Author: Bharath Palle*
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On 17 April 2026, the Delhi High Court issued a judgment in MSA Global LLC v. Engineering Products (India) Ltd., refusing to enforce a foreign arbitration award on the ground that one of the arbitrators had failed to disclose a prior appointment by the award holder. The Court held that arbitrator’s failure to disclose this information tainted the legitimacy of the entire arbitral process as it affected the “perception of impartiality”—over and above the requirements of “actual impartiality”—of the arbitration process. Considering the Court’s decision, the requirement of the “perception of impartiality” has become a key feature of Indian public policy governing the enforcement of arbitration awards, and it operates as a considerably more stringent requirement than what the UK Supreme Court set out in Deepwater Horizon cases.
FACTUAL BACKGROUND
In 2015, the Sultanate of Oman awarded a contract of $120M to an Indian public sector entity, Engineering Projects (India) Ltd. (“the Contractor”), for constructing surveillance infrastructure along Oman’s border with Yemen. Later that same year, the Contractor subcontracted the project’s electronic security features to an Omani security systems integrator, MSA Global LLC (“MSA Global”). The chairman of MSA Global is Manbhupinder Singh Atwal, a former member of the Indian army and a resident of Oman.
On 12 April 2023, following prolonged delays to the project, the MSA Global invoked arbitration and appointed Mr. Andre Yeap SC as its arbitrator in accordance with the ICC Rules. A week later, on 19 April, Mr. Yeap accepted his appointment and fatefully declared that he had nothing to disclose in relation to any facts that might give justifiable doubts as to his impartiality. After the Contractor appointed its own arbitrator, the Secretary of the ICC appointed the tribunal’s president, and designated Singapore as the seat of arbitration. On 19 June 2024, the tribunal issued a partial award (later corrected on 9 October 2024) directing the Contractor to pay MSA Global both monthly payments as well as a lump sum amount.
In November 2024, the Contractor made an application to the Singapore High Court to set aside the partial award. As this application was pending, the Contractor learned on 17 January 2025 that Mr. Yeap had been appointed as an arbitrator in a personal matter involving Mr. Atwal. The Contractor then challenged the appointment of Mr. Yeap under Article 14.1 of the ICC Rules for lack of impartiality or independence.
As Mr. Yeap would later assert following this challenge before the ICC, he had initially not realized that he had anything to disclose prior to his appointment, because the conflicts check run on the MSA Global did not list Mr. Atwal as a related party or affiliate. Nor had Mr. Yeap paid close attention to the MSA Global’s email address when he received the request for arbitration. However, Mr. Yeap realized around October 2024 that Mr. Atwal was the chairman of MSA Global. At this point, he opted not to disclose for a couple of reasons: first, he considered that the IBA Guidelines’ Orange List did not require disclosure except where “[t]he 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.” Since Mr. Yeap was involved only in a sole arbitration matter in connection with Mr. Atwal, and he was appointed over 4 years prior to accepting his arbitration in the current case, he considered that he did not have any duty to disclose. But Mr. Yeap’s other reason for not disclosing was because he anticipated that such a disclosure would invite the Contractor to challenge to his impartiality.
PROCEDURAL BACKGROUND
The Contractor’s challenges to Mr. Yeap’s impartiality were repeatedly denied both by the ICC Court and by the Singapore courts. In February 2025, the ICC Court decided that the Mr. Yeap’s failure to disclose the prior arbitration was insufficient to give rise to reasonable doubt as to his impartiality or independence but added that Mr. Yeap would have been prudent in erring in favor of disclosure once he realized the affiliation between Mr. Atwal and MSA Global in October 2024.
The Contractor did not fare better in the Singapore courts. In March 2025, the Singapore High Court then rejected the Contractor’s application to set aside the partial award holding that “apparent bias was a hopeless basis on which to set aside a partial award.” Relying on the Halliburton v. Chubb, [2020] UKSC 48, the Singapore High Court held that “something more” than non-disclosure was necessary to establish “apparent bias.” The Singapore High Court in July 2025 also dismissed the Contractor’s application to terminate Mr. Yeap’s mandate on the ground of apparent bias.
