A. The Undefined Sufficiency Standard

The Court recognises that tribunals may recall where parties show “sufficient cause” for fee default but provides no guidance on the standard. Is the test subjective (this party cannot pay) or objective (a reasonable party could not pay)? Does good-faith dispute over fee reasonableness qualify? The present case illustrates the gap acutely: the arbitrator dismissed the appellant’s financial incapacity claim without examining financial records, and the Court does not resolve whether initial consent to Schedule IV methodology extends to revisions triggered by a subsequent counterclaim.

B. The Ambiguous Scope of Section 14(2) Review

Section 14(2) review of “whether the mandate stood legally terminated” could mean procedural regularity (did the tribunal follow Section 38’s requirements?) or substantive correctness (was the incapacity claim credible?). Afcons forecloses substantive fee review, suggesting Section 14(2) is cabined to procedural compliance. Yet if termination is procedurally flawless but recall was denied without examining financial evidence, it remains unclear whether the court may review the reasonableness of that denial; the boundary between reviewing justification and reviewing fee substance is one the Court leaves unresolved.

C. The Rigidity of Binary Termination

The Court emphasises that termination carries permanent consequences absent successful recall or Section 14(2) challenge. Yet absolute finality may prove too rigid when parties genuinely dispute fee calculations or face temporary payment obstacles.

The present case illustrates this. The appellant claimed the Rs. 82 crore counterclaim was inflated to weaponize fees. The respondent was willing to pay its own share but refused to subsidize. The tribunal had no tools to assess whether the appellant’s incapacity was credible or strategic, whether counterclaim valuation was reasonable, or whether severing the proceedings, continuing on the original claim while suspending adjudication of the disputed counterclaim, might serve justice better than total termination. Two years of proceedings were extinguished because neither party would fund fees inflated by a counterclaim the appellant contested as tactical.

The overlap of ASF Buildtech and Section 14 exposes a structural tension. While arbitration law endorses consolidation of composite disputes across corporate groups, insolvency law mandates separation. On admission of CIRP, proceedings against the subsidiary are stayed, However, the arbitration may continue against solvent group entities under the expanded Group of Companies doctrine. The problems with this fragmentation are clear: liability within corporate groups is often coextensive or derivative, arises from guarantees, integrated contractual arrangements and obligations. Adjudicating the liability of one entity in isolation risks inconsistent determination.

Consider a composite arbitration in which, a claimant initiates arbitration against a subsidiary (the primary obligor) and its Parent (the non-signatory guarantor) under the Group of Companies doctrine. Upon the subsidiary’s admission into CIRP, the arbitration against it is stayed by Section 14. However, the proceeding continues against the solvent parent. The claimant is now forced to prove the subsidiary’s underlying default before an arbitral tribunal to hold the Parent liable, while simultaneously proving the exact same debt as a “claim” before a Resolution Professional (RP) in the CIRP.

Comparative jurisdictions have adopted calibrated thresholds to prevent jurisdictional severance while preserving objective of insolvency legislations. For example in Singapore, the Court of Appeal in AnAn Group (Singapore) Pte Ltd v. VTB Bank adopted a “prima facie” standard as per which, the insolvency proceedings are ordinarily stayed if the debt is subject to a “prima facie” valid arbitration agreement. This approach gives priority to initial determination of the debt in the contractually designated forum, preventing insolvency proceedings from superseding arbitral adjudication at the threshold.

The position of United Kingdom was articulated in Sian Participation Corp v. Halimeda International Ltd, where, the Privy Council held that winding-up proceedings are displaced by an arbitration clause where the debt is genuinely disputed on substantial grounds. This approach distinguishes clear default from complex commercial disputes without permitting tactical obstruction. Globally, guidelines by United Nations Commission On International Trade Law i.e. UNCITRAL Model Law on Enterprise Group Insolvency (2019) recognises the need for coordinated adjudication across group enterprises. While the Indian judiciary in Videocon Industries has recognized the doctrine of substantive consolidation in exceptional cases, it remains subject to strict limits and is yet to receive formal statutory recognition. Consequently, a standardized legislative framework for coordinated adjudication remains absent in the Indian context.

The Keppel Seghers case illustrates a growing division between the conduct-based approach of France and the other principal jurisdictions where textualism is applied rigorously.

In England & Wales, In stark contrast to Paris, English courts maintain that where a hierarchy clause resolves a conflict, it must be enforced. The 2025 decision in Tyson International Company Ltd v GIC Re, India EWHC 77 illustrates this.

