Arbitration, Mediation & Alternative Dispute Resolution
Arbitration and alternative dispute resolution concern the determination of disputes outside the ordinary court system, principally by arbitral tribunals, and the limited role courts retain in supporting and supervising that process. Sagar & Sagar Law Offices advises and appears in domestic and international commercial arbitrations under the Arbitration and Conciliation Act, 1996, in court proceedings for interim relief, appointment of arbitrators, setting aside and enforcement of awards, and in mediation and conciliation. Work covers the drafting of dispute resolution clauses, conduct of arbitral proceedings, and enforcement of domestic and foreign awards in India.
Overview
The Arbitration and Conciliation Act, 1996 establishes a framework in which the tribunal decides the dispute and the courts perform defined supporting functions. Courts may grant interim measures, appoint arbitrators where the agreed mechanism fails, refer parties to arbitration where a valid agreement exists, and set aside or refuse enforcement of an award on the limited grounds the statute permits. The scope of that supervision is narrow by design, which makes the arbitration itself — and the clause that created it — the decisive stage.
The practice at Sagar & Sagar Law Offices covers the process from the clause forward. Work includes drafting and reviewing dispute resolution clauses before a dispute exists, obtaining or resisting interim protection, conducting arbitral proceedings including pleadings, evidence and cross-examination, and pursuing or resisting challenge and enforcement of awards. The practice also covers mediation and conciliation, including the pre-institution mediation applicable to certain commercial suits.
Scope of work
Domestic commercial arbitration
Arbitrations seated in India between Indian parties, under Part I of the Arbitration and Conciliation Act, 1996.
- Advice on the existence, validity and scope of an arbitration agreement
- Applications under Section 8 for reference of parties to arbitration where a suit is filed
- Applications under Section 11 for appointment of an arbitrator where the agreed procedure fails
- Advice on the independence and impartiality of arbitrators and challenges to appointment
- Conduct of arbitral proceedings, including statement of claim, defence, counterclaim and rejoinder
- Documentary and oral evidence, including examination and cross-examination of witnesses
- Applications before the tribunal under Section 16 concerning its own jurisdiction
- Applications for interim measures before the tribunal under Section 17
- Advice on the statutory timelines applicable to the making of an award
- Advice on costs and on interest under the Act
International and institutional arbitration
Arbitrations with a foreign element, or administered by an arbitral institution.
- Advice on international commercial arbitration and the provisions applicable to it
- Advice on choice of seat, venue, governing law and language in dispute resolution clauses
- Arbitrations administered under institutional rules, including proceedings before Indian and foreign arbitral institutions
- Advice on emergency arbitrator provisions where the applicable rules provide for them
- Advice on multi-party and multi-contract arrangements, including joinder and consolidation
- Coordination with foreign counsel in arbitrations seated outside India
- Advice on interim relief from Indian courts in support of foreign-seated arbitration, where available
Court proceedings in support of arbitration
Proceedings before Indian courts arising from or supporting arbitration.
- Applications under Section 9 for interim measures before, during or after arbitral proceedings
- Applications for preservation of assets, security for the claimed amount and injunctive relief
- Applications concerning the appointment and substitution of arbitrators
- Proceedings concerning the arbitrability of a dispute
- Applications for court assistance in taking evidence
- Applications concerning the termination of an arbitrator's mandate
- Anti-suit and related applications, in appropriate cases
Challenge to and enforcement of awards
Proceedings after an award is made.
- Applications under Section 34 for setting aside a domestic award, on the grounds available under that section
- Advice on the scope of the public policy ground and, in domestic awards, on patent illegality
- Defence of awards in setting aside proceedings
- Applications for stay of operation of an award and advice on conditions imposed
- Enforcement of domestic awards as decrees of court
- Enforcement of foreign awards under Part II of the Act
- Advice on and resistance to enforcement on the grounds available under Section 48
- Appeals under Section 37 against orders refusing to refer parties to arbitration, granting or refusing interim measures, or setting aside or refusing to set aside an award
- Execution proceedings in respect of awards, including attachment and realisation
Mediation and conciliation
Consensual processes for resolution of disputes.
- Advice on and conduct of mediation under the Mediation Act, 2023
- Pre-institution mediation in commercial suits under the Commercial Courts Act, 2015
- Advice on the enforceability of mediated settlement agreements
- Conciliation proceedings and advice on the status of settlement agreements arising from them
- Preparation of parties for mediation, including position papers and settlement parameters
- Drafting and review of settlement agreements and consent terms
- Advice on confidentiality and without prejudice protection in settlement discussions
- Advice on Lok Adalat proceedings and settlements recorded before them
Dispute resolution clause drafting and advisory
Preventive work undertaken before any dispute arises.
- Drafting of arbitration clauses in commercial contracts
- Advice on tiered and multi-stage dispute resolution clauses
- Advice on institutional versus ad hoc arbitration
- Advice on number of arbitrators, appointment mechanism and qualification requirements
- Advice on seat, venue and governing law and the consequences of each
- Review of existing contractual dispute resolution provisions for enforceability
- Advice on expert determination and other contractual dispute mechanisms
- Strategic advice on forum selection where both arbitration and litigation are available
Sector-specific arbitration
Disputes arising in fields where arbitration is the usual mechanism.
