India: Analysis Of The Contours Of Anti-Arbitration Injunctions At A Pre-Award Stage

Arbitration is known to be a preferable method of dispute resolution in resolving cross-border disputes for commercial entities operating in multiple jurisdictions. The flexibility to choose applicable law, procedure and neutral place of adjudication makes it an ideal choice for the parties. One of the primary criteria for any arbitration proceeding to commence or continue is that the dispute referred should be arbitrable as per the applicable law. However, as there is an involvement of multiple jurisdictions in most arbitrations, the arbitration proceedings are often hindered by anti-arbitration injunctions issued by local courts due to the dispute being non arbitrable under the local law. The position of anti-arbitration injunctions in India has been a gray area with frequent changes in the legal position due to asymmetrical judicial precedents and absence of statutory provisions laying down the law. The Bombay High Court's recent ruling in Anupam Mittal v. People Interactive (India) Pvt. Ltd.¹ (Anupam Mittal) has opened Pandora's box by restraining the enforcement of antienforcement injunction granted by the Singapore High Court. In this article, we strive to trace the law on antiarbitration injunctions, the difference in view across various jurisdictions and the implications of Anupam Mittal in the Indian legal landscape.

Arbitration Injunctions

An anti-arbitration injunction is a legal measure to restrain the parties from commencing or continuing the arbitration. Primarily, such a legal measure is granted by the civil courts in a scenario where there is no valid and enforceable arbitration agreement, and the court is satisfied that initiation or continuation of the arbitration proceedings will be oppressive and vexatious towards the party seeking the injunction.² Once an antiarbitration injunction order is issued by a civil court, any step taken to proceed with the arbitration may result in contempt of court.

The Indian law is silent with respect to anti arbitration injunctions. However, Indian Courts have relied on the Civil Procedure Code, 1908 and the Specific Relief Act, 1963 to injunct arbitration proceedings.³ The Supreme Court of India has laid down that anti arbitration injunction can be granted only where the arbitration agreement is null and void, or inoperative, or incapable of being performed. However, in such cases the court must satisfy itself that the case meets the three-pronged test for granting injunctions i.e., (i) prima facie case for granting the relief; (ii) grave and irreparable loss in absence of the relief claimed, and (iii) balance of convenience in favor of the party seeking the order.

Arbitrability as a Ground for Granting AntiArbitration Injunction

In addition to the grounds mentioned hereinabove, courts in various jurisdictions have pondered over whether a foreign seated arbitration can be injuncted on the ground that the dispute being referred to arbitration is non-arbitrable under the governing law of the contract. This is because allowing a foreign tribunal to adjudicate a dispute by way of arbitration in contravention of the governing law of the contract may pose public policy issues during enforcement of the arbitral award. Recently, the Bombay High Court in India effectively granted an anti-enforcement order against an anti-suit injunction granted by Singapore High Court on the basis that the dispute which was referred to arbitration is nonarbitrable under Indian law (which is the governing law of the contract). The Bombay High Court's order had the effect of injuncting the arbitration proceedings before the arbitral tribunal seated in Singapore. The court opined that the subject matter of the arbitration (oppression and mismanagement) is non-arbitrable under Indian Law and National Company Law Tribunals (established under the Indian Companies Act, 2013)⁴ have exclusive jurisdiction to adjudicate such disputes. Thus, the Bombay High Court found that the anti-suit injunction order effectively curtailed the sole legal remedy available to the Plaintiff. Furthermore, the Court also noted that even if the arbitration proceedings were allowed to continue, the resultant award would be unenforceable in India on the grounds of being violating public policy of the country.⁵

Judicial Trends Pertaining to Anti-Arbitration Injunctions

The position of UK Courts regarding anti-arbitration injunctions is akin to the position of Indian Courts. The English Supreme Court had ruled that although an arbitration tribunal has jurisdiction to rule upon its own jurisdiction,⁶ but it does not mean that it has the 'exclusive' jurisdiction towards the same.⁷ Therefore, while granting relief pertaining to enjoining foreign arbitration proceedings, the English Courts have been conscious of the obligations under the New York Convention⁸ and the precepts of International Arbitration. Only on rare occasions when the court is satisfied that the arbitral tribunal's jurisdiction is undisputedly without any legal basis, an injunctive relief has been granted.

Similar to common law jurisdictions, the U.S. Courts have injuncted arbitration proceedings when it has been established that the arbitration proceedings are inappropriate. Under the statutory provision (be it the Federal Arbitration Act9 or the New York Convention or the Panama Convention¹⁰), there are no provisions which enunciate the power of a court to enjoin an arbitral proceeding.¹¹ However, the courts have referred to state laws and ruled that as long as the state law (stipulating a provision of an anti-arbitration injunction) is not in conflict with the Federal Arbitration Act, an anti-arbitration injunction can be granted by the circuit courts.¹² However, similar to the common law jurisdictions, U.S. Courts have been hesitant to grant injunctive relief and therefore restricted this remedy to exceptional circumstances where the vexatious nature of the proceedings is made apparent.¹³