An‍‌‍‍‌ English Commercial Court issued an anti-arbitration injunction as a result of a “hierarchy clause” in the contract that referred the matter to the document containing a clause giving jurisdiction to the court in case of conflict between the arbitration clause. According to English law, the written hierarchy is final, and conduct will hardly change express ‍‌‍‍‌terms.

In India, Indian jurisprudence has travelled a similar path as France but through statutory interpretation. In the landmark Glencore International AG v. Shree Ganesh Metals (August 2025) case, the Supreme Court of India made it clear that the arbitration agreement was in effect even though the respondent had not signed the contract.‍‌‍ The Court ruled that the exchange of correspondence and performance of the contract (accepting goods) satisfied the “in writing” requirement of Section 7 of the Arbitration Act.

In Singapore, DMZ v DNA SGHC 31, exemplifies the High Court’s reaffirmation of the concept of party freedom under the written regulations selected by the parties. ‍

Although Singapore law permits arbitration agreements to be in any form, the judiciary usually demands that the actions be solidified in a written document. Singapore courts, when encountering disputing clauses, undertake meticulous interpretation as opposed to a wide “common intention” exception, frequently supporting the particular written provisions unless the opposing evidence is very strong.

The first argument is that indemnity costs could deter meritorious challenges, which would result in a “chilling effect” on parties having valid grievances. Should parties seeking to set aside an award know that they faced a possibility of incurring the other party’s legal costs in full, would they still pursue a meritorious claim in challenging an award?

However, this concern is overstated. It is contradicted by empirical evidence from Hong Kong. Despite having a strong costs regime, their success rate for setting-aside applications is only 22%, very close to Singapore’s 23%. This suggests that a stricter costs regime does not necessarily produce a significant chilling effect on meritorious challenges.  However, success-rate comparisons alone cannot conclusively establish deterrence, as that would require behavioural evidence such as survey-based data.

Moreover, truly meritorious cases involve genuine irregularities or jurisdictional defects that should be apparent from the award and record. Parties with legitimate claims can make informed assessments of their prospects.

Second argument pertains to the fact that in the U.S., the tradition of parties bearing their own costs is a different conception of access to justice. Fee-shifting is seen as deterring rights-enforcement and creating barriers.

This argument has less weight in the setting-aside context. Setting-aside proceedings are a form of appeal from private adjudication that parties contractually chose. The policy considerations that favour broad access to initial dispute resolution do not apply with equal force to what is essentially an appeal of a privately-rendered decision. Also, even American law recognizes exceptions for bad-faith litigation. Courts possess inherent authority to sanction parties for frivolous filings under Federal Rule of Civil Procedure 11.

While the case of Mohan Lal Fatehpuria restores statutory timeline discipline to arbitration, it has certain drawbacks. Firstly, a rigid timeline, if followed, without adequate flexibility may in certain cases undermine the very efficiency it aims to foster. In first instance, substitution of an arbitrator may appear to be an elegant solution. However, when applied practically, it is accompanied by procedural and practical complexities. Arbitration has never been a linear process, it includes prolonged pleadings, complicated hearings and voluminous documents. When substituted, a new arbitrator may not be able to seamlessly adopt to the existing record, majorly in complex disputes. Depending upon the stage of proceedings, the newly appointed arbitrator may be compelled to re-examine large portions of the record or rehear arguments to understand the underlying issue. So, what was established as a time-saving mechanism may result in additional delay of months, including the burden of paying arbitral fees more than once.

Furthermore, the legitimacy of an arbitral proceeding significantly rests on party autonomy as a foundational principle, namely the parties’ freedom to choose their own judge. Although party autonomy is necessarily subject to statutory limitations and public policy considerations, the rigid enforcement promoted in Mohan Lal Fatehpuria creates the risk of dilution of this principle, mostly in situations where parties consensually agree to limited delay due to complexity or good faith conduct of the tribunal. If courts are empowered to substitute arbitrators without the consent of the parties frequently, it may give rise to perceptions of increased court supervision, thereby shifting arbitration closer to court-monitored process. Such repeated intervention by courts could create the risk of a rigid and slow arbitral proceeding which may blur the line between a tedious litigation process and arbitration.

Another concern that arises is that the fear of substitution may force the arbitrators to priortise speed over substance. When faced with a strict statutory termination, the arbitrators may cut back necessary oral arguments or reject adjournment requests just to beat deadlines. It can worsen as it may pressurize the adjudicator to deliver cut-paste awards, judgement which is rushed, unreasoned or poorly drafted. While such awards may satisfy Section 29A, however, later on it can invite inevitable challenges under Section 34 of the Act. An award delivered on time but set aside later for lack of reasoning will not serve the ends of justice.

