chamber of Commerce) rules are popular for large infrastructure, energy, and construction disputes. LCIA (London Court of International Arbitration) is frequently used in financial services and banking matters. DIAC (Dubai International Arbitration Centre) has gained traction for Gulf-India commercial transactions.
For domestic arbitrations, the Mumbai Centre for International Arbitration (MCIA), Delhi International Arbitration Centre (DIAC), and the newly constituted India International Arbitration Centre (IIAC) are the principal institutional choices.
Section 9: Interim Measures from Indian Courts
Even in international arbitrations seated outside India, Indian courts retain jurisdiction to grant interim measures under Section 9 of the Arbitration Act where the seat is outside India but a party or the subject matter of the dispute has a connection to India. The 2015 amendments restricted Section 9 applications after an award is passed to situations where the arbitral tribunal's order is not effective, but this remains a powerful protective mechanism during the pendency of arbitration.
Enforcement of Foreign Arbitral Awards in India
India is a party to the New York Convention (1958) and the Geneva Convention (1927). Foreign awards from Convention countries are enforceable in India under Part II of the Arbitration Act. The grounds for resisting enforcement are narrow: lack of notice, award beyond the scope of submission, procedural irregularity, invalidity of the arbitration agreement, non-arbitrability, or violation of Indian public policy.
The "public policy" ground has historically been the most expansive basis for resisting enforcement in India. After years of broad judicial interpretation, the 2015 amendment and subsequent Supreme Court jurisprudence have significantly narrowed the public policy exception, limiting it to fraud, corruption, contravention of fundamental policy of Indian law, and conflict with basic notions of morality and justice.
Arbitrator Selection: A Critical Decision
In international arbitrations involving Indian law or Indian parties, arbitrator selection is arguably the most consequential strategic decision. For a three-member tribunal, the two co-arbitrators typically agree on the presiding arbitrator. The presiding arbitrator's familiarity with Indian commercial law, their procedural approach, and their track record in managing complex document-intensive proceedings are all critical factors.
Our Arbitration Practice
Satyam Dwivedi has appeared as counsel in JAMS arbitration seated in California, ICC-referenced matters, and SIAC-seated arbitrations, in addition to domestic arbitrations before tribunals constituted under Indian institutional rules. For strategic advice on arbitration clauses, emergency applications, or ongoing arbitration proceedings, get in touch.