THE AUTHORS:
Sraddha Kedia, Consultant at Shardul Amarchand Mangaldas
Radhika Bhakoo, Indian-qualified Lawyer
The “yes” or “no” conundrum regarding the granting of Anti-Arbitration Injunctions (“AAI”) continues to challenge courts globally. Conflicting decisions across jurisdictions reflect this dilemma, leaving the arbitration community with no firm answer: is it comity or control?
This is evidenced by the recent case of Engineering Projects (India) Ltd v. MSA Global LLC, 2025/DHC/6093 (“EPIL”), in which the Delhi High Court (“DHC”) entertained an AAI and stayed the International Chamber of Commerce (“ICC”) arbitral proceedings in Singapore. The court’s finding that the proceedings were “vexatious” and “oppressive in nature” due to non-disclosure by a party-nominated arbitrator has:
(a) received much criticism;
(b) been seen as an attempt to obstruct arbitration proceedings; and
(c) been viewed as a deviation from the consensus in a valid arbitration agreement between the parties.
The contours for granting AAIs are consistent across various jurisdictions. The Indian Supreme Court has previously refused to grant an AAI in cases where a valid arbitration agreement exists and has further emphasized that such injunctions should be granted solely in exceptional circumstances. [rare cases]. Hence, the EPIL case has affected India’s reputation as a pro-arbitration jurisdiction and, in effect, brought to the forefront pioneering questions—competing systems of law, comity, and disclosure standards—that form the fulcrum for the grant or refusal of AAIs. We attempt to analyze these issues here, drawing analogies with related cases from the Indian context.
What has Happened to the Relationship of Cohabitation and Partnership?
In EPIL, the dispute hinges on the alleged non-disclosure by the co-arbitrator, Mr. Andre Yeap SC. The ICC Court was confronted with the question of whether the arbitrator’s failure to disclose his prior involvement in arbitral proceedings involving a person who is the Managing Director, Chairman, and Promoter of the defendant, was sufficient to give rise to a reasonable doubt as to his impartiality or independence. EPIL thus highlights the complexities and nuances of including competing systems of law in an agreement.
Competing Systems of Laws: Boon or Bane?
Omani laws governed the agreement; arbitration was to be conducted in accordance with the ICC Arbitration Rules (2021) (with the seat in Singapore); and the jurisdiction of the Contract Agreement was to lie with the courts at New Delhi. Such distinct categories of law in clauses—a trend in international arbitration agreements, often reflective of the parties’ choice of law based on convenience—leave ample scope for misuse and misinterpretation. In keeping with the institutional rules, the party approached the ICC, which held that the arbitrator’s non-disclosure was “regrettable” but did not give rise to justifiable doubts regarding the arbitrator’s impartiality and independence. Thereafter, the party explored remedies before the Singapore courts (at the seat), which was subsequently withdrawn, and led to the prudent filing of a suit before the DHC. This is emblematic of comity’s fragility, highlighting the inevitable consideration by lawyers to forestall the possibility of concurrent proceedings at the nascent stage, to unify arbitral proceedings, and safeguard the rights of the parties. (See UniCredit Bank GmbH v. RusChemAlliance, [2024] UKSC 30).
Even assuming that the governing law in EPIL had been Indian law, and the party had made the AAI application under provisions of the Indian Civil Procedure Code before an Indian court, in the absence of the party being able to demonstrably show any vexatious or oppressive proceedings or issues with the arbitration agreement, it would still have been ideal for the Indian court to refuse the AAI and direct the party back to the arbitral proceedings with the seat in Singapore. (See World Sports Group Ltd. v. MSM Satellite Ltd.).