Finally, the ruling may also open avenues for strategic abuse. Despite availability of judicial safeguards, such as refusing substitution where delay is attributable to the applicant imposing costs, the termination of mandate under Section 29A can still be misused as a tactical device. A respondent who feels they are about to lose the case, now have a tactical incentive to manufacture delay through frivolous applications or procedural obstructions, only to invoke Section 29A later. Parties may use the expiry of the mandate not as a genuine grievance against delay but an excuse to oust a strict arbitrator hoping court would substitute a lenient arbitrator. It creates a risk of the provision being misused rather than acting as a safeguard, undermining its intended purpose.  

This judgment is a major doctrinal clarification in Indian arbitration law. By resolving conflicting High Court decisions, it restores predictability and procedural certainty, both essential for arbitration to function as an efficient alternative to litigation.

The judgment resists the temptation to recentralize arbitration around constitutional courts. Section 11 is treated as a gateway function, not a supervisory one, aligning Indian law with international arbitral best practices. Additionally, the Court’s insistence on adhering to Section 2(1)(e) reflects disciplined statutory interpretation. Allowing “context” to be shaped by judicial discomfort with hierarchy would have opened the floodgates to ad hoc jurisdictional reasoning.

Furthermore, Section 29A was introduced to combat delay. Channeling every extension application to High Courts merely because they appointed the arbitrator would defeat this legislative purpose and overburden constitutional courts.

The judgment is significant not merely for resolving this conflict, but also for its reaffirmation of foundational principles of arbitral autonomy, statutory interpretation, and the limited nature of judicial intervention in arbitration. By rejecting a hierarchy-based and “contextual” deviation from the statutory definition of “Court”, the Supreme Court reinforces the Act’s structural coherence and reiterates that jurisdiction flows from statute, not judicial status.

The situation concerning both “old” fossil fuels and “new” critical minerals as a result of the dual surge of disputes is nothing less than the traditional investment protection standards being put to unbearable and fundamentally contradictory stress. The Fair and Equitable Treatment (FET) standard, an ‘absolute’ and ‘non-contingent’ standard, is the most prominent and heavily litigated norm in international investment law.

The crux of the legal conflict has always been the investor’s wish for a stable regulatory environment versus the state’s indefeasible, sovereign “right to regulate” for the public good. It is a conflict that is now far from being just a hypothetical academic debate; it has become the principal issue in the 2025 wave of resource arbitrations and has caused what can only be termed as a “doctrinal whipsaw” for the FET standard. In “Stress Test 1,” fossil fuel investors are leading the way, and their argument is that by previously permitting fossil fuel investments, the states have created “legitimate expectations” of stability. They claim that such new climate measures, like coal phase-outs, violate these expectations and thus constitute a breach of the FET standard. In this scenario, FET is utilized to punish the states for their regulatory actions. At the same time, in “Stress Test 2,” investors in critical minerals assert that their licenses provided “legitimate expectations” of safety. They argue that state “resource nationalism” measures like the cancellation of licenses or, in some instances, the failure to clear protest blockades, violate these expectations and thereby infringe the FET standard. Here, investors exploit FET to penalize the states for their lack of regulation (that is, for not wielding state power to safeguard the investment). The state is thus exposed to liability for both action and inaction.

This scenario uncovers the fact that the “right to regulate,” despite being recognized by a great number of modern treaties as well as by legal scholars, is nothing more than an illusion in the absence of a “right to regulate affordably.” The chilling effect is not a result of the lack of the right to regulate, rather it stems from the potentially high cost that it might take to exercise the right. The presence of the nebulous notion of “legitimate expectations” ties the whole system now. Was an investor in 1995 legitimately expecting that the host country’s climate policy was going to stay the same for 30 years? Was an investor in 2018 justified in thinking that a country was never going to use its sovereign right to reclassify a strategic mineral? The wave of arbitrations in 2025 is a gigantic, investor-backed gamble that tribunals will keep interpreting “expectations” widely, thus providing the investment with more protection than the state’s right to govern.

Again, relying on Fellas, as cited in ONGC, Dhanuka invoked direct benefits estoppel, which prohibits a party from taking inconsistent positions or seeking to have it both ways by relying on the contract when it works to its advantage and ignoring it when it works to its disadvantage. 

i. Does Direct Benefits Estoppel Survive Cox & Kings?

