SERIES – Jurisdiction of Civil and Commercial Courts under Indian Arbitration Law
Arbitration is frequently described as a dispute resolution mechanism that offers efficiency, flexibility, and finality. In commercial relationships, parties opt for arbitration to avoid prolonged litigation, procedural rigidity, and jurisdictional uncertainty. The Arbitration and Conciliation Act, 1996 was enacted with this precise objective—to modernise Indian arbitration law and bring it in line with internationally accepted standards reflected in the UNCITRAL Model Law.
Yet, the promise of arbitration is not fulfilled merely by the constitution of a tribunal or the rendering of a reasoned award. The real value of arbitration lies in whether the award-holder can realise the benefit of the award. An arbitral award that cannot be enforced efficiently is reduced to a declaratory document, lacking practical utility. This is why enforcement is not a peripheral concern in arbitration; it is the stage at which the legitimacy of the arbitral process is tested.
Arbitration scholars have long emphasised this reality. Gary Born’s observation that an unenforceable award is nothing more than a paper determination captures the commercial stakes involved. Redfern and Hunter similarly underline that arbitration systems succeed only when enforcement is predictable, swift, and insulated from unnecessary judicial obstruction. In cross-border commerce, enforceability often matters more than the seat of arbitration or the composition of the tribunal.
In India, however, enforcement historically emerged as the weakest link in the arbitral chain. While parties could obtain awards within reasonable timeframes, translating those awards into executable outcomes proved to be far more challenging. The problem was not merely procedural delay, but a deeper structural issue rooted in judicial attitudes towards arbitration and an over-emphasis on post-award scrutiny.
The pre-2015 legal framework exemplified this difficulty. Section 36 of the unamended Arbitration and Conciliation Act provided for an automatic stay on enforcement upon the filing of a challenge under Section 34. This meant that an award-debtor could stall execution simply by instituting challenge proceedings, regardless of their merit. In practice, this encouraged speculative challenges and transformed Section 34 into a strategic tool for delay.
This regime distorted the balance between finality and judicial review. Instead of limited supervisory oversight, courts became deeply entangled in post-award disputes. Arbitration, which was intended to be an alternative to litigation, often became a precursor to prolonged judicial proceedings. The enforcement stage ceased to be a mechanism for closure and instead became a fresh arena for contestation.
Jurisdictional uncertainty further aggravated this problem. Courts adopted inconsistent positions on where execution could be initiated, often tethering enforcement to the court exercising supervisory jurisdiction over the arbitration. This resulted in execution proceedings being resisted on technical grounds unrelated to the location of assets or the feasibility of recovery.
The cumulative impact of these factors was significant. Award-holders faced prolonged uncertainty, escalating costs, and erosion of the commercial value of awards. For foreign investors, this reinforced perceptions of India as an enforcement-averse jurisdiction. It became clear that arbitration reform would remain incomplete unless enforcement was treated as a central concern rather than an afterthought.
This recognition set the stage for a conceptual and institutional shift—from judicial control to judicial facilitation. Understanding enforcement as an independent, outcome-oriented process was the first step in restoring arbitration’s credibility.
Authored by,
Mantri Lakshmi Sanjana (Intern, Alliance University, Bangalore)
With guidance from Ananthakesavan V, Advocate – IPR & Litigation
RVR Associates, IPR Attorneys and Advocates