Introduction:
The circumstances under which an Indian court can grant anti-arbitration injunctions in foreign-seated arbitrations continues to be a burning issue in Indian arbitration jurisprudence. While a party may approach the seat court which fundamentally exercises supervisory jurisdiction over the arbitration process, the evolving Indian jurisprudence in this regard opens an avenue for courts, exercising inherent jurisdiction through connecting factors such as place of cause of action, to take cognizance of the matter. The Hon’ble Division Bench (“DB”) of the High Court of Delhi (“DHC”), in a recent judgment in the case of SARR Freights Corporation & Anr. v. Agro Coral Maritime Ltd.[1], erroneously not only upheld the judgment of the Single Judge holding that the DHC had jurisdiction in a suit for anti-arbitration injunction in a foreign-seated arbitration but also applied Indian law to establish the existence of the arbitration agreement which was in fact governed by English law.
The Single Judge decided the preliminary issue of jurisdiction to grant the relief of anti-arbitration injunction in a foreign-seated arbitration in favour of the Plaintiff, relying on principles of territorial jurisdiction as provided for in the Code of Civil Procedure, 1908 (“CPC”). In view of the principle reinforced by the DHC, a party to a foreign-seated arbitration, to obtain the relief of anti-arbitration injunction, may now approach: (i) the seat court as agreed to under the arbitration agreement in accordance with traditional arbitration law; (ii) any court in addition to the seat court that is included within the ambit of the arbitration clause, in case of a broadly worded arbitration clause, or (iii) Indian courts in case they exercise inherent jurisdiction in accordance with the provisions of CPC, as per the SARR Freights Case, regardless of the arbitration agreement.
In this Article, we first discuss the unfortunately conflicting Indian jurisprudence concerning the exercise of jurisdiction by courts in cases of anti-arbitration injunctions in foreign-seated arbitrations. Second, we underscore a factual determination often missed by courts which goes to the root of whether Indian courts can exercise jurisdiction to grant anti-arbitration injunctions in foreign-seated arbitrations. Lastly, we emphasise the need to usually uphold seat jurisdiction in foreign-seated arbitrations to further the objectives and principles sought to be achieved by the (Indian) Arbitration and Conciliation Act, 1996 (“A&C Act”).
Indian Jurisprudence vis-à-vis Anti-Arbitration Injunctions in Foreign-Seated Arbitrations
One of the principal arguments by the defendant before the Single Judge in SARR was the lack of jurisdiction of the DHC to grant an anti-arbitration injunction in a foreign-seated arbitration. The defendant argued that the seat being London and the governing law being English Law, only English courts were vested with supervisory jurisdiction which automatically excluded exercise of jurisdiction by any other judicial authority. However, the DHC, while dismissing these contentions, affirmed its own jurisdiction and held that Section 9 of the CPC read with Section 20 of the CPC conferred subject-matter as well as territorial jurisdiction. It held that Section 9 confers jurisdiction on a civil court to try all suits unless their cognizance is expressly or impliedly barred and that merely because an arbitration is seated abroad, a jurisdictional bar does not follow. Further, Section 20(c) confers territorial jurisdiction on a court within the local limits of which cause of action arises, wholly or partly. While the DB framed the issue of jurisdiction, it merely agreed with the Single Judge without delving into the reasoning.
Accordingly, by invoking the jurisdictional principles enshrined in the CPC and applying them to the factual matrix of the case, wherein the plaintiffs were Indian companies based in Delhi and a part of the cause of action had arisen within the territorial limits of Delhi, the Single Judge upheld jurisdiction to intervene in the arbitration proceedings.
The Single Judge relied on the decision of the Hon’ble Supreme Court of India (“SC”) in the case of World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) PTE Ltd.[2] to reiterate that an appropriate civil court in India has the jurisdiction to entertain an anti-arbitration injunction suit related to a foreign-seated arbitration by virtue of Section 9 of the CPC. Further, the SC held that the court retains its equitable power, under Section 9 read with Section 151 of the CPC, to interfere with oppressive or vexatious arbitration proceedings and grant anti-arbitration injunctions. However, while relying on the World Sport Group Case, the DHC failed to appreciate a crucial fact. In the World Sport Group Case, the arbitration clause provided that the parties could approach any court of competent jurisdiction in Singapore or such other court that may have jurisdiction over the parties for seeking equitable remedies.
Further, the Single Judge relied on another decision of the DHC itself in Engineering Projects (India) Limited v. MSA Global LLC (Oman)[3] to hold that the court retains its equitable power under Section 9 read with Section 151 of the CPC to interfere with oppressive or vexatious arbitral proceedings, unless barred by any statute. Yet again, though the seat was Singapore in Engineering Projects, the arbitration clause vested exclusive jurisdiction in the courts of New Delhi, India.
