Operation successful, but patient dead: Arbitrator disclosure, judicial oversight and 7 unanswered questions

The Delhi High Court’s recent judgment in Engineering Projects (India) Ltd v. MSA Global LLC makes a much-needed contribution to arbitration jurisprudence by rigorously examining the ethical foundations of arbitrator disclosures.

The Court held that Indian civil courts can grant anti-arbitration injunctions against foreign-seated arbitration if those proceedings pass the litmus test to determine vexatious and oppressive proceedings. Further, the Court held,

“Where the arbitral proceedings are shown to have been vexatious and oppressive in a manner calculated to harass the opposite party, the Civil Courts are not only empowered but also under a solemn duty to intervene. It would be wholly unjust to compel a party to submit to arbitration when the process itself is a vehicle of abuse, serving no legitimate adjudicatory purpose.”

The meticulous analysis, drawing from J Jarvis & Sons Ltd v. Blue Circle Dartford Estates Ltd, rightly recognises that anti-arbitration injunctions, though permissible against vexatious or oppressive conduct, must be exercised sparingly. The Court’s articulation of the "litmus test" for arbitrator impartiality is particularly noteworthy, distinguishing between independence (freedom from external influences) and impartiality (freedom from bias), while emphasising that disclosure obligations under ICC Article 11 are neither perfunctory nor subjective.

The interesting phrase “operation successful, but patient dead” captures the Court’s central concern: that procedural compliance cannot substitute substantive fairness when an arbitrator’s non-disclosure, even if technically "regrettable" (as the ICC held), erodes party confidence in the neutrality of proceedings. The judgment correctly stresses that disclosure standards must be assessed from the parties’ perspective not the arbitrator’s and that transparency is the bedrock of arbitral legitimacy.

Yet, the decision also invites reflection on whether its intervention strikes the right balance between safeguarding fairness and respecting party autonomy.

For academic discussion and deeper reflection on the principles at stake, certain critical questions emerge from this notable decision:

1. The parties contractually agreed to ICC arbitration rules. The ICC Court, the body contractually empowered to rule on arbitrator challenges, found the non-disclosure "regrettable” but it did not create any reasonable doubts. While the High Court’s concerns about impartiality are valid, does granting an anti-arbitration injunction risk displacing the ICC’s explicit authority under Article 11(4) (decisions of the Court shall be final)?

2. By intervening in a foreign-seated arbitration, could this judgment encourage parallel litigation in domestic courts, undermining the finality that arbitration promises? Could this set a low threshold for granting anti-arbitration injunctions?

3. The threshold for declaring arbitration "oppressive" generally demands egregious conduct (fraud, bad faith, etc.), not procedural lapses already adjudicated by the ICC. Did the Court’s intervention lower this threshold, risking frivolous challenges to foreign-seated arbitrations in Indian courts?

4. Whether an Indian court granting anti-arbitration injunction over a Singapore-seated arbitration undermines comity of courts (given parallel Singapore proceedings)?

5. If Indian courts intervene in foreign-seated arbitration based on subjective fairness assessments, would this constitute a dual judicial review (seat courts + Indian courts) that can undermine India’s arbitration-friendly reputation? 

6. If arbitration is meant to be flexible, why rigidify procedural norms to the point of stalling entire proceedings? Shouldn’t the test focus on materiality rather than technical breach?

7. Could the High Court have balanced its concerns by a) deferring to the ICC’s process; b) allowing challenges under Singaporean law (the seat); or c) limiting relief to post-award remedies under Section 48 of the Arbitration Act?

The judgment excels in spotlighting the ethical gravity of arbitrator disclosures, which is often lost in technicalities. Yet, its procedural intervention leans toward overcorrection. By substituting its discretion for the ICC’s, the Court risks the very “patient dead” scenario it warns against: preserving the form of arbitration while hollowing out its autonomy.

While the Court’s emphasis on disclosure ethics is commendable, its true legacy will depend on how future decisions navigate the tension between judicial oversight and the sanctity of arbitral agreements. As the arbitration community engages with this decision, one hopes it sparks a nuanced dialogue on jurisdictional restraint and the evolving standards of impartiality.

The Delhi High Court’s analysis is a timely reminder of arbitrator’s ethical imperatives, but its application must ensure that the cure does not weaken the system it seeks to protect.

Tariq Khan heads the International Arbitration practice at M&Co. Legal UAE, specializing in cross-border disputes before the DIFC Courts.

The views expressed are personal.

Disclaimer: These questions are raised purely to encourage thoughtful debate about arbitration law. They are not criticisms of the Court's decision, but questions meant to explore how we can balance fairness with party autonomy in international arbitration.