The courts in most civil law countries (including France and Switzerland) have generally refused to allow injunctions against arbitration proceedings.¹⁴

Our Thoughts

A bird's eye view over the statutory provisions across jurisdictions would reveal a uniformity in the absence of specific provisions regarding the scope of the court's jurisdiction and its power to grant such a relief. While the provisions of the UNCITRAL Model Law clearly point out that the arbitral tribunal has the jurisdiction to decide upon its own jurisdiction, it does not bar the courts from ruling on the jurisdiction of the tribunal. While an argument can be made that the UNCITRAL Model Law (read with the New York Convention or Panama Convention) clearly lays down that the courts interference is allowed in a post-award stage, the absence of an express bar in a pre-award or post-notice stage is glaring. As the statutory provisions in most of the countries have been drafted in reference to the UNCITRAL Model Law, apart from certain civil law countries, most of them are on the same lines as the UNCITRAL Model law.

As regarding granting injunctions against foreignseated arbitration proceedings, the courts of both U.S. and UK have ensured that the injunction is not granted in contravention of the New York Convention or the principles of comity.¹⁵ The rationale behind the same rests on the fact that the principles of the New York Convention moves with the presumption that there is a valid and enforceable arbitration clause.

Based on the findings in Anupam Mittal, it is clear that although Indian Courts respect the principle of comity, they will not shy away from granting anti arbitration injunctions in appropriate cases on the grounds of nonarbitrability of subject matter of the dispute. Pre – Anupam Mittal, the grounds for anti-arbitration injunctions have been limited in India to the validity of the arbitration agreement and the arbitrability of the dispute. However, the Bombay High Court reasoned that the grounds of enforceability of the award are also to be considered when deciding the issue of whether to grant an anti-arbitration injunction.

The result of this finding is that despite the parties having a valid arbitration clause, the Arbitral Tribunal has been deprived of its jurisdiction by the Indian Courts on the grounds of the disputes being non arbitrable. The complexity of the situation is further exacerbated by the fact that the Singaporean Court of Appeal had held in January 2023 that the disputes between Anupam Mittal and People Interactive (India) Pvt. Ltd. were arbitrable as per Singaporean Law.¹⁶ Although the principles of anti-suit injunctions have been considered while granting the reliefs claimed by the Plaintiff, the principles of antiarbitration injunction laid down in Bina Modi case have not been considered.

The enforceability of the arbitral award is intrinsically linked with the issue of arbitrability and also the public policy of the country of enforcement. In Anupam Mittal, the factual background was comparatively simpler as the governing law was Indian Law and the country of enforcement was India. However, cases where there is a difference between the jurisdiction of the governing law and the country of enforcement, the court deciding the anti-arbitration injunction would be burdened with the responsibility to ensure validity of an arbitration agreement, the arbitrability of the dispute and the enforceability of the award as and when it is passed (taking into consideration the governing law and the public policy of the place of enforcement). Imbibing a civil court with a jurisdiction to decide upon such grave issues that inevitably affect the jurisdiction of the tribunal may be in conflict with the spirit of international commercial arbitration.

We believe that the matter of Anupam Mittal will be taken in appeal in due course and perhaps the appellate courts shall provide further clarity on the issue.¹⁷

Footnotes

1. Anupam Mittal v People Interactive Pvt Ltd., Interim Application No.1010 of 2021 in Suit No. 95 of 2021.

2. GARY B. BORN, "INTERNATIONAL COMMERCIAL ARBITRATION", Volume I, Wolter Kluwer at Page No. 1410.

3. Section 39 of the Code of Civil Procedure, 1908.

4. Section 241 and 242 of the Indian Companies Act, 2013

5. PUBLIC POLICY ARB ACT

6. Section 30 (1) of the English Arbitration Act, 1996; Excalibur Ventures LLC v. Tex Keystone Inc. (2011) EWHC 2729 (Comm.).

7. Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] 3 WLR 1472.

8. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (New York Convention).

9. Federal Arbitration Act, 9 U.S.C. §1 et seq. (2012).

10. Inter-American Convention on international commercial arbitration, Concluded at Panama City on 30 January 1975 (Panama Convention).

11. JENNIFER L. GORSKIE, "US COURTS AND THE ANTI-ARBITRATION INJUNCTION", The Journal of the London Court of International Arbitration, Volume 28 Number 2, 2012.

12. Géneralé de Surveillance, S.A. v. Raytheon European Management and Systems Co. 3 643 F.2d 863 (1st Cir. 1981).

13. Tai ping Ins Co. Ltd. v. M/v Warschau 731 F.2d 1141,1143-44 (5th Cir. 1984).

14. GARY B. BORN, "INTERNATIONAL COMMERCIAL ARBITRATION", Volume I, Wolter Kluwer at Page No. 1415

15. GARY B. BORN, "INTERNATIONAL COMMERCIAL ARBITRATION", Volume I, Wolter Kluwer at Page No. 1415.

16. Westbridge Ventures II Investment Holdings v Anupam Mittal [2021] SGHC 244.

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