CROSSROADS OF AUTONOMY AND OVERSIGHT: ANTI-ARBITRAL INJUNCTIONS IN INDIA AND ABROAD

By – Astha Sharma and Astha Sehgal

Table of Contents

Introduction

Can civil courts in India exercise their equitable jurisdiction to grant anti-arbitration injunctions in both domestic arbitrations and foreign-seated arbitrations? The question goes to the core of India’s arbitration jurisprudence, testing the delicate balance between the inherent jurisdiction of civil courts and the autonomy of the arbitral process.

The dilemma becomes more complex when the arbitration is foreign seated i.e. conducted under a foreign procedural law and supervised by foreign courts. Should Indian courts extend their reach to restrain such proceedings, or should they take a step back respecting the autonomy of the arbitral process and the jurisdiction of the seat?

MEANING, CONCEPT AND SCOPE OF ANTI-ARBITRAL INJUNCTIONS

An anti-arbitral injunction is an order issued by a court restraining a party from commencing or continuing arbitration proceedings. It is distinct from an anti-suit injunction, which restrains court proceedings in another jurisdiction. 

Although both remedies stem from the court’s equitable powers, the anti-arbitral injunction attracts greater debate. The reason is simp le that it directly interferes with the autonomous nature of arbitration. Parties usually seek such injunctions citing a) invalidity of the arbitration clause, or b) issue in question not being arbitrable, or c) unfair and oppressive use of arbitral process.¹ 

Though Indian courts possess inherent jurisdiction to protect parties from abuse of process, but  given the legislative mandate of the Arbitration and Conciliation Act, 1996 (“the Act”), vis-à-vis minimal court interference and party autonomy, such injunctions are sparingly and cautiously granted in India.

JUDICIAL APPROACH IN INDIA

The Indian judiciary’s stance on anti-arbitral injunctions in both domestic and foreign-seated arbitrations, have evolved through a series of decisions, gradually narrowing the circumstances in which such relief is usually granted. Courts have consistently sought to strike a balance between respecting the autonomy of arbitral proceedings and preventing misuse of the arbitral process.

The role of Indian courts becomes relevant when an Indian party seeks to restrain the progress of a foreign seated arbitration. Such challenges usually arise on grounds such as a) alleged invalidity of the arbitration agreement, b) lack of jurisdiction of the arbitral tribunal, or c) procedural unfairness in the conduct of the arbitration². These situations require the courts to exercise their powers judiciously, to avoid jeopardizing party autonomy and the growing recognition and acceptance of the arbitral process. 

The subsequent discussions explore how Indian courts have interpreted these issues through various judgments, and the circumstances under which anti-arbitration injunctions have been considered permissible. 

JUDICIAL TRENDS AND GROUNDS FOR ANTI-ARBITRAL INJUNCTIONS IN INDIA

• In Kvaerner Cementation India Ltd. v. Bajranglal Agarwal³ (“Kvaerner”), the  Supreme Court , considered one of the earliest challenges involving an anti-arbitral injunction under the Act. The dispute arose from a civil suit in which the plaintiff sought a declaration that no arbitration agreement existed and obtained an interim order halting the arbitration. That injunction was later withdrawn, and the Bombay High Court declined to interfere with the withdrawal. The High Court reasoned that Sections 5 and 16 of the Act left jurisdictional questions, including whether an arbitration agreement exists, solely to the arbitral tribunal, reflecting the principle of kompetenz-kompetenz.

Before the Supreme Court, the petitioners argued that a civil court’s jurisdiction could not be excluded by implications. The Court rejected this, holding that the structure and purpose of the 1996 Act made clear that tribunals must decide their own jurisdiction. Since Section 16 expressly empowers the tribunal to rule on objections about the existence or validity of the arbitration agreement, civil courts cannot issue injunctions restraining such proceedings. The Supreme Court therefore affirmed Bombay High Court’s decision.

Kvaerner thus highlighted a firm judicial commitment to arbitral tribunal’s autonomy and minimal court interference, an approach that would later influence and develop arbitration jurisprudence.

• The Calcutta High Court, in The Board of Trustees of Port of Kolkata v. Louis Dreyfus Armatures SAS⁴, laid down clear circumstances in which Indian courts may step in to grant an anti-arbitration injunction. The Court observed that such relief, though exceptional, may be warranted in three distinct situations:

1. Absence of a binding arbitration agreement: When a party disputes the very existence of an arbitration agreement, and the court concludes that no valid agreement was entered into between the parties; 
2. Invalid or unworkable arbitration agreement: Where the arbitration clause itself is shown to be void, inoperative, or incapable of being performed. 
3. Proceedings that are unfair or oppressive: Where continuation of a foreign-seated arbitration is likely to be oppressive, vexatious, or unconscionable.