Unfortunately, neither the Single Judge nor the DB in the SARR Freights Case even notice or reproduce the wording of the arbitration clause and therefore, we do not know if the arbitration clause in the SARR Freights Case also allowed jurisdiction to courts other than the seat court. In any event, it appears that this was not the basis of the reasoning of the DHC in upholding its jurisdiction.
On the contrary, in the case of ADM International Sarl A One Business Centre and Ors. v. Sunraja Oil Industries Pvt. Ltd. & Ors.[4], the Hon’ble High Court of Madras, while deciding the grant of an anti-arbitration injunction in a foreign-seated arbitration, held that the governing and curial law of the arbitration being English Law, with the juridical seat of the arbitration as England, it is only the arbitral tribunal in the first place, and the courts of England in case of a challenge, that should exercise jurisdiction. Therefore, the court, upon examining the arbitration agreement, refused to interfere with the arbitral process on account of lack of jurisdiction.
Further, the DHC, in Himachal Sorang Power Private Limited & Ors. v. NCC Infrastructure Holdings Limited[5], while encapsulating the principles governing anti-arbitration injunctions, laid down that the aggrieved party must be encouraged to approach either the arbitral tribunal or the court having supervisory jurisdiction for relief and that an endeavour must be made to aid arbitration rather than allow parties to circumvent the chosen adjudicatory process.
Therefore, such inconsistent positions of law leave the question of jurisdiction exercisable by Indian courts in anti-arbitration injunctions in foreign-seated arbitrations open-ended.
Exclusivity of Seat Jurisdiction and its Implicit Bar on the Applicability of Part I of the A&C Act
In view of the foregoing inconsistency, although both inherent jurisdiction of Indian courts, and supervisory jurisdiction of seat courts mayco-exist, it is important to revisit the principles of party autonomy in concurrent jurisdiction and its implications on exclusivity, to understand which courts can exercise jurisdiction.
In the case of A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem[6], the SC reiterated that when there are two or more competent courts which can entertain a suit, if the parties agree to vest the jurisdiction in one such court and exclude the exercise of jurisdiction by other courts, it is a valid agreement and the parties cannot be permitted to approach such excluded courts.
Further, particular to arbitration, in Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited & Ors.[7], the SC held that the juridical seat being the legal place of arbitration, chosen by the parties as a neutral court without connecting factors under the CPC, would automatically exclude jurisdiction of other courts, and would place a bar on the applicability of Part I of the A&C Act in case the seat is foreign.
Therefore, a combined reading of these decisions establishes that the choice of a seat, particularly a foreign seat, shall be treated as exclusive and would, by necessary implication, exclude the jurisdiction of other courts and the applicability of Part I of the A&C Act.
Therefore, applying these principles to the SARR Freights Case, read with the applicable BIMCO Law and Arbitration Clause (which was the law governing the contract), wherein the governing law of the contract and the curial law was English law and the seat of the arbitration was London, even in the absence of an exclusive choice of court, the jurisdiction to supervise the arbitration proceedings, including the determination of oppressive or vexatious arbitral proceedings, vested entirely in the appropriate courts of London, thereby, excluding the exercise of inherent jurisdiction by Indian courts under provisions of CPC.
However, the Single Judge of the DHC relied on Section 9 of the CPC to affirm its jurisdiction in a foreign-seated arbitration without analysing the applicable arbitration clause. Even as per Section 9, a civil court’s jurisdiction is subject to any express or implied bar; however, the DHC failed to account for the bar imposed by the framework of arbitration law in relation to foreign-seated arbitrations. Rather, the DHC excessively relied on its residuary power under Section 151 of the CPC to interfere with oppressive arbitral proceedings, a power which comes into effect only after the court validly exercises jurisdiction and cannot be used to justify the exercise of jurisdiction itself. Such exercise of inherent jurisdiction, by ignoring the statutory framework of the A&C Act and its jurisprudence, not only increases uncertainty in foreign arbitrations but also threatens the sanctity of arbitration agreements and party autonomy.
Increasing Gap in the Exercise of Inherent Jurisdiction
In view of the foregoing, the exercise of jurisdiction by Indian courts, while deciding the grant of anti-arbitration injunctions in foreign-seated arbitrations under Section 45 of the A&C Act, could potentially circumvent the established principles of seat jurisdiction. Section 45 under Part II of the A&C Act states that notwithstanding anything contained in Part I of the A&C Act or the CPC, a judicial authority, when seized of a matter in respect of an agreement to which the Convention on the Recognition and Enforcement of Foreign Arbitral Awards applies, shall, at the request of one of the parties, refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of being performed. Therefore, any Indian court acting in respect of an anti-arbitration injunction in a foreign-seated arbitration must primarily establish jurisdiction, and thereafter, examine the arbitration agreement in accordance with the threshold under Section 45 i.e., whether the arbitration agreement is null and void, inoperative or incapable of being performed in order to either refer the parties to arbitration or grant the relief of anti-arbitration injunction.
