Balancing Fairness and Efficiency: Contours of Writ Jurisdiction in the Arbitration Landscape

Introduction

Indian arbitration law has been steadily shaped by the principle of minimal judicial intervention, with Section 5¹ of the Arbitration and Conciliation Act, 1996 mandating minimal judicial interference as the cornerstone of the framework. At the same time, High Courts have often exercised writ powers under Articles 226² and 227³ of the Constitution, arising out of arbitration proceedings. The recent Supreme Court decision in Serosoft Solutions (P) Ltd. v. Dexter Capital Advisors (P) Ltd.⁴, clarified that while parties are entitled to fairness during arbitration proceedings, intervention by the exercise of writ jurisdiction in arbitral proceedings must be confined to exceptional cases where perversity or illegality is manifest. By restoring procedural autonomy to the Tribunal, the judgment⁵ reinforces that arbitration must remain both fair and time-bound, preserving its role as a credible alternative to litigation.

Judicial understanding

Section 5 of the Arbitration and Conciliation Act, 1996

Section 5⁶ of the Arbitration and Conciliation Act, 1996, articulates the principle that courts must refrain from intervening in arbitral matters, save in those situations expressly envisaged by the statute. This provision reflects the legislature’s intent to strengthen arbitration as an autonomous mechanism for dispute resolution, ensuring that Arbitral Tribunals retain independence in both procedure and decision-making. The arbitrators are vested with discretion to decide questions of jurisdiction, evidence, and conduct of proceedings, thereby affirming arbitration as a self-contained and independent forum. By limiting judicial supervision, Section 5⁷ protects the efficiency and finality of arbitral awards and promotes confidence in arbitration as a credible alternative to litigation.

Articles 226 and 227 of the Constitution of India

While Section 5⁸ seeks to minimise judicial interference, the constitutional writ jurisdiction of High Courts under Articles 226⁹ and 227¹⁰ remains preserved. Article 226 empowers High Courts to issue writs not only for the enforcement of fundamental rights but also to remedy legal wrongs flowing from arbitrary action by public authorities. Article 227, on the other hand, entrusts the High Courts with supervisory authority over all subordinate courts and tribunals within their territorial jurisdiction. Together, these provisions form the constitutional safeguard against injustice, ensuring that arbitral proceedings do not escape judicial scrutiny in exceptional circumstances.

In SBP & Co. v. Patel Engg. Ltd.¹¹, the Supreme Court clarified that arbitral proceedings are meant to function with minimal court interference. The Court cautioned that allowing writ jurisdiction under Article 226¹² or Article 227¹³ to challenge arbitral orders would negate the object of the Arbitration and Conciliation Act, 1996¹⁴ as a complete -code and frustrate the purpose of Section 5¹⁵. The judgment¹⁶ thus fortified the principle that parties must primarily adhere to the remedies provided within the Arbitration and Conciliation Act, 1996, and courts should refrain from entertaining challenges beyond the statutory scheme.

In Deep Industries Ltd. v. ONGC Ltd.¹⁷, the Supreme Court held that although High Courts retain jurisdiction under Articles 226¹⁸ and 227¹⁹, interference in arbitration must be reserved for rare cases, such as those involving a patent lack of jurisdiction. The Court emphasised that entertaining writ petitions against arbitral orders would otherwise undermine the discipline of arbitration and derail the expeditious disposal of disputes.

Similarly, in Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd.²⁰, the Court reiterated that constitutional powers under Articles 226²¹ and 227²² cannot be diluted by Section 5²³, yet their exercise should be limited to circumstances where statutory remedies are unavailable, or where the arbitral process is vitiated by bad faith or denial of natural justice. The Court highlighted that this jurisdiction operates as a safeguard of last resort, ensuring fairness without compromising the autonomy and efficiency of arbitration.

Indian courts have repeatedly clarified that these powers, though wide, are not to be used to routinely interfere in arbitral proceedings. Their exercise is restricted to rare and extraordinary cases, such as when there is a patent lack of jurisdiction, mala fides, or a violation of the principles of natural justice. The jurisprudential balance that emerges is twofold: arbitral autonomy is respected through the statutory discipline of Section 5²⁴, while constitutional writ powers act as a narrow but necessary corrective mechanism to prevent miscarriage of justice.

