Arbitration procedures and practice in India: overview
A Q&A guide to arbitration law and practice in India.
The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim.
To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A Tool.
This Q&A is part of the global guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-guide.
Use of arbitration and recent trends
Use of commercial arbitration
Commercial arbitration has become fairly popular in India, particularly in relation to large commercial contracts. A large number of arbitrations in India relate to infrastructure and construction contracts, particularly those with government entities, including public sector undertakings. Arbitrations are also conducted in relation to admiralty law, import-export transactions, and so on. In some circumstances arbitration may be provided for under statute. Certain bodies, such as the stock exchanges, also provide for arbitrations.
Although many international arbitrations adopt institutional arbitrations, the majority of arbitrations in India still have provision for ad hoc arbitration.
Although a large number of commercial disputes are settled through arbitration, the arbitration process in India has historically been unsatisfactory. In particular, arbitrations were seen to take inordinately long to conclude and proceeded much like a civil suit. In addition, institutional arbitrations have not become as popular as in many other countries. To deal with many of the problems in the arbitration law, the Arbitration and Conciliation Act, 1996 (Arbitration Act) was recently amended. The amendment contains a number of far-reaching changes which are yet to be considered in the courts (see Question 37).
Civil suits in India can take a long time to decide and dispose of disputes, particularly in some jurisdictions. As such, arbitration is considered a better method to resolve such disputes. Arbitrations are also considered useful in technical matters where expert arbitrators are required. In complex construction matters, arbitration is the preferred choice.
Although arbitration is popular, some basic difficulties remain. Arbitrations have also become time consuming and expensive and, even after an arbitral award, one party or the other tends to challenge the award in court. This is particularly true when the unsuccessful party is a government entity. In many states, the process of challenging the award itself takes a long period of time, defeating the purpose of arbitration, although some courts in India do decide such challenges quickly.
The Arbitration Act governs Arbitration in India, including, typically, statutory arbitrations. The UNCITRAL Model Law on International Commercial Arbitration 1985 is the basis for the Arbitration Act. However, the recent amendment to the Arbitration Act departs from UNCITRAL Model Law and is an attempt to deal with some of the lacunae which were found in the operation of the law (see Question 37).
Certain other laws, such as the Electricity Act, contain mandatory provisions for arbitration. In all other cases, arbitration agreements must be entered into by the parties.
Mandatory legislative provisions
In the interests of public policy, the Arbitration Act contains a number of mandatory provisions, including in relation to:
Limitation periods (see Question 5).
The form of the arbitration agreement (see Question 8).
An arbitrator being ineligible for appointment (see Question 17)
The court being required to refer parties to arbitration if the dispute is subject to an arbitration agreement (see Question 13).
The court's power to terminate the arbitrator's mandate (see Question 18)
The grounds on which an arbitral award can be challenged or appealed (see Question 28).
The same limitation period that applies to a civil suit also applies to an arbitration. Therefore, the limitation period under the Limitation Act for a civil suit is also applied by arbitrators. The period of limitation varies from one to three years, depending on the nature of the dispute. The limitation period is normally calculated from the date the cause of action arose.
Arbitrations in India are either:
Ad hoc arbitrations.
Large commercial disputes in India are normally settled by ad hoc arbitrations with the Arbitration Act as the governing legislation.
Some parties also opt for dispute resolution under the rules of a particular arbitration institution. Some of the popular arbitration institutions include the:
International Chambers of Commerce (ICC).
London Court of International Arbitration (LCIA).
Singapore International Arbitration Centre (SIAC).
Indian arbitration organisations include the:
Delhi International Arbitration Centre.
Indian Council of Arbitration.
Construction Industry Arbitration Council (CIAC).
Indian Council of Arbitation (ICA).
See box, Main arbitration organisations.
The Arbitration Act recognises the concept of kompetenz-kompetenz. Under section 16 of the Act, the arbitral tribunal is competent to rule on its own jurisdiction, including with respect to the validity and existence of the arbitration agreement.
If the arbitral tribunal rules that it has the jurisdiction under section 16(5), that decision is not appealable and the arbitral proceeding must continue. The only remedy available to an aggrieved party is to challenge the award under section 34. However, if the arbitral tribunal rules that it does not have jurisdiction, then that decision can be appealed before a court under section 37(2).
Section 7 of the Arbitration Act stipulates the requirements for an arbitration agreement. The parties may either have an arbitration agreement in the form of an arbitration clause in a contract or in the form of a separate agreement. The arbitration agreement must be in writing, and is considered to be in writing if it is:
Contained in a document signed by the parties.
