Authors: Abhishree Manikantan* and Aayush Bapat**
Arbitration as an alternate mode of dispute resolution has been steadily gaining prominence across the world. Over the last two decades, arbitration in India has experienced an exponential growth curve, with the legislature and the judiciary both taking active steps to make India the next international arbitration hub. Introduced in 1996, the Arbitration and Conciliation Act (“Arbitration Act”), has seen two amendments, and a number of judicial decisions working in tandem to increase accessibility and viability of alternate dispute resolution processes.
Effectiveness of arbitration proceedings requires that there be minimal interference by the courts in these proceedings. Ideally, civil courts should not intervene in disputes agreed to be resolved via arbitration, but, for a plethora of reasons, this does not occur. Anti-arbitration injunctions are one such reason. They refer to directions/orders issued by conventional civil courts to bar or discontinue the remedy of arbitration available to parties under a dispute. These directions are generally issued on the specific request of one party that does not wish to invoke an arbitration proceeding or be bound by its award or proceeding. Anti-arbitration injunctions may be issued for certain specific reasons, primarily where there are questions about jurisdiction or the validity of the arbitration clause. Thus, the concept of anti-arbitration injunctions demonstrates an international conundrum. The issue of determination of jurisdiction has been in a constant state of flux for some time now, with judicial precedents being quite varied in this regard. Indian courts initially chose, more often than not, to interfere at the pre-arbitral stage where questions of jurisdiction or the validity of the arbitration clause. However, following Bharat Aluminium Co., the trend was reversed, marred only briefly by the McDonald’s India decision.
This post attempts to understand the phenomenon of anti-arbitration injunctions, the functional purpose of these injunctions and their effects on disputes between parties, the international conflict on the use of these injunctions (i.e., to interfere or not to interfere), and the possible solutions for the problems of jurisdiction between arbitral tribunals and courts they present.
II. ANTI-ARBITRATION INJUNCTIONS: A CONCEPTUAL FOUNDATION
Anti-arbitration injunctions are court orders that specifically prohibit parties from beginning or continuing arbitration proceedings, thereby restoring them to a position wherein the suit is not infructuous. Unfortunately, Indian courts have granted such injunctions, often on inconsistent bases, ranging from delivering “complete justice” to invoking the inherent jurisdiction of civil courts.
The idea of anti-arbitration injunctions has long been a subject of controversy in the international arena. Many authors, such as Gary Born, have condemned the practice on grounds of undue interference in arbitral proceedings. Kompetenz-kompetenz, a key principle of international arbitration, allows arbitral tribunals to determine their own jurisdiction and is most often cited to substantiate this argument. However, the practice is still prevalent, and English courts remain the foremost authorities that refuse to entirely denounce the practice of issuing such injunctions in light of the common law principles of justice and equity. Subramanian has analysed the practices of four jurisdictions in light of the Model Law and New York Convention, concluding that the statutory position is unclear and domestic positions varied.
The issue with such anti-arbitration injunctions is two-fold. Firstly, there is historical evidence of these injunctions being used as a tool for disrupting foreign arbitral proceedings. However, secondly, there also exist circumstances wherein the grant of such injunctions is innately justified. What is necessary, thus, is evolving a stringent methodology to be followed when such issues are raised before the civil courts.
III. THE STATUTORY IDEA OF JURISDICTION
Before moving ahead, it is pertinent to understand the bases and sources from which arbitral tribunals derive their authority. Aside from the stipulations of the Arbitration Act which govern the procedural aspects for settlement of disputes through arbitration, the source of authority for arbitral tribunals lies within the arbitration agreement or in an arbitration clause in an agreement between the parties. Therefore, a valid arbitration clause or agreement is sine qua non for arbitration to commence. In the absence of such an agreement, the court can refer a dispute to arbitration only when there is written consent to this effect by both parties to the dispute.
Another aspect to understand in terms of jurisdiction is that of the kompetenz-kompetenz principle enshrined in section 16 of the Arbitration Act. This section was introduced in the 1996 Act and marks the beginning of the pro-arbitration approach adopted in India. The principle, which is also an important doctrine in international arbitration, states that the arbitral tribunal is competent to determine its own competence in a matter before it, and therefore, the principle forms the basis for the arbitral tribunal to decide its own jurisdiction.
