Arbitration & Mediation, Built on Genuine Subject-Matter Depth
ADR is where our practice runs deepest — from drafting arbitration clauses that hold up years later, to challenging unilateral arbitrator appointments and contesting arbitral awards under Section 34.
Our ADR Practice
Tabish Sarosh & Associates approaches arbitration and mediation not as a lighter alternative to litigation, but as a discipline with its own procedural rigour — one where the drafting of the arbitration clause, the appointment process, and the enforceability of the eventual award all matter as much as the underlying dispute itself.
Services & Scope of Practice
Clause Drafting & Advisory
Drafting and reviewing arbitration clauses for commercial contracts and advising on arbitrability of specific categories of disputes.
Arbitral Representation
Representation in arbitral proceedings — both institutional and ad-hoc.
Arbitrator Appointments
Applications under Section 11 for appointment of arbitrators, and challenging unilateral or improperly constituted arbitrator appointments.
Interim Relief (Sec 9)
Applications under Section 9 for interim relief, before and during arbitration.
Award Challenges (Sec 34)
Setting-aside applications under Section 34 challenging arbitral awards.
Enforcement of Awards
Enforcement of domestic and foreign arbitral awards.
Pre-Institution Mediation
Representation in pre-institution mediation under Section 12A of the Commercial Courts Act.
Conciliation & Settlement
Conciliation proceedings, court-referred/voluntary mediation, and settlement drafting and enforcement.
Where We Bring Genuine Depth: Arbitrator Appointments
The question of who gets to appoint an arbitrator — and whether that person is genuinely independent — has become one of the most consequential issues in Indian arbitration law over the past decade, and it's an area we've engaged with closely, including through published research on unilateral appointments and their consequences.
The law has shifted substantially:
- In TRF Ltd. v. Energo Engineering Projects Ltd. and Perkins Eastman Architects DPC v. HSCC (India) Ltd., the Supreme Court held that a person ineligible to act as arbitrator cannot nominate someone else to do so either — the disqualification travels with the appointing power.
- In November 2024, a five-judge Constitution Bench in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV) went further, holding that arbitration clauses allowing one party to unilaterally appoint a sole arbitrator, or to force the other side to choose only from a panel that party has curated, violate the principle of equal treatment under the Arbitration Act — and, in public-private contracts, Article 14 of the Constitution itself.
For parties currently in a dispute governed by an older-style arbitration clause, this shift matters directly — it can be the difference between a validly constituted tribunal and one whose entire award is vulnerable to challenge.
Setting Aside Arbitral Awards: Section 34
Not every unfavourable award is one you have to live with — but Section 34 sets a genuinely narrow path, and knowing which grounds are actually available (and which routinely fail) is central to using it well.
Grounds under Section 34 include:
- Incapacity of a party, or invalidity of the arbitration agreement
- Lack of proper notice of arbitrator appointment or proceedings
- The award dealing with matters beyond the scope of submission to arbitration
- Improper composition of the tribunal or procedure not in accordance with the parties' agreement
- The subject matter not being capable of settlement by arbitration
- The award being in conflict with the public policy of India
- Patent illegality appearing on the face of the award (for domestic awards)
Courts have been consistently clear that Section 34 is not an appeal — it doesn't allow re-examination of the merits, only a challenge on these specific, limited grounds. Framing a challenge correctly, within the statutory time limit, is often what determines whether it succeeds.
Interim Relief & Enforcement
- Section 9 — Interim Measures: Courts can grant interim protection — including preservation of assets, security for the claim, or interim injunctions — both before arbitral proceedings begin and while they're ongoing.
- Section 17 — Tribunal-Ordered Interim Measures: Once constituted, the arbitral tribunal itself can grant interim relief with largely the same force as a court order.
- Enforcement: Domestic awards, once the Section 34 challenge period lapses or is unsuccessful, are enforceable as decrees of a civil court. Foreign awards are enforced under Sections 44–49, subject to India's obligations under the New York Convention.
Why Organisations & Individuals Choose Tabish Sarosh & Associates for ADR
- Genuine Subject-Matter Depth: Our engagement with arbitration law goes beyond routine practice — including published research specifically on unilateral arbitrator appointments and Section 34 set-aside jurisprudence.
- Current on Fast-Moving Law: Arbitration law in India has changed substantially in the last two years alone. We track these developments closely, because a clause or strategy that was sound five years ago may not be defensible today.
- Careful Clause Drafting: Most arbitration disputes trace back to a poorly drafted clause. We draft arbitration agreements to anticipate appointment disputes, jurisdictional challenges, and enforcement issues before they arise — not after.
- Delhi-Based, Litigation-Backed: Based at Tis Hazari Court and in Rohini, with the litigation experience to take a matter from arbitration through to enforcement or challenge in court, seamlessly.
Frequently Asked Questions
Can I challenge an arbitrator's appointment after the tribunal is already constituted?
Yes, in specific circumstances — particularly where the appointment process itself was compromised, such as through a unilateral appointment mechanism now recognised as invalid.
What's the time limit to file a Section 34 application?
Three months from the date of receiving the arbitral award, with a further 30 days condonable for sufficient cause — after which the award becomes final and enforceable.
Is Section 34 the same as an appeal against the award?
No. Courts cannot reassess the merits of the dispute under Section 34 — only specific, statutorily defined grounds can be raised, and "we think the tribunal got it wrong" isn't one of them.
My contract has an old-style unilateral appointment clause — does that make it invalid?
Not automatically — the Supreme Court's 2024 ruling applies prospectively, and existing arbitrations aren't voided as a category. But it does mean any future appointment under such a clause, or a live dispute over one, needs to be assessed carefully against the current position.
Is mediation mandatory before filing a commercial suit?
Generally yes, under Section 12A of the Commercial Courts Act, unless your suit involves genuine urgent interim relief — this is a mandatory requirement, not optional.
Can a foreign arbitral award be enforced in India?
Yes, subject to the conditions in Sections 44–49 of the Arbitration and Conciliation Act and India's obligations under the New York Convention, though enforcement can be resisted on specific limited grounds.