The following section deals with situations laid down in the aforementioned judgments, and how Indian courts have acted in each of the situations:

A. Determining the validity of the arbitration agreement

1. In World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) Pte. Ltd⁵., the dispute arose out of a chain of media-rights arrangements relating to a major cricket tournament. The Board of Control for Cricket in India (“BCCI”) had first granted broadcasting rights to MSM Satellite (Singapore) Pte. Ltd. (“MSM”). After the inaugural season, however, BCCI terminated MSM’s contract and instead awarded the rights to World Sport Group (Mauritius) Ltd. (“World Sport”). To facilitate MSM’s re-entry, World Sport executed a facilitation deed under which it agreed to surrender its rights and assist MSM in securing them directly from the BCCI. MSM even released part payment to World Sport under this arrangement. MSM later alleged that World Sport had misrepresented its ability to relinquish those rights and filed a suit before the Bombay High Court declaring the facilitation deed void. Meanwhile, World Sport commenced arbitration in Singapore under the deed.

MSM sought an injunction to halt the arbitration. While the Single Judge refused, holding that issues of fraud were for the tribunal to decide, the Division Bench stayed the Singapore arbitration, finding the matter more suitable for court adjudication. Thereafter, the Supreme Court ultimately set aside the Division Bench’s order, emphasizing India’s pro-arbitration policy. It held that courts may interfere with foreign-seated arbitrations only on the narrow grounds under Section 45 of the Act, where the arbitration agreement is null and void, inoperative, or incapable of being performed. As none of these conditions applied, arbitration was allowed to proceed.

2. In Chatterjee Petrochem Co & Anr. v. Haldia Petrochemicals Ltd. & Ors.,⁶ the Hon’ble Supreme Court was required to determine whether the parties’ contract vested exclusive jurisdiction in the Calcutta courts and, if so, whether it could restrain an International Chamber of Commerce (“ICC”) arbitration seated in Paris. The apex Court observed that when the dispute clearly falls within a valid and binding arbitration agreement, the matter must ordinarily proceed to arbitration. At the same time, it was clarified that Indian civil courts are not entirely divested of authority in the context of foreign-seated arbitrations. They retain the power to issue anti-arbitration injunctions, but only on the narrow grounds set out under Section 45 of the Act.

B. Invalid or unworkable arbitration agreement

A significant turning point in the debate on arbitrability arose in Bina Modi & Ors. v. Lalit Modi & Ors.⁷ . The plaintiffs had approached the court arguing that the arbitration clause in a restated trust deed (trust deed) was invalid. It was claimed that the clause was null and void, inoperative, unenforceable, and even contrary to Indian public policy. On that basis, a suit essentially seeking an anti-arbitral injunction, asking the court to permanently restrain the defendants from pursuing arbitration was filed. It was also requested that the defendants be stopped from continuing with the emergency measures they had initiated before the ICC. The Single Judge of the Delhi High Court, vide judgement dated 03.03.2020 dismissed the suit, relying on the Supreme Court’s ruling in Kvaerner, which held that civil courts cannot issue anti-arbitration injunctions when the objection relates primarily to the tribunal’s jurisdiction. The Court also reasoned that Arbitration Act was a complete code in itself (Morgan Securities and Credit (P) Ltd. v. Modi Rubber Ltd., (2006) 12 SCC 642) and once arbitration has commenced, parties have an adequate remedy under Section 16 of the Act, which empowers the arbitral tribunal to rule on its own jurisdiction. In such circumstances, Section 41(h) of the Specific Relief Act bars the grant of an injunction because an equally efficacious remedy exists before the tribunal itself. However, this view was later reversed by a Division Bench vide judgment dated 24.12.2020⁸, which took a broader approach.

The Division Bench opined that a court may step in and grant an anti-arbitration injunction if the party seeking it can show that the arbitration agreement is null and void, inoperative, or incapable of being performed. The Bench observed that the Single Judge did not exercise the jurisdiction that the law requires, particularly on the question of whether the disputes arising from the trust deed (underlying issue) were even capable of being resolved through arbitration. After examining the nature of the dispute, the Court held that matters governed by the Trusts Act are, by their very nature, not arbitrable. The relevant extract from the judgment is reiterated below:

