Delhi High Court
Msa Global Llc (Oman) vs Engineering Projects (India) Limited on 17 April, 2026
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 19.01.2026
Judgment pronounced on: 17 .04.2026
+ O.M.P.(EFA)(COMM.) 4/2025
MSA GLOBAL LLC (OMAN) ...Award Holder
Through: Mr. Akhil Sibal, Sr. Adv. with Mr. Kirat
Singh Nagra, Mr. Kartik Yadav, Mr. Pranav Vyas,
Ms. Sumedha Chadha, Mr. Sankalp Singh, Ms.
Jahnavi Sindhu, Mr. Aditya Raj Patodia, Advs.
Versus
ENGINEERING PROJECTS (INDIA) LIMITED
...Judgement Debtor
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Ajit
Warrier, Mr. Angad Kochhar, Mr. Himanshu Setia,
Mr. Vedari Kashyap, Mr. Krisna Gambhir, Ms. Riya
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
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JUDGMENT
For convenience, this judgment is divided into the following parts:-
TABLE OF CONTENTS
INTRODUCTION ……………………………………………………………………………….3
FACTUAL BACKGROUND AS PER THE PETITION ……………………….4
SUBMISSIONS / OBJECTIONS ON BEHALF OF THE JUDGMENT
DEBTOR……………………………………………………………………………………………..9SUBMISSIONS ON BEHALF OF THE AWARD HOLDER …………….. 13
ANALYSIS AND FINDINGS ……………………………………………………………. 16
SCOPE AND FRAMEWORK OF SECTION 48 OF THE ACT ……………………………… 16
EFFECT OF SINGAPORE COURT’S JUDGMENT/ICC CHALLENGE ON THE PRESENT
ENFORCEMENT PROCEEDINGS …………………………………………………………….. 23
INTERPRETATION OF “PUBLIC POLICY” AND “BIAS”………………………………… 30
PRINCIPLE OF DISCLOSURE, NEUTRALITY AND IMPARTIALITY IN INDIAN LAW
……………………………………………………………………………………………………… 41
ROLE OF SECTION 12 ………………………………………………………………………… 42
ICC FRAMEWORK ON NEUTRALITY AND IMPARTIALITY OF ARBITRATORS …… 60CONCLUSION ………………………………………………………………………………… 66
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INTRODUCTION
1. Justice, it has long been said since R v. Sussex Justices ex parte
McCarthy1, must not only be done but must also be seen to be done. This
principle is not a mere formality it lies at the very foundation of natural
justice and assumes even greater significance in the realm of arbitration,
where parties voluntarily submit their disputes to a private adjudicatory
process. The legitimacy of such a process rests entirely on the
confidence that the adjudicator is independent, impartial, and free from
any form of bias. Yet, modern arbitration practice presents challenges to
this ideal.
2. One such case being the present one where inadequate disclosures, have
raised legitimate apprehensions about perceived bias. These concerns
strike at the root of the arbitral process, for even the appearance of
partiality is sufficient to erode confidence in the outcome. It is in this
backdrop that the present case calls for a careful examination of whether
the Arbitrator has adhered not only to the letter of the law, being the duty
to disclose, but also to the higher standard that justice must manifestly
appear to have been done.
3. The present petition has been filed under Sections 44, 46, 47 and 49 of
the Arbitration and Conciliation Act, 1996 (“the Act”) and Order XXI
Rule 11 (2) read with Section 151 of the CPC, seeking enforcement and
execution of the first Partial Award passed by an Arbitral Tribunal
comprising of three Arbitrators (“Arbitral Tribunal”) in ICC Arbitration
Case No. 27726/HTG/YMK under the ICC Rules as corrected on
09.10.2024.
1
[1924] 1 KB 256.
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FACTUAL BACKGROUND AS PER THE PETITION
4. The Award Holder is an Oman-based electronic security systems
integrator engaged in the design, supply, installation, testing,
commissioning and integration of electronic systems for the Border
Security System under the Border Infrastructure Project (Engineer-3
Project, Sections 3 and 4).
5. The Judgment Debtor is a Public Sector Undertaking under the Ministry
of Heavy Industries & Public Enterprises, Government of India, engaged
in executing turnkey and nomination-based projects in sectors such as
power, steel, industrial, petrochemical, civil and infrastructure, both in
India and abroad.
6. The Judgment Debtor was awarded the main contract by the Ministry of
Defence, Sultanate of Oman on 29.07.2015. Pursuant thereto, the Award
Holder and the Judgment Debtor entered into a subcontract dated
21.09.2015 for the design, supply, installation, integration, and
commissioning of an electronic surveillance system for a border
infrastructure project between Oman and Yemen, with a total contract
value of USD 120,330,627.
7. Under the subcontract, the Judgment Debtor further subcontracted the
civil works to C&C Constructions Ltd. (Section 3) and Sarooj
Construction Co. LLC (Section 4), while the Award Holder was
entrusted with the execution of the entire electronic security system.
8. The Project was to be completed by 09.07.2019, but due to delays in
completion of civil works by the Judgment Debtor and its
subcontractors, the project remained incomplete, causing substantial
prolongation and operational costs to the Award Holder.
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9. Disputes subsequently arose between the parties, whereupon the Award
Holder invoked arbitration under Article 19 of the Agreement on
12.04.2023, in accordance with the ICC Rules. The Award Holder also
submitted its Request for Arbitration and nominated Mr. Andre Yeap SC
as its Arbitrator.
10. On 19.04.2023, Mr. Yeap submitted his Statement of Acceptance,
Availability, Impartiality, and Independence to the ICC, expressly
declaring that he had “nothing to disclose” in relation to any facts or
circumstances that might give rise to justifiable doubts as to his
impartiality or independence. On 09.06.2023, the Judgment Debtor
nominated its nominee Arbitrator. Thereafter, on 05.09.2023 the
Secretariat of ICC appointed the president and the Arbitral Tribunal was
constituted, and Singapore was designated as the seat of arbitration,
though the same is disputed by the Judgment Debtor.
11. Following the first procedural hearing on 26.10.2023, the Tribunal set a
schedule requiring completion of pleadings and evidence between
03.11.2023 and 23.12.2024. Shortly thereafter, on 03.11.2023, the
Award Holder moved an application seeking urgent interim measures.
12. After hearing the parties, the Arbitral Tribunal passed a Partial Award on
19.06.2024, corrected on 09.10.2024, directing the Judgment Debtor to
make certain payments including monthly operational costs and other
outstanding amounts.
13. On 13.11.2024, the Judgment Debtor challenged the First Partial Award
before the General Division of the High Court of the Republic of
Singapore (“High Court of Singapore”) vide Originating Application
1185 of 2024.
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14. Thereafter, on 17.12.2024, the Tribunal fixed the evidentiary hearings
for the period from 20.01.2025 to 25.01.2025. During this time on
17.01.2025, the Judgment Debtor discovered that Mr. Yeap had
previously been involved in arbitral proceedings connected with Mr.
Manbhupinder Singh Atwal, the Managing Director, Chairman, and
Promoter of the Award Holder. This fact emerged from a judgment dated
05.07.2024 delivered by the High Court of Gujarat in Neeraj Kumarpal
Shah v. Manbhupinder Singh Atwal, which revealed Mr. Yeap’s earlier
professional engagement in a matter involving Mr. Atwal and his legal
representatives.
15. Consequently on 19.01.2025 the Judgment Debtor filed an application
under Article 14 (1) of the ICC Rules (“Challenge Application”) before
the ICC Court.
16. On 05.02.2025, the Judgment Debtor filed an application (SUM 316)
seeking to place on record additional facts and circumstances in support
of its plea for partial setting aside of the First Partial Award before the
High Court of Singapore.
17. Thereafter, on 14.02.2025, the High Court of Singapore dismissed OA
1185/2024, thereby upholding the First Partial Award. The Court further
directed that the adjudication of SUM 316 would remain deferred until
the ICC Court renders its decision on the Challenge Application. The
grounds of the same were accorded vide judgment dated 10.04.2025.
18. On 27.02.2025, the ICC Court found the challenge admissible but
rejected it on merits stating that the circumstances were regrettable but
on merits the circumstances did not establish justifiable doubts with
respect to Mr. Yeap’s impartiality or independence, the reasons of the
same were declared on 14.03.2025.
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19. Around 11.03.2025, the Award Holder initiated proceedings before this
Court for the recognition and enforcement of the First Partial Award,
which came to be registered as O.M.P. (EFA) (COMM.) 4 of 2025.
20. Even the issue of challenge to impartiality raised by way of SUM 316 in
OA 1185/2024 was rejected on merits on 27.03.2025. Thereafter on
27.03.2025 the Judgment Debtor raised the issue of alleged bias of Mr.
Yeap before the Hon’ble High Court of Singapore under Sections 3 and
8 of the International Arbitration Act of Singapore read with Articles 6,
12, 13, and 15 of the UNCITRAL Model Law on International
Commercial Arbitration by filing OA 317. The same was rejected on
07.07.2025 and the reasons were provided on 24.07.2025.
21. The rejection of OA 1185/2024 was challenged before the Supreme
Court of Singapore by way of Notice of Appeal C.A. No. 7, which was
withdrawn vide Notice of Withdrawal dated 05.05.2025.
22. Despite repeated demand letters, the Judgment Debtor has continued to
refuse to comply with the Partial Award, leaving outstanding amounts
payable to the Award Holder.
23. Since the arbitration was seated in Singapore (a reciprocating territory
under Section 44 of the Act), the Partial Award constitutes a foreign
award enforceable in India. The present petition has therefore been filed
before the Commercial Division of the High Court seeking enforcement
of the Partial Award as a decree of the Court.
24. Additionally, the Judgment Debtor instituted a civil suit on 16.04.2025
titled Engineering Projects (India) Limited v. MSA Global LLC (Oman),
being CS (OS) 243 of 2025, inter alia seeking a declaration that the
Award Holder was not entitled to continue with the ICC arbitration with
the existing composition of Arbitrators. The Court, granted an interim
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injunction and accordingly, the proceedings before the Arbitral Tribunal
were stayed during the pendency of the suit, and the parties were
restrained from participating therein. The injunction application, being
I.A. 9724/2025, was thus allowed on 25.07.2025.
25. The said order was challenged by the Award Holder before the Hon’ble
Division Bench in FAO (OS) No. 88 of 2025, which affirmed the
findings of the learned Single Judge. Thereafter, a Special Leave Petition
was preferred before the Hon’ble Supreme Court. The Hon’ble Supreme
Court remanded the matter back to the Hon’ble Division Bench for fresh
adjudication, taking note of the subsequent development that formed the
basis of the earlier orders, namely, Mr. Yeap’s decision to resign from
his position as an Arbitrator.
