Arbitration procedure in India through the judgments that shaped it

The stamping saga is the sharpest. In April 2023, a five-judge bench in N.N. Global held by a 3:2 majority that an unstamped instrument containing an arbitration agreement was void and could not be acted upon. Eight months later, a seven-judge bench in In Re: Interplay held that it was nothing of the sort. An unstamped instrument is inadmissible in evidence under Section 35 of the Indian Stamp Act, 1899, not void, and the defect is curable. Stamping is not examined at the referral stage at all; it goes to the tribunal. The 2023 bench also held that SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., (2011) 14 SCC 66 and Garware Wall Ropes Ltd. v. Coastal Marine Constructions and Engineering Ltd., (2019) 9 SCC 209 had been wrongly decided.

Eight months. A five-judge bench, then a seven-judge bench, opposite conclusions. Contracts drafted in that window were negotiated against a rule that no longer exists.

The public policy story runs longer and matters more. Saw Pipes in 2003 invented “patent illegality” as a ground inside “public policy of India”, which handed Section 34 courts a merits review they were never meant to have. Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, decided in late 2014, systematised it. The Law Commission’s 246th Report, submitted in August 2014, called this out and recommended that patent illegality be construed far more narrowly than Saw Pipes allowed. Parliament rewrote Section 34 in 2015, and Section 34(2A) made patent illegality a standalone ground for domestic awards only, with an express proviso barring its use for erroneous application of law or re-appreciation of evidence. In Ssangyong, the Court confirmed the reset in plain terms: the expansive approaches of Saw Pipes and Western Geco “have been done away with”.

And then there is prospectivity, which is where practitioners actually lose money. BALCO binds only agreements executed on or after 6 September 2012, so the overruled Bhatia position still governs older agreements. CORE II’s conclusions on three-member tribunals apply only to appointments made after 8 November 2024. Getting the date wrong means arguing the wrong law.

That same ruling overruled Himangni Enterprises and confirmed that landlord-tenant disputes under the Transfer of Property Act, 1882 are arbitrable. Our detailed treatment of the Vidya Drolia four-fold test works through each limb.

The scope of Section 11 scrutiny has narrowed further since. In SBI General Insurance Co. Ltd. v. Krish Spinning, 2024 INSC 532 (SC, 18 July 2024), a three-judge bench held that the inquiry is confined to the prima facie existence of the arbitration agreement and nothing else. A plea of accord and satisfaction, meaning a claim that the parties have already settled, is for the tribunal. Deciding it at the referral stage usurps the tribunal’s power. Limitation goes the same way, as Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd., (2020) 2 SCC 455 had already held: it’s a jurisdictional issue under Section 16, not a Section 11 question.

The practical reality is that arguing limitation or full-and-final settlement at Section 11 is now close to a guaranteed loss, and it costs months of listing time to find that out.

Non-signatories are the other live issue. In Cox and Kings, a five-judge bench retained the group of companies doctrine but re-anchored it. The doctrine sits in Section 7(4)(b) and the definition of “parties” in Section 2(1)(h), and it’s consent-based: the non-signatory must belong to the same group and there must be a mutual intention of all parties to bind it. Common shareholding won’t do it. Nor will a shared group name. You need evidence of involvement in negotiation, performance and the transaction itself (which is a documentary burden, not an argument).

Since the arbitration clause lives inside a commercial contract rather than standing on its own, drafting quality upstream decides how much of this you ever face. For the commercial-drafting side of that, Skill Arbitrage’s piece on contract drafting for foreign clients treats dispute resolution as one of the clauses that does the real risk-allocating work.

It started with TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377 in 2017. A person statutorily ineligible under Section 12(5) cannot nominate someone else as arbitrator. The Court applied qui facit per alium facit per se, meaning what you cannot do yourself you cannot do through another. Disqualification became derivative.

