Are anti-arbitration injunctions a malaise? An analysis in the context of Indian law

Abstract

Until recently, Indian courts have adjudicated upon their authority to issue anti-arbitration injunctions in the context of foreign-seated arbitrations in a haphazard manner, without examining the source or compatibility of this power with either the (Indian) Arbitration and Conciliation Act, 1996 or the Convention on Recognition and Enforcement of Foreign Awards, 1958. Deviating from this trend, two recent decisions of the Supreme Court of India, viz Chatterjee Petrochem and World Sport Group, have deliberated upon this issue and interestingly, they have followed an inconsistent approach. This has led to uncertainty over whether Indian courts may entertain a civil action seeking to restrain foreign arbitral proceedings. Accordingly, in this article, the authors analyse the existing position of law in this regard. They elucidate the early Indian approach towards anti-arbitration injunctions, the relevant provisions of the 1996 Act, and the comparative framework in which the current position should be examined. The authors conclude that the decision in World Sport Group is in consonance with the interpretation of the 1996 Act. Further, it reflects international best practice, according to which anti-arbitration injunctions may be awarded where the arbitration agreement is null and void or inoperative or incapable of being performed, and the foreign arbitral proceeding is vexatious and oppressive. International Convention: Convention on the Recognition and Enforcement of Arbitral Awards, 1958, 330 UNTS 38 (1959) [‘New York Convention’].Domestic Legislation: Arbitration and Conciliation Act, 1996 (August 16, 1996) (India)Judicial Decisions: Chatterjee Petrochem Co v Haldia Petrochemicals Ltd, 2013 (15) SCALE 45 (Indian Supreme Court)World Sport Group (Maurities) v MSM Satellite (Singapore), AIR 2014 SC 968 (Indian Supreme Court)