Seat, institution and the India International Arbitration Centre

Section 20(1) leaves the place of arbitration to the parties, and failing agreement section 20(2) lets the tribunal fix it having regard to the circumstances and the convenience of the parties. Section 20(3) lets the tribunal meet anywhere for consultation, hearing witnesses or inspection without changing the place. Section 31(4) requires the award to state the place of arbitration, and the award is deemed to have been made there.

The supervisory court follows from the seat. Section 2(1)(e) defines the Court, for a domestic arbitration, as the principal civil court of original jurisdiction in a district, including the High Court on its original side, that would have jurisdiction over the subject matter as a suit; for an international commercial arbitration it is the High Court on its original side, or the High Court that hears appeals from the subordinate courts. In BGS SGS Soma the clause said the arbitration proceedings shall be held at New Delhi or Faridabad; the Supreme Court read the named place as the seat, held that its courts had exclusive jurisdiction, and directed the section 34 petition to be presented in New Delhi. Section 42 then confines all later applications on the same agreement to the court where the first application was made.

In Chennai, a clause naming Chennai as the seat of a domestic arbitration sends section 9, section 11 and section 34 applications to the courts at Chennai, since section 11(12)(b) reads the appointment court as the High Court within whose local limits the principal civil court sits. An international commercial arbitration seated at Chennai splits the other way: section 2(1)(e)(ii) makes the Madras High Court in ordinary original civil jurisdiction the Court for section 9 and section 34, while section 11(12)(a) reads the references in sub-sections (4), (5) and (6) as a reference to the Supreme Court for the appointment.

Bharat Aluminium Co. v. Kaiser Aluminium Technical Service Inc. (2012) 9 SCC 552 held that Part I applies only to arbitrations seated in India, so Indian courts cannot set aside an award or, under the law as it then stood, grant interim relief in an arbitration seated abroad. It overruled Bhatia International v. Bulk Trading S.A. (2002) 4 SCC 105 with prospective effect. The proviso to section 2(2) restores sections 9 and 27 and section 37(1)(a) and (3) for an international commercial arbitration seated outside India, subject to contrary agreement.

PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd. (2021) 7 SCC 1 held that two companies incorporated in India may choose a seat outside India, and that the resulting award, if made in a New York Convention territory, is a foreign award under Part II and enforceable as such. Enforcement is refused only on the grounds in section 48: incapacity or an invalid agreement, lack of notice or inability to present the case, an award beyond the submission, irregular composition or procedure, an award not yet binding or set aside at the seat, non-arbitrability, and conflict with the public policy of India.

The choice therefore has a cost on both sides. A foreign seat removes the section 34 challenge in India and leaves the losing party with the narrower section 48 objections at enforcement, while the Indian courts' interim powers under section 9 remain available unless the parties exclude them.

Section 3 of the India International Arbitration Centre Act, 2019 establishes the Centre as a body corporate by notification of the Central Government, and section 4 declares it an institution of national importance with its head office at New Delhi and power to open branches in India and abroad with the Central Government's approval. That power has been exercised. The Central Government established the Centre by notification S.O. 2717(E) of 13 June 2022 under the then New Delhi International Arbitration Centre Act, 2019, renamed it the India International Arbitration Centre by S.O. 644(E) of 13 February 2023, and vested in it the undertakings of the International Centre for Alternative Dispute Resolution by S.O. 812(E) of 22 February 2023. The renaming was carried out under the 2019 Act as amended by the 2022 Amendment Act, which has been in force since 27 January 2023.

Section 5 fixes its composition: a Chairperson who has been a Judge of the Supreme Court or a High Court or is an eminent person with special knowledge of arbitration, appointed in consultation with the Chief Justice of India; two eminent persons with experience in institutional arbitration; a representative of a recognised body of commerce and industry; the Secretary of the Department of Legal Affairs or his representative; a Financial Adviser nominated by the Department of Expenditure; and the Chief Executive Officer.

Section 14 sets its objects, among them providing facilities and administrative assistance for arbitral, conciliation and mediation proceedings and maintaining panels of accredited arbitrators, conciliators and mediators. Section 15 requires it to strive to provide cost-effective and timely services for arbitration and conciliation. Section 28 requires a Chamber of Arbitration to empanel arbitrators and maintain a permanent panel, with admission criteria set by regulations, and section 29 allows an Arbitration Academy to train arbitrators. Section 31 lets the Centre, with the previous approval of the Central Government, make regulations by notification for the conduct of arbitration and other alternative dispute resolution under section 15(a), and it has done so. The India International Arbitration Centre (Conduct of Arbitration) Regulations, 2023 govern an arbitration brought to the Centre; separate regulations cover the transaction of its business, admission to the panel of arbitrators, the transaction of business of its committees, and the arbitration of micro and small enterprise disputes referred by a Facilitation Council under section 18(3) of the MSME Development Act, 2006. A clause that adopts the Centre's rules therefore imports a fourteen day period for the respondent's reply, the appointment scheme in regulations 11 to 14, the fee Schedule and the deposit machinery, and has to be read with them.