Now, unlike the intertwined estoppel theory, it can certainly be used by a signatory against a non-signatory. However, the Supreme Court in Cox & Kings Ltd. v. SAP India, does not appear to favour this theory in at least two contexts. Firstly, under the group of companies’ context, the Supreme Court observed that “even though a subsidiary derives interests or benefits from a contract… they would not be covered… merely on the basis that it shares a legal or commercial relationship.” Secondly, under the broader umbrella of impleadment of third parties under “claiming through or under him” i.e., Section 8 of the A&C Act. The Supreme Court while examining Rinehart v. Hancock Prospecting Pty Ltd, where the Australian High Court adopted the estoppel approach (“a non-signatory party who elects to take the benefit of some aspects of the contract, must also accept the burden of it”),  held that this approach cannot be adopted “in the context of the phrase “claiming through or under” as doing so would be contrary to the common law position and the legislative intent underpinning the Arbitration Act”. Further, the Court clarified “claiming through or under” applies only to parties in “derivative capacity” (assignees or successors), not those merely deriving benefits.

Thus, two things are clear, the principle of benefits estoppel does not fit within the: (i) group of companies’ context (as benefit-derivation alone is insufficient); and (ii) “claiming through or under”, as it’s limited to entities in derivative capacity. Where direct benefits estoppel fits, if anywhere, remains unclear. Whether it operates independently, within group of companies’ contexts, or beyond both, Cox & Kings left unanswered.

ii. Direct or Indirect benefits?

But even assuming that direct benefits estoppel survived Cox & Kings, its application in Dhanuka must still satisfy the principle’s thresholds. Given it’s not provided in Indian jurisprudence, it is useful to look to U.S. jurisprudence, where this doctrine originates. The case of Life Techs. Corp. v. AB Sciex held that the principle was confined to direct benefits, and does not extend to indirect benefits. While distinguishing direct from indirect benefits it held: first, benefits are “direct” only when they “arise from the unsigned contract containing the arbitration clause”, and “indirect” “when merely incidental” to its performance; second, benefits are direct only “when specifically contemplated by the relevant parties”, and indirect when the non-signatory’s benefit was not within their original contemplation.

Dhanuka seems to not fulfil either step. The developer’s revenue-sharing and control mechanisms arose from the developer-maintenance agency agreement, not from the flat owner-maintenance agency agreements containing the arbitration clause. The Developer derives supervisory rights and profit-sharing from its contract with the Maintenance Agency, not from the Agency’s separate agreements with flat owners. These are indirect benefits incidental to the contractual relationship between two other parties.

Moreover, nothing suggests flat owners contemplated the developer benefiting from their maintenance agreements when executing them years after the agreement. The parties to the arbitration clause never manifested intent to bind the developer, absent from their contracts entirely.

The likely benefits of integrating AI in Indian arbitration should be evaluated based on its impact on efficiency and fairness in arbitral decision-making. Recent empirical and institutional developments suggest that AI can help bring efficiency to the arbitral process. However, if unregulated AI is used in arbitration to make decisions, it raises various concerns regarding transparency, bias, responsibility, clarity, and confidentiality. These concerns have a direct impact on the validity of the arbitral award.

Internationally, at the institutional level, we observe a careful yet inconsistent approach to the use of AI in arbitration. AI can be used as a supportive tool with human oversight and disclosure, according to the guidelines released by professional organisations like CIArb, SVAMC, and AAA-ICDR. However, some important institutions, such as the ICC, ICSID, LCIA, and SIAC, have not established rules to guide the use of AI in the arbitral process. This uneven approach points toward a general acceptance that although AI helps in procedural aspects, its role in core decision-making is debatable. 

Empirical studies show the difference between substitutive and assistive AI use. In the 2025 International Arbitration Survey by White & Case, 2,402 questionnaire responses and 117 interviews were collected from a diverse cross-section of the international arbitration community. Participants included in-house counsel from the public and private sectors, arbitrators, private practitioners, representatives of arbitral institutions, academics, tribunal secretaries, experts, and third-party funders. There is strong support for the use of AI in administrative tasks. 77% of respondents are in favour of utilising AI to determine interest, costs, and damages. 66% of respondents support using it to summarize submissions. It is important to note that only 23% of respondents are in support of using AI for legal reasoning, while the majority oppose using it to evaluate merits or credibility. This skepticism is backed by recent research showing that AI judges apply the law consistently and strictly, whereas human adjudicators consider a wider context and use moral reasoning in their decisions. The main concern is that AI biases and mistakes can go unnoticed, which is further worsened by the black box nature of large language models.