26. The relevant portion of the judgment reads as under:
“3. During the pendency of these proceedings, Mr Andre Yeap
has resigned from his position as a member of the Arbitral
Tribunal. A communication dated 13.03.2026, to this effect, of
the International Court of Arbitration has been placed on
record, which is made part of the judicial record.
…
5. In this regard, it appears to us that since the primary reason
for injuncting the appellant from pursuing his antiarbitration
suit seems to have vanished, the validity of the order dated
25.07.2025 of the learned Single Judge can be re-examined by
the Division Bench of the High Court. It goes without saying
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Arbitrators when the interim award was passed, and/or the
reasons assigned by the Division Bench in paragraph 71 of the
impugned judgment, founded upon Articles 19.1 and 19.3 of
the Arbitration Agreement, are kept open along with all other
contentions between the parties.
6. For the reasons aforestated, the appeal is allowed in part to
the extent that the impugned judgment of the Division Bench of
the High Court dated 12.12.2025 is set aside and the FAO(OS)
No.88/2025 is restored to its original number and file with a
request to the High Court to decide the same afresh
uninfluenced of the impugned judgment dated 12.12.2025.”
SUBMISSIONS / OBJECTIONS ON BEHALF OF THE
JUDGMENT DEBTOR
27. The Judgment Debtor has filed its objections opposing the enforcement
under Section 48 of the Act.
28. Mr. Sandeep Sethi, learned senior counsel for the Judgment Debtor,
submits that enforcement of a foreign award is not automatic and this
Court is required to examine whether the Award falls foul of the
provisions contained in Section 48 of the Act and only thereafter proceed
to enforce the Award. Reliance is placed on International Air Transport
Association v. Spring Travels Private Limited2 and Government of India
v. Vedanta Limited.3
29. It is submitted that under Article 11(2) of the Rules of Arbitration of the
International Chamber of Commerce, 2021 (“ICC Rules”), every2
2024 SCC OnLine Del 7540.
3
(2020) 10 SCC 1.
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prospective Arbitrator is required to submit a Statement of Acceptance,
Availability, Impartiality and Independence disclosing any facts or
circumstances which may give rise to doubts regarding the Arbitrator’s
impartiality or independence. The object of such disclosure is to ensure
transparency in the arbitral process and to enable the parties to raise
objections, if any, at the appropriate stage.
30. Learned senior counsel while reiterating the factual position, submits
that on 19.04.2023, Mr. Yeap, in his Statement of Acceptance before the
ICC Secretariat, declared that he had “nothing to disclose” and that no
circumstances existed giving rise to doubts as to his impartiality or
independence, upon which the Judgment Debtor raised no objection to
his appointment.
31. It is, however, contended that a subsequent judgment of the High Court
of Gujarat dated 05.07.2024 revealed that Mr. Yeap had earlier acted as a
co-arbitrator in a matter involving Mr. Manbhupinder Singh Atwal, the
Chairman and promoter of the Award Holder. The Judgment Debtor
submits that this prior association was not disclosed, thereby violating
disclosure obligations under the ICC Rules and depriving the Judgment
Debtor of the opportunity to challenge the Arbitrator’s appointment at
the relevant stage.
32. Learned senior counsel has drawn my attention to Annexure-9 filed with
the objections wherein Mr. Yeap provided his comments on 23.01.2025
and stated that “By the time I realized Manbhupinder Singh Atwal was
the Chairman of the Claimant, the Judgment Debtor‟s counsel had at
least foreshadowed, if not even confirmed, that the Judgment Debtor was
commencing or had commenced proceedings in the Singapore Courts to
set aside the First Partial Award. Had I made the disclosure, the
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possibility of the Judgment Debtor seeking to challenge my impartiality
could not be discounted.”
33. It is submitted that the explanation subsequently offered by Mr. Yeap
that he did not notice the reference to Mr. Atwal’s email address in the
Request for Arbitration, is also wholly untenable. Learned senior counsel
contends that the arbitral record contained several references to Mr.
Atwal, including the use of his email address, communications addressed
to the Tribunal, and documents filed along with the Statement of Claim.
These documents were filed through the same counsel, who had earlier
represented Mr. Atwal in a prior arbitration where Mr. Yeap had acted as
a co-arbitrator. According to the Judgment Debtor, these circumstances
clearly establish a nexus between the Award Holder, Mr. Atwal and the
Arbitrator which ought to have been disclosed.
34. It is submitted that the non-disclosure constitutes a breach of the
mandatory disclosure obligations imposed upon Arbitrators under the
Rules of the International Chamber of Commerce. The Judgment Debtor
contends that had these facts been disclosed, the Judgment Debtor would
have had the opportunity to challenge the appointment of the Arbitrator.
In the absence of such disclosure, the Judgment Debtor was deprived of
proper notice of material circumstances relevant to the Arbitrator’s
independence and impartiality.
35. Learned senior counsel, further adds that the ICC Note to Parties and
Arbitral Tribunals on the Conduct of the Arbitration applies to all ICC
arbitrations unless otherwise stated and requires Arbitrators to disclose
circumstances that may raise doubts about their independence or
impartiality, including prior appointments by a party or its counsel. It is
stated that the Award Holder’s reliance on the IBA Guidelines on
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Conflicts of Interest in International Arbitration is misplaced, as the IBA
guidelines clarify that they do not override applicable arbitral rules or
binding instruments such as the Arbitration and Conciliation Act, 1996,
under which disclosure by an Arbitrator is a fundamental safeguard to
ensure the integrity of arbitration.
36. Learned counsel further submits that the Arbitrator was under a
continuing obligation to make disclosures. It is contended that Mr.
Yeap’s assertion that he became aware of the relationship only in
October 2024 is incorrect in light of the material on record. The identity
of Mr. Atwal was disclosed at multiple stages of the proceedings,
including in the Statement of Claim, which annexed the Agreement
bearing the name of the Award Holder’s Chairman; in the Statement of
Defence; in the additional documents filed by the Award Holder; and
during the hearing dated 11.01.2024, which was attended by the Award
Holder’s Chairman. Further, the Award Holder’s Statement in Reply as
well as the Partial Award itself expressly mention the full name of the
Award Holder’s Chairman.
37. Despite the arbitral proceedings continuing thereafter including the filing
of written submissions, draft guarantees and witness statements of Mr.
Atwal the Arbitrator failed to make any disclosure at any stage.
38. On this basis, it is submitted that the enforcement of the Award is liable
to be refused under Section 48(1)(d) of the Act on the ground that the
composition of the Arbitral Tribunal and the arbitral procedure were not
in accordance with the governing legal framework.
39. Learned senior counsel also submits that enforcement of the Partial
Award would be contrary to the public policy of India within the
meaning of Section 48(2)(b) of the Act. He states that the concealment of
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the prior relationship between the Award Holder’s Chairman and the
Arbitrator amounts to suppression of material facts affecting the making
of the Award. It is submitted that the independence and impartiality of
the Arbitral Tribunal constitutes fundamental principles of arbitration
and that an Award rendered by a Tribunal tainted by arbitral bias is
contrary to the fundamental policy of Indian law and the most basic
notions of morality and justice.
40. It is further contended that the conduct of the Arbitrator in consciously
refraining from making the disclosure, including the subsequent
explanation that disclosure could have led to a challenge to his
appointment, reinforces the apprehension of bias. According to the
Judgment Debtor, a reasonable third person apprised of these facts would
harbour legitimate doubts regarding the Arbitrator’s independence and
impartiality.
41. Without prejudice to the aforesaid objections, learned senior counsel also
submits that the Partial Award is in the nature of an interim award and
therefore does not constitute a “foreign award” capable of enforcement
under Part II of the Act.
42. With regard to Applicability of Arbitration and Conciliation Act, 1996, it
is stated that disclosure under Section 12 of the Act is mandatory and not
optional or discretionary, and the absence of such mandatory disclosure
vitiates the arbitral award as being against the public policy of India.
43. On these grounds, it is submitted that the present enforcement petition is
liable to be dismissed.
SUBMISSIONS ON BEHALF OF THE AWARD HOLDER
44. Mr. Akhil Sibal, learned senior counsel for the Award Holder, at the
outset states that the Judgment Debtor has admitted that the seat of
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arbitration was Singapore, thereby making Singapore law the curial law
governing the arbitration, while the procedure was governed by the ICC
Arbitration Rules.
45. He further adds that since the Judgment Debtor’s objection under
Section 48 is based on an alleged non-disclosure by an Arbitrator under
the ICC Rules; such a ground does not fall within the limited scope of
Section 48(2) of the Act. In any event, the very same challenge was
already raised by the Judgment Debtor before both the Singapore High
Court, being the curial court, and the ICC Court, and both challenges
were rejected. He also states that since the Partial Award was rendered
unanimously, it cannot be said that the Award was vitiated on grounds of
bias.
46. The second limb of the learned senior counsel’s argument concerns the
applicability of the Arbitration and Conciliation Act, 1996, particularly
Section 12 contained in Part I of the Act. It is submitted that, in terms of
Section 2(2), Part I applies only where the seat of arbitration is in India;
consequently, Section 12 does not apply to the present arbitration.
47. Even otherwise, and without prejudice to the aforesaid, he states that
there is no violation of Section 12 in the facts of the case. The disclosure
obligation under Section 12(1)(a) arises only where a past or present
relationship is likely to give rise to justifiable doubts as to the
Arbitrator’s independence or impartiality. Explanation 1 to Section 12,
read with the Fifth Schedule, provides guidance in this regard and
specifically contemplates a situation where an Arbitrator has been
appointed on two or more occasions by a party or its affiliate within the
past three years, as a circumstance that may give rise to such doubts.
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48. In the present case, the alleged non-disclosure pertains to a single
appointment as Arbitrator more than four years prior to the present
arbitration, in a matter involving the Chairman of the Award Holder.
Such an appointment clearly falls outside the scope of Para 22 of the
Fifth Schedule and, therefore, would not warrant disclosure even if
Section 12 were applicable. The Arbitrator had, in any event, furnished a
disclosure statement under the applicable ICC Rules stating that there
was nothing to disclose.
49. Further, the case laws relied upon by the Judgment Debtor pertain to
domestic arbitrations and are therefore inapplicable. The ICC Court has
also noted the non-applicability of Section 12 as well as the alignment of
the Fifth Schedule with the IBA Guidelines. Lastly, although the
Judgment Debtor acknowledged that the proceedings in CS(OS)
243/2025 are independent of the present enforcement proceedings,
reliance was nevertheless placed on orders passed therein, which is
misplaced.
50. In any event, the present proceedings involve a final determination and
are not governed by such prima facie observations. Further, while the
judgment dated 12.12.2025 in FAO(OS) 88/2025 prima facie observed
that the seat of arbitration is India, the admitted position in the present
enforcement proceedings is that the seat of arbitration is Singapore, and
no objection to the contrary has been raised by the Judgment Debtor
under Section 48 of the Act.
