The Indian arbitration story is broadly positive, but the court system remains the key bottleneck at the stages of setting aside challenges and enforcement, Senior Advocate Gaurav Pachnanda said.
Pachnanda was speaking at a session titled Winning Isn’t Enough: Rethinking Success in Arbitration, hosted by the Mumbai Centre for International Arbitration (MCIA) and Fountain Court Chambers during London International Disputes Week 2026.
He said that India has seen good institutions come in, judges adopting an arbitration-friendly approach and a growing pool of arbitrators.
However, the system continues to get clogged when arbitral awards are challenged or sought to be enforced, he said.
"I think judges are behaving in a very arbitration-friendly manner. I think we have a decent pool of good arbitrators in India building up. But the problem is that the (court) system will continue to get clogged at the stage of setting aside challenges and enforcement stages."
The session was moderated by MCIA Secretary General and Registrar Neeti Sachdeva. The panel also included Anneliese Day KC of Fountain Court Chambers, Founder and Managing Partner of Saraf and Partners Mohit Saraf and Partner at FIDAS, CLA Global Indus Value Consulting Nimish Chodankar.
Pachnanda said that the arbitration system cannot be viewed in isolation from the commercial court system. He added that delays in interim protection, award challenges or enforcement proceedings are not merely arbitration-centric.
This is one reason why inbound investors continue to prefer arbitration seats outside India, including seats in nearby jurisdictions, he reasoned.
“For any inbound investor, the preferred seat still remains a seat outside India, even if it is in a very close neighbourhood rather than India.”
Saraf said that several enforcement-related problems begin at the contract drafting stage itself, particularly when parties fail to clearly identify the seat of arbitration. He said that during late-stage negotiations, parties may be fatigued and may not appreciate why the wording of an arbitration clause matters.
“They can’t appreciate that this word can make that big a difference...They can’t understand that issue.”
Saraf said that ambiguity between the place and seat of arbitration creates fertile ground for litigation. He added that some of these issues can be addressed by lawmakers.
Opening the discussion, Sachdeva said that lawyers often focus on securing an arbitral award without asking whether the client has actually recovered the money.
“Winning isn’t enough...Success is only when you have the money in your account.”
Chodankar said that there is a difference between a legal win and a successful outcome. Based on his experience in asset tracing, he said that only around 35 to 45 per cent of paper awards are converted into money. However, with asset tracing in a well-prepared case, this could rise to around 75 to 85 per cent.
“It is very important to look at a recoverability assessment alongside a merit assessment.”
He said that parties should examine at the outset where the money will be recovered from, in whose name the assets are held, the jurisdiction in which such assets are located and the path to enforcement.
Day KC that said enforceability cannot be treated as an issue to be considered only after an award is passed. She said that it has to be kept in mind from the beginning and throughout the arbitration.
Counsel must consider the validity of the arbitration agreement, due process, the scope of the award, proper constitution of the tribunal, arbitrability and public policy in the jurisdiction where enforcement is sought, she said.
“Know the public policy of the country where you wish to enforce.”