India – Anti­-Arbitration Injunction.

of Trustees of the Port of Kolkata vs. Louis Dreyfus Armatures SAS & others3 ” has summarized, as below, the circumstances under which an anti-arbitration injunction can be granted:

 

(i) “If an issue is raised whether there is any valid arbitration agreement between the parties and the Court is of the view that no agreement exists between the parties.

 

(ii) If the arbitration agreement is null and void, inoperative or incapable of being performed.

(iii) Continuation of foreign arbitration proceeding might be oppressive or vexatious or unconscionable.”

 

The Hon'ble Punjab and Haryana High Court4, under its prerogative powers (writ jurisdiction), have granted anti-arbitration injunction thereby restraining the parties (where one of the parties was a State Entity) from initiating fresh arbitration proceedings with regard to disputes already having been seized of by an existing Arbitral Tribunal. While relying on this judgment, the Hon'ble Supreme Court of India in the matter titled as “Antrix Corp.Ltd vs. Devas Multimedia5” has held that where an arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an arbitrator is not maintainable. It was observed that once the arbitration clause has been invoked, there is no power left to once again refer the same dispute to a different Arbitral Tribunal since the Arbitral Tribunal which is seized of the disputes first will have the appropriate jurisdiction over the matter.

 

The Hon'ble Calcutta High Court in the matter of “Devi Resources Limited vs. Ambo Exports Limited6” held that an anti-arbitration injunction may be sought on the ground of the incapacity of the party seeking injunction or grounds of overwhelming inconvenience to such party. A party is said to be under incapacity when, it is of unsound mind or it has limited contractual capacity and cannot act beyond that capacity or where it has been incorporated by a statue and it may refer the disputes to arbitration only if it is authorized or permitted to do so by the statute incorporating it. 

 

The Hon'ble High Court of Delhi in the matter of “Himachal Sorang Power Private Limited vs. NCC Infrastructure Holdings Limited7” has laid down the following parameters governing anti- arbitration injunction:

 

“i) The principles governing anti-suit injunction are not identical to those that govern an anti- arbitration injunction.

 

ii) Courts are slow in granting an anti-arbitration injunction unless it comes to the conclusion that the proceeding initiated is vexatious and/or oppressive.

 

iii) The Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata. If persuaded to do so the Court could hold such proceeding to be vexatious and/ or oppressive. This bar could obtain in respect of an issue of law or fact or even a mixed question of law and fact.

 

iv) The fact that in the assessment of the Court a trial would be required would be a factor which would weigh against grant of anti- arbitration injunction.

 

v) The aggrieved should be encouraged to approach either the Arbitral Tribunal or the Court which has the supervisory jurisdiction in the matter. An endeavor should be made to support and aid arbitration rather than allow parties to move away from the chosen adjudicatory process.”

 

The Hon'ble Supreme Court in one of its judgment, has held that an arbitration agreement becomes “inoperative” when it has ceased to have effect due to revocation by one of the parties or where an arbitral award has already been made or where the principles of res judicata9 apply. It has further been observed that an arbitration agreement would not become inoperative or incapable of being performed where allegations of fraud have to be enquired into and the Court cannot refuse to refer the parties to arbitration. The Hon'ble Supreme Court in another matter has further observed that a proceeding is vexatious or oppressive in nature, if a party has chosen to put his case in one way and thereafter it brings the same transaction before the Court taking a contrary stand with respect to its earlier contentions and accordingly relies on a new cause of action.

 

Conclusion and Analysis

 

As is evident from the judicial precedents, Indian Courts do have the power to grant an anti-arbitration injunction in domestic as well as international arbitrations (in pursuance of Section 45 of the Act). It can be safely inferred that an anti-arbitration injunction may be granted by a Court under the following conditions:-

 

a)  The arbitration initiated is vexatious and/ or oppressive in nature;

 

b)  Fresh arbitration proceedings would be barred by res-judicata or constructive res-judicata, which could lead to proceedings that maybe vexatious and/ or oppressive in nature;

 

c)  An existing Arbitral Tribunal has already seized of the disputes between the parties and as such any other arbitral tribunal would lack the jurisdiction to try the matter.

 

d)  Egregious fraud has been committed by the party seeking to initiate or pursue the second arbitral reference.

 

e)  The party seeking injunction is under some incapacity or overwhelming inconvenience.