Perkins Eastman Architects DPC v. HSCC (India) Ltd., AIR 2020 SC 59 (SC, 26 November 2019) extended it in 2019. It isn’t only the ineligible person who is barred; a party, its official, or anyone with an interest in the outcome cannot unilaterally appoint a sole arbitrator. The logic is straightforward. If your interest disqualifies you from deciding, it disqualifies you from choosing the decider (which is the whole doctrine, in one line).

Then came the big one. In CORE II, decided on 8 November 2024, a five-judge bench held that party autonomy is subject to the mandatory requirements of Section 18 (equal treatment) and Section 12(5), and that equal treatment applies at the appointment stage, not just during the hearing. Two things follow. A clause requiring one party to unilaterally appoint a sole arbitrator is impermissible. And for a three-member tribunal, a clause forcing the other side to pick its nominee from a panel curated by one party is equally impermissible. Public sector undertakings may propose a panel. They cannot compel selection from it. In public-private contracts, unilateral appointment clauses violate Article 14 of the Constitution.

Fair warning on how CORE II is reported: the bench divided, and different issues carried different majorities. The majority was authored by the Chief Justice of India for himself and two others, with separate partly dissenting opinions from the remaining two judges. You’ll see the split described as 3:2 in some places and 4:1 in others, because both are true of different questions. Don’t rely on a single figure.

The trap is prospectivity. Invoking Article 142, the Court made its conclusions on three-member tribunals apply prospectively, to appointments made after 8 November 2024. Existing tribunals constituted before that date aren’t automatically vulnerable on this ground. We’d recommend checking the appointment date before building a challenge on CORE II, because a good number of them collapse right there.

Waiver is the second trap, and it tightened in 2026. In Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 INSC 6 (SC, 5 January 2026), the Supreme Court held that waiver of Section 12(5) ineligibility must be by express agreement in writing, made after the disputes have arisen. It cannot be inferred from conduct, from participation in the proceedings, or from a recorded “no objection”. The absence of a prescribed format doesn’t open the door to implied waiver.

Read that alongside CORE II and a common assumption dies. Parties who participated in an arbitration without objecting often believe they’re now estopped from raising Section 12(5). But they aren’t.

This isn’t an abstract problem. On Indian legal forums, the recurring complaint from consumers reads like this one: “I have received a notice from a sole arbitrator appointed by bank.” The same poster adds that there is no amount due and no dispute over any such amount.

And the courts have noticed. In April 2026, the Bombay High Court flagged a rising trend of non-banking financial companies routing unilateral appointments through an institution or “algorithm-based selection”, in the hope, as the court put it, that “the inherent illegality in unilateral-appointment is magically cleansed”. The court identified only two lawful routes to appointment: party consent, or an appointment by a court under Section 11. Those were observations made while disposing of the petitions rather than a merits ruling, since the lender withdrew, but the court directed that the judgment be placed before the company’s board and audit committee.

So does an algorithm cure the defect? Not if one party controls the algorithm.

BGS SGS Soma did the harder work in 2019. Applying the Shashoua principle, the Court held that where a place is designated as the venue for the arbitration proceedings, rather than merely for hearings, and there’s no contrary indicia, that venue is the seat. It declared Hardy Exploration bad law. And Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678 had already established that a designated seat operates like an exclusive jurisdiction clause, vesting supervisory jurisdiction in the courts of the seat even where no part of the cause of action arose there.

One honest caveat. BGS Soma is a three-judge bench declaring an earlier three-judge bench bad law, which is a coordinate bench doing something coordinate benches ordinarily can’t. The point is unsettled at the doctrinal margin, and we found no larger bench resolving it. High Courts continue to diverge. Our fuller treatment of seat, venue and place works through the divergence.

The drafting error this produces is predictable and expensive: a contract that says the venue shall be Mumbai and separately that courts at Delhi have exclusive jurisdiction. After BGS Soma, naming Mumbai for the arbitration probably makes it the seat, and the Delhi clause is likely overridden. Two years of jurisdictional litigation before anyone reaches the merits.