51. In view of the above it is prayed that the Award dated 19.06.2024 should
be enforced.
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ANALYSIS AND FINDINGS
52. I have heard the learned senior counsels for the parties and perused the
material on record.
53. Before dealing with the contentions it is apposite to refer to the scope of
Section 48 of the Act.
SCOPE AND FRAMEWORK OF SECTION 48 OF THE ACT
54. Section 48 reads as under:
“48. Conditions for enforcement of foreign awards.–(1)
Enforcement of a foreign award may be refused, at the request
of the party against whom it is invoked, only if that party
furnishes to the court proof that–
(a) ∗∗∗.
(b) the party against whom the award is invoked was not given
proper notice of the appointment of the arbitrator or of the
arbitral proceedings or was otherwise unable to present his
case; or
(c) the award deals with a difference not contemplated by or
not falling within the terms of the submission to arbitration, or
it contains decisions on matters beyond the scope of the
submission to arbitration : Provided that, if the decisions on
matters submitted to arbitration can be separated from those
not so submitted, that part of the award which contains
decisions on matters submitted to arbitration may be enforced;
or
(d)-(e) ∗∗∗
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(2) Enforcement of an arbitral award may also be refused if the
court finds that–
(a) the subject-matter of the difference is not capable of
settlement by arbitration under the law of India; or
(b) the enforcement of the award would be contrary to the
public policy of India:
[Explanation 1.–For the avoidance of any doubt, it is clarified
that an award is in conflict with the public policy of India, only
if,–
(i) the making of the award was induced or affected by fraud or
corruption or was in violation of Section 75 or Section 81; or
(ii) it is in contravention with the fundamental policy of Indian
law; or
(iii) it is in conflict with the most basic notions of morality or
justice.
Explanation 2.–For the avoidance of doubt, the test as to
whether there is a contravention with the fundamental policy of
Indian law shall not entail a review on the merits of the
dispute.]
(3) ….”
55. Part I of the Act deals with Domestic Awards and Part II governs the
enforcement of certain foreign arbitral awards, with Chapter I
specifically addressing awards falling within the ambit of the New York
Convention Awards. Section 46 thereof provides that a foreign award
enforceable under this Chapter shall, as between the parties to the
arbitration, be binding for all purposes. Section 47 prescribes the
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conditions requisite for the production of evidence in support of an
application for enforcement of such a foreign award. Section 48
enumerates the limited grounds upon which a court may refuse
enforcement of a foreign award. Finally, Section 49 mandates that, where
a Court is satisfied that a foreign award is enforceable under this Chapter,
the Award shall be deemed to be a decree of that Court.
56. In Vijay Karia v. Prysmian Cavi E Sistemi SRL4, it has been held as
under:
“58. When the grounds for resisting enforcement of a foreign
award under Section 48 are seen, they may be classified into
three groups — grounds which affect the jurisdiction of the
arbitration proceedings; grounds which affect party interest
alone; and grounds which go to the public policy of India, as
explained by Explanation 1 to Section 48(2). Where a ground
to resist enforcement is made out, by which the very
jurisdiction of the Tribunal is questioned — such as the
arbitration agreement itself not being valid under the law to
which the parties have subjected it, or where the subject-matter
of difference is not capable of settlement by arbitration under
the law of India, it is obvious that there can be no discretion in
these matters. Enforcement of a foreign award made without
jurisdiction cannot possibly be weighed in the scales for a
discretion to be exercised to enforce such award if the scales
are tilted in its favour.
59. On the other hand, where the grounds taken to resist
enforcement can be said to be linked to party interest alone, for
4
(2020) 11 SCC 1.
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example, that a party has been unable to present its case
before the arbitrator, and which ground is capable of waiver
or abandonment, or, the ground being made out, no prejudice
has been caused to the party on such ground being made out, a
court may well enforce a foreign award, even if such ground is
made out. When it comes to the “public policy of India”
ground, again, there would be no discretion in enforcing an
award which is induced by fraud or corruption, or which
violates the fundamental policy of Indian law, or is in conflict
with the most basic notions of morality or justice. It can thus be
seen that the expression “may” in Section 48 can, depending
upon the context, mean “shall” or as connoting that a residual
discretion remains in the court to enforce a foreign award,
despite grounds for its resistance having been made out. What
is clear is that the width of this discretion is limited to the
circumstances pointed out hereinabove, in which case a
balancing act may be performed by the court enforcing a
foreign award.
…
81. Given the fact that the object of Section 48 is to enforce
foreign awards subject to certain well-defined narrow
exceptions, the expression “was otherwise unable to present
his case” occurring in Section 48(1)(b) cannot be given an
expansive meaning and would have to be read in the context
and colour of the words preceding the said phrase. In short,
this expression would be a facet of natural justice, which would
be breached only if a fair hearing was not given by theDigitally Signed
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arbitrator to the parties. Read along with the first part of
Section 48(1)(b), it is clear that this expression would apply at
the hearing stage and not after the award has been delivered,
as has been held in Ssangyong [Ssangyong Engg. &
Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 : (2020) 2
SCC (Civ) 213] . A good working test for determining whether
a party has been unable to present his case is to see whether
factors outside the party’s control have combined to deny the
party a fair hearing. Thus, where no opportunity was given to
deal with an argument which goes to the root of the case or
findings based on evidence which go behind the back of the
party and which results in a denial of justice to the prejudice of
the party; or additional or new evidence is taken which forms
the basis of the award on which a party has been given no
opportunity of rebuttal, would, on the facts of a given case,
render a foreign award liable to be set aside on the ground
that a party has been unable to present his case. This must, of
course, be with the caveat that such breach be clearly made
out on the facts of a given case, and that awards must always
be read supportively with an inclination to uphold rather than
destroy, given the minimal interference possible with foreign
awards under Section 48.
…
83. Having said this, however, if a foreign award fails to
determine a material issue which goes to the root of the matter
or fails to decide a claim or counterclaim in its entirety, the
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aside, as was done by the Delhi High Court
in Campos [Campos Bros. Farms v. Matru Bhumi Supply
Chain (P) Ltd., 2019 SCC OnLine Del 8350 : (2019) 261 DLT
201] on the ground of violation of the public policy of India, in
that it would then offend a most basic notion of justice in this
country [ In Ssangyong Engg. & Construction Co.
Ltd. v. NHAI, (2019) 15 SCC 131 : (2020) 2 SCC (Civ) 213 this
Court cautioned that this ground would only be attracted with
the following caveat: (SCC pp. 199-200, para 76)
“76. However, when it comes to the public policy of India
argument based upon “most basic notions of justice”, it is
clear that this ground can be attracted only in very exceptional
circumstances when the conscience of the Court is shocked by
infraction of fundamental notions or principles of justice. …
However, we repeat that this ground is available only in very
exceptional circumstances, such as the fact situation in the
present case. Under no circumstance can any court interfere
with an arbitral award on the ground that justice has not been
done in the opinion of the Court. That would be an entry into
the merits of the dispute which, as we have seen, is contrary to
the ethos of Section 34 of the 1996 Act, as has been noted
earlier in this judgment.”] . It must always be remembered that
poor reasoning, by which a material issue or claim is rejected,
can never fall in this class of cases. Also, issues that the
Tribunal considered essential and has addressed must be given
their due weight — it often happens that the Tribunal considers
a particular issue as essential and answers it, which byDigitally Signed
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implication would mean that the other issue or issues raised
have been implicitly rejected. For example, two parties may
both allege that the other is in breach. A finding that one party
is in breach, without expressly stating that the other party is
not in breach, would amount to a decision on both a claim and
a counterclaim, as to which party is in breach. Similarly, after
hearing the parties, a certain sum may be awarded as damages
and an issue as to interest may not be answered at all. This
again may, on the facts of a given case, amount to an implied
rejection of the claim for interest. The important point to be
considered is that the foreign award must be read as a whole,
fairly, and without nit-picking. If read as a whole, the said
award has addressed the basic issues raised by the parties and
has, in substance, decided the claims and counterclaims of the
parties, enforcement must follow.
(emphasis added)
57. At the outset it is clarified that one of the contentions advanced by the
Award Holder pertains to the characterization of Singapore as the seat of
arbitration, relying upon the judgment of the curial Court, i.e., the High
Court of Singapore. This position is, however, disputed by the Judgment
Debtor, who contends that Singapore was merely the place of arbitration.
58. This controversy is not determinative for the present purpose. An
enforcement Court exercises a distinct and limited, yet independent,
jurisdiction and is concerned solely with testing the foreign award on the
grounds enumerated under Section 48 of the Act. The scope of such
examination is not circumscribed by the findings of the curial court but
is guided by Section 48, which governs enforcement. The Hon’ble
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Division Bench in FAO (OS) No. 88 of 2025 had given a finding that the
seat of Arbitration is at New Delhi. Since the said matter was remanded
back for reconsideration by the Hon’ble Supreme Court, the said issue
will be adjudicated by the Division Bench accordingly.
EFFECT OF SINGAPORE COURT’S JUDGMENT/ ICC CHALLENGE ON THE PRESENT
ENFORCEMENT PROCEEDINGS
59. Having dealt with the scope of Section 48 of the Act, I shall now deal
with the maintainability aspect of the present petition. Learned senior
counsel for the Award Holder has argued at length that the plea of bias
had already been raised before the Singapore Courts as well as before the
ICC, and therefore ought not to be reconsidered at the stage of
enforcement. This contention, however, does not merit acceptance. A
bare reading of Section 48 of the Act indicates that there is no embargo
on the enforcement Court from examining grounds for refusal of
enforcement merely because such issues may have been considered by
the courts at the seat of arbitration, (though the Judgment Debtor
disputes Singapore as the seat of arbitration).
60. On the contrary, it is well settled that the jurisdiction of the enforcement
court under Section 48 is independent in nature and actually acts as a
secondary jurisdiction. Therefore the question that arises is whether such
prior consideration precludes this Court from independently examining
the issue. In this regard it is apposite to refer to the following judgments.
61. In Nagaraj V. Mylandla v. PI Opportunities Fund-I and others Etc5
held as under:
5
2026 INSC 298.
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“76. The application of the doctrine of „transnational issue
estoppel‟ would effectively curb the propensity of parties to
relitigate settled factual issues taking advantage of the fact that
they are before a different court in a different jurisdiction, viz.,
the enforcement court in a country other than the situs of the
seat court. This would invariably narrow the scope of
interference by the enforcement court with an arbitral award
that has already passed muster with the seat court. This would
add value and augment the efficiency of arbitration as a
dispute resolution mechanism to settle trans-border
commercial disputes. However, as noted by the Singapore
Court of Appeal in Republic of India (supra), opposition to
enforcement of a foreign arbitral award on „public policy‟
violation grounds would necessarily stand on a different
footing. Notwithstanding the decision of the seat court
upholding an arbitral award, the same can still be subjected to
examination by the enforcement court against the parameters
of the „public policy‟ of the State in which enforcement of such
award is sought….”