More generally, across jurisdictions—civil and common law alike—courts tread cautiously when granting AAIs. Common law courts (such as those in India and the United Kingdom) meanwhile invoke the doctrine “sparingly,” guided by the rule of comity and calibrated thresholds such as proceedings shown to be oppressive or vexatious, forum non conveniens, or the arbitration agreement being patently null, inoperative, or incapable of performance. The exceptional nature of granting an AAI has been clearly acknowledged by the DHC in EPIL, which has recognized it as a remedy to be used only in extraordinary and rare situations where denial of relief would result in an unconscionable outcome. Yet, this judicial tightrope is fraught: courts that intervene are accused of violating kompetenz-kompetenz, and those that abstain risk denying parties a vital remedy, especially where arbitration is weaponized or procedurally compromised. The result is a jurisprudential paradox: ‘comity demands restraint,’ ‘justice demands intervention,’ and courts, caught in the crosswinds, must choose which principle to bend without breaking the other.
Standards of Disclosure: In the Eyes of the Party vs. In the Eyes of the Arbitrator?
With exponential growth in specialized sectors, practitioners, and arbitrators—along with repeat appointments—a party questioning independence and impartiality is not uncommon. Should disclosure be a party’s right to know, or an arbitrator’s privilege to withhold? Different thresholds and tests across jurisdictions can make establishing ‘independence’ and ‘impartiality’ a cumbersome task, especially when prior involvement in related subject matter or with parties must be assessed without breaching confidentiality obligations. Let’s make it easy for the arbitrator – refuse the appointment or err on the side of caution and make the necessary disclosure.
The EPIL case serves as a classic example of a clash of conflict-of-interest rules—here, between the ICC Rules and the IBA Guidelines—and highlights the overarching considerations when adjudicating the independence and impartiality of an arbitrator, especially in the case of repeat appointments. Article 11 of the ICC Rules imposes an unflinching obligation on the arbitrator to remain independent and impartial, and a mandatory requirement to disclose any fact that would compromise this obligation. On the other hand, the IBA (International Bar Association) Guidelines on Conflicts of Interest in International Arbitration (2024) only necessitate disclosure within a window period in the case of a repeat appointment. Thus, the establishment of conflict-of-interest rules in institutional or ad hoc arbitration becomes paramount from the very beginning.
The ICC Court in EPIL held that the arbitrator acted reasonably in considering the IBA Guidelines (which provide for a three-year limit for past appointments); however, such guidelines do not override the rules of the arbitral institution (the ICC here). But if the ICC Rules are premised on the “eyes of the party” standard, what justified the ICC Court’s departure from that principle? Should disclosure be determined by the arbitrator’s discretion, or must arbitrators present all material facts and allow parties to assess suitability? The distinction between appearance of bias and proven prejudice is not merely semantic—it defines the threshold of procedural fairness.
Since the Indian Arbitration and Conciliation Act does not apply to foreign-seated arbitrations, it may not be relevant at the present stage. Nevertheless, standards of disclosure followed by India would become a relevant consideration at the enforcement stage (which follows the IBA Guidelines), and this scenario could arise in any other arbitration with a different set of competing laws and nationalities involved. Hence, what should the arbitrator do? One party’s “justifiable doubt” is another arbitrator’s routine Tuesday; the question isn’t just what the threshold is, but whose lens defines it. The different rules across jurisdictions (for instance, Singapore; SIAC (Singapore International Arbitration Centre) Arbitration Rules (2025); India; MCIA (Mumbai Center for International Arbitration) Arbitration Rules (2025); Halliburton v. Chubb Bermuda, [2020] UKSC 48) indicate a sharp inclination towards the objective test or the objective observer and a very party-centric approach. Nevertheless, due to competing systems of law in a single arbitration, multiple disclosure rules—which may not operate on the same parameter—can become relevant considerations and be intertwined. Hence, practically, the applicability of conflict-of-interest rules may not be as clear-cut, and determination of bias not plain sailing.
