Indian Approach To Anti-Arbitration Injunctions In Foreign-Seated Arbitrations: Safeguarding Justice Or Stifling Arbitration?

An anti-suit injunction is an order of the court that prevents a party from continuing legal proceedings in another jurisdiction or requires them to suspend those proceedings. An anti-arbitration injunction matter may be instituted to enjoin the institution or continuation of arbitral proceedings. In essence, such matters attack the arbitral tribunal's jurisdiction to address the dispute dealt by them. The objections ordinarily raised in such matters are lack of a valid arbitration agreement, disputes being non-arbitrable, arbitral proceedings, particularly foreign-seated ones, being vexatious or oppressive, disputes precluded by the doctrine of res judicata and issues regarding the prospective non-enforceability of an award. Accordingly, relief prayed for by the aggrieved party is not purely procedural but raises the question of whether arbitration as the selected means of dispute resolution can move forward or not.

However, when the Arbitration and Conciliation Act, 1996 (“Act”) is taken into account in these types of situations, the Act reflects the legislative intent of minimal judicial interreference in arbitration matters. Section 5 of the Act is clear in itself and states that no judicial body has the power to intervene under the Act except where provided by the Act itself. This provision, stronger than Article 5 of the UNCITRAL Model Law, was intended to isolate the arbitral process from run-of-the-mill court interference. Read with Section 16 of the Act which gives power to arbitral tribunals to decide on their own jurisdiction, it is clear that issues relating to validity or arbitrability are to be determined first by the tribunal, with only limited judicial review possible after the award. Courts have therefore time and again cautioned themselves from entertaining suits that effectively circumvent this statutory regime, and Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) gives authority to dismissal of such plaints as being barred by law. Reliance is placed on the pronouncement of the Delhi High Court in Bina Modi v. Lalit Modi, RFA (OS) 21/2020, CM Appl 9034/2020, which held that anti-arbitration injunctions cannot be granted by a civil court in a foreign seated arbitration because of the kompetenz - kompetenz principle embodied in Section 16 of the Act. It was held that the issues regarding the existence, validity or arbitrability of disputes must be determined by the arbitral tribunal itself and judicial intervention at the pre-arbitral stage would undermine the legislative objective of minimum court intervention in arbitral processes.

This view, however, takes a different turn in the case of foreign-seated arbitrations under Part II of the Act where legislative intent is premised on India's obligations under the New York Convention and Section 45 of the Act directs referral to arbitration where there is a valid agreement, except where the court considers the agreement to be "null and void, inoperative, or incapable of being performed." These provisions have been judicially construed to include cases of fraud, coercion, revocation or essential vagueness that makes arbitration impossible. Therefore, whereas the bar under Section 5 of the Act is virtually absolute in the case of domestic arbitrations, foreign-seated arbitrations permit a limited window of intervention, a balance between party autonomy and judicial review.

Section 45 of the Act addresses foreign-seated arbitrations and acknowledges that a court can decline a reference if the arbitration agreement itself is null and void in its nature. As and when judicial pronouncements have touched upon such issues over time, some reasons have been distilled on which intervention is warranted, for instance, when the arbitration agreement itself is invalid; when the dispute manifestly falls outside the arbitration clause; where the arbitral proceedings are being conducted in bad faith, or where its continuance would be prejudicial to the public policy or the principle of natural justice. The courts have also time and again held that the usual tripartite test for injunctive relief i.e. a prima facie case, balance of convenience, and irreparable loss, is applicable in this scenario but is superimposed with the need for exceptional circumstances.

The Supreme Court in the Chatterjee Petrochem Co. and another v. Haldia Petrochemicals Ltd., Civil Appeal No. 6416-5419 of 2008, examined whether the agreement between the parties granted the Calcutta civil court the sole right to issue an anti-arbitration injunction against an arbitration that had already begun at the ICC in Paris. The court held that if there is a valid and enforceable arbitration agreement that covers the issue in question, the matter should be settled through arbitration. However, the court further held that Indian civil courts can grant anti arbitration injunctions in arbitrations that take place outside India, as long as the reasons for doing so fit the grounds listed in Section 45 of the Arbitration and Conciliation Act. In another case, World Sport Group (Mauritius) Ltd v. MSM Satellite (Singapore) Pte Ltd, Civil Appeal No. 895 of 2014, the Supreme Court refused to grant an anti-arbitration injunction because the person asking for it didn't meet the requirements in Section 45. However, the Court further made it clear that civil courts still have the power to issue anti-arbitration injunction when the arbitration agreement is null and void in its nature. In Balasore Alloys Limited v. Medima LLC, G.A. No. 871 of 2020, the Calcutta High Court held that civil courts has the jurisdiction to grant anti-arbitration injunctions, even in the case of foreign-seated arbitrations, however, the same should be done in a limited and careful manner.