Section 34 as the statutory remedy for denial of procedural opportunity

The Arbitration and Conciliation Act, 1996²⁵, provides a clear statutory remedy if a party is deprived of a fair opportunity during arbitral proceedings. Section 34²⁶ allows an arbitral award to be set aside on limited grounds, one of which is where a party “was otherwise unable to present its case”. This clause directly covers situations such as the denial of natural justice, which includes the right to cross-examination.

Although the scope of Section 34²⁷ is narrow, an award can be set aside if procedural fairness has been compromised. Additionally, Section 34(4) empowers a court to suspend the challenge proceedings and remit the matter back to the Arbitral Tribunal, enabling it to cure the identified defect if possible.

This framework reinforces the principle that grievances relating to procedural fairness must ordinarily be addressed through the statutory mechanism of Section 34²⁸ rather than by invoking writ jurisdiction, except in extraordinary cases where no alternative remedy is available.

Serasoft decision: Factual matrix

In a contractual engagement, Serosoft Solutions Pvt. Ltd. (Serasoft), a provider of educational software, entered into a client service agreement with Dexter Capital Advisors Pvt. Ltd. (Dexter), a capital advisory firm. A dispute arose when Dexter alleged non-payment for its advisory services and invoked the arbitration clause embedded in the agreement. The Arbitral Tribunal commenced proceedings and framed the issues in September 2023. Dexter presented two witnesses (CWs 1 and 2), both of whom were cross-examined without incident. The focus then shifted to Serosoft’s witness, RW 1, whose cross-examination unfolded over three separate sessions with over 140 questions put to the witness. At the third session, the Tribunal formally declared the cross-examination of RW 1 complete. However, two days later, Dexter filed an application seeking yet another opportunity to cross-examine RW 1 further.

On 9-10-2024, the Tribunal rejected Dexter’s application, citing several reasons. It emphasised that arbitration is a time-bound process governed by Section 29-A²⁹ of the Arbitration and Conciliation Act, 1996. Although the parties had agreed to extend the Tribunal’s mandate, the deadline was fast approaching. The Tribunal noted that Dexter had already been afforded over 12 hours to cross-examine RW 1, and the repeated requests indicated a lack of preparedness and a deliberate attempt to delay proceedings. Consequently, the Tribunal scheduled final arguments for November 2024, signalling the conclusion of the evidentiary phase.

Findings of the Delhi High Court

When approached under Article 227³⁰, the Delhi High Court acknowledged that interference with arbitral proceedings is ordinarily not warranted. However, it nevertheless invoked “exceptional circumstances” and directed the Arbitral Tribunal to permit an additional round of cross-examination of the witness. The High Court reasoned that further opportunity was necessary to ensure procedural fairness, even though the Tribunal had already closed the stage of evidence after granting extensive time for cross-examination.

Issue before the Supreme Court

Could the High Court, under Article 227³¹, direct an Arbitral Tribunal to allow further cross-examination when the Tribunal had already granted what it considered a full and fair opportunity?

Arguments — Appellant (Serosoft)

On behalf of Serosoft, it was argued that the Arbitral Tribunal had already fulfilled its statutory obligation under Section 18³² of the Arbitration and Conciliation Act, 1996 by ensuring that Dexter was afforded a full and fair opportunity to cross-examine RW 1. The cross-examination had been allowed over three separate sittings, amounting to more than 12 hours and covering 141 questions, which, by any reasonable standard, constituted an exhaustive exercise. Granting repeated opportunities, counsel submitted, would serve no purpose other than to frustrate the legislative mandate under Section 29-A³³, which emphasises the time-bound nature of arbitral proceedings. It was further contended that the Delhi High Court’s intervention under Article 227³⁴ of the Constitution was not only contrary to the settled principle of minimal judicial interference in arbitral matters but also amounted to an impermissible substitution of the Tribunal’s procedural discretion with its own.