In the Arbitration Act of 1940, this provision did not exist and only the civil courts at the time were competent to determine any such matters of jurisdiction. Moreover, section 5 of the Arbitration Act of 1996 reads: “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” Essentially, this provision enshrines the principle of non-intervention by judicial authorities in matters concerning arbitration, except as specified by the Arbitration Act. It was this combination of sections 5 and 16 that the Supreme Court relied upon in Kvaerner Cementation to hold that the civil court did not have the jurisdiction to determine the competence of an arbitral tribunal in a particular matter. However, it must be noted that section 5 applies specifically to arbitration proceedings seated in India and therefore has no bearing on foreign-seated proceedings.
With respect to foreign-seated arbitrations, Part II, Section 45 of the Arbitration Act provides:
Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
This provision is an exact replica of Article II(3) of the 1958 New York Convention. A bare reading of the provision suggests that when a foreign-seated arbitration is brought before civil court, the court must refer the parties to arbitration when either of the claimants so requests. The only circumstance where the court may decide not to do so is if the arbitration agreement is found to be “null and void, inoperative or incapable of being performed.” This provision hits directly on the very source of jurisdiction of an arbitral tribunal, i.e., the arbitration agreement. Therefore, if the arbitration agreement is invalid, then the arbitration cannot proceed, and an anti-arbitration suit in this circumstance can be maintained.
The core legal issue, hence, is that under Section 45, the court is obligated to refer arbitration disputes to the tribunalunless the agreement is found to be invalid or inoperable. However, the principle of kompetenz-kompetenz mandates that the tribunal itself should decide whether such agreement is valid or not. This dichotomy in law is the fundamental basis for the controversy surrounding anti-arbitration injunctions which are perceived as a direct contravention to the kompetenz-kompetenz principle.
IV. JUDICIAL OPINION ON ANTI-ARBITRATION INJUNCTIONS
A. International Position
In the international arena, the controversy devolves somewhat into a clash between developed and developing nations. Certain developed countries, especially civil law countries, have expressed the opinion that a number of developing nations tend to allow anti-arbitration injunctions which has the effect of frustrating the international arbitration system to protect domestic entities as a form of legal protectionism. This view is prominently held by Switzerland where the Swiss Court of First Instance has found these anti-arbitration injunctions to be perverse to the Swiss legal system. The French stance is along similar lines and their courts exercise extreme caution when dealing with such cases. They have consistently refused to interfere with proceedings where the constitution of the arbitral tribunal is complete and have held that the tribunal has priority in deciding its jurisdiction.
However, common law systems do not follow the same rigidity. In fact, their position appears to be as conflicted as in India. In the United Kingdom, for instance, the position has veered from these injunctions being granted only in accordance with the English arbitration statute to holding that exceptional circumstances are a ground for restraining arbitration proceedings. More recently, the Court of Appeals of England and Wales held that English courts have jurisdiction to grant anti-arbitration injunctions against foreign-seated arbitrations where the proceedings are vexatious and oppressive. In the United States, it was similarly laid down in First Options that the courts must determine in the first instance, whether an arbitration agreement existed between the parties. This view also received approval in Green Tree Fin. Corp. where the court held that such question is a ‘gateway matter’ to be decided by the courts. The district court in Satcom also held that the court’s statutory power to compel arbitration is concomitant with the power to order anti-arbitration injunctions. Satcom was further approved in Glen P. Farrell, where the court held that because the arbitrator had been appointed unilaterally in violation of the agreement, the proceedings could be stayed. Thus, while it is certain that where an arbitration agreement is invalid, it is permissible to enjoin arbitration, it is contested whether this power arises from state law or the inherent powers of the court. While most U.S. courts agree that anti-arbitration injunctions are maintainable and the court has the jurisdiction to decide whether a valid agreement exists between the parties, certain courts have limited this power by interpretation. Firstly, by distinguishing foreign-seated arbitrations from domestic-seat arbitrations and ruling that U.S. courts would not have jurisdiction to injunct foreign proceedings. Secondly, by observing that while such injunctive powers do not exist under the New York convention, they may exist on account of other considerations such as procedural removal jurisdiction. Thirdly, by applying the cannon, expression unius est exclusion alterius, to hold that where the Federal Arbitration Act or the New York Convention had already given an express list of remedies, it would be unreasonable to infer the existence of further remedies. From the discussion above, it can be seen that the position in the United States with reference to anti-arbitration injunctions continues to be debated.
