The Arbitration Practitioner’s Series by MKBAC: WhatsApp as evidence of consent to arbitrate

Arbitration in India is fundamentally rooted in party autonomy, with Section 7 of the Arbitration Act mandating a written agreement to arbitrate. Traditionally, this meant that an agreement to arbitrate was housed in signed documents or contract clauses. However, the reality of business practices in a digital-first world is different. Deals are now negotiated on WhatsApp, confirmed on emails and sometimes never formally documented.

This raises a critical question: Can WhatsApp messages amount to a valid agreement to arbitrate?

This article examines this question by critically analysing recent case law and discusses the emerging challenges in reconciling technology with legal certainty.

Section 7(3) of the Arbitration Act provides that “an arbitration agreement shall be in writing.” Section 7 (4) clarifies that an agreement is in writing if it is contained in: (a) a document signed by the parties; (b) an exchange of letters, telex, telegram or other means of telecommunication, including communication through electronic means, which provide a record of agreement; or (c) an exchange of statement of claim and defence where one party alleges the existence of an arbitration agreement and the other doesn’t deny it.

The words “including communication through electronic means” in Section 7(4)(b) were inserted by way of the 2015 amendment to the Arbitration Act, bringing India closer to UNCITRAL model law. This opened the door for emails and WhatsApp messages to be considered “written” agreements, provided that they record the consent of the parties.

Even prior to the 2015 amendment, Section 7 was widely interpreted to include communications exchanged electronically.

The case of Trimex International FZE Ltd. v. Vedanta Aluminium Ltd related to the negotiation of a bauxite supply deal by Trimex and Vedanta entirely through emails and faxes, covering all terms including an arbitration clause. Vedanta confirmed by email and asked Trimex to ship, but later refused delivery, claiming that there was no signed contract. The Supreme Court held that a signed document is not essential; if parties agree on all terms through written communications, including arbitration, such exchange constitutes a binding contract and arbitration agreement.

This case established that emails/faxes showing clear intent can form a valid arbitration agreement. The same principle now extends to WhatsApp and similar platforms, provided the intention to arbitrate is unambiguous.

The judgment of the Supreme  Court in MTNL v. Canara Bank emphasised the importance of unambiguous intent to arbitrate. MTNL and Canara Bank had business dealings that led to disputes. Canara Bank relied on letters and certain communications as proof of arbitration agreement. The Supreme Court held that not every exchange of communication amounts to an arbitration agreement. The Court emphasised that there must be clear and unequivocal agreement to submit disputes to arbitration.

This case is often cited for its strict standard: vague or general references to arbitration do not satisfy Section 7. The judgment highlights that courts will not infer consent from incomplete or casual communication.  

In similar vein is the judgment of the Supreme Court in NTPC v. SPML Infra Ltd. Though supportive of email arbitration agreements, the Supreme Court reiterated caution. It carefully examined the content of emails and found an explicit reference to arbitration, not merely an exchange of complaints or settlement talks.

In Shakti Nath v. Tiger Cyprus Investment before the Delhi High Court, disputes arose out of a shareholders’ agreement. During negotiations on WhatsApp, one party suggested arbitration and the other responded in agreement. Later, when a petition for appointment of an arbitrator was filed, the question that arose was whether these WhatsApp messages were enough to constitute an agreement to arbitrate.

The Delhi High Court acknowledged that WhatsApp messages can be used as evidence of consent, but emphasised that the messages must show clear and unequivocal intention to arbitrate. Casual messages or mere references to arbitration are insufficient. This case was significant because it did not reject WhatsApp as a medium. Instead, it set a threshold: clarity of intent is an essential prerequisite for a valid arbitration agreement. 

More recent is the judgment of the Delhi High Court in Belvedere Resources DMCC v. OCL Iron & Steel Ltd. Belvedere, a UAE-based trader, negotiated coal supply entirely through WhatsApp and emails. It sent its standard contract containing an arbitration clause via email. OCL (then SM Niryat) responded that it would execute the contract. Shipment planning commenced. Subsequently, OCL reneged. Belvedere sought interim relief under Section 9 before the Delhi High Court.

The Delhi High Court held that a valid arbitration agreement existed. WhatsApp and email messages, read with the conduct of shipment planning, satisfied Section 7(4)(b). However, jurisdiction and interim relief were denied because the dispute had no nexus with Delhi, and since unliquidated damages were not a “debt due” for interim attachment.

Belvedere represents the most progressive application of digital evidence: informal messages combined with subsequent conduct can create a binding arbitration agreement.

Several High Courts (Bombay, Delhi and Karnataka) have, in interim orders, accepted screenshots of WhatsApp conversations as part of evidence to prove the existence of an arbitration clause or intent, subject to authentication under Section 65B of the Evidence Act. Courts have held that screenshots alone are not enough; context and mutuality are essential. For instance, casual or conditional messages (“let’s sort it out later, maybe through arbitration”) do not meet the standard.

Internationally, courts in Singapore have accepted WhatsApp and email arbitration clauses if they clearly demonstrate intent. A similar approach is followed in the UK, where focus is on certainty and intention rather than form.

There are several benefits to accepting Whatsapp exchanges and other modes of digital consent as a valid agreement to arbitrate. Such an approach is in line with commercial reality, where businesses are increasingly negotiated and concluded digitally. It avoids delays brought about by the requirement of formal documentation.

The risk, however, is that informal chats and exchanges often lack context and clarity. Questions that arise are:

• Are these casual negotiations or final commitments?

• Are parties legally trained enough to understand the consequences of agreeing to arbitrate over WhatsApp?

• How does one ensure that the message is authentic and not tampered with?

In our view, the challenge is not the medium, but the mindset. The law has always prioritised the intention to arbitrate; WhatsApp is just a new format. However, using WhatsApp as a substitute for legal drafting risks trivialising a process that should be deliberate and conscious. Arbitration is a serious waiver of the right to go to court. Recognising casual messages without safeguards could lead to unjust outcomes. The comfort of instant messaging sometimes creates an illusion that legal obligations can be negotiated casually. The Shakti Nath case is reminder that even informal messages have serious legal weight.

The law must strike a balance between technological realities and the solemn nature of consent.

To protect autonomy while recognising modern realities, courts and lawmakers could consider adopting a three-part consent test:

• Explicit language: The presence of words such as “disputes shall be referred to arbitration” in written or digital communication.

• Context: Examining whether the exchange was made in a business setting (negotiation or performance of a commercial obligation) or a social/casual context.

• Subsequent conduct: Analysing whether the parties act upon the agreement, showing that they treated the communication as binding.

Section 7’s flexibility, combined with technological realities, will continue to evolve, but parties should also adopt best practices:

• Follow up chats with a formal confirmation email, digital signature or a written agreement,

• Store all communications, take screenshots and authenticate them with certificates, and

• Avoid relying solely on casual messages for binding dispute resolution clauses.

Bhargavi Kannan is a Partner at Onyx Chambers, a boutique litigation firm based in Delhi.

Lod Yebi is a student at Campus Law Centre, Faculty of Law, University of Delhi.