In the form of exchange of letters, telex, telegram or other means of telecommunication which provides a record of the agreement.
In the form of an exchange of statement of claim and defence in which the existence if the agreement is alleged by one party and not denied by the other.
Separate arbitration agreement
Parties may either have a separate arbitration agreement or a clause in the contract, and either of the two is sufficient under section 7(2) the Arbitration Act. An arbitration clause in the contract is considered as an independent arbitration agreement by the courts.
Under section 7(5) of the Act, a reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
Unilateral or optional clauses
Indian law does not contemplate an arbitration agreement which is conditional or confers an option to arbitrate. For an arbitration agreement to be valid, both parties must promise in writing to submit differences to arbitration. As there is a similar promise on each side, the contract is bilateral. However, many contracts have arbitration clauses which only permit certain kinds of disputes to be sent to arbitration.
The Arbitration Act does not grant powers to join a third party to pending arbitration proceedings. Non-signatories to the arbitration agreement can only be bound to the arbitration agreement under the "groups of companies" doctrine, where a clear intention to bind such non-signatories can be established. There are a few judgments in which arbitrations among such different parties have been combined, while there are also few judgments which hold that if some parties or issues are not part of the arbitration, only a civil suit can be filed with respect to such disputes.
Indian law recognises the separability of an arbitration agreement. Even if the entire agreement containing an arbitration clause or referring to an arbitration clause or agreement is held to be void (or superseded by subsequent agreements), the arbitration clause/agreement survives. An arbitration clause contained in a contract is considered as an independent agreement in itself. Under section 16 of the Arbitration Act, the arbitral tribunal can rule on the existence or validity of the arbitration agreement, and for that purpose an arbitration clause which forms part of a contract is treated as independent of the other terms of the contract.
Breach of an arbitration agreement
Court proceedings in breach of an arbitration agreement
If one of the parties to an arbitration agreement initiates court proceedings in contravention of the arbitration clause, the other party can and should object to the proceedings on the ground that there is an arbitration agreement between the parties. The court must refer the parties to arbitration under section 8 of the Arbitration Act. However, any objection to such proceedings must be dealt with before filing the first statement. If the opposite party does not raise any such objection, the proceedings in the civil court proceed.
Arbitration in breach of a valid jurisdiction clause
If arbitration is invoked where there is either no arbitration clause or where the dispute is not arbitrable, the other side can make a preliminary objection to the validity of the arbitration. There can be no arbitration in breach of a valid jurisdiction clause.
There have been cases where courts have granted injunctions restraining proceedings started overseas in breach of an arbitration agreement and there is at least one Supreme Court judgment which confirms such a right. However, courts in India do not have jurisdiction under the Arbitration Act to restrain arbitration proceedings where the seat of arbitration is outside India
Joinder of third parties
Number and qualifications/characteristics
The parties are free to agree on the number of arbitrators, although there must be an odd number. If the parties fail to determine the number of arbitrators, then a tribunal will consist of a sole arbitrator.
There is no legal requirement relating to the qualification/characteristics of arbitrators. The Arbitration Act does not contain any requirement for a licence to practice in India. Arbitrators are appointed as agreed by the parties and the parties are free to determine their qualifications and nationality. However, in an international arbitration, when appointing a sole or third arbitrator, if the matter is referred to court, the court would appoint an arbitrator of a nationality other than the nationality of parties.
Arbitrators must give a statement that they are independent and impartial on appointment. If an arbitrator is not independent or impartial, an objection in this regard must to be raised before the arbitral tribunal itself.
Two schedules (Schedule V and VII) have recently been added to the Arbitration Act, which provide the grounds by which an arbitrator can be considered ineligible or an arbitrators independence can be reasonably questioned. This is a mandatory non obstante clause. It is not entirely cleared how these amendments will be put into practice but at present it appears that such a challenge will have to be made before the Arbitral Panel itself (under the existing judgments). However, it is possible that the courts may also exercise power in this regard.
Appointment of arbitrators
Parties normally mention in their arbitration clause whether disputes will be adjudicated by a sole arbitrator or by a panel consisting of an odd number of arbitrators. The default provision is for a sole arbitrator. If the parties fail to agree on the appointment of arbitrators, they have the option under section 11 of the Arbitration Act to have the arbitrator(s) appointed by the court.
Removal of arbitrators
Parties can challenge the appointment of an arbitrator under sections 12 and 13 of the Arbitration Act, if a justifiable doubt arises as to the arbitrator's independence or impartiality or the arbitrator(s) does not possess the necessary qualification as agreed by the parties. Certain categories of Arbitrators have been made ineligible under the amended provisions of the Arbitration Act (see Question 17). In addition, an arbitrator can be removed under section 14 if the:
Arbitrator(s) is unable to perform his functions or for other reasons.