“86… the considered view that the learned Single Judge gravely erred by failing to exercise the jurisdiction vested in the Court, which statutorily required him to adjudicate, whether the disputes between the parties, in relation to the Trust Deed, were per se referable to arbitration. This, in our respectful view, is tantamount to wrong exercise of jurisdiction by the learned Single Judge. The impugned judgment cannot resultantly be sustained, since it failed to consider that, the Trust Deed is not an arbitration agreement in law and consequently, the reliance placed therein, on the decision in Kvaerner (supra), was erroneous. In our opinion, issues under the Trusts Act cannot be the subject matter of arbitration since the same are excluded from the purview of the Arbitral Tribunal by necessary implication. We are also of the view that, in the present case the Arbitral Tribunal lacks inherent subject matter jurisdiction; and the present is not a case of concurrent jurisdiction, in view of the settled legal position that, disputes under the Trusts Act raised herein, are prima facie, incapable of being submitted to arbitration. We are further of the view that, in the instant case, it is the Arbitral Tribunal that evidently lacks jurisdiction and not this Court, which has the inherent jurisdiction to determine whether the disputes are arbitrable, particularly when, as in the present case, the ends of justice would otherwise be defeated. The reference to Section 41(h) of the Specific Relief Act, 1963 in the impugned judgment, is also fallacious, since the provisions of Section 16 of the Arbitration Act, cannot, in the facts and circumstances elaborated hereinabove, provide any relief in the present case, much less an equally efficacious relief…

The Division Bench, allowing the Appeals and set aside the impugned common judgment and decree dated 03.03.2020.⁹

C. Unfair or oppressive proceedings

In Himachal Sorang Power (P) Ltd. v. NCC Infrastructure Holdings Ltd.¹⁰
the Delhi High Court, refused to grant an anti-arbitration injunction. The Bench observed that it was unable to conclude that the arbitration agreement under dispute had been rendered null and void, inoperative, or incapable of being performed. It held that unless a party can demonstrably establish that the arbitration agreement is null and void, inoperative, or incapable of being performed, such relief cannot be granted. The Court further identified certain parameters governing the grant of anti-arbitration injunctions, which are reiterated below: 

“127…

1. The principles governing anti-suit injunction are not identical to those that govern an anti-arbitration injunction.
2. Court’s are slow in granting an anti-arbitration injunction unless it comes to the conclusion that the proceeding initiated is vexatious and/or oppressive.
3. The Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata. If persuaded to do so the Court could hold such proceeding to be vexatious and/or oppressive. This bar could obtain in respect of an issue of law or fact or even a mixed question of law and fact.
4. The fact that in the assessment of the Court a trial would be required would be a factor which would weigh against grant of anti-arbitration injunction.
5. The aggrieved should be encouraged to approach either the Arbitral Tribunal or the Court which has the supervisory jurisdiction in the matter. An endeavour should be made to support and aid arbitration rather than allow parties to move away from the chosen adjudicatory process.
6. The arbitral tribunal could adopt a procedure to deal with “re-arbitration complaint” (depending on the rules or procedure which govern the proceeding) as a preliminary issue.”
   

FOREIGN-SEATED ARBITRATION

In the recent ruling of Engineering Projects (India) Ltd. v. MSA Global LLC, (CS(OS) 243/2025) dated 25 July 2025,¹¹(“Engineering Projects”) the Delhi High Court took the opportunity to revisit how far Indian courts can go in restraining foreign-seated arbitral proceedings. The Court emphasized that while India’s arbitration regime is built on the foundation of limited judicial intervention, this limitation is not absolute. Where arbitral proceedings are shown to be clearly unfair, oppressive, or pursued in bad faith, courts are not expected to remain passive spectators. This judgment underscores a key principle, that procedural fairness cannot be sacrificed in the name of arbitral autonomy. 

Factual Background and Observations

In 2015, Engineering Projects (India) Ltd. (“EPI”), a Government of India public sector undertaking, subcontracted certain border-security infrastructure works to MSA Global LLC, an Omani company. The contract contained an arbitration clause providing for ICC arbitration seated in Singapore, governed by Omani substantive law, with the courts at New Delhi having exclusive jurisdiction over any related disputes. The arbitration was to be conducted in accordance with the ICC Rules, 2021. In 2023, MSA initiated arbitration proceedings against EPI and nominated Mr. Andre Yeap, SC, as its co-arbitrator. Pursuant to Article 11 of the ICC Rules, Mr. Yeap submitted a declaration stating that he had “nothing to disclose.” However, in 2024, EPI learned that Mr. Yeap had previously been engaged professionally by MSA’s promoter and the same was not disclosed. While the ICC Court acknowledged that the non-disclosure was “regrettable,” it decided to uphold Mr. Yeap’s appointment.

Aggrieved by this decision, EPI approached the Delhi High Court seeking an anti-arbitration injunction, alleging that the arbitration proceedings were tainted by procedural impropriety and lack of impartiality. Meanwhile, MSA continued with the proceedings before the Singapore-seated tribunal, filing applications relating to anti-suit relief and wasted costs, leading to a parallel set of proceedings across jurisdictions.

