Do Adverse Decisions on Arbitration Challenges Warrant the Issuance of an Anti-arbitration Injunction: Analysing the Delhi High Court’s Decision in Engineering Projects

The judgment has attracted significant attention amongst arbitration practitioners across the globe, because of the Court’s decision to intervene in the case, despite being aware that the Singapore High Court, being the supervisory court at the seat of arbitration, was seized of the matter in parallel proceedings instituted by Engineering Projects.

In July 2025, the Delhi High Court, in Engineering Projects (India) Ltd. v. MSA Global LLC¹, granted an anti-arbitration injunction based on an arbitrator’s failure to disclose his previous appointment in proceedings involving the promoter and legal counsel of MSA Global. The Court held that this failure violated the fundamental principles of fairness and neutrality, which are essential guardrails of any arbitration proceedings, and satisfied the condition that the continuation of the proceedings would be “vexatious and oppressive” for Engineering Projects.

The judgment has attracted significant attention amongst arbitration practitioners across the globe, because of the Court’s decision to intervene in the case, despite being aware that the Singapore High Court, being the supervisory court at the seat of arbitration, was seized of the matter in parallel proceedings instituted by Engineering Projects.

My focus, in this article, will turn to this issue first, before asking a different question: Whether the Court was justified in granting an anti-arbitration injunction based on the arbitrator’s failure to disclose circumstances about his previous appointment? I answer this question in the negative, and illustrate how the Court (1) failed to engage with the components of the test laid down in Himachal Sorang Power (P) Ltd. v. NCC Infrastructure² for the grant of an anti-arbitration injunction; and (2) omitted the distinction between an arbitrator’s duty of disclosure, and the independent evaluation of the circumstance(s) on the threshold of independence and impartiality.

Parallel proceedings and the jurisdiction of a non-seat court over procedural decisions of an Arbitral Tribunal

In the case of Engineering Projects³, the Court was faced with a peculiar set of facts. MSA Global’s party-nominated arbitrator had served previously as an arbitrator in proceedings involving MSA’s promoter, Mr Manbhupinder Singh Atwal, and its legal counsel. At the time of his appointment, the arbitrator declared that he did not have any circumstances to disclose which would raise justifiable doubts as to his independence or impartiality and maintained this position over the course of the arbitration. Engineering Projects discovered the arbitrator’s involvement in the case through a publicly available decision of the Gujarat High Court, which discussed the arbitrator’s involvement, and made a challenge under Article 11 of the ICC Rules. The ICC, whilst calling the arbitrator’s failure to disclose his involvement in the previous case “regrettable”, dismissed Engineering Project’s challenge on the ground that the failure to disclose this circumstance in and of itself could not automatically lead to a conclusion that the arbitrator was not independent or impartial. The ICC supported this conclusion with the following additional factors:

(i) there was a gap of almost four years between the two appointments, and there was no factual or subject-matter overlap between the two arbitrations; and

(ii) there was no evidence of any other connections between the arbitrator and MSA Global, Mr Atwal or MSA’s legal counsel.

Engineering Projects subsequently challenged the arbitrator’s continued participation in the proceedings before the Singapore High Court, under Section 3, Singapore International Arbitration Act, 1994 and Article 13(3) of the UNCITRAL Model Law. Parallelly, it approached the Delhi High Court, seeking an anti-arbitration injunction, and submitted before the Court that it had taken steps to withdraw the proceedings before the Singapore High Court. Pertinently, the Singapore High Court denied Engineering Projects’ withdrawal attempt, which meant that as things stood, Engineering Projects was maintaining parallel proceedings in Singapore and India over its challenge to the arbitrator’s jurisdiction.

In this background, it is helpful to review the test which Indian courts have devised over the years for the grant of an anti-suit injunction. The Supreme Court’s decision in Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd.⁴, affirmed the jurisdiction of a civil court in India to grant an anti-arbitration injunction, but seemed to (indirectly) suggest that such injunctions can only be granted where the Court found the arbitration agreement to be null and void, inoperable or incapable of being performed under Section 45, Arbitration Act, 1996 which adopts the standard under the New York Convention⁵.

However, subsequent decisions of the Calcutta High Court, in Balasore Alloys Ltd. v. Medima LLC⁶, and the Delhi High Court in the case of Himachal Sorang⁷ held that this power would also apply to situations where the Court was of the view that allowing the arbitration proceedings to continue would be vexatious and oppressive to one of the parties. In the case of Himachal Sorang, the Court stated that in dealing with cases involving a claim for anti-arbitration injunctions, the Court should encourage the party to approach either the Arbitral Tribunal, or the court which exercises supervisory jurisdiction (i.e. courts at the seat of arbitration), to ensure that the party is dissuaded from foregoing their chosen adjudicatory forum.