Arbitrator fails to act without undue delay.
Arbitrator withdraws from his office.
Parties agree to terminate the arbitrator's mandate.
If an arbitrator becomes legally or practically unable to perform his function or withdraws from his office, the court can be approached to decide on the termination of the mandate of the arbitrator and appointment of another arbitrator (unless otherwise agreed by the parties). However, the arbitrator's impartiality and independence must be raised in the first instance before the arbitrators. If the arbitrators do not accept the submission, this can be a ground for challenging the award. However, the court can also remove arbitrators if they are found to be ineligible (see Question 17).
Commencement of arbitral proceedings
Applicable procedural rules
Parties can agree in the arbitration agreement/clause as to the procedural rules applicable to the arbitral proceedings. Arbitrators must follow the procedural rules as stated in the arbitration agreement/clause. The arbitration agreement/clause may mention that the arbitration would be governed by either the rules of a particular institution, such as the ICC, LCIA, SIAC or the UNCITRAL Model Law or the Arbitration Act itself. The Arbitration Act also empowers the arbitral tribunal to make procedural rules to govern the arbitration.
While some provisions of the Arbitration Act cannot be derogated from (see Question 3), there are no default rules regulating procedure.
The arbitral tribunal can compel a party to disclose documents and, if the party fails to disclose the documents, an adverse inference may be drawn by the tribunal.
In addition, the Arbitration Act empowers the arbitral tribunal to compel a non-party to give testimony or produce evidence for the arbitration, either itself or with the assistance of the court.
Scope of disclosure
There are no specific rules in arbitration with respect to the disclosure of documents. The parties must state the facts supporting their claims while filing their statement of claim and may submit with their statement of claim all documents they consider to be relevant or add a reference to the documents or other evidence that they intend to submit. The strict provisions of the Indian Code of Civil Procedure or the Evidence Act do not apply to an arbitrator.
The parties can agree disclosure rules.
Courts and arbitration
Parties can approach the court under section 9 of the Arbitration Act for interim measures, before or during arbitral proceeding or any time after the making of the arbitral award but before it is enforced. In addition, under section 11 of the Act, parties may approach the court for the appointment of arbitrator(s) where the parties failed to appoint an arbitrator under the arbitration agreement/clause. Either the arbitral tribunal, or a party with the approval of the arbitral tribunal, can apply to the court for assistance in taking evidence with respect to compelling witness, under section 27.
The principal civil court of original jurisdiction in a district, which includes the High Court in exercise of its ordinary civil jurisdiction, is the court with jurisdiction over arbitration-related applications. However, in international arbitrations this would be the High Court.
Risk of court intervention
Usually, judicial intervention in arbitration is limited to the purposes mentioned in the Arbitration Act. There have been cases where the courts have directed the parties to approach an already subsisting arbitral tribunal for interim measures. Similarly, there have been some cases in which the courts interfered when issues of impartiality or independence of the arbitrators arose. However, since then the law has been clarified.
As the courts only intervene in very limited cases, there is very little that a party can do to delay an arbitral proceeding.
Under section 17 of the Arbitration Act, an arbitral tribunal can order a party to take any interim measure of protection the arbitral tribunal considers necessary in relation the subject matter of the dispute. Interim protection measures may relate to the preservation, interim custody or sale of any good that is the subject matter of the arbitration agreement, or the securing of the amount in dispute, and so on.
The Arbitration Act does not specifically provide for whether an interim relief can be granted ex parte. However, arbitrators do not generally grant ex-parte interim relief.
The tribunal has the power to order security. However, normally such security in India does not relate to costs for prosecuting the arbitration.
Rights of appeal/challenge
Arbitration awards can be challenged in the local courts in India. Parties cannot waive the right to challenge an award.
Grounds and procedure
The award can be challenged only if:
A party was under some form of incapacity.
The arbitration agreement was not valid under the law to which the parties had subjected it.
The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present his case.
The award dealt with a dispute not contemplated by, or not falling within, the terms of the submission to arbitration.
The award contained decisions on matters beyond the scope of the submission to arbitration.
The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the provisions of the Arbitration Act.
The subject matter of the dispute was not capable of settlement by arbitration.
The award was in conflict with the public policy of India.
The public policy of India with respect to arbitration held in India has been interpreted more widely than public policy with respect to enforcement of foreign awards. The recent amendment to the Arbitration Act (see Question 37) has further clarified the grounds for challenging domestic and international awards with a seat of arbitration in India.