The Delhi High Court's recent decision in Engineering Projects (India) Ltd. v. MSA Global LLC (Oman), 2025 LiveLaw (Del) 901, acts as a significant judgment in the arena of anti-arbitration injunctions in India as it has reaffirmed that the civil courts in India have the power to grant anti-arbitration injunction in a foreign seated arbitration when such a proceeding strikes at the core of oppressiveness or unfairness resulting in denial of justice to the affected party or continuation of injustice to the affected party. Section 9 of the CPC, which gives civil courts jurisdiction over all civil disputes unless specifically stated otherwise, formed the basis for the decision. As the Act does not exclude this jurisdiction in respect of foreign-seated arbitrations, it was held that it was as much within its power to allow the application praying for an anti-arbitration injunction. Significantly, it was clarified that such jurisdiction is not exercised as of right, but is exercised only in exceptional cases where continuation of arbitral proceedings would be an injustice of the most extreme kind. Accordingly, the general doctrine that judicial power to grant an anti-arbitration injunction derives from the courts' inherent duty to prevent abuse of process was strengthened. Addressing the material grounds, the Court wrestled with the idea of "vexatious and oppressive" proceedings, which is the primary test for the granting of anti-arbitration injunctions. It was held that arbitral proceedings can fall into this category when they are carried out in a way that is inequitable, or intended to harass a party instead of settling a dispute. In granting a stay of the arbitral proceedings, the Court reiterated that the jurisdiction to issue anti-arbitration injunctions is exactly for the purpose of avoiding such irrecoverable prejudice.

The judgment is important because it has cleared the air with regard to kompetenz - kompetenz doctrine and policy of non-interference with foreign seated arbitration. It has also been clarified that an anti-arbitration injunction doctrine operates as a safety-valve to the effect that arbitration is not allowed to fall into an oppressive or biased procedure. Judicial restraint is the general rule, but judicial intervention is warranted where arbitral autonomy is misused.

Similarly, the Division Bench of Telangana High Court in M/s Singareni Collieries Company Ltd. v. M/s H.B.T. Gmbh, COMCA No. 3 of 2025, held that granting of anti-arbitration injunction is not new to the Indian law and it must be dealt with caution whenever the process of arbitration is oppressive or vexatious. It was made clear that the court can grant such an injunction when the arbitration agreement's validity is suspicious. The judgment of the Supreme Court in Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., Civil Appeal No. 422 of 2003, was relied upon wherein it was held that in granting anti-suit injunction the court must satisfy itself that the defendant has given consent to the court's jurisdiction, should the injunction be rejected, the ends of justice would be neglected and the principle of comity (respect for the court in which the proceeding will be restricted) must also be taken into account. It was also held that the jurisdiction of a court in granting anti arbitration injunction should be exercised with utmost caution and only under narrowly conceived circumstances when the proceedings would be oppressive, vexatious, or in a forum non convenience, and refusal of relief would cause palpable injustice. Similarly the Supreme Court in Dinesh Singh Thakur v. Sonal Thakur, Civil Appeal No. 3878 of 2018, it was held that anti-suit injunction/anti-arbitration injunction can be granted if the proceedings would result in travesty of justice or carry forward injustice.

Therefore, a conspectus of the above discussion reflects that anti-arbitration injunction in India a careful balance is drawn out respecting the autonomy of the arbitration and also making sure that the arbitration is not used as a tool of unfairness for the affected party. The Indian courts have consistently held that the court intervention is justified when the proceedings of arbitration are oppressive or based on agreements which are invalid. However, as a matter of caution, such a remedy cannot be granted in a routine manner but only in exceptional circumstances where it is shown by the affected party that the relief, if not granted, would cause a travesty of justice or perpetuate injustice. Hence, an anti-arbitration injunction serves as a narrow valve which is necessary in India's arbitration regime being pro-arbitration, making sure that arbitration always operates within the bounds of fairness and justice and is never used as a tool to encourage injustice defeating the intent of the legislature.

The author is an Advocate , views are personal.