Indian courts upholding their jurisdiction under Section 45 of the A&C Act to determine the issue of anti-arbitration injunction in foreign-seated arbitrations, without appreciating the principles of explicit or implied exclusion of jurisdiction based on the arbitration clause and chosen seat, results in a layered circumvention of the principles discussed above. Preliminarily, the principle of exclusivity of seat courts’ jurisdiction and the parties’ agreed choice of forum gets defeated. The exercise of inherent jurisdiction by Indian courts under the CPC runs directly contrary to the law laid down in the A.B.C. Laminart Case and the Indus Mobile Distribution Case that uphold exclusivity of seat court jurisdiction even when other courts have jurisdiction. Therefore, the exercise of territorial jurisdiction by the Single Judge, upheld by the DB in the SARR Freights Case, notwithstanding the seat being London and the governing law being English Law, appears to violate the exclusivity principle. The arbitration agreement in this case was neither broad enough to include courts other than the seat court (as in the World Sport Group Case) nor did it provide for exclusive jurisdiction to courts other than the seat court (as in the Engineering Projects Case). Hence, in the absence of such broadly worded arbitration clauses, the DHC ought not to have exercised jurisdiction.
Further, upon establishing jurisdiction, the Single Judge in the SARR Freights Case applied the threshold under Section 45 of the A&C Act to decide on the issue of anti-arbitration relief and thereafter, resorted to principles under Part I of the A&C Act to determine the threshold under Section 45 of the A&C Act despite the inapplicability of Part I to foreign-seated arbitrations. The Single Judge relied on Section 7 of the A&C Act to determine the validity of the arbitration clause and held that there existed a valid arbitration clause. The DB, though differing from the Single Judge and holding that there was no valid arbitration clause, still applied the Indian Evidence Act to arrive at its conclusion.
Pertinently, English law being the governing law as per Clause 43 of the Contract, and London being the seat, would mean that the arbitration agreement’s existence, validity, and interpretation is subject to English law and that the exclusivity of seat jurisdiction would bar the applicability of Part I of the A&C Act. Further, an arbitration agreement’s existence, that is governed by English law, cannot be subject to Indian law. Therefore, the DHC’s exercise of jurisdiction not only subjected the relief of anti-arbitration injunction to the threshold laid down under Section 45 of the A&C Act but also determined the validity of the arbitration agreement as per Indian law that is wholly inapplicable to an agreement governed by English law.
Therefore, the invocation of inherent jurisdiction under the CPC, coupled with the application of Part I of the A&C Act and the Indian Evidence Act to determine the threshold under Section 45, in a foreign-seated arbitration by a non-seat court, effectively circumvents the parties’ agreed choice of forum, governing law and the supervisory jurisdiction of the seat court.
Conclusion
The foregoing analysis demonstrates that the exercise of jurisdiction by Indian courts in granting anti-arbitration injunctions in foreign-seated arbitrations remains inconsistent. The DB in the SARR Freights Case, by upholding territorial jurisdiction under the CPC and applying Indian law to an arbitration agreement governed by English law, has set a concerning precedent that stands in direct conflict with the well-established principles of exclusivity of seat jurisdiction as affirmed in the A.B.C. Laminart Case and the Indus Mobile Distribution Case. Notably, since the DB did not consider or engage with these established principles of arbitration law, including the exclusivity of seat jurisdiction and the applicability of governing law, its decision on the question of jurisdiction is arguably sub-silentio and does not constitute binding precedent on this point. Such an approach undermines the sanctity of arbitration agreements, dilutes the supervisory jurisdiction of seat courts, and defeats the very party autonomy that arbitration seeks to protect. It is imperative that Indian courts exercise restraint and defer to the seat court’s supervisory jurisdiction in foreign-seated arbitrations. A failure to do so risks rendering the choice of seat and governing law meaningless.
*Avinash Amarnath, Partner, Competition and Dispute Resolution, Hyderabad
**Lalitha Durvasula, Associate, Dispute Resolution, Hyderabad
[1] 2026:DHC:7971-DB.
[2] 2014 INSC 50.
[3] 2025 SCC OnLine Del 5072.
[4] (2021)4MLJ147.
[5] MANU/DE/0936/2019.
[6] 1989 INSC 87.
[7] 2017 INSC 369.