(emphasis added)
62. In Vedanta Ltd (supra), the Hon’ble Supreme Court held that the
enquiry by the enforcement court under Section 48 of the Act is not to be
constrained by findings of the seat court. The relevant paragraph reads as
under:
“94. The enforcement court would, however, examine the
challenge to the award in accordance with the grounds
available under Section 48 of the Act, without being
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constrained by the findings of the Malaysian Courts. Merely
because the Malaysian Courts have upheld the award, it would
not be an impediment for the Indian courts to examine whether
the award was opposed to the public policy of India under
Section 48 of the Arbitration Act, 1996. If the award is found to
be violative of the public policy of India, it would not be
enforced by the Indian courts. The enforcement court would
however not second-guess or review the correctness of the
judgment of the seat courts, while deciding the challenge to the
award.”
(emphasis added)
63. Similarly in Mercator Ltd. v. Dredging Corpn. of India Ltd.,6 a
Coordinate bench has succinctly explained the principles governing
enforcement which read as follows:
“12. Before dealing with these grounds in detail, certain legal
principles relating to the exercise of jurisdiction under Section
48 of the Arbitration Act may be summarised:
A. The power to set aside an award vests only in the Courts at
the seat of arbitration, which exercise “supervisory” or
“primary” jurisdiction over the award.
B. The jurisdiction of the Court in which enforcement is sought
is a secondary jurisdiction, limited to the question of whether
the award is enforceable in that particular jurisdiction.
C. A judgment of the seat Court rejecting a challenge to the
award is not binding under Section 48 of the Arbitration6
2024 SCC OnLine Del 3075.
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Act, but can be considered while deciding whether to permit
relitigation of the issue before the enforcement court.
D. The public policy grounds for resisting enforcement of a
foreign award under Section 48(2) of the Arbitration Act are
limited to “narrow and international standards” of public
policy, in contrast with the grounds available for challenging a
domestic award under Section 34 of the Arbitration Act.
E. Similarly, while deciding questions of bias also,
internationally recognised narrow standards of public policy,
which reference the most basic notions of morality or justice,
or shock the conscience of the Court, alone can be considered.
F. The Court can take into consideration the fact that a
challenge on the ground in question was not raised before the
seat Court.
G. Even when the grounds under Section 48 of the Arbitration
Act are made out, the Court has discretion as to whether
enforcement should be refused.
H. A review on the merits of the dispute does not fall within the
jurisdiction of the Court under Section 48 of the Arbitration
Act.”
(emphasis added)
64. A perusal of the above judgments show that it has been categorically
held that the enquiry undertaken by the enforcement court under Section
48 of the Act is not constrained by the findings of the seat court.
65. Further, the inquiry that the Court will take during this stage would be
testing the Foreign Award on the public policy of India, which has not
been done either by the High Court of Singapore or the ICC.
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66. The ICC in its reasons observed as under:
“33. For completeness, the court also noted that this
arbitration is governed by Omani law, the place of arbitration
is Singapore, and Judgment Debtor is an Indian entity.
Although the Indian Arbitration and Conciliation Act, 1996
(“Indian Arbitration Act”) does not apply to arbitrations
seated outside India, it contains provisions and standards for
disclosure by arbitrators, which may form relevant
considerations for an Indian court as potential courts of
enforcement. For example, one of the grounds giving rise to
justifiable doubts as to the independence or impartiality of an
arbitrator is if “The arbitrator has within the past three years
been appointed as arbitrator on two or more occasions by one
of the parties or an affiliate of one of the parties”, which is
identical to Article 3.1.3 under the Orange List of the IBA
Guidelines.
34. The Court noted that in the absence of any other material
to demonstrate bias or partiality, Mr Yeap‟s non-disclosure
would be inconsequential and insufficient to create justifiable
doubt as to his independence or impartiality under Indian
law.”
(emphasis added)
67. The relevant portion of the High Court of Singapore judgment’s reads as
under:
“165 Relying on the ICC Guidelines, the Sub-Contractor
submitted that the subject arbitrator had correctly decided that
it was unnecessary to disclose the Prior Arbitration (and, byDigitally Signed
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implication, the ICC Court was wrong to reach the opposite
conclusion). However, as foreshadowed above (at [136]), this
was not an issue that I had to decide, given my finding that the
circumstances of the case (including the circumstances of the
alleged failure to disclose) did not amount to apparent bias.
For the present, it sufficed to say that I agreed with the ICC
Court that the subject arbitrator had acted properly and
reasonably in evaluating the necessity of disclosure, having
regard to the ICC Guidelines in the process.
…
175… The issue before me was whether the subject arbitrator‟s
conduct in relation to disclosure supported an inference of
apparent bias, and it did not. …
180. Thus, any apparent bias stemming from the subject
arbitrator‟s realisation in or around October 2024 that the
claimants in the two arbitrations were related, had not
occurred “in connection with the making of [any] award by
which the rights of [the Contractor] (Plaintiff herein) have
been prejudiced”; s 24(b) of the IAA.
181 If, however, the subject arbitrator had known about the
connection between the claimants in the two arbitrations prior
to the issuance of the First Partial Award (a contention made
by the Contractor, which both the ICC Court and I rejected),
the question remained whether any part of the First Partial
Award should be set aside, considering that the Tribunal
comprised three arbitrators who reached a unanimous
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other two arbitrators. …
186 I concluded that apparent bias as a new basis of setting-
aside could not succeed: it was hopeless, and as such the
Contractor should not be allowed to introduce it. I dismissed
SUM 316 accordingly. Consequently, I dismissed the
application to set aside the Lump Sum Payment decision,
unreservedly.”
68. From a perusal of the above paragraphs it is clear that the test employed
and reasoning provided, though mention the Indian law, but do not
consider public policy of India at all in order to invoke the doctrine of
Transnational Issue Estoppel. The case of Nagraj (Supra) becomes
relevant in this context as in that particular case the Tribunal had
appreciated the issue with reference to the public policy of India and an
Indian senior counsel was present in the panel due to which the same
was not reappreciated by the Hon’ble Supreme Court amongst other
reasons.
69. In view of the above, it is clear that under Section 48 of the Act,
enforcement of a foreign award may be refused only on the limited and
narrowly construed grounds expressly provided therein, and the burden
lies upon the party resisting enforcement to establish that such grounds
are made out. The Court exercising jurisdiction at the enforcement stage
cannot undertake a review of the merits of the arbitral award and must
adopt a pro-enforcement approach, interfering only where the objections
fall squarely within the statutory exceptions contemplated under Section
48 of the Act.
70. Accordingly, while there is no dispute that the foreign award has attained
finality, this Court retains the jurisdiction to examine whether the case
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falls within the confines of Section 48 of the Act and if so then whether
to refuse the enforcement of the Award or not.
71. Further the contention of the Award Holder that Mr. Yeap became aware
of the identity of Mr. Atwal in October 2024 was rejected by the ICC
and same was not pleaded before the Hon’ble High Court of Singapore
but is now being pleaded before this Court to enlarge the ambit is
meritless as a party cannot be precluded from raising a contention merely
because it was not urged earlier, particularly when the present
proceedings involve scrutiny of the Award on a distinct and independent
threshold.
INTERPRETATION OF “PUBLIC POLICY” AND “BIAS”
72. It is a settled position that bias form a key component in public policy of
India as held in Avitel Post Studioz Ltd. v. HSBC PI Holdings
(Mauritius) Ltd.7. The relevant findings read as under:
” 20. Against this background, the consideration to be made in
these matters is whether the High Court was correct in its
decision to reject the objection under Section 48(2)(b) of the
Indian Arbitration Act against enforcement of the foreign
award on the grounds of arbitral bias and violation of public
policy. This raises a further question as to whether the ground
of bias could be raised at the enforcement stage under Section
48(2)(b) for being violative of the “public policy of India” and
the “most basic notions of morality or justice”?
28. At this point, we may also benefit by noting that the
International Law Association issued recommendations [
Committee on International Commercial Arbitration,7
(2024) 7 SCC 197.
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“Application of Public Policy as A Ground for Refusing
Recognition or Enforcement of International Arbitral Awards”
in International Law Association Report of the Seventieth
Conference (New Delhi, 2000).] at a conference held in New
Delhi in 2002 on international commercial arbitration and
advocated using only narrow and international standards,
while dealing with “public policy”. The recommendations have
been regarded as reflective of best international practices. The
ILA also defined international public policy as follows:
“(i) fundamental principles, pertaining to justice or morality,
that the State wishes to protect even when it is not directly
concerned;
(ii) rules designed to serve the essential political, social or
economic interests of the State, these being known as “lois de
police” or “public policy rules”; and
(iii) the duty of the State to respect its obligations towards
other States or international organisations.”
29. Being a signatory to the New York Convention, we must
therefore adopt an internationalist approach [ Fali Nariman
and others, “The India Resolutions for the 1958 Convention on
the Recognition and Enforcement of Foreign Awards” in
Dushyant Dave and others (Ed.) Arbitration in India (Kluwer,
2021).] . What follows from the above is that there is a clear
distinction between the standards of public policy applicable
for domestic arbitration and international commercial
arbitration. Proceeding with the aforedeclared proposition to
have a narrow meaning to the doctrine of public policy and
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applying an international outlook, let us now hark back to
whether a foreign award can be refused enforcement on the
ground of bias.
30. Even though the New York Convention does not explicitly
mention “bias”, the possible grounds for refusing recognition
of a foreign award are contained in Article V(1)(d) (irregular
composition of Arbitral Tribunal), Article V(1)(b) (due
process) and the public policy defence under Article V(2)(b).
Courts across the world have applied a higher threshold of
bias to prevent enforcement of an award than the standards set
for ordinary judicial review [ Reinmar Wolff (Ed.), A Review of
New York Convention : Article-by-Article Commentary (2nd
Edn., Beck/Hart, 2019) p. 352.] . Therefore, arbitral awards
are seldom refused recognition and enforcement, considering
the existence of a heightened standard of proof for non-
recognition and enforcement of an award, based on alleged
partiality [ Stavroula Angoura, “Arbitrator’s Impartiality
Under Article V(1)(d) of the New York Convention” (2019) 15
(1) AIAJ 29.] . It invokes a higher threshold than is applicable
in cases of removal of the arbitrator. [ Gary
Born, International Commercial Arbitration (3rd Edn., 2021)
p. 3937.] This is for the reasons that, greater risk, efforts, time,
and expenses are involved in the non-recognition of an award
as against the removal of an arbitrator during the arbitral
proceedings.