The procedure for challenging an award requires the challenging party to make an application under section 34 of the Arbitration Act. An application under section 34 can only be made on the limited grounds specified above. An application to challenge an award must be made within three months from the date of the award. If an application to challenge the award is made after the expiry of the three-month period, the court may grant another period of 30 days on a request by the party.
Excluding rights of appeal
Indian law does not authorise the parties to waive their rights of challenge to an award by an agreement before the dispute arises. Section 34 of the Arbitration Act provides limited grounds to challenge an award. These provisions are mandatory and the parties cannot exclude by an agreement a legal right which is provided under this provision.
Arbitrators have discretion to award the costs of arbitration, including legal fees. However, in many arbitrations, such costs are not awarded and this is not always the rule.
Parties give calculations in their claim, supported by documents, under which they think that they are entitled to costs. The tribunal usually calculates the costs to be awarded on the basis of such documents. The Arbitration Act specifies what constitutes "costs", which includes:
Legal fees and expenses of arbitrators, the court and witnesses.
Administrative fees of the institution supervising the arbitration.
Other expenses incurred in connection with arbitration or court proceedings and the arbitral award.
Under the Arbitration Act, the arbitral tribunal can decide whether costs should be paid, the amount of such costs and when such costs are to be paid. In determining the costs, the courts or the tribunal have regard to all the circumstances, including the conduct of the parties. Agreements between the parties as to the cost of arbitration are only be valid if made after the dispute in question has arisen.
Enforcement of an award
An arbitral award is enforceable after the time for making an application to set aside such an award has expired (90 days). However, the court may grant a stay on the operation of the arbitral award on a separate application made for that purpose. The party intending to enforce the award can file an execution petition before the Civil Court. The award is enforced in the same manner as a decree of the court under the Indian Code of Civil Procedure, which provides the framework for the execution of arbitral awards.
India is a party to both the New York Convention and the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 (Geneva Convention). India made two reservations when it ratified the conventions:
That India would apply both the Geneva Convention and the New York Convention to the recognition and enforcement of an award only if it was made in the territory of another state that is bound by either convention.
That India would apply both the conventions only to differences arising out of legal relationships which are considered as commercial under Indian law. Commercial relationships are all relationships which arise out of, or are ancillary or incidental to, business dealings
A foreign arbitration award is enforceable in India under Part II of the Arbitration Act, if it is passed in a jurisdiction/country governed by either the New York Convention or the Geneva Convention. The process for enforcement of a foreign award is similar to that of a domestic award. Section 48 and 57 of the Act provides the conditions for enforcement of foreign awards.
A person intending to enforce a foreign award should apply to the court along with the following:
The original award, or copy thereof, duly authenticated in the manner required by the law of the country in which it was made.
The original arbitration agreement, or a duly certified copy.
Such evidence as may be necessary to prove that the award is a foreign award.
If necessary, translated versions of these documents.
The Arbitration Act does not provide any limitation for the enforcement of a foreign award. It is likely the normal period of limitation (12 years) would apply.
The enforcement of a foreign award can be declined for the reasons given in the Arbitration Act, the principal ground being the public policy of India.
Once the court is satisfied that the award does not fall under the category where enforcement can be refused, the award is enforceable and would be deemed to be a decree of the court under section 49 of the Arbitration Act.
Awards made in both the UK and US are enforceable under the Arbitration Act.
Length of enforcement proceedings
A domestic award becomes enforceable after 90 days, unless the party challenging the award obtains a stay against the operation of the award. The time period required in an execution petition varies from state to state. However, execution petitions are not very time consuming and can proceed expeditiously.
Until recently, a petition challenging an award (for awards where the seat of arbitration is in India) and for refusing enforcement (for foreign awards), used to take considerable time. However, these proceedings must now be decided expeditiously, and within one year for arbitrations held in India.
There is no procedure to expedite the enforcement of an award.
The Arbitration and Conciliation Amendment Act 2015 has been passed (which was preceded by an Ordinance in October 2015), amending the Arbitration Act. Some of the significant changes made by the Ordinance are as follows:
A distinction has been made in relation to jurisdiction for international commercial arbitration, and for all other matters. The appropriate High Court has jurisdiction for international commercial arbitration, whereas the principal civil court of the original jurisdiction, or the High Court, has jurisdiction in all other matters.
The following sections now apply to international commercial arbitration when the place of arbitration is outside India:
section 9 which deals with interim measures by the court;
section 27, which deals with court assistance in taking evidence;
section 37(1)(a), which states that an appeal must rely on orders granting or refusing to grant measures under section 9; and
section 37(3), which states that there is no second appeal in such cases.