Section 2(1)(a) defines arbitration as any arbitration whether or not administered by a permanent arbitral institution, so both are fully within the Act. The practical differences are in appointment and administration. In an ad hoc arbitration, a party who cannot get the other side to appoint goes to the High Court under section 11, which must seek a written disclosure from the prospective arbitrator under section 12(1) before appointing. Under an institutional clause, the institution named in the agreed procedure makes the appointment, and section 11(6)(c) brings the court in only if that institution fails to perform the function.

Confidentiality is statutory in both. Section 42A requires the arbitrator, the arbitral institution and the parties to keep all arbitral proceedings confidential except the award where disclosure is necessary for its implementation and enforcement.

Name the seat as the seat, in those words, and name a city. Name the number of arbitrators: section 10 lets the parties fix it, provided it is not an even number, and the default is a sole arbitrator. Name the appointment method or the institution and its rules, and say whether the rules in force at the date of the reference apply. Name the language, which section 22 leaves to the parties. If the contract is between an Indian and a foreign party and the seat is abroad, say whether section 9, section 27 and section 37(1)(a) are excluded, because the proviso to section 2(2) applies them unless the parties agree otherwise.

A clause that lets one interested party alone choose the sole arbitrator, or curate the panel the other side must pick from, is open to challenge after the Constitution Bench decision on unilateral appointment discussed in the arbitration practice guide in this hub. A multi-tier clause that requires negotiation or mediation before reference should give the time each step takes, so that it is clear when the right to refer arises.

In Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. the Supreme Court held that an emergency arbitrator's award under the SIAC Rules is an order under section 17(1) of the Act, that the High Court can enforce it under section 17(2), and that no appeal lies under section 37 against an order enforcing it. Appeals filed under Order XLIII Rule 1(r) of the Code were held not maintainable.

Section 9 remains available from the court before the tribunal is constituted, and section 9(3) limits it afterwards to cases where the remedy under section 17 may not be efficacious. Where an institution's emergency procedure cannot act in time, the party applies to the court under section 9 and, if the order is made before the arbitration starts, must commence the arbitration within ninety days or such further time as the court allows. Regulation 18 of the Centre's regulations runs the same relief from the inside: a party applies in writing to the Registrar for emergency interim relief at or after filing the request for arbitration and before the tribunal is constituted, the Chairperson is to endeavour to appoint within three days including non-business days, a party has one business day from the communication of the appointment to challenge it, and the emergency arbitrator cannot sit on the tribunal for the rest of the case.

Section 31A gives the tribunal discretion over whether costs are payable, how much and when, and its definition of costs expressly includes any administration fees of the institution supervising the arbitration as well as arbitrators' fees, legal fees and expenses. The general rule is that the unsuccessful party pays the successful party's costs, with departures recorded in writing. Section 31A(5) makes an agreement that one party pays the costs in any event valid only if made after the dispute has arisen, which affects clauses that fix costs in advance. The costs and interest guide in this hub covers the regime in detail. The Centre's regulations add a deposit stage the Act does not. Regulation 35 has the Registrar fix the arbitrator's fee and the administration fee from the Schedule, and regulation 36 has the Registrar fix deposits towards the costs of the arbitration, normally half from each side, with separate advances for a claim and a counterclaim and further payments as costs accrue. Deposits are held by the Centre, which keeps any interest on them; a surplus is refunded in the proportions the deposits were made; and the Centre has a lien on the award until its costs are paid. Regulation 37 counts the administration fees of the Centre among the costs of the arbitration, which is what section 31A already does.

Section 13(1) lets the parties agree the procedure for challenging an arbitrator, which in practice means the institution's rules where they have chosen one. Failing agreement, section 13(2) requires the challenging party to send written reasons to the tribunal within fifteen days of learning of its constitution or of the circumstances in section 12(3), and the tribunal decides unless the arbitrator withdraws or the other party agrees. If the challenge fails, the tribunal continues and the point is taken under section 34 against the award. The grounds themselves are in section 12: justifiable doubts as to independence or impartiality, or lack of the agreed qualifications, and the Seventh Schedule categories make a person ineligible outright.