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Seat Selection
Choosing the juridical seat - the place whose courts supervise the arbitration and whose curial law applies - and distinguishing it cleanly from the hearing venue, the single point parties most often get wrong.
International commercial arbitration is won or lost at the drafting table. The seat fixes the supervisory court, the governing law fixes how the contract is read, and the institution fixes the machinery. We set all three before a dispute exists, so the award is enforceable the day it is made.
An international arbitration clause is a sequence of decisions that constrain one another. The seat fixes the supervisory court. The governing law fixes interpretation. The institution fixes the procedure. Each must agree with the next.
Choosing the juridical seat - the place whose courts supervise the arbitration and whose curial law applies - and distinguishing it cleanly from the hearing venue, the single point parties most often get wrong.
Separating the law of the contract, the law of the arbitration agreement and the curial law of the seat, so that no later court has to guess which system applies to which question.
Selecting between SIAC, ICC, LCIA, MCIA and ad hoc UNCITRAL procedure, and aligning the chosen rules with the seat, the number of arbitrators and the appointment mechanism.
For foreign-seated arbitrations, advising on the limited reach of Part I after BALCO and on whether Section 9 interim relief from an Indian court remains available under the proviso to Section 2(2).
Constitution of the tribunal, interim measures, evidence and the hearing, run to the chosen institutional rules with Indian-law commercial argument where the contract is governed by Indian law.
Drafting and conducting the arbitration so that the resulting award qualifies as a foreign award under Part II and is enforceable in India and in the counterparty jurisdiction.
Each stage relies on the one before. The seat decided in the clause becomes the supervisory court. The supervisory court becomes the standard of review. The standard of review decides how the award is enforced.
Fix the seat, the governing law, the institution, the language and the number of arbitrators before the contract is signed.
Appoint the tribunal under the chosen rules and resolve any jurisdiction challenge under the kompetenz-kompetenz principle.
Secure emergency or interim relief from the tribunal or, where available, from an Indian court under Section 9.
Run the evidentiary phase and the hearing to the institutional timetable and obtain a reasoned award.
Enforce the foreign award under Part II in India and pursue parallel enforcement in the counterparty jurisdiction.
Every international arbitration clause is read through three lenses at once. It has to be technically sound under the 1996 Act and the chosen rules, commercially balanced for both parties, and legally enforceable in the courts that will one day supervise it.
We fix the seat, the curial law, the institution and the appointment mechanism so the clause is internally consistent and survives a jurisdiction challenge under the kompetenz-kompetenz principle in Section 16.
We match the institution, the number of arbitrators and the language to the value and rhythm of the deal, so the dispute machinery is proportionate and neither party can weaponise cost or delay.
We draft and conduct the reference so the award qualifies as a foreign award under Part II and clears the Section 48 refusal grounds, securing enforceability in India and in the counterparty jurisdiction.
Most cross-border arbitration disputes about jurisdiction trace back to one ambiguous clause that named a city without saying whether it was the seat or only the venue. The Supreme Court has repeatedly held that the seat carries the supervisory jurisdiction. We write the clause so the question can never be argued.
Short, direct, on the record.
Under Section 2(1)(f) of the Arbitration and Conciliation Act, 1996, an arbitration is an international commercial arbitration where the dispute is commercial in nature and at least one of the parties is a foreign national or resident, a body corporate incorporated abroad, an association or body whose central management is abroad, or a foreign government. The nationality of a party, not the place of the arbitration, is what triggers the definition. This classification matters because it affects who may be appointed as the supervisory authority for appointments and, importantly, it removes the patent illegality ground when an India-seated award is later challenged.
The seat is the juridical home of the arbitration. It fixes the curial law - the procedural law that governs the conduct of the reference - and it fixes the courts that exercise supervisory jurisdiction, including challenges to the award. The venue is only the geographical place where hearings are physically held, which can be moved for convenience without changing the legal seat. The Supreme Court, in BGS SGS Soma and a settled line of authority, treats the named place as the seat unless the contract clearly indicates it is only a venue. Confusing the two is the single most common and most expensive drafting error in cross-border contracts.
Yes, within limits. After the 2015 amendment, the proviso to Section 2(2) allows an Indian court to grant interim measures under Section 9, and to assist with evidence under Section 27 and appeals under Section 37(1)(a), even for an arbitration seated outside India - unless the parties have agreed to exclude that application. This is important where the counterparty holds assets in India that need to be preserved before a foreign award is delivered. We routinely advise on whether the clause has, deliberately or accidentally, excluded this protection.
For most international commercial contracts we recommend institutional arbitration - SIAC, ICC, LCIA or, for India-seated matters, MCIA or DIAC - because the institution administers appointments, fixes the fee schedule, scrutinises the award and lends procedural certainty that reduces the scope for delay and challenge. Ad hoc arbitration under the UNCITRAL Rules can be appropriate for sophisticated repeat players who want to control cost and procedure, but it places the administrative burden on the parties and the tribunal. The choice should be made at drafting, matched to the seat and the likely value of the dispute.
A foreign award made in a country that is a party to the New York Convention and that India has notified as a reciprocating territory is enforceable in India under Part II of the 1996 Act, subject only to the narrow refusal grounds in Section 48. Indian courts, in Vijay Karia and Shri Lal Mahal, have repeatedly stressed a pro-enforcement bias and a narrow reading of the public policy ground. The way to secure enforceability is to design the seat, the institution and the procedure for it from the outset, which is exactly where our involvement begins.
Part II enforcement under the New York and Geneva Conventions, Section 48 grounds
Challenging a domestic award - grounds, patent illegality, public policy, limitation
Section 7 essentials, kompetenz-kompetenz, seat, institution and the pitfalls that void clauses
The strongest awards are built on disciplined strategy from the first notice of arbitration, not improvised at the hearing.