B. Judicial Position in India
The judicial position in India can at best be described as tumultuous. Oftentimes, the statutory position elucidated above has been ignored or the conflict between applicability of various provisions of the statute has been overlooked. This has led to a series of conflicting rationales handed down over the years.
For instance, the Kvaerner Cementation judgement of 2001, reported in 2012, laid down that a joint reading of sections 5 and 16 of the Arbitration Act necessarily bars civil courts from determining the competence of arbitral tribunals. This judgement has been implicitly relied upon by the Hight Court (“HC”) of Calcutta in LMJ International and explicitly by the Delhi HC in Sancorp Confectionary. It has further been upheld by the Supreme Court in Ayyasamy and National Aluminium Company.
The Ayyasamy case is noteworthy because it provides two distinct classes of cases: firstly, where one party initiates arbitration proceedings and the other moves for the court to stay those proceedings, stating that they are invalid, the jurisdiction of the civil court is excluded; and secondly, where the suit before the civil court is filed by one party and the other requests the court to refer the matter to arbitration, the court is empowered to examine the validity of the arbitration agreement. It has been argued, however, that this distinction does not contain any tangible difference as the jurisdiction to examine the validity of the arbitration agreement is equally contentious in both instances. It is submitted that in both of the above cases, the material issue lies in whether an arbitration agreement exists between the parties. Reading this with the kompetenz-kompetenz principle, it is evident that an arbitral tribunal has the power to determine its own jurisdiction which is primarily based on the agreement existing between the parties. Therefore, prima facie, a reading of the agreement by the court should end the inquiry of the court at this stage of the proceeding. Arbitration proceedings as an optionable bypass defeats the purpose of such proceedings itself, instead becoming an additional step in the litigation process.
However, there exists the other branch of judicial reasoning that attempts to justify the competence of the civil court to interfere with arbitral proceedings. The most prominent decision herein is SBP & Co. In this case, the court, in a six-against-one decision, laid down that the competence of the arbitral tribunal under section 16 does not completely exclude the jurisdiction of the civil court. This judgement has been criticised as it promulgated a dangerous precedent for interference.
In Chatterjee Petrochem, though the court reiterated Kvaerner superficially, it arrived at this conclusion not by applying the ratio of Kvaerner, which it did not consider at all, but rather by delving into the merits of the issue and declaring that the arbitration clause was valid. It then applied section 5 of the Arbitration Act to state that “a suit filed with the aim of seeking an anti-arbitration injunction would not be maintainable in law.” In effect, this case further reinforced the position of SBP & Co. by upholding the competence of civil courts to interfere in arbitral matters. It must be noted here that, on the point of applicability of section 5, this judgment yields to that of BALCO and applies only to agreements executed prior to 2012.
Along similar lines, and yet entirely different, is the ratio of World Sport Group (Mauritius). Here once again the court, in spirit, reiterated the position of SBP & Co., but it did so by relying on section 9 of the Code of Civil Procedure and invoking the inherent jurisdiction of civil courts to hold that anti-arbitration injunctions are maintainable. The court further observed that when such injunctions are sought at the pre-arbitral stage in respect of foreign proceedings, the scope of inquiry of the courts would be confined to the grounds laid down under section 45 of the Arbitration Act. Therefore, where a party requests the court to refer a dispute to arbitration under an agreement between the parties, and, the other party contests the validity of such agreement, the court would be empowered to decide such question of validity.