Apart from concerns about bias and explainability, using AI in arbitration presents serious challenges to the confidentiality and privacy that are essential to arbitral proceedings under Section 42A. Arbitration often involves sharing sensitive commercial information, trade secrets, and personal data. This makes deploying AI particularly delicate, especially when using third-party or cloud-based tools. The 2023 BCLP Annual Arbitration Survey highlights data protection and confidentiality as major concerns for arbitration users regarding AI adoption. In response, the SVAMC Guidelines stress that AI must be used in a way that respects confidentiality obligations. They also warn against processing confidential information without permission and proper safeguards. Therefore, confidentiality should be a key limit on AI-assisted arbitration, necessitating clear disclosure requirements, security standards, and restrictions on data retention to maintain the legitimacy of arbitration.

It is important to evaluate these concerns in the real world. Some cases show that blind trust in AI harms procedural integrity. In Mata v. Avianca, a US court sanctioned lawyers for using AI-generated fake citations. This case demonstrates problems of error and loss of trust when outputs are not verified. In LaPaglia v. Valve Corp., one of the parties challenged the award, alleging that the arbitrator used AI for reasoning, which is an unauthorized delegation of authority. Although these are not Indian cases, they point out that fairness, party autonomy, and independent thinking can be jeopardized by AI. These principles are highly valued by the Indian court for maintaining the legitimacy of the award.

Indian judiciary and policy discussions have taken a careful approach to AI. The Kerala High Court guidelines prohibit the use of AI in judicial reasoning because of data security, privacy, and public confidence. The Supreme Court of India’s Centre for Research and Planning, in its white paper on AI and the judiciary, advocates a governance framework centered on human-in-the-loop oversight, mandatory verification protocols, and transparency obligations whenever AI assistance is used. This cautious position was judicially reaffirmed in Kartikeya Rawal v. Union of India, where, while dismissing a PIL seeking regulation of AI in the judiciary, the Supreme Court categorically assured that AI would not be permitted to overtake judicial decision-making, emphasising that technology must remain strictly subordinate to human judgment. While these are judicial guidelines, they offer insights for the use of AI in arbitration since arbitral awards are reviewed under section 34 of the A&C Act. 

Unregulated use of AI in arbitration goes against the Indian arbitration law. Sections 18 and 31 mandate impartial treatment of parties and reasoned awards. AI systems that primarily rely on probabilistic pattern matching instead of true reasoning go against the mandate. Apple’s The Illusion of Thinking shows that a large reasoning model can mirror taught patterns but face problems with novel or complex situations. These limitations of AI make it difficult for an arbitrator to explain, defend, and accept accountability for decisions, thereby undermining transparency, accountability, and clarity.

This is not to completely negate the role of AI in Indian arbitration. The T.K. Viswanathan Committee treats AI as a helpful tool to reduce delay and procedural issues. The Pyrrho Investments Ltd. v. MWB Property Ltd. case shows the court’s acceptance of AI for technical tasks like predictive coding with human oversight. However, extending AI into substantive legal reasoning risks diluting statutory mandates under Sections 18 and 31 of the A&C Act, which require impartial treatment, intelligible reasoning, and demonstrable application of mind. Accordingly, AI assistance can be normatively justified only where it operates in an assistive, human-in-the-loop capacity, supported by standards on disclosure, verification, explainability, and accountability. Such a calibrated approach preserves efficiency gains while remaining faithful to the foundational principles of arbitral legitimacy under Indian law.

The reconsideration of Bharat Drilling is significant because prohibitory and “no-claim” clauses are a standard feature of government and public-works contracts. These clauses are intended to allocate risk ex ante and to limit exposure to specific heads of loss such as idle labour, idle machinery, or loss of profit. The widespread reliance on Bharat Drilling by tribunals and High Courts to dilute or bypass such clauses has created uncertainty and undermined contractual predictability in public procurement disputes.

At a doctrinal level, the reference reinforces the centrality of party autonomy. If parties have consciously agreed to exclude certain claims, allowing tribunals to disregard those exclusions risks rewriting the contract under the guise of arbitral discretion. The Supreme Court  observation that contractual limits “crystallise informed choices of parties” signals a clear concern that Bharat Drilling has been used to erode the sanctity of contract, contrary to the modern arbitration framework.

Until the larger bench settles the issue, Indian Builders serves as a caution against treating Bharat Drilling as a blanket authority and shows the need for tribunals and courts to engage closely with the language of the contract, giving due weight to party autonomy and the risk allocation expressly agreed between the parties.