31. What is also essential to note is that Courts across the
world do not adopt a uniform test while dealing with
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allegations of bias [ William W. Park, “Arbitrator Bias”, 2015
TDM 12; Sumeet Kachwaha, “The Rule Against Bias and the
Jurisprudence of Arbitrator’s Independence and Impartiality”,
(2021) 17(2) AIAJ 104.] . The standards for determining bias
vary across different legal systems and jurisdictions [ Vibhu
Bakhru J, “Impartiality and Independence of the Arbitral
Tribunal” in Shashank Garg (Ed.), Arbitrator’s
Handbook (Lexis Nexis, 2022).] . English Courts [Halliburton
Co. v. Chubb Bermuda Insurance Ltd., 2021 AC 1083 : (2020)
3 WLR 1474 (SC) : 2020 UKSC 48] , for instance, adopt the
“informed or fair minded” observer test to conclude whether
there is a “real possibility of bias”. Australia
[Hancock v. Hancock Prospecting Pty. Ltd., 2022 NSWSC 724
(Aust)] adopts the “real danger of bias” test and Singapore
[Shankar Alan, In re, (2007) 1 SLR(R) 85 at paras 75-76]
prefers the standard of “reasonable suspicion” rejecting the
“real danger of bias” test. Therefore, the outcome of a
challenge on the ground of bias would vary, depending on
domestic standards.
33. Embracing international standards in arbitration would
foster trust, certainty, and effectiveness in the resolution of
disputes on a global scale. The above discussion would
persuade us to say that in India, we must adopt an
internationally recognised narrow standard of public policy,
when dealing with the aspect of bias. It is only when the most
basic notions of morality or justice are violated that this
ground can be attracted. This Court in SsangyongEngg. &
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Construction Co. Ltd. v. NHAI [SsangyongEngg. &
Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 : (2020) 2
SCC (Civ) 213.] (“NHAI”) had noted that the ground of most
basic notions of morality or justice can only be invoked when
the conscience of the Court is shocked by infraction of
fundamental notions or principles of justice.
34. In view of the above discussion, there can be no difficulty
in holding that the most basic notions of morality and justice
under the concept of “public policy” would include bias.
However, Courts must endeavour to adopt international best
practices instead of domestic standards, while determining
bias. It is only in exceptional circumstances that enforcement
should be refused on the ground of bias.”
(emphasis added)
73. At this stage, it is important to highlight the contours of the public policy
exception. While the expression “public policy” remains undefined in
the statute, its scope has been consciously narrowed by the 2016
amendment to the Act, which introduced Explanations to confine its
ambit and curb excessive judicial intervention. Broadly, public policy
connotes matters affecting the public good and public interest; however,
Courts have repeatedly cautioned that it is an “unruly horse,” incapable
of precise definition and liable to misuse if left unchecked.
74. Judicial interpretation has therefore evolved to limit “public policy
application” to fundamental policy of Indian law, basic notions of
morality and justice, and interest of India without permitting a review on
merits. In this backdrop, when assessing allegations such as bias or
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improper disclosure by an Arbitrator, the inquiry must be narrowly
tailored: it is not every procedural lapse that attracts the public policy
bar, but only such exceptional circumstance that strikes at the root of the
arbitral process and renders the award fundamentally unfair. Thus, what
needs to be seen is whether the Arbitrator’s action such as a cryptic or
inadequate disclosure gives rise to justifiable doubts as to independence
and impartiality of such a nature that the award itself stands vitiated,
offending the most basic notions of justice and undermining the integrity
of the arbitral process.
75. The most basic notions of justice and morality have been elucidated in
OPG Power Generation (P) Ltd. v. Enexio Power Cooling Solutions
(India) (P) Ltd.8. While the Court consciously refrained from laying
down an exhaustive definition, it clarified that the test is narrow in scope
and can be invoked only in exceptional circumstances, namely, where
the impugned act or award results in such a grave infraction of
fundamental principles of justice that it shocks the conscience of the
Court. The application of this test is inherently contextual and must be
assessed in light of the facts and circumstances of each case. The
relevant portion reads as under:
“58. Justice is the virtue by which the society/ court / tribunal
gives a man his due, opposed to injury or wrong….
62….Dispensation of justice in its quality may vary, dependent
on person who dispenses it…
8
(2025) 2 SCC 417.
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63. In our view, therefore, considering that the concept of
justice is opentextured, and notions of justice could evolve with
changing needs of the society, it would not be prudent to cull
out “the most basic notions of justice”. Suffice it to observe,
they ought to be such elementary principles of justice that their
violation could be figured out by a prudent member of the
public who may, or may not, be judicially trained, which
means, that their violation would shock the conscience of a
legally trained mind.”
76. Now coming to the concept of bias. As per Oxford dictionary, bias means
“inclination or prejudice for or against one person or group, especially
in a way considered to be unfair.” The jurisprudence on bias has evolved
significantly across jurisdictions. In Central Organisation for Railway
Electrification v. ECI SPIC SMO MCML (JV)9 (“CORE II”), the Court
was dealing with the issue of unilateral appointments in public-private
contracts by a government entity, emphasised that a member of a judicial
or quasi-judicial body must not have any predisposition in favour of or
against a party. If circumstances exist which give rise to a reasonable
apprehension of lack of impartiality, such a person ought not to be part of
the adjudicatory process.
77. Courts have developed multiple tests to determine bias, which lie along a
spectrum.10 At one end is the requirement of proving actual bias, which
is rarely established in practice. Moving along the spectrum are the tests
of real likelihood of bias andreasonable suspicion of bias, which focus
not on proof of actual prejudice, but on the probability or possibility of
9
(2025) 4 SCC 641.
10
Bihar State Mineral Development Corpn. v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418.
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bias inferred from surrounding circumstances. The recent approach,
particularly in the United Kingdom, has crystallised into the “real
possibility of bias” test.
78. Internationally, the European Court of Human Rights (“ECtHR”), while
interpreting Article 6, applies a two-fold test to assess impartiality: (i) a
subjective test, which examines whether the decision-maker harbours
any personal prejudice or bias; and (ii) an objective test, which considers
whether the institutional framework and surrounding circumstances
provide sufficient guarantees to exclude any legitimate doubt as to
impartiality.
79. Even the Indian jurisprudence has aligned itself with these evolving
global standards. In Government of Haryana v. G.F. Toll Road (P)
Ltd.,11 the Hon’ble Supreme Court held that the appropriate test is
whether a fair-minded and informed person would conclude that there
exists a real likelihood of bias. The Court clarified that actual proof of
bias is not necessary; rather, the existence of justifiable doubts as to
independence and impartiality is sufficient.
80. The relevant paragraphs from CORE II (supra) read as under:
“49. The disclosure requirement helps prevent the
appointment of an unacceptable candidate. The duty of
disclosure is a continuing requirement to: (i) provide the
information to any party who did not obtain it before the
arbitrator‟s appointment; and (ii) secure information about
circumstances that only arise at a later stage of the arbitral
proceedings, that is, new business affiliations or share
acquisitions.
11
(2019) 3 SCC 505.
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…
55. Article 18 constitutes a fundamental principle that is
“applicable to the entire arbitral proceedings.” The Working
Group has also stated that the principles of equality and
fairness “should be observed not only by the arbitral tribunal
but also by the parties when laying down any rules of
procedure.” It was the understanding of the Working Group
that the principle of equality of parties applies to arbitral
proceedings in general, including aspects such as the
composition of arbitral tribunal. Article 18 also operates as a
limitation on Article 19 which provides broad autonomy to
both the parties and, in the absence of an arbitration
agreement, to the arbitral tribunal when determining the
procedure to be followed in conducting the arbitral
proceedings. It imposes a duty on the arbitral tribunal to
ensure fairness in the arbitral process.
…115. The consideration of possible “doubts” must be
undertaken from the perspective of a “fair-minded and
informed person” rather than the subjective views of the
parties or the arbitrators. According to Gary Born, the
standard of proof adopted under Article 12 of the Model Law
is relatively low to ensure “the integrity of the arbitral
tribunal and arbitral process, particularly given the extremely
limited review available for substantive or procedural errors
by the arbitrators.” The issue of arbitrator bias is to be
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resolved by applying the test of the real likelihood of bias in
the given facts and circumstances.
…
124. The doctrine of bias as evolved in English and Indian
law emphasizes independence and impartiality in the process
of adjudication to inspire the confidence of the public in the
adjudicatory processes. Although Section 12 deals with the
quality of independence and impartiality inherent in the
arbitrators, the provision‟s emphasis is to ensure an
independent and impartial arbitral process.
125. Fali Nariman, distinguished lawyer and erudite jurist, in
an article on “Standards of Behaviour of Arbitrators”, opined
that the level of probity expected of arbitrators is no less, and
perhaps more stringent than what is expected of Judges:
“Though litigation is compulsory and arbitration is
consensual, both are judicial processes of an adversarial
character. That is why arbitration has always been regarded
as quasi-judicial. Standards of behaviour expected of
arbitrators-with reference to their impartiality and their
independence-are no less stringent than that demanded of
Judges; in fact, arbitrators are expected to behave a shade
better since Judges are institutionally insulated by the
established court system, their judgments being also subjected
to the corrective scrutiny of an appeal.
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…
128. If a person having a financial interest in the outcome of
the arbitral proceedings unilaterally nominates a sole
arbitrator, it is bound to give rise to justifiable doubts on the
independence and impartiality of the arbitrator. The
possibility of bias by the arbitrator is real because the person
who has an interest in the subject matter of the dispute can
chart out the course of the entire arbitration proceeding by
unilaterally appointing a sole arbitrator. A party may select a
particular person to be appointed as a sole arbitrator because
of a quid pro quo arrangement between them. Moreover, the
fact that the sole arbitrator owes the appointment to one party
may make it difficult to decide against that party for fear of
displeasure. It is not possible to determine whether the sole
arbitrator will be prejudiced, but the circumstances of the
appointment give rise to the real possibility of bias.”
(emphasis added)
81. With the aforesaid legal position in mind, I shall now examine the
controversy in the present case, namely, whether the conduct of Mr.
Yeap, the Award Holder’s nominee Arbitrator, in not disclosing his
involvement in a previous arbitration, gives rise to a reasonable
apprehension/justifiable doubt of bias so as to attract the public policy
exception under Section 48(2)(b) of the Act.
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PRINCIPLE OF DISCLOSURE, NEUTRALITY AND IMPARTIALITY IN INDIAN
LAW
82. I am cognizant that bias and non-disclosure are distinct concepts, though
they may at times overlap. Mere disclosure of circumstances does not
automatically lead to a conclusion of partiality. However, to prevent
situations that may give rise to apprehensions of bias, the requirement of
disclosure has been incorporated across jurisdictions.
83. The question of whether an Arbitrator is in fact biased arises at a later
stage; the first step is to see whether the obligation of disclosure has been
duly complied with. This requirement finds recognition across
jurisdictions, including under the UNCITRAL Model Law, which
mandates disclosure prior to the constitution of the tribunal, with
analogous provisions reflected in various legal frameworks. The
rationale for this insistence lies in the fact that non-disclosure, in itself,
can undermine the integrity of the arbitral process and, in certain
circumstances, prove fatal to its validity.