Despite quoting extensively from Himachal Sorang⁸ in its decision, the Court in Engineering Projects case⁹ fails to consider whether Engineering Projects should be persuaded to agitate its case before the Singapore High Court (where it had already instituted proceedings), instead of claiming an anti-arbitration injunction — which is widely recognised to be an exceptional, and rare measure. This, in my view, was a fatal omission in the Court’s reasoning, because the choice of a seat in international arbitration plays a pivotal role. Once the parties select a seat, it signifies an affirmative choice to grant the courts of the seat supervisory jurisdiction over matters concerning the arbitration proceedings — including interim measures, challenges to arbitral awards, and challenges to the jurisdiction of arbitrators. Absent any indication that the courts in Singapore would be unable to provide efficacious remedy to Engineering Projects (which was neither argued by either party, or a possibility in the Court’s view), the Court in Engineering Projects case should have deferred to the jurisdiction of the Singapore High Court, and refrained from exercising its limited powers of granting anti-arbitration injunctions in this case.

One could, of course, argue that if the arbitration proceedings were indeed vexatious and oppressive, as Engineering Projects claimed them to be, the Court was justified in exercising jurisdiction on grounds of fairness and urgency. I turn to this argument in the section below.

An arbitrator’s failure to disclose circumstances which could lead to justifiable doubts as to his independence and impartiality does not, a priori, render him ineligible

In the Engineering Projects case¹⁰, the Court held that the arbitrator’s failure to disclose his previous appointment in the arbitration involving MSA Global’s promoter “casts doubt over the entire sanctity of the arbitration proceedings”. The Court supported its decision to grant an anti-arbitration injunction on the ground that the arbitrator’s failure to disclose went to the very root of party autonomy and procedural fairness, and denuded the Tribunal of any legitimacy to continue the proceedings so long as the challenged arbitrator continued to participate (since one of the parties, Engineering Projects, had lost faith in his ability to act independently or impartially).

What the Court does not consider, regrettably, is the distinction between the duty of disclosure which binds an arbitrator, and the actual circumstance which provides justifiable doubts in the mind of a reasonable third party that an arbitrator is not independent or impartial. This distinction is key, since it is only the latter which forms the basis of a successful arbitrator challenge.

To use a simple example as an illustration, an arbitrator who fails to disclose a benign circumstance in his declaration of independence and impartiality (such as having met one of the counsels for the parties at a conference or social event) will not be automatically ineligible, and subject to a successful challenge, on the basis of this non-disclosure, since the underlying circumstance is one which will not raise justifiable doubts about his independence or impartiality in the minds of any reasonable third-party observer.

Article 3(g) of the IBA Guidelines on Conflicts of Interest in International Arbitration reflects this principle and provides that “(a)n arbitrator’s failure to disclose certain facts and circumstances (…) does not necessarily mean that a conflict of interest exists, or that a disqualification should ensue.”

In Halliburton v. Chubb Bermuda Insurance Ltd.¹¹, the UK Supreme Court reaffirmed this principle, and observed that while the duty of disclosure is one which a prospective or serving arbitrator must comply with, any challenge to the arbitrator’s independence or impartiality must be assessed on the actual circumstances involved, and whether such circumstance would lead to justifiable doubts in the mind of a reasonable, third-party observer. In the Halliburton case¹², the Court held that the arbitrator’s failure to disclose previous appointments in arbitrations involving Chubb did not satisfy the threshold for a successful challenge, even though it held the arbitrator in breach of his duty to disclose.

In my view, a similar result ought to have followed in the Engineering Projects case¹³. The arbitrator’s failure to disclose his previous appointment was not, in and of itself, a circumstance which gave rise to justifiable doubts as to his independence and impartiality. Furthermore, a single appointment in a previous arbitration involving one of the parties would fail to meet the threshold for challenging the arbitrator under the rules of most major arbitral institutions (including the ICC Rules), the IBA Guidelines, and importantly, under the arbitration statutes of both Singapore and India (which target repeat appointments, but not isolated instances).

The Court’s omission of this distinction in its analysis in the case of Engineering Projects is concerning. What is perhaps more concerning, however, is its finding that the unsuccessful arbitrator challenge rendered the arbitration proceedings themselves “vexatious and oppressive”. In lowering the threshold for the grant of an anti-arbitration injunction in this manner, the decision in Engineering Projects could potentially have significant disconcerting consequences.

The decision could open the floodgates for parties to use Indian courts as a forum to seek anti-arbitration injunctions, based on adverse procedural decisions on arbitrator challenges. This would defeat the bespoke benefits of arbitration as an efficient and autonomous dispute resolution mechanism and allow recalcitrant parties to abuse anti-arbitration injunctions in the future.