Most recently, this question arose in the March 2020 Delhi HC judgement of Bina Modi. Basing the decision on the fact that other judgements have not considered Kvaerner, the single judge held that anti-arbitration injunctions are not maintainable as the arbitral tribunal is the only authority that can decide the matter of its own jurisdiction. However, on appeal, a division bench of the Delhi HC set aside this order holding that the single judge erred in not exercising his jurisdiction. The bench maintained that the court has the inherent jurisdiction to determine whether a dispute is arbitrable, particularly when the ends of justice would be otherwise defeated. The court further distinguished Kvaerner by stating that in Bina Modi, the agreement in question is a ‘trust deed’ which it held to be patently deficient to constitute an arbitration agreement. This judgement has now been appealed and is pending before the Supreme Court. An analysis of the proceedings in Bina Modiindicate that while the predominant judicial opinion in India is that civil courts have the right to consider the validity of the arbitration agreement, the law on the matter remains unsettled. This is also further illustrated by the inconsistency in judgements discussed above, on the issue of whether, there exists a statutory or inherent power to intervene at the pre-arbitral stage.
It is submitted, nonetheless, that the reasoning followed in Bina Modi (March 2020), and by extension in Kvaerner, is flawed. While the kompetenz-kompetenz principle is a cornerstone of the international arbitration system, it is not correct to read it so rigidly that the jurisdiction of the civil court is completely ousted. Such a reading would render the existence of section 45 completely null and void, as the court would have to refer all arbitral matters to the tribunal regardless of the validity of the agreement. This would lead to an absurdity in the law insofar as section 45 is concerned.
Therefore, once it is established that there is no bar per se on the use of anti-arbitration injunctions in India, particularly where the very validity of the arbitration agreement is concerned, it is necessary to determine other circumstances under which the civil court may be justified in infringing upon the jurisdiction of the arbitral tribunal.
V. ATTEMPTING TO HARMONISE COMMON LAW WITH INTERNATIONAL ARBITRATION LAW
The foundational tenets of common law are justice, equity and good conscience. These values form the cornerstone of any common law system and are closely intertwined with the principles of natural justice and rule of law. On the other hand, it is well understood that arbitration proceedings are typically instituted to enjoy its perceived benefits, including the overarching standards of impartiality, efficiency and expedition. Here an attempt has been made to harmonise both these aspects of the law and find a way to ensure that the basic tenets of both are upheld in legal proceedings.
A. Oppressive and Vexatious Proceedings
One of the biggest reasons for condoning the issue of anti-arbitration injunctions is the requirement to prevent vexatious or oppressive proceedings. A vexatious litigation is one that is initiated without a good cause. The definition of vexatious litigation in Australian jurisprudence is particularly on point, where they are described as unjustified oppressive proceedings which do not serve any legal purpose. It includes proceedings that are doomed to fail or that amount to an abuse of the process of law. In order to uphold the foundations of arbitration, a proceeding which prima facie appears to be oppressive or vexatious should be estopped at the very first instance so that it precludes risk of dragging parties through a process that yields no real results.
English courts have often justified interference in arbitral proceedings based on the fact that continuation of such proceedings would cause gross injustice to one of the parties to the dispute. For instance in Excalibur, the English court issued an injunction to restrain the arbitral proceedings on the ground that there was strong evidence suggesting that the Gulf companies were not parties to the arbitration agreement and so, forcing them to participate in the arbitration would be unfair and unconscionable. This position has been reiterated in other cases as well, where the court has attempted to balance non-intervention in arbitral processes with preventing abuse of legal processes.
B. Parallel Proceedings
Another circumstance which must be considered is that of parallel proceedings. It is well-settled that such procedures are highly undesirable as they lead to significant waste of resources and run the risk of providing contradictory opinions on the same subject matter. Extrapolating the above to the idea of arbitration, it is obvious that where parallel proceedings occur, the parties to the dispute face prolonged resolution processes as well as inconsistency in decisions, both of which directly contradict the very foundations of the concept of arbitration efficiency and finality.
Parallel proceedings, in effect, refer to the common law doctrine of lis pendens, meaning that the dispute is also pending elsewhere. Lis pendens is intimately connected to the doctrine of forum non conveniens which is a discretionary power available to courts allowing them to dismiss a suit when another forum is more suited for it. Anti-arbitration injunctions inherently allow courts to uphold these tenets of common law. These injunctions can be issued both to the detriment as well as to the benefit of arbitral proceedings. It is a necessary corollary then that civil courts must carefully consider the implications of granting injunctions therein. Further, in the interest of expedition of process, the courts should summarily dispose of the matter and not consider the complete merits of the case.