The Delhi High Court began by reaffirming the broad scope of Section 9 of the Civil Procedure Code, 1908, which grants civil courts plenary jurisdiction over all civil matters unless expressly or impliedly barred by statute. The Court noted that neither Section 5 (which limits judicial intervention) nor Section 45 (which governs reference to arbitration in foreign-seated matters) of the Act, curtails this jurisdiction in situations involving procedural abuse or violations of natural justice. Referring to the Supreme Court’s landmark ruling in Dhulabhai v. State of Madhya Pradesh (1968), the Court reiterated that civil court jurisdiction remains intact when arbitral proceedings undermine fundamental principles of fairness and justice.

While determining the litmus test, vexatious and oppressive proceedings, the Court found that MSA’s conduct, persisting with the arbitration despite unresolved challenges and simultaneously pursuing procedural applications in multiple forums, amounted to oppression. The Court clarified that the duty of disclosure under Article 11 of the ICC Rules is party-centric. Turning to the requirements under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court found that EPI had satisfied the established test for interim relief. The Court granted an anti-arbitration injunction, restraining both parties from proceeding with ICC Arbitration No. 27726/HTG/YMK until the final adjudication of the suit. The relevant extracts are reiterated below:

116. Insofar as the issue of balance of convenience is concerned, the continuation of the arbitration proceedings at this juncture would not only cause serious and irreparable prejudice to the plaintiff but would also be contrary to the larger interests of both the parties. The potential harm that would ensue from permitting the arbitral proceedings to proceed under a cloud of contested impartiality far outweighs any speculative inconvenience that may arise from their temporary suspension.

122. In view of the foregoing analysis, this Court has the jurisdiction to entertain this civil suit as the arbitration proceedings are prima facie vexatious and oppressive in nature. Moreover, since all three pre-conditions i.e., prima facie case, balance of convenience and irreparable injury, tilt in favour of the plaintiff, therefore, it is a fit case to grant an interim injunction. 123. Accordingly, the proceedings of the Arbitral Tribunal shall stand stayed till the pendency of the suit and the parties are injuncted from participating in the same.”¹²

The Delhi High Court’s ruling in the above, provides much-needed clarity on Indian judiciary’s approach towards foreign-seated arbitrations. While reaffirming the overarching principle of minimal judicial intervention, the judgment recognizes that courts must step in when arbitral processes are manipulated or procedurally abusive. By emphasizing a party-centric threshold for arbitrator disclosures under institutional rules such as the ICC, the Court balances respect for the autonomy of international arbitration with the need to protect parties from misuse of the process. This decision not only reconciles prior inconsistencies in Indian jurisprudence but also strengthens the role of the judiciary as a vigilant, yet restrained, guardian of fairness in cross-border commercial disputes.¹³

CONCLUSION

In essence, the power to grant anti-arbitral injunctions in India draws its strength from the long-standing principles of equity, justice, and fair play. Courts are conscious about exercising their powers, and do not intend to undermine arbitration, but intervene only when circumstances so demand, whether the arbitration is seated within India or abroad. Such intervention must remain the exception rather than the rule, exercised with care and restraint, ensuring that the arbitral process retains its integrity and authority. The responsible exercise of this equitable remedy upholds the spirit of arbitration as a preferred mode of dispute resolution, while reaffirming that the pursuit of justice need not be constrained by the boundaries of the forum where the arbitration is seated.

Judicial oversight in arbitration is like a watchful lighthouse, guiding the process safely without altering its natural course.

FAQs

References –

1. The Board of Trustees of Port of Kolkata v. Louis Dreyfus Armatures SAS, 2014 SCC OnLine Cal 17695
2. ibid
3. (2012) 5 SCC 214
4. supra note 1
5. (2014) 11 SCC 639
6. (2014) 14 SCC 574
7. (2020) SCC Online Del 901
8. 2020 SCC OnLine Del 1678
9. The judgment of the Division Bench of the Delhi High Court was challenged by Lalit Modi, before the Supreme Court vide Special Leave to Appeal (C) Nos. 1134-1135/2021, however the same was later withdrawn. 
10. 2019 SCC OnLine Del 7575
11. 2025 SCC OnLine Del 5072
12. Engineering Projects (Supra)
13. The Engineering Projects(supra) matter has been appealed before the Division Bench of the Delhi High Court, bearing Appeal No. FAO(OS) 88/2025. The matter stands reserved for judgment, and the forthcoming decision is expected to provide further clarity on the Indian courts’ approach toward foreign-seated arbitrations.

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