On interim relief, Sections 9 and 17 run in parallel, with Section 9 before a court and Section 17 before the tribunal. In Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., Civil Appeal Nos. 4492-4493 of 2021 (SC, 6 August 2021), decided on 6 August 2021, the Supreme Court held that an Emergency Arbitrator’s award in an institutional arbitration seated in India is an order under Section 17(1) and is enforceable under Section 17(2). An order enforcing it isn’t appealable under Section 37.

But read that holding narrowly, because its limit is where people get hurt. Amazon concerns India-seated institutional arbitration. Emergency arbitrator relief from a Singapore-seated or Paris-seated arbitration remains not directly enforceable in India. The draft 2024 Bill’s proposed Section 9A was aimed squarely at this gap, and since that Bill was never introduced, the gap is still open. Anyone advising that an SIAC emergency award from a Singapore seat now enforces in India is reading a proposal as if it were a statute. LawSikho’s longer treatment of when courts grant interim relief under Section 9 and how Section 17 orders are enforced goes deeper into the enforcement mechanics than there is room for here.

Section 16 carries the kompetenz-kompetenz principle: the tribunal rules on its own jurisdiction, including on the existence and validity of the arbitration agreement. In Re: Interplay strengthened it considerably by routing stamping objections there.

But Section 16 has an asymmetry that catches people. If the tribunal accepts a jurisdictional plea, that’s appealable under Section 37(2)(a). If it rejects the plea, there is no appeal. You wait for the final award and take the point under Section 34. Rushing to a writ petition under Article 226 or 227 instead is routinely dismissed, and a 2026 ruling confirmed that such a challenge must show it cannot await the final award.

International commercial arbitrations sit outside the twelve-month limit entirely (a carve-out that surprises a lot of counsel mid-arbitration). That exemption comes from the statute itself, inserted by the 2019 amendment, which requires only that such awards be made “as expeditiously as possible”. The Supreme Court confirmed the reading in Tata Sons Pvt. Ltd. v. Siva Industries and Holdings Ltd. (SC, 5 January 2023) in January 2023. Attributing the carve-out to the judgment rather than the section inverts the source of law, and it’s a common slip.

The judicial treatment has been consistently permissive. In Rohan Builders (India) Pvt. Ltd. v. Berger Paints India Ltd., 2024 INSC 686 (SC, 12 September 2024), decided on 12 September 2024, the Supreme Court held that an extension application under Section 29A(4) read with Section 29A(5) is maintainable even after the period has expired. The statutory words, “either prior to or after the expiry of the period so specified”, are unambiguous. The Court added that extensions aren’t to be granted mechanically, and reversed the Calcutta High Court’s contrary view.

A 2026 ruling went further, holding that an extension application is maintainable even after the award has been rendered. The time-barred award is ineffective, but the court’s power to extend survives, and courts retain a toolkit of fee reduction, costs, conditions and even substitution of the arbitrator.

Now set that against practice. Extension applications are almost always allowed. The twelve-month clock was Parliament’s answer to arbitration taking as long as litigation, and a limit that is routinely extended after it has already expired, and now even after the award has been made, is doing something other than limiting. But whether that’s judicial pragmatism or the quiet death of a reform depends on which side of the extension you’re sitting.

There’s a jurisdictional trap here that costs real months. A January 2026 ruling (2026 INSC 92) held that Section 29A extension applications lie before the “Court” as defined in Section 2(1)(e), meaning the commercial or civil court of original jurisdiction. Not the High Court. Not the Supreme Court. And this holds even where that superior court made the Section 11 appointment, because the appointing authority becomes functus officio once the tribunal is constituted.

So where do most people file? The High Court that appointed the tribunal, because it feels natural. That’s a jurisdictional dead end.

On the award itself, Section 31 governs form and content, and Section 31(7)(b) covers post-award interest. A February 2026 ruling held that an express contractual bar on pre-award interest binds the arbitrator, while post-award interest under Section 31(7)(b) is statutory and can’t be contracted out of, though courts may modify an excessive rate.

