By Arav Tiwari & Siddhant Singh
About the Authors:
Neutrality is the cornerstone of international arbitration, ensuring that disputes are resolved by an impartial tribunal in a forum free from domestic influence. Parties rely on this neutrality when they choose a foreign seat, confident that only the presumably neutral courts of that jurisdiction will supervise the process. The Delhi High Court’s (DHC) decision in Engineering Projects (India) Ltd v MSA Global LLC has unsettled this understanding. By intervening in an ICC arbitration seated in Singapore, the court extended its reach beyond what international arbitration law intends or permits. While the ruling was presented as protecting fairness and public policy, it has raised concerns about India’s adherence to the seat rule that underpins arbitral autonomy. This post examines how the decision challenges established norms, its broader consequences for India’s arbitration landscape, and the steps needed to restore confidence in India as a credible arbitral jurisdiction in the form of actionable recommendations not yet explored by existing scholarship.
In Engineering Projects, EPI appealed an ICC arbitrator’s non-disclosure of previous involvement in a suit relating to its management. This omission was found to be insufficient by the ICC court and Singapore High Court alike, the latter being the supervisory court designated by the arbitral seat. In accordance with the seat rule, these findings ought to have been final.
The DHC intervened nonetheless, appreciating EPI’s arguments and issuing an anti-arbitration injunction relying on the reasoning that the nondisclosure “stuck at the root of the tribunal’s integrity” which rendered the process “vexatious and oppressive.” It also relied upon Section 9 of CPC invoking its “residual equitable jurisdiction” to prevent what it deemed to be a denial of natural justice to a public sector Indian company. By reassessing objections already considered by the court of the seat as matters of Indian public policy, the DHC displaced the authority of Singapore courts.
The DHC’s injunction has departed sharply from the decade old understanding of the Indian the SC held unequivocally that Part I of the act does not apply to foreign-seated arbitrations. In the present case, the DHC improperly invoked Section 9 of Part I of the act to grant an anti-arbitration injunction. In line with BALCO (2019), the judgement in Harmony Innovation Shipping (2015) the SC rejected a plea arguing inconvenience and unfairness, emphasising that Indian courts can not intervene in the composition, conduct or continuation of foreign seated arbitration. This doctrine is bolstered by the landmark judgement of Enercon(2014), where the apex court held that Indian courts can not second guess procedural rulings made by courts of a foreign seat. By revisiting procedural questions determined by Singapore court, the DHC has gone against the two aforementioned judgements of the SC and effectively intervened and second guessed the supervision of the courts of a foreign seat.
A. Neutrality of Cross-Border Arbitration
The DHC decision, while innocuous enough to pass off as being protective of domestic public interests, has far-reaching consequences when it comes to parties gauging neutrality and predictability in cross-border arbitration when their counterparty is based in India. Parties select a neutral seat, in this instance, Singapore, to ensure that neither side’s domestic courts can affect the tribunal’s composition or procedure. By issuing an injunction on the rationale it adopted, the DHC inadvertently blurred the very boundaries that sustain confidence in arbitral autonomy.
This departure from seat theory creates systematic uncertainty, as international participants are now faced with the conundrum of whether contracting with Indian parties is free from home-court interference. This may result in parties demanding seat-exclusion clauses, enhanced performance securities, or even declining arbitration altogether should it involve India, certainly not a favourable outcome for a nation attempting to become a global arbitration destination.
B. Indian Businesses- Where are they left Standing?
Indian entities may welcome this judgment in the short term; however, this will result in long-term reputational harm. Judicial protection from perceived bias may seem appealing, yet it signals to the world that Indian counterparties are prima facie unreliable since they would seek recourse to home courts despite having agreed to a foreign-seat arbitration.
We see foreign investors accordingly weighing the incentive to arbitrate with Indian parties by pricing in the inherent risk by way of higher costs, stringent payment terms, or even choice-of-law clauses excluding India altogether. Institutional actors and investment-treaty tribunals could treat such jurisprudence as evidence of systemic unreliability, thereby impeding enforcement and deterring capital inflow. Therefore, India’s credibility as an arbitration-friendly jurisdiction- and by extension, the ability of its businesses to compete abroad hinges entirely on Indian parties maintaining faith in the neutral forum selected.
The Court’s ruling reaffirms the need for calibrated judicial restraint in foreign-seated arbitrations. Judicial vigilance in preserving procedural fairness is defensible, but it must remain aligned with international comity under the UNCITRAL Model Law and the New York Convention. Unmoored intervention risks undermining the predictability essential to international commercial arbitration.
The first step involves the creation of specialised arbitration benches. Such benches may be created through a Supreme Court-mandated harmonised practice direction under Articles 141 and 142, with exclusive jurisdiction over Section 9 matters and other arbitration-sensitive interim measures to prevent forum-shopping and inconsistent rulings. Judicial selection should follow transparent criteria, including commercial experience, familiarity with the Model Law, and completion of a structured training programme covering international procedure, judicial restraint, anti-suit injunctions, and enforcement under Part II. Adequate resources, specialised clerks, and a fast-track appellate pathway are essential to avoid disruption to foreign-seated proceedings. As far as appellate review goes, we envision those being routed through a fast-track division bench with strict timelines so as to ensure minimal disruption to foreign-seated proceedings.
Second, bespoke procedural rules must include tangible standards, including a presumption against interim relief that affects foreign-seated arbitrations, heightened pleading thresholds for anti-arbitration injunctions, and strict scrutiny of ex parte relief.
Third, self-regulation must be operationalised through bright-line limits that restrict intervention to narrow exceptions, such as fraud affecting enforceability, breaches of natural justice implicating public policy, or tribunal incapacity. This should be supported by a pre-filtering certification mechanism to deter tactical injunctions.
Fourth, reforms must align with the Model Law and the New York Convention, respect negative Kompetenz-Kompetenz, and maintain functional equivalence with jurisdictions such as Singapore and the United Kingdom.
Ultimately, India’s arbitral credibility will rest not on assertive intervention but on a durable institutional architecture that ensures judicial discipline.
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