- Construction and engineering disputes, including delay, variation and termination claims
- Infrastructure and concession agreement disputes
- Disputes arising from joint ventures and shareholders' agreements
- Supply, distribution and long-term commercial contract disputes
- Disputes under financing and facility documentation
- Technology, licensing and services agreement disputes
- Energy and power sector disputes
Forums and authorities
- Arbitral tribunals, whether ad hoc or institutionally administered
- Arbitral institutions, Indian and foreign, under their respective rules
- High Courts, in proceedings under Sections 9, 11, 34 and 37 of the Arbitration and Conciliation Act, 1996
- Commercial Courts and Commercial Divisions, in arbitration-related proceedings falling within their jurisdiction
- District Courts, in arbitration proceedings not falling before a High Court
- Supreme Court of India
- Mediation centres and mediators appointed under the Mediation Act, 2023
- Authorities notified for pre-institution mediation under the Commercial Courts Act, 2015
- Lok Adalats constituted under the Legal Services Authorities Act, 1987
Who we act for
- Companies party to commercial contracts containing arbitration clauses
- Contractors, employers and consultants in construction and infrastructure disputes
- Banks, non-banking financial companies and financial institutions
- Joint venture partners and shareholders
- Foreign parties in arbitrations seated in India
- Indian parties in arbitrations seated outside India
- Award holders seeking enforcement in India
- Parties resisting enforcement of domestic or foreign awards
- Parties in mediation and conciliation proceedings
How we approach this work
The clause treated as the first stage of the dispute.
Seat, appointment mechanism and scope determine what is possible once a dispute arises. Clause drafting is conducted as dispute work, not as boilerplate.
Interim protection addressed early.
Applications under Section 9 or Section 17 frequently determine the practical position of the parties for the duration of the reference, and are prepared accordingly.
The award prepared for from the pleadings.
Proceedings are conducted with the grounds of challenge under Section 34 and, where relevant, Section 48 in view, so that the award that results is capable of surviving challenge and being enforced.
Enforcement treated as part of the mandate.
An award is a step, not a conclusion. Execution and realisation are considered as part of the overall strategy rather than as a separate matter.
Frequently asked questions
- What makes an arbitration agreement valid under Indian law?
- The Arbitration and Conciliation Act, 1996 requires an arbitration agreement to be in writing and to record the parties' agreement to submit to arbitration disputes arising between them in respect of a defined legal relationship. It may be a clause in a contract or a separate agreement. Whether a particular provision constitutes a valid agreement depends on its terms and on whether it discloses an intention to arbitrate.
- What is Section 9 and when is it used?
- Section 9 permits a party to apply to a court for interim measures of protection before the commencement of arbitral proceedings, during those proceedings, or after an award is made but before it is enforced. Relief may include preservation of assets, securing the amount in dispute and interim injunctions. Once a tribunal is constituted, courts ordinarily decline to entertain such applications where the tribunal can grant equivalent relief.
- On what grounds can an arbitral award be set aside?
- Section 34 permits setting aside on limited grounds, including incapacity of a party, invalidity of the arbitration agreement, want of proper notice, the award dealing with matters beyond the scope of submission, improper composition or procedure, non-arbitrability of the subject matter, and conflict with the public policy of India. In arbitrations other than international commercial arbitration, an award may also be set aside if vitiated by patent illegality appearing on its face. The provision does not permit review of the merits.
- How is a foreign award enforced in India?
- Part II of the Arbitration and Conciliation Act, 1996 provides for enforcement of foreign awards made in territories notified by the Central Government under the applicable convention. The party seeking enforcement produces the award and the arbitration agreement in the form required. Section 48 sets out the limited grounds on which enforcement may be refused, and where the court is satisfied the award is enforceable, it is enforced as a decree of that court.
- What is the difference between the seat and the venue of arbitration?
- The seat determines the legal framework governing the arbitration, including which courts exercise supervisory jurisdiction over it. The venue is the physical location at which hearings are conducted, which may differ from the seat for reasons of convenience without altering the applicable legal framework. Clauses that use the terms interchangeably are a recurring source of jurisdictional dispute.
- Is there a time limit for completing an arbitration in India?
- The Act prescribes a period within which an award is to be made in arbitrations to which the provision applies, running from the date specified in the statute, with provision for extension by agreement of the parties to a limited extent and thereafter by the court. The applicable position differs for international commercial arbitration. The specific timelines should be checked against the provisions in force.
- Can a dispute be referred to arbitration if a suit has already been filed?
- Section 8 requires a judicial authority before which an action is brought in a matter that is the subject of an arbitration agreement to refer the parties to arbitration, if a party applies not later than the date of submitting its first statement on the substance of the dispute, unless it finds prima facie that no valid arbitration agreement exists. The application must be accompanied by the arbitration agreement or a copy of it.
- Is a mediated settlement agreement enforceable?
- The Mediation Act, 2023 provides for mediated settlement agreements to be enforceable in the manner set out in that Act, subject to the grounds of challenge it specifies. Settlement agreements arising from conciliation under the Arbitration and Conciliation Act, 1996 have the status provided under that Act. Enforceability depends on the process followed and on the form in which the settlement is recorded.
- Is pre-institution mediation compulsory before filing a commercial suit?
- The Commercial Courts Act, 2015 requires a plaintiff to exhaust pre-institution mediation before instituting a commercial suit that does not contemplate any urgent interim relief. Where urgent interim relief is genuinely sought, the suit may be instituted without first completing that process. Whether the exception applies is determined on the facts of the case.
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