From the discussion above, it is evident that anti-arbitration proceedings are marred with uncertainty and a lack of objectivity. It is submitted that while these injunctive proceedings have had the effect of providing just and equitable remedy in certain circumstances, the uncertainty and lack of objectivity ignores the real function of anti-arbitration injunctions. The function of such injunctions is to provide relief to a party deserving of such relief, which an arbitration proceeding may not or cannot so provide, either by reason of limited power, nature of the proceedings, biased proceedings, vexatious proceedings, etc. Therefore, the function of anti-arbitration injunctions is not to grant relief to a party when arbitration proceedings have no longer become convenient for such a party, but rather to assess and inquire into why such a party has filed a civil suit instead of resorting to the agreed arbitration. While this is a new and moderately radical consideration for the court, it is submitted that it is essential to maintain the balance between the two conflicting proceedings.
Thus, there exists a need to provide an objective test which the court may rely upon when an anti-arbitration injunction is sought. In the formulation of this test, it is necessary to consider the following:
- Whether the arbitration proceeding is domestic or has a foreign seat.
- Whether from the prima facie reading of the arbitration agreement, such agreement exists between the parties.
- Whether the plaintiff has prayed for or claimed certain considerations that would bar or limit the ability of the arbitration tribunal to assess the same (such as considerations recently laid down in the determination of the arbitrability of fraud).
- Whether such prayer or considerations put before the court are frivolous and merely for the reason of bypassing arbitration proceedings.
- Whether there exist circumstances by which it can be reasonably ascertained that if the arbitration proceedings would continue/be instituted, these would amount to vexatious and oppressive proceedings.
This is merely an illustrative and not an exhaustive list of considerations for the formulation of a test which may be applied specifically in the granting of anti-arbitration injunctions. Injunctions as they ordinarily exist in the common law system are necessary to meet the ends of justice. Similarly, it would be expedient for the legislature to lay down under the Arbitration Act, when and in what situations a civil court would be able interfere in arbitration proceedings. This prospective section would serve a dual purpose: firstly, clarifying and circumscribing the powers of the civil court in such proceedings; and secondly, providing a new repository of power for such civil courts to entertain such proceedings and therefore clarifying the statutory power/inherent power conundrum.
It can thus be concluded that anti-arbitration injunctions are powerful tools for preventing abuse of legal process. Unfortunately, it is also a fact that there is immense potential for courts to utilise this power to practice protectionism and frustrate international arbitration processes, particularly foreign seated arbitrations.
Taking into account the holdings of English and other common law courts, it can be concluded that preventing vexatious litigation of prima facie gross injustice is one of the circumstances under which the grant of anti-arbitration injunctions is condoned. In view of the broad ambit of section 9 of the Code of Civil Procedure, it is clear that Indian courts can exercise inherent powers to grant anti-arbitration injunctions where necessary. However, as discussed, this power must be exercised judiciously and only in circumstances where a strong case for the above-elucidated exceptional situations are made out from the very onset of civil proceedings. Such a test is necessary not only in respect of domestic proceedings but also when determining intervention to foreign awards under Section 45 of the Arbitration Act. The civil courts must strive to support the continuation of arbitration proceedings as far as possible and where required to delve into merits, dispose of the matter speedily. In all other circumstances, it is submitted that the kompetenz-kompetenz principle must be applied to allow arbitral tribunals to decide their own competence in a matter.
Thus, in the opinion of the authors, while allowing civil courts to enjoin arbitral proceedings does amount to judicial interference, an objective interference based on a stricter threshold can be condoned as a necessary evil that is permissible in the interest of justice.
 Arbitration and Conciliation Act, 1996, §19, No. 19 of 1996, India Code [hereinafter Arbitration Act].