Ssangyong gave that reset teeth on 8 May 2019. Post-2015, “public policy” means fraud or corruption, contravention of the fundamental policy of Indian law, or conflict with the most basic notions of morality or justice. No merits review. Patent illegality applies to domestic awards only and must go to the root of the matter. Our breakdown of the grounds for setting aside an award under Section 34 covers each ground in turn.

The mistake we see most often at this stage is pleading patent illegality against a foreign-seated or international commercial award. Section 34(2A) is domestic-only. The ground simply isn’t available, and the petition fails on a threshold point before anyone reads the merits.

Then, in April 2025, the ground shifted again. In Balasamy, a five-judge Constitution Bench held by a 4:1 majority that courts do have a limited power to modify an award under Sections 34 and 37. The Court confined it to four situations:

1. Where the award is severable, by severing the invalid portion from the valid portion.
2. By correcting clerical, computational or typographical errors apparent on the face of the record.
3. By modifying post-award interest, in some circumstances.
4. Where Article 142 applies, to be exercised with great care and caution.

The dissenting judge took the view that the power to set aside doesn’t include the power to modify.

Here’s the part that gets misread. Balasamy is not a licence to ask a Section 34 court to fix a bad award. The first two categories are narrow and technical. And the fourth, Article 142, is the Supreme Court’s own constitutional power. It isn’t available to a district judge or a High Court hearing a Section 34 petition, which is exactly where most parties are standing when they cite it. The 2026 rulings are already policing the line, including a May 2026 decision holding that Section 33(1)(a) permits only computational, clerical or typographical corrections, and that changing the mode of interest calculation is a substantive determination that falls outside it. Our analysis of whether courts can modify an arbitral award works through the four categories.

Enforcement under Section 36 has its own reversal story, and it’s the one instance where the Court struck down Parliament’s attempt to undo it.

Before 2015, filing a Section 34 petition automatically stayed enforcement, which made challenge the default tactic. BCCI v. Kochi, decided on 15 March 2018, held that the 2015 amendments applied to Section 36 enforcement even where the related court proceedings had been filed earlier, and warned the Government that the proposed Section 87 would be regressive. Parliament enacted Section 87 anyway in 2019. In Hindustan Construction, decided on 27 November 2019, the Supreme Court struck Section 87 down as manifestly arbitrary and violative of Article 14, and confirmed that the pre-2015 automatic stay reading had been wrong all along.

So the position today: filing a Section 34 petition does not stay enforcement. You need a separate application under Section 36(3), supported by reasons, and the court may impose conditions including security. And advising a client otherwise is how award-debtors discover execution proceedings while they assume they’re protected.

Which court enforces? The confusion on this is genuine and widespread. In one forum thread asking whether an execution petition goes to the court where the arbitration took place or to the court where the judgment-debtor resides, four responders split: three advised filing where the award was passed and then seeking a transfer, while a fourth said the applicant could apply directly to the court where the judgment-debtor resided. An award is a deemed decree under Section 36, and the seat determines supervisory jurisdiction. But the persistence of the question tells you how much of this procedure survives on assumption rather than authority.

1. Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., Civil Appeal Nos. 4492-4493 of 2021 (SC, 6 August 2021) (AIR 2021 SC 3723)
2. Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49 (AIR 2015 SC 620; decided 25 November 2014)
3. BGS SGS Soma JV v. NHPC Ltd., (2020) 4 SCC 234 (SC, 10 December 2019, 3 judges)
4. Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 INSC 6 (SC, 5 January 2026)
5. Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 (SC, 6 September 2012, 5 judges)
6. Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105 (AIR 2002 SC 1432; SC, 13 March 2002)
7. Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd., AIR 2018 SC 1549 (SC, 15 March 2018)
8. Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV), (2020) 14 SCC 712 (SC, 17 December 2019: overruled by the 2024 Constitution Bench below)
9. Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV), 2024 INSC 857 (Constitution Bench, SC, 8 November 2024, 5 judges)
10. Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 (SC, 28 September 2012)
11. Cox and Kings Ltd. v. SAP India Pvt. Ltd., 2023 INSC 1051 (SC, 6 December 2023, 5 judges)
12. Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd., (2022) 1 SCC 131 (SC, 9 September 2021)
13. Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 INSC 292 (curative petition, SC, 10 April 2024)
14. Garware Wall Ropes Ltd. v. Coastal Marine Constructions and Engineering Ltd., (2019) 9 SCC 209 (AIR 2019 SC 2053; SC, 10 April 2019)
15. Gayatri Balasamy v. M/s ISG Novasoft Technologies Ltd., 2025 INSC 605 (Constitution Bench, SC, 30 April 2025, 5 judges, 4:1 majority)
16. Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 (AIR 2017 SC 5137; SC, 12 October 2017)
17. Hindustan Construction Company Ltd. v. Union of India, AIR 2020 SC 122 (SC, 27 November 2019)
18. Indus Mobile Distribution (P) Ltd. v. Datawind Innovations (P) Ltd., (2017) 7 SCC 678 (AIR 2017 SC 2105; SC, 19 April 2017)
19. In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899, 2023 INSC 1066 (SC, 13 December 2023, 7 judges)
20. N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2023) 7 SCC 1 (SC, 25 April 2023, 5 judges: overruled by In Re: Interplay above)
21. ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 (AIR 2003 SC 2629; SC, 17 April 2003)
22. Perkins Eastman Architects DPC v. HSCC (India) Ltd., AIR 2020 SC 59 (2019 SCC OnLine SC 1517; SC, 26 November 2019)
23. Rohan Builders (India) Pvt. Ltd. v. Berger Paints India Ltd., 2024 INSC 686 (SC, 12 September 2024)
24. SBI General Insurance Co. Ltd. v. Krish Spinning, 2024 INSC 532 (SC, 18 July 2024)
25. SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., (2011) 14 SCC 66 (AIR 2011 SC 1972; SC, 20 July 2011)
26. Ssangyong Engineering & Construction Co. Ltd. v. NHAI, AIR 2019 SC 5041 ((2019) 8 SCALE 41; SC, 8 May 2019)
27. Tata Sons Pvt. Ltd. v. Siva Industries and Holdings Ltd. (SC, 5 January 2023)
28. TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377 (SC, 3 July 2017)
29. Union of India v. Hardy Exploration and Production (India) Inc., (2019) 13 SCC 472 (AIR 2018 SC 4871; SC, 25 September 2018)
30. Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd., (2020) 2 SCC 455 (AIR 2020 SC 979; SC, 27 November 2019)
31. Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 (SC, 14 December 2020, 3 judges)

1. Arbitration and Conciliation Act, 1996: sections cited are 7, 8, 9, 11, 12(5), 16, 17, 18, 20, 21, 23, 29A, 31, 33, 34, 36 and 37.
2. Indian Stamp Act, 1899: section cited is 35.

1. Supreme Court Observer and SCC Online report of the Chief Justice of India’s address to the Indian Council of Arbitration’s 4th international conference, London, June 2026
2. ThePrint on arbitration costs and the Jaipur Vidyut Vitran Nigam tribunal fees
3. Bar and Bench on the Bombay High Court’s observations on unilateral arbitrator appointments by non-banking financial companies
4. IndiaCorpLaw on the Delhi Public Works Department notification of 21 April 2025 deleting the arbitration clause
5. PRS Legislative Research Bills Track (confirming no arbitration Bill after 2021)
6. Draft Arbitration and Conciliation (Amendment) Bill, 2024 (consultation text)

This article is for informational and educational purposes only and does not constitute legal advice. Arbitration law in India is moving quickly, and several of the 2026 rulings referred to above are recent. For advice on a specific dispute, consult a qualified advocate.