If an arbitration agreement or certified copy thereof is not available to the party applying for a reference for arbitration, the party can file an application requesting the court to call on the other party to produce this.
If the court passes any interim measure under section 9, the arbitral proceedings must commence within 90 days of the court doing so.
No application for interim measure under section 9 can be entertained after the arbitral tribunal has been constituted, unless remedies under section 17 have been rendered inefficacious.
The High Court can frame rules for the determination of arbitral tribunal fees and the manner of payment to the arbitral tribunal. However, such rules do not apply to international commercial arbitration or arbitrations where parties have agreed for determination of fees under the rules of an arbitral institution.
The provisions to ensure the independence of arbitrators have been elaborated upon under section 12 and a new fifth schedule. A potential arbitrator must disclose in writing circumstances such as the existence of direct or indirect, past or present, relationships with any of the parties or in relation to the subject matter of the dispute that are likely to give rise to doubts as to their independence. Further disclosures must be made in writing with in relation to circumstances that are likely to affect the ability of arbitrators to devote time towards the arbitration. The applicability of this sub-section can be waived by the parties in writing, after the dispute has arisen.
Interim measures ordered by the arbitral tribunal have been defined as the:
appointment of a guardian for a minor or person of unsound mind;
measures protecting goods, money or property that is subject matter of the dispute;
interim injunctions or the appointment of receivers; and
other such protection measures.
A time limit of 12 months from the date of reference to the tribunal has been provided under section 29A, before which the award must be made by the tribunal. Additional fees must be provided to the tribunal if an award is made between six and 12 months. If the parties give consent to an extension, it can only be made for a further period of up to six months.
Parties can agree in writing to have their dispute resolved by fast-track procedures, instituted under section 29B. The award must then be made within six months. There is no oral hearing and decisions are made on the basis of written pleadings, documents, and submissions filed by the parties, along with any further information called for from the tribunal. Oral hearings are made if all the parties agree and the tribunal finds it necessary. A new section 31A has been added giving specific provisions for a costs regime in relation to fast-track procedures.
The scope for setting aside an award as in conflict with public policy under section 34 has been broadened to include not only contravention with section 75 or section 81, but also conflict with the "fundamental policy of Indian law" or the "most basic notions of morality or justice".
The Act comes into force with effect from 23 October.2015. However, there may be some dispute or litigation as to whether the Act is retrospective or retroactive and whether it applies to pending arbitration. The Act itself provides that the amendments will only apply to arbitrations invoked after 23 October 2015.
Main arbitration organisations
Indian Council of Arbitration
Main activities. This is a specialised arbitral body at the national level under the initiatives of the Government of India and business organisations, including the Federation of Indian Chambers of Commerce and Industry. It promotes the settlement of commercial disputes by means of arbitration or conciliation, regardless of location. It also provides maritime arbitration services and gives education and training in alternative dispute resolution mechanisms.
Delhi International Arbitration Centre
Main activities. The centre was founded by the High Court of Delhi to secure an independent, transparent and professional institution. Provides for emergency arbitration with interim and conservation measures.
Construction Industry Arbitration Council (CIAC)
Main Activities. With a view to providing an institutional mechanism for resolution of construction and infrastructure related disputes, the Construction Industry Development Council, India (CIDC), in co-operation with the Singapore International Arbitration Centre (SIAC) has set up an Arbitration Centre in India called the Construction Industry Arbitration Council (CIAC). CIAC provide facilities for alternative dispute resolution, which includes international and domestic commercial arbitration. CIAC conducts executive development programmes and workshops and national and international conferences on various aspects of alternate dispute resolution processes.
International Chamber of Commerce (ICC) India
Main activities. The ICC is the world's leading body for the resolution of international disputes by arbitration and one of the world's most experienced and renowned international arbitration institutions.
London Court of International Arbitration (LCIA)
Main activities. The LCIA is one of the world's leading international institutions for commercial dispute resolution. The LCIA provides efficient, flexible and impartial administration of arbitration and other ADR proceedings, regardless of location, and under any system of law. The international nature of the LCIA’s services is reflected in the fact that, typically, over 80% of parties in pending LCIA cases are not of English nationality.
Indian Supreme Court
Delhi High Court
Bombay High Court
Madras High Court
Gujarat High Court
Calcutta High Court
Sameer Parekh, Managing Partner
Parekh & Co
T +91 98 110 45 775
F +91 11 233 183 15
Professional qualifications. B.A. (Hons) LLM, Advocate on Record, Supreme Court of India. Admitted to practice in India and New York, US
Areas of practice. Commercial disputes including arbitrations and construction law