The issues at hand are deeply intertwined. To reduce the DHC’s intervention in EPIL to mere judicial overreach or label it as unwarranted interference would be reductive. This case emphasizes the need to codify disclosure windows, especially for repeat appointments, either through institutional rules or bespoke arbitral clauses. EPIL also exposes the shortcomings and arbitrariness of the IBA Guidelines, and the ambiguous provision regarding the three-year limit for disclosure could open a Pandora’s box. Evidently, despite the sophistication of global arbitration frameworks, the process still struggles to match the trust and transparency afforded by litigation, where mechanisms like recusal, appeal, and administrative oversight are well established.
Does International Arbitration Undermine Judicial Comity?
The principle of comity was well acknowledged by the DHC in EPIL, which held that Indian courts must not interfere with foreign proceedings. However, the DHC justified its interference and the grant of the AAI on the basis that the arbitral proceedings had become oppressive for the plaintiff due to non-disclosure by the arbitrator.
The DHC’s interference in the Singapore proceedings is an abuse of process and a digression from the exclusive jurisdiction and seat principle. The seat in EPIL was well established, conferring exclusive jurisdiction on the Singapore courts and implicitly excluding the jurisdiction of the Indian courts. Comity required the DHC to refrain from entertaining the suit, as the plaintiff had already availed the remedy before the court in Singapore, which had already passed judgment regarding the impartiality of the arbitrator. Hence, any attempt by the plaintiff to resort to forum shopping and re-agitate the same issue was not to be permitted.
EPIL demonstrates that the doctrine of comity does not wear a single robe; it adapts—sometimes as a shield in enforcement, or as a scalpel in injunctions. In injunctions, comity is seen to be more discretionary and cautious. Courts weigh it against competing considerations like party autonomy, abuse of process, and public policy. Comity is one factor among many; it does not override the court’s duty to prevent injustice. (See Westbridge v. Anupam Mittal, [2023] SGCA 1; Ust-Kamenogorsk v. AES Ust-Kamenogorstk, [2013] UKSC 35) In enforcement proceedings, when Indian courts are asked to enforce a foreign judgment (typically under Section 44A of the Civil Procedure Code for reciprocating territories), comity operates as presumptive deference but is subject to statutory safeguards. The courts presume validity unless rebutted, with the objective of promoting legal certainty and facilitating cross-border commercial transactions.
The Last Word: Who Safeguards “Justice”?
Non-disclosure by arbitrators strikes at the very foundation of arbitral integrity and has the potential to unravel an award entirely. Ultimately, who ensures fairness in arbitration? Is it the tribunal (the ICC here), which proceeded despite objections? The seat court (Singapore), which upheld the ICC’s decision and restrained EPIL’s recourse? Or must national courts (DHC) step in when procedural safeguards falter?
Comity is not dead; it is evolving. It remains a normative compass but needs recalibration to survive the pressures of global arbitration. Its future lies not in rigid deference, but in principled coordination. If courts are the final bastion of justice, then the tension is not merely comity vs. control, but a deeper reckoning: was judicial intervention by the DHC a breach of arbitral autonomy, or the rightful remedy for a party suppressed by institutional opacity?
ABOUT THE AUTHORS
Sraddha Kedia is a dispute resolution lawyer, qualified to practice in India and New York, and is currently working as a consultant at Shardul Amarchand Mangaldas in India. She has a keen interest in Public International Law and International Arbitration. She has previously worked with a Tier-1 law firm in India and completed a short stint as a trainee at an international law firm in New York, specializing in International Litigation & Arbitration.
Radhika Bhakoo is an Indian-qualified lawyer with over nine years of professional experience at the Bar. She has been advising the Government of India on international trade and investment law issues for more than six years, including representation before WTO member countries in trade defence investigations and advisory roles on subsidies, safeguard measures, and Free Trade Agreement negotiations. She handles infrastructure, international commercial, and investor-State arbitrations. She is an active member of India’s BIT negotiating team and regularly contributes to UNCITRAL Working Groups I through VI. Her advisory work spans critical minerals, civil aviation, and digital public infrastructure projects executed globally, and she engages with multilateral forums including UNCTAD, PCA, IIAC, and BRICS.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