Arguments — Respondent (Dexter)

Dexter, on the other hand, maintained that cross-examination is one of the most critical tools for testing the veracity of a witness and ensuring procedural fairness in adjudicatory proceedings. It was argued that, owing to the nature and complexity of the dispute, the additional opportunity sought was not an attempt to delay the matter but rather a genuine necessity to confront RW 1 with certain crucial documents and contradictions that had not been adequately addressed in the earlier sittings. Counsel for Dexter submitted that the High Court had rightly exercised its supervisory jurisdiction under Article 227³⁵, as denial of further time for cross-examination would, in the particular circumstances of the case, amount to a denial of an effective hearing. The “exceptional circumstances” noted by the High Court, they contended, justified such intervention despite the general rule against judicial interference in arbitration.

Findings of the Supreme Court

On appeal, the Supreme Court reversed the High Court’s order. The Supreme Court held that writ jurisdiction over arbitral proceedings can be exercised only in extraordinary cases where perversity or patent illegality is self-evident. It was observed that the party seeking further cross-examination had already been given three separate sittings spanning over 12 hours and involving more than 140 questions. In such circumstances, the Tribunal’s decision to conclude the evidence could not be termed unfair or perverse. Emphasising the time-bound nature of arbitration under Section 29-A³⁶ of the Arbitration and Conciliation Act, 1996, the Supreme Court made it clear that writ powers are not meant to second-guess the Tribunal’s procedural discretion. By restoring the Tribunal’s control, the Supreme Court reinforced that parties are entitled to a fair opportunity, but not to unlimited indulgence, and that efficiency in arbitration cannot be compromised under the guise of fairness.

Analysis

(1) Equal treatment versus endless opportunity

Under Section 18³⁷ of the Arbitration and Conciliation Act, 1996, tribunals must treat parties equally and give each a full opportunity to present their case. The Court emphasised that “full” does not mean “unlimited”. At some point, efficiency must take precedence over repetitiveness.

Here, Dexter had already enjoyed a cross-examination spread over three sittings, 141 questions, and more than 12 hours. The Tribunal was within its rights to conclude that enough was enough.

(2) The “complete perversity” test

The High Court failed to identify any perversity. Instead, it relied on a normative principle that cross-examination is an important tool to test the veracity of evidence. The Supreme Court noted that while this is true, however, it is not the test for writ interference.

(3) Section 29-A and time discipline

Section 29-A³⁸ sets strict timelines for concluding arbitration, extendable only in limited circumstances. The Supreme Court saw the Tribunal’s refusal not as denying fairness, but as protecting the statutory mandate. Prolonged cross-examination without justification directly undermines Section 29-A’s purpose.

Key takeaways and conclusion

From a practitioner’s standpoint, the decision in the Serosoft Solutions case³⁹ is both instructive and reassuring. It reassures by affirming that the Supreme Court is committed to preserving arbitration as an efficient and autonomous dispute resolution mechanism. It instructs by laying down a clear threshold for writ intervention under Article 227⁴⁰, unless an order is so perverse that its illegality is apparent on the face of the record, the High Court must refrain from interfering.

The judgment⁴¹ underscores the delicate balance between fairness and efficiency in arbitration. Excessive focus on efficiency risks undermining due process, while unchecked indulgence in the name of fairness can render arbitration as protracted as litigation. By recognising that more than 12 hours of cross-examination already satisfied the requirement of a fair hearing, the Supreme Court reinforced that Arbitral Tribunals must be trusted to exercise procedural control.

Ultimately, the Supreme Court has clarified that writ jurisdiction in arbitration functions as an emergency brake, not a parallel steering wheel. Parties are entitled to a fair opportunity, but not to unlimited indulgence, and High Courts must intervene only when injustice is glaring and undeniable. By restoring procedural autonomy to the Arbitral Tribunal, the judgment strengthens arbitral independence, ensures discipline under statutory timelines, and fortifies India’s reputation as a jurisdiction that values both fairness and efficiency in arbitration.