84. It is important to note that impartiality and independence have always
been one of the important hallmarks of any adjudicatory process and the
same has been emphasised time and again by the Hon’ble Supreme
Court and various High Courts.
85. In CORE II (Supra), as discussed above the Court observed that the
duty of disclosure is a continuing obligation which ensures that parties
are made aware of any circumstances that may affect the neutrality of the
Arbitrator, both at the stage of appointment and during the course of the
proceedings. The underlying objective of such disclosure is to prevent
the appointment of an unacceptable candidate and to safeguard the
fairness of the arbitral process.
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86. The Hon’ble Supreme Court further noted that arbitration, though
founded on party autonomy, nevertheless possesses the “trappings of a
court” and therefore requires the arbitral tribunal to act objectively and in
accordance with the principles of natural justice. The principles of
equality, fairness and neutrality are not confined to any single stage of
the proceedings but operate throughout the arbitral process, including the
composition of the tribunal. Indeed, the independence and impartiality of
the Arbitrator form the cornerstone of procedural equality between the
parties, ensuring that both sides participate on a level playing field in the
adjudicatory process.
87. Thus, the statutory scheme governing arbitration makes it abundantly
clear that impartiality and independence of the Arbitrator constitute a
golden thread that runs through the entire arbitral framework. Any
circumstance which undermines this neutrality strikes at the very
legitimacy of the adjudicatory process. Even a slight infraction in this
regard has the potential to erode party confidence in the arbitral process
and may consequently vitiate the fairness of the proceedings and
precisely why this idea was codified under Section 12 of the Act which
mandates that an Arbitrator discloses any circumstances likely to give
rise to justifiable doubts as to his or her independence or impartiality.
ROLE OF SECTION 12
88. Under Section 12(1) of the Act, any person approached in connection
with a possible appointment as an Arbitrator shall disclose in writing all
circumstances whether financial, professional, business, or otherwise
which are likely to give rise to justifiable doubts as to his or her
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independence or impartiality. This obligation is not confined to the pre-
appointment stage but continues throughout the arbitral proceedings.
89. The 2015 Amendment Act significantly strengthened this framework by
introducing a structured disclosure and ineligibility regime through the
Fifth, Sixth, and Seventh Schedules. The Fifth Schedule provides a non-
exhaustive list of circumstances that may give rise to justifiable doubts
regarding the Arbitrator’s neutrality and serves as a guide under
Explanation 1 to Section 12(1). The Sixth Schedule prescribes the form
and manner of disclosure, thereby standardising the obligation and
ensuring transparency. The Seventh Schedule, read with Section 12(5),
identifies specific relationships and situations that render a person de
jure ineligible to act as an Arbitrator, notwithstanding any prior
agreement to the contrary, subject only to an express post-dispute waiver
in writing by the parties.
90. The statutory scheme makes it abundantly clear that the duty of
disclosure is mandatory and rests solely upon the Arbitrator. The use of
the expression “he shall disclose” leaves no room for discretion. Courts
have consistently held that the burden does not lie upon the parties to
discover potential conflicts; rather, full and frank disclosure is a
prerequisite to a valid appointment.
91. The underlying test is not proof of actual bias but the existence of
circumstances giving rise to justifiable apprehension of bias. As
elucidated in the 246th Report of the Law Commission of India,
neutrality of Arbitrators is fundamental to arbitration as a quasi-judicial
process, and the standard is whether a reasonable person would perceive
a likelihood of bias. This principle reflects the broader principle that
justice must not only be done but must also be seen to be done.
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92. The law in recent times has further evolved to address structural bias in
arbitral appointments. In TRF Ltd. v. Energo Engineering Projects
Ltd.12 and Perkins Eastman Architects DPC v. HSCC (India) Ltd.13, the
Hon’ble Supreme Court held that a person who is himself ineligible
under Section 12(5) is equally disqualified from appointing an
Arbitrator. This principle was extended to invalidate unilateral
appointments by interested parties. Further, in Bharat Broadband
Network Ltd. v. United Telecoms Ltd.,14 it was clarified that waiver of
ineligibility under Section 12(5) must be express and in writing after
disputes have arisen, and cannot be inferred from conduct.
93. The cumulative effect of the 2015 amendment and judicial
pronouncements thereafter is that an arbitral award rendered in breach of
the disclosure obligation or by an ineligible Arbitrator lacks legal
sanctity. Such an award is liable to be set aside, as it undermines the
foundational requirement of neutrality which is indispensable to the
arbitral process.
94. In Lanco-Rani v. National Highways Authority of India Limited15, the
Arbitrator had appeared in one other arbitration consisting of one of the
parties and later on when objections were raised as to his impartiality, he
had resigned from one of the proceedings. The relevant paras read as
under:
“18. Recently, in Union of India v. U.P. State Bridge
Corporation Ltd. (supra), the Supreme Court explained that
the English Arbitration Act, 1996 (EAA) was enacted on the12
(2017) 8 SCC 377.
13
(2020) 20 SCC 760.
14
(2019) 5 SCC 755.
15
2016 SCC OnLine Del 6267.
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lines of the UNCITRAL Model Law, i.e. in the same year as the
Act now applicable in India. Commenting upon the
structure of the EAA, Mustill and Boyd in their “Commercial
Arbitration, 2001 Companion Volume to the Second Edition”
noted that it was founded on four pillars, and the first of these
pillars comprised „three general principles‟ on which the
entire edifice of the said legislation was said to be structured.
In Department of Economics Policy and Development of the
City of Moscow v. Bankers Trust Co. (2004) EWCA Civ 314 it
was explained, thus, in relation to the EAA:
“…Parliament has set out, in the Arbitration Act,
1996, to encourage and facilitate a reformed and
more independent, as well as private and
confidential, system of consensual dispute resolution,
with only limited possibilities of court involvement
where necessary in the interests of the public
and of basic fairness‟. Section 1 of the Act sets forth
the three main principles of arbitration law, viz. – (i)
speedy, inexpensive and fair trial by an impartial
tribunal; (ii) party autonomy; and (iii) minimum
court intervention. This provision has to be applied
purposively. In case of doubt as to the
meaning of any provision of this Act, regard should
be had to these principles.”
19. The emphasis therefore is on “a fair trial by an
impartial Tribunal”.
…
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25. Turning to the facts of the present case, it is plain that there
was a mandatory requirement that Mr. Basant Kumar should
have made a disclosure in terms of Section 12(2) of the Act to
the parties about him being engaged as an advisor/technical
expert in some other arbitration cases of NHAI. Those
arbitration cases may have nothing to do with the case in
which he was acting as an Arbitrator but that is not the point.
This was a circumstance that certainly would give rise to
“justifiable doubts as to his independence and impartiality.”In
fact, as the proceedings dated 19th January, 2007 at the
34th hearing of the arbitration in the dispute between PCL and
NHAI show, Mr. Basant Kumar himself referred to Section
12 of the Act and thought it necessary to make the disclosure.
He obviously realised that this was a case of „apparent bias‟
which was anticipated by the legislature in enacting Sections
12(1) and 12(2) of the Act. No sooner had he made the
disclosure, the representatives of PCL objected to his
continuation as an Arbitrator. He then had no hesitation in
announcing his resignation. This was at the time when the
arbitration in the present case was in progress. Therefore,
there was no excuse for Mr. Basant Kumar to not have made a
similar voluntary disclosure when the proceedings in the
present arbitration were in progress.
…
27. The fact that the Award may have been unanimous and that
Mr. Basant Kumar was only one of the Members of the AT does
not make even one bit of a difference to the above conclusion.
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This aspect of the matter has already been dealt with by the
Supreme Court in A.K. Kraipak v. Union of India (supra).
There again, it was urged that the “mere fact that one of the
Members of the Board was biased against some of the Award
Holders cannot vitiate the entire proceedings.” The Supreme
Court negated this plea since the Court was essentially
concerned with the question whether the “decision taken by the
Board can be considered as having been taken fairly and
justly.” This was because of the “conflict between duty and
interest.”In other words, even if one of the Members of the AT
has compromised the essential requirement of fairness by
failing to disclose the circumstances which may give rise to
justifiable doubts as to independence and impartiality, the
Award of the AT would get vitiated.”
(emphasis added)
95. Another pertinent case is of Vinod Bhaiyalal Jain v. Wadhwani
Parmeshwari Cold Storage (P) Ltd.16 wherein the Court observed that
whenever the Arbitrator comes to know of any such information which
may lead to a justifiable doubt of his partiality he should refrain from
proceeding further. Relevant findings read as under:
“9….However, in the above background, what is to be seen is
that there has been a reasonable basis for the appellants to
make a claim that in the present circumstance the
learned Arbitrator would not be fair to them even if not
biased. It could no doubt be only a perception of the
appellants herein. Be it so, no room should be given for even16
(2020) 15 SCC 726.
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such a feeling more particularly when in the matter of
arbitration the very basis is that the parties get the opportunity
of nominating a judge of their choice in whom they have trust
and faith unlike in a normal course of litigation where they do
not have such choice.
96. Further in Pallav Vimalbhai Shah v. Kalpesh Sumatibhai Shah17,
Gujarat High Court has explained why the requirement of disclosure is
sacrosanct. The relevant findings read as under:
” 36. In context of such provisions contained in section 12 of
the Act, the requirement of disclosure in terms of the Sixth
Schedule assumes significance. We have noticed that even as
per the unamended subsection (1) of section 12, a person who
was approached with his possible appointment as an
arbitrator, had to disclose in writing any circumstances likely
to give rise to justifiable doubts as to his independence or
impartiality. In the amended form, subsection (1) of section 12
makes this requirement more elaborate and more definitive. As
per Explanation 2, such disclosure has to be made in the form
specified in Sixth Schedule. It can thus be seen that the
requirement of this disclosure is of considerable importance.
Unless the person who is approached for his possible
appointment as an arbitrator, makes necessary disclosure of
any circumstances which may give rise to justifiable doubts as
to his independence or impartiality, it would not be possible for
the parties to the arbitral proceedings to evaluate this position
and decide for themselves whether on account of such17
O/IAAP/15/2017 dated 04.08.2017.
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circumstances, he should be ineligible for appointment. If even
after disclosure of existence of such circumstances, the parties
consciously appoint or participate in appointment of a person
as an arbitrator, the statute prevents the person concerned
from challenging such appointment.
37. As observed by the Supreme Court in a recent judgment in
case of Voestalpine Schienen Gmbh v. Delhi Metro Rail
Corporation Limited reported in (2017) 4 Supreme Court
Cases 665, the three main principles of the Arbitration law are
(i) speedy, inexpensive and fair trial by an impartial tribunal;
(ii) party autonomy; and (iii) minimum Court intervention….
