Arbitration is meant to be the faster and more private route to dispute resolution. In practice it is often expensive, and the scope to challenge an award is limited. For businesses and individuals alike, the instinct is to argue the merits at once. The more useful question usually comes earlier: is there a valid arbitration agreement, and is this tribunal entitled to decide anything? At RFKN, our domestic arbitration practice covers the whole life of a dispute: drafting and invoking the clause, jurisdictional objections, the hearing, and the limited proceedings before the courts under Sections 34 and 37 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’).
An arbitration built on an agreement that never existed: A company in the renewable energy sector was served with a notice of arbitration by a former senior officer, who invoked a clause in an employment contract the company had never executed. The document had been fabricated to create both a forum and a claim. Its terms were one-sided: the company was to bear the entire cost of the arbitration and pre-deposit the whole claim as an “advance”, which is untenable. Instead of submitting to the tribunal and contesting the claim on merits, we took the point at the threshold. Section 16 of the Arbitration Act permits a party to challenge the jurisdiction of the tribunal, including the existence and validity of the arbitration agreement. We raised the plea at the earliest opportunity and built the record on how and when the document was created. The tribunal upheld the challenge, and the proceedings ended before the claim was heard.
An award for an employee, defended under Section 34: We acted for an employee in a dispute over his terms of service, particularly on confidentiality, and obtained an award in his favour. The employer challenged the award under Section 34 of the Arbitration Act. We resisted the petition on the footing that Section 34 is not an appeal. The grounds are narrow and exhaustive, a court cannot reappreciate evidence or substitute its own reading of the contract for the arbitrator’s, and a plausible reading of the record by the tribunal is not open to interference because another view was possible. The challenge failed and the award stood. The limited scope of Section 34 protects whoever holds the award.
A Swiss medical company and an MSME registration obtained after the fact: A Swiss company in the medical industry was in a dispute with its Indian consultant. After the consultancy agreement was executed and the invoices issued, the consultant obtained registration under the Micro, Small and Medium Enterprises Development Act, 2006 (“MSME Act”). After the commercial proceedings began, the consultant invoked the statutory arbitration mechanism under the MSME Act and relied on the later registration to seek a reference of the dispute to arbitration.
We challenged the proceedings before the Micro and Small Enterprises Facilitation Council on two grounds. First, the invoices and the underlying obligations pre-dated the registration. Second, the buyer was a Swiss entity located outside India and could not be subjected to the framework of the MSME Act. The challenge succeeded before the Writ Court, which held that a subsequent registration could not retrospectively confer jurisdiction on the Facilitation Council, and that a foreign buyer situated outside India was not amenable to the Council’s jurisdiction. The decision was challenged before the Division Bench and then before the Supreme Court. Both affirmed the position in favour of the foreign company. The matter reinforces that the jurisdiction of the Facilitation Council under Section 18 of the MSME Act cannot be extended to bind a buyer located outside India.
We look at the clause before the claim: Before responding on merits, we examine whether the agreement is genuine, whether it was validly executed, whether the dispute falls within the clause, and whether the tribunal has been properly constituted. A jurisdictional objection taken at the right time can end a matter that would otherwise run for years.
We identify jurisdictional issues early: Objections to jurisdiction must be raised no later than the submission of the statement of defence, and a plea that the tribunal is exceeding its scope must be raised as soon as the matter is referred to it. We protect these points on the record so that they remain available at every later stage, including appeals under Sections 34 and 37 of the Arbitration Act.
We respect the limited scope of Section 34: Awards are not reopened merely because they are wrong. We advise clients on whether a challenge is worth bringing, and where the award is in our client’s favour, we defend it on that same narrowness.
We build the record with enforcement in mind: Pleadings, evidence and interim applications are prepared to persuade the tribunal and to withstand scrutiny afterwards. An award is only as good as its capacity to survive challenge and be executed.
Jurisdictional challenges – the existence, validity and scope of the arbitration agreement, the competence of the tribunal, objections under Section 16 and the proceedings that follow, and reference to arbitration under Sections 8 and 45 of the Arbitration Act.
Fraudulent and fabricated agreements – forged contracts, agreements procured by misrepresentation, and arbitrations invoked to give legitimacy to documents that do not deserve it.
Employment and service disputes – termination, remuneration and benefits, restrictive covenants and fiduciary obligations, acting for both employers and employees.
Distribution, supply and channel-partner disputes – territory and exclusivity, termination, accounts and recoveries, and post-termination conduct.
Shareholder, joint venture and partnership disputes – deadlock, exit and valuation, breach of shareholders’ agreements, and oppression allegations that spill into arbitration.
Commercial contract disputes – services, licensing, supply and works contracts, including claims for damages, debts and specific performance where arbitrable.
Interim protection – applications under Section 9 before the courts and Section 17 before the tribunal, to secure assets, preserve evidence and hold the position until the dispute is decided.
Challenge, appeal and enforcement – Section 34 petitions and defences, appeals under Section 37, and execution of awards under Section 36.
Arbitration rewards preparation more than volume. We approach it as we would any contested proceeding, with a clear view of the record, the forum and the strategy, so that clients are not left holding an award they cannot enforce, or defending one that should never have been made.