 See, e.g., Kandla Export Corp. & Anr. v OCI Corp. & Anr. (2018) 14 SCC 715; Hindustan Constr. Co. & Anr. v Union of India, (2019) SCC OnLine SC 1520; and Reliance Indus. Ltd. v. Union of India, Civ. App No. 5675 of 2014, Sup. Ct.
 Pradeep Nayak et. al., Arbitration procedures and practice in India: overview, Thomson Reuters Practical Law, ¶¶ 1, 24, (2021) https://uk.practicallaw.thomsonreuters.com/9-502-0625?transitionType=Default&contextData=(sc.Default)&firstPage=true (last visited May 9, 2021); K George Abraham, Arbitration in India – Shaking off the Indian Inertia, Intl. Arb. Asia (Apr. 15, 2016); Nandakumar Ponniya, Policy of Minimal Intervention Reaffirmed by Singapore High Court, Kluwer Arb. Blog (Dec. 22, 2010), http://arbitrationblog.kluwerarbitration.com/2010/12/22/policy-of-minimal-intervention-reaffirmed-by-singapore-high-court/.
 McDermott Int’l. Inc. v Burn Standard Co. Ltd., MANU/SC/8177/2006 ¶ 35; Law Commission of India, 246th Report on the Amendments to the Arbitration and Conciliation Act, 1996, ¶ 33 (2014).
 Romesh Weeramantry, Anti-Arbitration Injunctions: The Core Concepts, Ctr. for Int’l L., Nat’l Univ. of Sing., https://cil.nus.edu.sg/wp-content/uploads/2014/06/Note-on-anti-arbitration-injunctions.pdf.
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 SBP & Co., 8 SCC , , ; Wellington Assocs. Ltd. v Kirit Mehta, MANU/SC/0232/2000, ¶¶ 16, 17.
 Bharat Aluminium Co. v. Kaiser Aluminium Tech. Servs. Inc., (2012) 9 SCC 552 [hereinafter BALCO].
 McDonald’s India Priv. Ltd. v. Bakshi, (2016) 4 ARBLR 250 (Delhi) (India).
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 Arbitration Act, supra note 1, § 45 (emphasis added).
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 Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003).
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 Sancorp Confectionary Priv. Ltd. v. Gumlik, MANU/DE/5247/2012, ¶ 8.
 Ayyasamy v. Paramasivam, (2016) 10 SCC 386, ¶ 7 (India).
 Nat’l Aluminium Co. Ltd. v. Subhash Infra Eng’rs Priv. Ltd., MANU/SC/1153/2019, at ¶ 13.
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 Chatterjee Petrochem Co. v. Haldia Petrochemicals Ltd., MANU/SC/1258/2013 (India).
 Chatterjee Petrochem Co., ¶ 35.
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 World Sport Grp. (Mauritius) Ltd. v. MSM Satellite (Sing.) Pte. Ltd., (2014) 11 SCC 639.
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 World Sport Grp., 11 SCC .
 World Sport Grp., 11 SCC -.
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 Forum non conveniens is a doctrine that was substantially evolved by the courts in the United Kingdom. See Spiliada Mar. Corp. v Cansulex Ltd  1 A.C.460 (U.K.). The doctrine has become a part of common law jurisprudence and therefore, is also applicable in other common law jurisdictions such as U.S., India, Singapore etc. However, it is not a recognised principle of law in civil law countries and parties cannot invoke forum non conveniens. Similarly, the European Court of Justice also does not recognise the doctrine of forum non conveniens. See Case C-281/02, Owusu v Jackson, 2005 E.C.R. I-1383.
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 Gabrielle Kaufmann-Kohler, How to Handle Parallel Proceedings: A Practical Approach to Issues Such as Competence-Competence and Anti-Suit Injunctions, 2 Disp. Resol. Int’l., 110, 111 (2008).
 Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd. (2020) 6 MLJ 544 (India).
* Abhishree Manikantan is a penultimate year law student at Symbiosis Law School, Pune. She is interested in commercial laws and is enthusiastic about mooting.
** Aayush Bapat is a penultimate year law student at Symbiosis Law School, Pune. He is inclined towards the practice of commercial laws including Arbitration, Antitrust and Capital Markets. He enjoys academic writing and volunteering in his free time.