38. In this context, the necessity of disclosure envisaged in
subsection (1) of section 12 becomes important. Only when
such a disclosure is made, that the parties can judge for
themselves, if circumstances exist to give justifiable doubts as
to the impartiality of an arbitrator. Upon disclosure being
made any one of the following situations may arise. First is,
where the parties may agree that no such circumstances giving
rise to justifiable doubts as to the impartiality of the arbitrator
exist or the parties may despite such circumstances existing, go
ahead and appoint him as an arbitrator or in face of
disagreement between the parties on this issue, one of them, as
per the procedure envisaged in the arbitration clause, may
proceed to appoint such a person as an arbitrator. Whatever
be the fall out, it cannot be denied that disclosure of existence
of any circumstance likely to give rise to justifiable doubts as
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great importance. Not making any disclosure even though such
circumstances exist, would render the appointment of an
arbitrator without following the mandatory procedure…. This
is only to suggest that if circumstances exist and disclosure is
not made, appointment of an arbitrator would be wholly non
est.”
97. Therefore, the principle laid down as evident from the above judgments
is that the Arbitrator should make a full and complete disclosure as
mandated by Section 12 read with the schedules and if the same is not
done, the same is fatal.
98. In the present case, the Award Holder has argued that (i) since the
Award was unanimous, no doubts can be attached to the Partial Award
(ii) Section 12 of the Act is wholly inapplicable to a foreign-seated
arbitration, and therefore any alleged non-compliance therewith is
inconsequential, and (iii) while dealing with foreign awards,
international standards should be applied while construing public policy.
99. The Award Holder’s primary contention that the First Partial Award,
being unanimous, cannot be tainted by bias, does not merit acceptance.
In light of the principle laid down in A.K. Kraipak v. Union of India18,
as reiterated in Lanco-Rani (supra) and CORE II (supra), it is well-
settled that even the participation of a single member of the Arbitral
Tribunal who has compromised the essential requirement of fairness by
failing to disclose circumstances giving rise to justifiable doubts
regarding independence and impartiality vitiates the integrity of the
entire proceeding. Consequently, the Award rendered by such a Tribunal
cannot be sustained merely on the ground of unanimity.
18
(1969) 2 SCC 262.
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100. As regards the second and third contention, I am conscious that Section
12 which falls under Part I does not apply proprio vigore by virtue of
Section 2(2). The present matter is not one of applicability of Section 12
per se but whether the arbitral process adhered to the fundamental
requirement of independence and impartiality, a breach of which would
fall within the limited contours of the public policy exception under
Section 48.
101. The standards or the principles embodied in Section 12, including the
duty of disclosure, are reflective of well-settled international norms. The
duty to disclose is continuous and must be assessed from the standpoint
of whether the circumstances are likely to give rise to justifiable doubts
in the mind of a reasonable party thereby rendering the award vulnerable
to refusal of enforcement under Section 48 as being contrary to the
fundamental policy of Indian law and the basic notions of justice and
morality.
102. That being said, the crux of the above analysis is that while Section 12
per se is not applicable, it is the principle of impartiality which goes
hand in hand with non-disclosure, which forms part of the Indian law
and therefore falls within the contours of public policy. It is against this
principle that the foreign Award shall be tested with the threshold being,
shocking the conscience of the Court. Had the arbitration been domestic
arbitration then the Award would have been rejected simply on the
ground of non-compliance of Section 12 of the Act. Therefore the entire
discussion in the present case is in view of the fact whether the award is
liable to be set aside in view of being violative of public policy.
103. Without prejudice, the Award Holder has further contended that even if
Section 12 were applicable, no disclosure was warranted, as the
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requirement under Section 12 read with Entry 22 of the Fifth Schedule is
triggered only where the prior arbitration was conducted within the
preceding three years, on 2 or more occasions, whereas in the present
case it was conducted four years earlier. This submission, however, fails
to take into account the mandate of continuous disclosure.
104. The factual narration in the present case shows that on 12.04.2023, the
Request for Arbitration (“RFA”) was submitted, wherein the details of
the Award Holder and its counsel were duly disclosed. The relevant
portion reads as under:
“9. The claimant is engaged in the business of designing,
integrating, and commissioning security systems and solutions,
both off-the-shelf and customized for government and private
sector clients. MSA is a company incorporated under the laws
of Oman. MSA’s address is:
P.O. BOX: 1372,
Postal Code : 130, Azaiba
Muscat,
Sultanate of Oman
Email: [email protected]
[email protected]
105. Prior to this, in November 2018, the Award Holder had nominated Mr.
Andre Yeap, senior counsel from Singapore, as its co-arbitrator in a
separate arbitration proceeding involving Mr. Atwal, who is the
Managing Director, Chairman and Promoter of MSA Global LLC
(Oman).
106. On 19.04.2023, Mr. Yeap signed the ICC Arbitrator Statement of
Acceptance, Availability,Impartiality and Independence (“the Disclosure
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Statement”) and stated, “Nothing to disclose”. The same is reproduced as
under:
107. The Arbitral Tribunal was constituted on 05.09.2023 and the Award was
subsequently rendered on 19.06.2024 (corrected on 09.10.2024).
Thereafter, on 17.01.2025, the Judgment Debtor’s counsel came across a
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judgment of the Gujarat High Court which revealed that Mr. Andre Yeap
had previously acted as an Arbitrator in another arbitration involving the
Award Holder’s Chairman, Mr. Manbhupinder Singh Atwal, wherein the
same counsel representing the Award Holder in the present ICC
arbitration had also appeared. Upon the Judgment Debtor raising a
challenge on 23.01.2025, Mr. Yeap, in his response, stated that although
he had become aware of this potential conflict in October 2024, he had
chosen not to disclose the same on the ground that such disclosure could
potentially invite a challenge to his impartiality. The relevant extract
reads as under:
“Dear Sirs and Mesdames
1. I refer to the the Respondents application under A14(1)
of the ICC Rules to challenge the independence and
impartiality of Andre Yeap as co-arbitrator. By the
Secretariats letter dated 20 January 2025, the arbitrators
were invited to provide their response by 31 January
2025. My response is as follows.
2. At the time when I signed ICCs Statement of
Acceptence, Availability, Impartiality and Independence
on 19 April 2023 (the Statement of Acceptance), ICC had
provided me its Case Information setting out the identities
of the parties as well as other relevant entities, which did
not include Manbhupinder Singh Atwal. My conflict
search was done and cleared on this basis.
3. As I recall, the Request for Arbitration (RFA), the
Statement of Claim and subsequent pleadings did not
make reference to Manbhupinder Singh Atwal, let alone
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show that Manbhupinder Singh Atwal either owned or
controlled the Claimant. I did not pay attention to the
Claimants email address as provided in the RFA, which in
any event did not carry the full name of Manbhupinder
Singh Atwal.
4. By a partial award dated 19 June 2024 (the Partial
Award) the Tribunal had ordered, inter alia, that the
Respondent made certain monthly payments to the
Claimant provided that the Claimant shall first provide a
corporate guarantee to secure the sum in the event the
repayment is subsequently ordered, agreeable to the
Respondent, whose agreement shall not be unreasonably
withheld.
5. It became apparent to me that Manbhupinder Singh
Atwal was Chairman of the Claimant by the time he
sought to provide a personal guarantee in an effort to
resolve the Respondents allegations regarding the
inadequacy of the Claimants corporate guarantee. This
was sometime in or around October 2024.
6. As a result, I decided to refresh my memory on the IBA
Guidelines on Conflict of Interest in International
Arbitration (the IBA Guidelines) and noted the following
matters in the Orange List (which required disclosure)
3.1.3: where the arbitrator has within the past 3 years,
been appointed as arbitrator on 2 or more occasions by
one of the parties, or an affiliate of one of the parties;
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3.2.8; where the arbitrator has, within the past 3 years,
been appointed as arbitrator on more than 3 occasions by
the same counsel, or the same law firm.
7. Whilst paragraph 27 of the ICC Note to Parties and
Arbitral Tribunals on the Conduct of the Arbitration
Under the ICC Rules of Abitration (the ICC Note) sets out
a list of circumstances which an arbitrator should
consider. I also gave due consideration to the orange list
in the IBA guidelines.
8. Given that:
(1) the Claimant in this case was a different party from
Manbhupinder Singh Atwal (who was the Claimants
Chairman)
(2) I had been appointed co-arbitrator by Manbhupinder
Singh Atwal/DSK Legal in the previous arbitration
sometime in or around November 2018, more then 4 years
prior to my signing of the Statement of Acceptance, and
(3) the aforesaid appointment by DSK Legal in the
previous arbitration was my only previous appointment by
DSK;
I came to the conclusion that the circumstances
concerning my appointment in the previous arbitration by
Manbhupinder Singh Atwal/DSK Legal were nowhere
near and indeed far away from the matters set out in the
Orange List and that it was unnecessary, unwarranted
and even possibly inappropriate for me to make any
disclosure that I had previously been
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nominated/appointed arbitrator by Manbhupinder Singh
Atwal/DSK Legal.
9. By the time I realized Manbhupinder Singh Atwal was
the Chairman of the Claimant, the Respondents counsel
had at least foreshadowed, if not even confirmed that the
Respondent was commencing or had commenced
proceedings in the Singapore Courts to set aside the
Partial Award. Had I made the disclosure, the possibility
of the Respondent seeking to challenge my impartiality
could not be discounted.
10. I have always acted independently and impartially as
arbitrator in all arbitrations, including this arbitration,
and will continue to do so in this arbitration if the
Respondents challenge is dismissed.
11. I would be happy to address any queries which the
ICC may have.
Your sincerely,
Andre Yeap, SC
Co-arbitrator”
108. A perusal of paragraph No. 9 clearly shows that the Arbitrator was
aware of his previous engagement and even expressed apprehension
that disclosure of the same to the Judgment Debtor might give rise to
concerns. This clearly demonstrates that the Arbitrator himself
considered the prior engagement to be a circumstance relevant to his
independence and impartiality. However, despite such knowledge, the
Arbitrator failed to make a proper disclosure as required under the rules
governing international arbitration.
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109. It is not in dispute that the Arbitrator had previously acted in an
arbitration involving one of the parties approximately four years prior.
While such prior engagement may not, in itself, be disqualifying, it
undoubtedly triggered a continuing obligation of disclosure under
principles mentioned under Section 12 of the Act.
110. Section 12 reads as under:
“12. Grounds for challenge.– [(1) When a person is
approached in connection with his possible appointment as an
arbitrator, he shall disclose in writing any circumstances,–
(a) such as the existence either direct or indirect, of any past or
present relationship with or interest in any of the parties or in
relation to the subject-matter in dispute, whether financial,
business, professional or other kind, which is likely to give rise
to justifiable doubts as to his independence or impartiality; and
(b) which are likely to affect his ability to devote sufficient time
to the arbitration and in particular his ability to complete the
entire arbitration within a period of twelve months.