In the meantime, both parties filed a flurry of anti-suit and anti-arbitration injunctions in Singapore and in India. But it was only at the Indian courts that the Contractor found greater success. In March 2026, after being criticized by India’s Supreme Court for failing to disclose his prior appointment, Mr. Yeap resigned as arbitrator. And the following month, the Delhi High Court held that it would be against public policy to enforce the partial award because of Mr. Yeap’s non-disclosure of his prior appointment.
THE PUBLIC POLICY EXCEPTION
Relying on established precedent, the Delhi High Court held that neither the ICC’s nor the Singapore High Court’s decisions precluded an independent examination into apparent bias during enforcement. Ironically, it was this “extremely limited review available” to the Court for scrutinizing “procedural and substantive errors” that then licensed the Court to conduct a highly searching examination into the “integrity of the arbitral tribunal and the arbitral process.”
Disclosure an “absolute” requirement for protecting the arbitral process’s integrity: In contrast with the Singapore High Court, which treated the failure to disclose as one factor among many to consider while in assessing apparent bias, the Delhi High Court considered the requirements of disclosure to be an “absolute” requirement for “ensur[ing] transparency… and to preserve the confidence of the parties in the adjudicatory process.” The Court bolstered its conclusion by pointing to recent legislative changes to the primary arbitration statute in India, which introduced greater disclosure requirements. Pointing to this legislative history and other relevant judicial precedents, the Court held an arbitrator must disclose any fact, no matter how seemingly remote or trivial, that may bear on the arbitrator’s independent and impartiality.
Non-disclosure cannot rest on irrelevant considerations: Ultimately, it was Mr. Yeap’s “conscious” decision in October 2024 not to disclose his prior appointment to avert a possible challenge to the arbitral tribunal that ultimately led the Court to rule against the MS Global. The arbitrator had a continuing duty to disclose to preserve greater transparency and confidence in the arbitral process. The Court argued that even “slight infraction[s]” of disclosure requirements had the “potential to erode party confidence in the arbitral process” and thereby impinge on the fairness of the arbitral proceedings.
Enforcing arbitral awards where justifiable doubts exist about an arbitrator’s impartiality contrary to public policy: Non-disclosure can erode the perception of the arbitral process’ integrity. The Court held that an arbitrator’s duty to disclosure any information that might “give rise to justifiable doubts as to [their] independence or impartiality” was consistent with internationally recognized norms around arbitration, and that the arbitrator’s failure to adhere to those well-settled norms could be seen as “contrary to the fundamental policy of Indian law and the basic notions of justice and morality.” In other words, Mr. Yeap’s decision to consciously withhold information about a previous appointment called into doubt the perception of the tribunal’s impartiality.
Establishing “apparent bias” was not necessary to resist enforcement: The Court found that the Contractor did not establish any “apparent bias” on the part of the arbitrator. Nevertheless, the Court made it clear that the mere fact of non-disclosure was sufficient to resist the enforcement of the arbitral award. Demonstrating an arbitrator’s “apparent bias” was not necessary to resist the enforcement.
KEY TAKEAWAYS
We note three key takeaways at least from the standpoint of enforcing arbitral awards in India.
- First, prospective arbitrators must now institute robust mechanisms to ensure that the conflicts check considers related and affiliated parties. Failure to have such a robust mechanism in place can lead to extensive and expensive transnational litigation.
- Second, arbitrators must now err on the side of complete disclosure and utmost transparency, even above what may require disclosure under the Orange List of the IBA Guidelines on Conflicts of Interest in International Arbitration (“IBA Guidelines”). It is not immediately clear, however, that the Delhi High Court’s ruling will be adopted more generally.
- Finally, and perhaps just as important, the arbitrator’s decision to refuse disclosure must not rest on any irrelevant or inappropriate considerations. Any reference to irrelevant or inappropriate reasons for nondisclosure could taint the legitimacy of the arbitral process.
*Dr. Bharath Palle practices as a commercial litigator at a law firm in New York City. He holds a doctorate in law from Harvard Law School, and has previously worked as a litigator in Chennai, India.