Explanation.–The grounds stated in the Fifth Schedule shall
guide in determining whether circumstances exist which give
rise to justifiable doubts as to the independence or impartiality
of an arbitrator.
Explanation 2.–The disclosure shall be made by such person
in the form specified in the Sixth Schedule.]
(2) An arbitrator, from the time of his appointment and
throughout the arbitral proceedings, shall, without delay,
disclose to the parties in writing any circumstances referred to
in sub-section (1) unless they have already been informed of
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them by him
…”
Entry 22 reads as under:
“The arbitrator has within the past three years been appointed
as arbitrator on two or more occasions by one of the parties or
an affiliate of one of the parties.”
111. What needs emphasis is that the principle of disclosure under the
Act identifies circumstances that an Arbitrator is obliged to disclose;
it does not, by itself, render the Arbitrator biased. Disclosure serves
as a mechanism to ensure transparency and to enable parties to
assess potential conflicts.
112. In the present case the core of the controversy lies in the erroneous
equation sought to be drawn between the existence of bias and the
obligation of disclosure. These two operate at fundamentally
different but overlapping sphere. What is not being assessed here is
whether the learned Arbitrator was, in fact, biased. What actually
needs to be seen is whether he disclosed all material circumstances
as and when they arose. It is in this context that the requirement of
disclosure assumes an entirely independent footing and is not
contingent upon any other consideration of bias or its likelihood. If
this initial step of disclosure is not undertaken, the aggrieved party
is deprived of the opportunity to assess the existence or likelihood
of bias. The cart cannot be put before the horse.
113. The duty to disclose is absolute in character. It is intended to ensure
transparency in the constitution of the arbitral tribunal and to
preserve the confidence of the parties in the adjudicatory process.
This obligation cannot be diluted on the ground that the
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circumstance in question may appear trivial, remote, or insufficient
to establish justifiable doubts. The statutory scheme does not permit
the Arbitrator to assume the role of a judge in his own cause by
determining whether a particular fact warrants disclosure. Such an
approach would defeat the very purpose of the concept of
disclosure, which is to enable the parties to make an informed
assessment of the Arbitrator’s independence and impartiality.
114. The distinction becomes particularly significant in the context of
enforcement of foreign awards. It is no doubt correct that the
specific provisions of Section 12 of the Act, fall within Part I and
are not directly applicable to proceedings under Part II. However,
the principles underlying Section 12 cannot be viewed in isolation
or as confined merely to domestic arbitrations.
115. This principle also finds recognition in institutional frameworks
such as the ICC Rules, which similarly impose a continuing duty
upon Arbitrators to disclose any circumstances that may give rise to
doubts as to their independence. Thus, the obligation of disclosure is
not a creature of Indian law alone but is reflective of a widely
accepted international standard governing arbitral conduct.
116. At this juncture it is also important to peruse the ICC framework with
respect to disclosure, as the parties had agreed to be bound by the same.
ICC FRAMEWORK ON NEUTRALITY AND IMPARTIALITY OF ARBITRATORS
117. Article 11 of ICC Rules reads as under:
“ARTICLE 11
General Provisions
1. Every arbitrator must be and remain impartial and
independent of the parties involved in the arbitration.
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2. Before appointment or confirmation, a prospective
arbitrator shall sign a statement of acceptance, availability,
impartiality and independence. The prospective arbitrator
shall disclose in writing to the Secretariat any facts or
circumstances which might be of such a nature as to call into
question the arbitrator’s independence in the eyes of the
parties, as well as any circumstances that could give rise to
reasonable doubts as to the arbitrator’s impartiality. The
Secretariat shall provide such information to the parties in
writing and fix a time limit for any comments from them.
3. An arbitrator shall immediately disclose in writing to the
Secretariat and to the parties any facts or circumstances of a
similar nature to those referred to in Article 11(2) concerning
the arbitrator’s impartiality or independence which may arise
during the arbitration.
…”
(emphasis added)
118. A perusal of the above shows that Article 11 of the ICC Rules
encapsulates the foundational requirement that an Arbitrator must be,
and remain, independent and impartial. It mandates a written declaration
prior to appointment, requiring disclosure of any circumstances that may
reasonably give rise to doubts as to such independence or impartiality.
This obligation is continuous, extending throughout the arbitral
proceedings, and ensures that any supervening circumstances are
promptly brought to the notice of the parties and the ICC Court, which
retains final authority on issues of confirmation, challenge, or
replacement.
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119. Importantly, the standard for disclosure is objective – centred on whether
circumstances may reasonably give rise to doubts in the eyes of the
parties, rather than the Arbitrator’s own assessment. The ICC Note
reinforces this framework by requiring a rigorous and comprehensive
disclosure of all potentially relevant facts, including prior arbitral
engagements involving a party or its affiliates, thereby ensuring
informed decision-making and transparency in the constitution of the
tribunal. The Statement of Acceptance, Availability, Impartiality and
Independence submitted by the Arbitrator also fortifies the same. The
said disclosure statement does not put any restriction on the year/
number of arbitrations as contained in Entry 22 of Schedule V, of the
Act. Further there is a clarification that a doubt must be resolved in
favour of disclosure clearly showing the high threshold required to be
maintained by the Arbitrator towards disclosure of past relationships.
120. Needless to add, the ICC itself, in its Statement of Reasons, in the ICC
challenge has characterised the circumstances as “regrettable” and
expressly observed that the issue would be more appropriately examined
by enforcement courts. This observation assumes significance inasmuch
as it underscores that the question of Arbitrator impartiality was not
inconsequential, but one warranting judicial scrutiny at the enforcement
stage.
121. The ICC findings read as under:
"V. COURT‟S DECISION ON MERITS OF THE
CHALLENGE
24. The Court considered whether the failure to disclose Mr
Atwal‟s appointment of Mr Yeap in the Prior Arbitration raises
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doubts about his impartiality and independence, such that the
Challenge should be accepted on its merits.
25. The Court began by considering whether Mr Yeap should
have disclosed the prior appointment. The Court concluded
that, on balance, Mr Yeap should have disclosed the prior
appointment after considering the following:
(a) Mr Yeap acted reasonably when making inquiries prior to
signing his Statement of Acceptance, Availability, Impartiality
and Independence.
(b) The Court accepts that Mr Yeap became aware of the
potential disclosure in or around October 2024 and he had
considered at this time whether a disclosure should be made.
(c) The ICC Note states at paragraph 25 that an arbitrator
must disclose “any circumstance that might be of such a nature
as to call into question his or her independence in the eyes of
any of the parties or give rise to reasonable doubts as to his or
her impartiality. Any doubt must be resolved in favour of
disclosure.”
(d) Mr Yeap properly considered paragraph 27 of the ICC
Note, which further requires arbitrators to make their decision
on disclosure based on an assessment of the circumstances,
including whether the arbitrator “acts or has acted as
arbitrator in a case involving one of the parties or one of its
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appointed as arbitrator by one of the parties or one of its
affiliates, or by counsel to one of the parties or the counsel‟s
law firm.” The ICC Note does not specify any specific time
periods for past appointments.
(e) While Mr Yeap acted reasonably in considering other
guidance, including the IBA Guidelines, an arbitrator‟s duty of
disclosure under the ICC Rules is separate and distinct, and
the IBA Guidelines do not override that duty.
(f) Mr Yeap was entitled to consider the four-year period
between the appointments in the Prior Arbitration and this
arbitration, although he may also have considered that the
challenge to the award in the Prior Arbitration had only
concluded in July 2024.
(g) The possibility that the Partial Award may be challenged
by the Judgment Debtor, or that the Judgment Debtor may
have sought to challenge Mr Yeap‟s impartiality following the
disclosure, is not a relevant consideration to be taken into
account when deciding whether to make a disclosure.
(h) The ICC Note requires arbitrators to err on the side of
disclosure. Therefore, any doubt ought to have been resolved
in favour of disclosure.
…
29. Mr Yeap decided not to disclose the Prior Arbitration after
consulting relevant guidance. His decision was based on the
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length of time between the appointments. While this decision
was open to him on the facts, the more prudent course of action
would have been to err on the side of disclosure and inform the
parties of the Prior Arbitration.”
(emphasis added)
122. A perusal of above clearly shows that there is a finding of non-
disclosure, it has been observed that he came to know about the
circumstance around October 2024 and yet decided not to disclose on the
basis that it may be challenged by one of the parties which is not
something an Arbitrator should take into consideration.
123. Accordingly, this Court is of the view that the obligation of disclosure is
autonomous and non-derogable, and its breach cannot be justified on the
ground that the circumstances, if disclosed, may not have ultimately
established bias. The legitimacy of the arbitral process rests not merely
on actual impartiality, but equally on the perception of impartiality, and
it is this perception that the duty of disclosure is designed to safeguard.
124. In this regard, the Statement to be furnished by Mr. Yeap as a
prospective Arbitrator specifically required him to take into account,
whether there existed any past or present relationship, direct or indirect,
whether financial, professional, or of any other kind, between him and
any of the parties, their lawyers or other representatives, or related
entities and individuals.
125. Therefore, the disclosure required to be made by Mr. Yeap was couched
in the widest possible terms and was not confined to any specific time
period prior to the present appointment, nor was it limited to a minimum
number of prior engagements. The obligation was thus a continuing and
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broad duty of disclosure intended to ensure complete transparency and to
enable the parties to assess any circumstance that could reasonably give
rise to doubts regarding the Arbitrator’s independence or impartiality.
126. Despite such awareness, the Arbitrator consciously chose not to disclose
the said circumstance on the premise that such disclosure might invite a
challenge to his impartiality.
CONCLUSION
127. By withholding such information, the Arbitrator effectively deprived the
Judgment Debtor of the opportunity to assess the circumstances and to
raise a timely challenge to the composition of the tribunal. Consequently,
such a defect transcends a mere procedural irregularity and amounts to a
violation of the most basic notions of justice and morality, as well as the
fundamental policy of Indian law.
128. This Court is cognizant of the fact that the ground of bias, as subsumed
within the public policy exception, ought not to be invoked lightly or
routinely to refuse enforcement of arbitral awards, particularly having
regard to the time, cost, and finality associated with arbitral proceedings.
However, there always exist rare and exceptional cases where the
circumstances are so egregious that judicial intervention becomes
imperative. Where the arbitral process is vitiated by a clear infraction of
the most basic notions of justice and morality, the Court would be failing
in its duty were it to enforce such an award. The present case, in my
considered view, constitutes one such instance warranting refusal of
enforcement.
129. For the said reasons the objections under Section 48 of the Act are
allowed and the present petition is dismissed.
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130. Pending applications, if any, also stand disposed of.
JASMEET SINGH, J
APRIL 17th, 2026/DE
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