Judicial Overreach Disguised as Equity: Review of Delhi High Court’s Decision in EPI Vs MSA Global
The ruling in Engineering Projects (India) Ltd. v. MSA Global LLC[1] (“MSA Global”) by the Delhi High Court is a concerning break from the widely accepted territoriality principle in international arbitration. The territoriality principle, laid down in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (“BALCO”)[2] and reaffirmed in Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd.[3], reflects the doctrine that lex arbitri exclusively vests supervisory jurisdiction in the courts of the seat of arbitration.
The Delhi High Court in MSA Global granted an anti-arbitration injunction restraining a Singapore-seated ICC arbitration owing to procedural irregularities (as elaborated under Factual Background below). This decision highlights long-standing friction between the territorial limits of judicial authority in foreign-seated arbitrations and the judiciary’s inclination to intervene on equitable grounds. Although there were valid concerns regarding arbitrator disclosure requirements in MSA Global, the Delhi High Court's remedy runs a greater risk of weakening India's adherence to international arbitration than it does of providing protection from the alleged wrongdoing. This article examines MSA Global to analyse how judicial reliance on equitable intervention can undermine the territoriality principle governing foreign-seated arbitrations.
Factual Background
The conflict stemmed from a 2015 border security subcontract between MSA Global LLC (Oman) and Engineering Projects (India) Ltd (“EPIL”), a Government of India undertaking. The agreement included arbitration as a mode of dispute resolution as per the International Chamber of Commerce Rules (“ICC Rules”), with a mutually agreed-upon seat to be Singapore.
Mr. Andre Yeap SC was appointed by MSA as its nominee arbitrator. In his ICC disclosure form, he stated he had “nothing to disclose.” EPIL later discovered that Mr. Yeap had previously been appointed by MSA Global LLC’s Managing Director in another arbitration, a fact not disclosed during his acceptance. EPIL challenged the arbitrator before the ICC Court, but the ICC refused to remove him, calling the non-disclosure “regrettable” but insufficient for removal.
EPIL then filed a civil suit in the Delhi High Court seeking an anti-arbitration injunction against the Singapore-seated ICC proceedings. The Delhi High Court granted the injunction, holding that the arbitrator’s deliberate non-disclosure and the resulting circumstances made the arbitration vexatious and oppressive.
The Case for Intervention: Impartial Tribunal and Fair Process
Supporters of the Delhi High Court's methodology stress that arbitrator ethics form the foundation of valid dispute resolution. The fact that Mr. Andre Yeap acknowledged that the disclosure “could have prompted a challenge from EPIL” indicates a deliberate concealment intended to evade scrutiny. Arbitrators are required by the ICC Rules to reveal any information that could cause the parties to doubt their independence. This standard is party-centric, not arbitrator-centric, as the Court correctly pointed out.
Intervention in cases of procedural abuse is doctrinally supported by the application of the Dhulabhai precedent[4], which states that civil court jurisdiction is maintained in situations where arbitral proceedings violate “fundamental norms of justice.” One could argue that MSA Global's subsequent actions, such as seeking several procedural remedies in various jurisdictions, exemplified the kind of oppressive behaviour that calls for judicial intervention.
Those who support the Delhi High Court’s position focus on the basic requirement that arbitration proceedings must be conducted before an impartial tribunal. The Court considered the arbitrator’s failure to disclose a prior appointment to be a serious lapse. From this perspective, the Court’s intervention served to protect the integrity of the arbitral process. They argue that compelling a party to proceed before a tribunal affected by deliberate non-disclosure would defeat the promise of a fair hearing. On this view, the Court acted to prevent a process that had become oppressive through cumulative procedural steps taken in different proceedings.
Supervisory Jurisdiction, Territoriality and Comity
These process-based arguments, however, do not resolve the issue of jurisdictional overreach. The territoriality principle reflected in the UNCITRAL Model Law and affirmed in BALCO makes it clear that Indian courts do not have supervisory jurisdiction over a foreign-seated arbitration. This principle serves as a fundamental assurance that the neutral forum selected by the parties will be honoured.
The use of Section 151 of the Civil Procedure Code[5] in MSA Global to restrain a Singapore-seated ICC arbitration marks a departure from this framework. It opens the door to Indian civil courts enjoining foreign arbitrations in “exceptional circumstances,” a standard that risks inconsistent and intrusive intervention.
International comity concerns are equally pressing. The decision therefore undermines the basic expectation that disputes in a foreign-seated arbitration will be resolved only by the courts of the seat.
Systemic Implications
The decision in MSA Global threatens to resurrect the uncertainties that plagued Indian arbitration before the BALCO reforms. Foreign parties now face the prospect that Indian courts will intervene in foreign arbitrations based on subjective assessments of fairness.
The ruling also creates perverse incentives for forum shopping, since a party dissatisfied with an institutional rejection of a challenge may attempt to seek relief from a domestic court instead. Such practice undermines arbitration's efficiency advantages and risks inconsistent outcomes.
Paradoxically, while the decision ostensibly strengthens disclosure standards, it may weaken institutional arbitration. The ICC Court's handling of the challenge reflects an understanding that disclosure obligations require contextual evaluation rather than mechanical application. Permitting courts to revisit these assessments creates uncertainty and undermines the value of institutional arbitration.
This trend aligns with a broader pattern of judicial activism, where courts invoke equitable considerations to justify intervention beyond statutory limits, as seen in the Supreme Court’s expanding use of Article 142[6] of the Indian Constitution in varied contexts.
Conclusion: Weighing Competing Values in International Dispute Resolution
Although the Delhi High Court in MSA Global had valid concerns regarding arbitrator ethics, judicial intervention in an arbitration matter with an agreed foreign seat departs from the supervisory framework recognised in BALCO and the United Nations Commission on International Trade Law Model Laws (“UNCITRAL Model Laws”). Consequently, the decision risks causing greater harm to the international arbitration system than the misconduct it sought to address.
International trade is sustained by the legal certainty provided by the territoriality principle. Parties acknowledge that procedural disputes will be settled by Singapore courts and ICC institutions when they consent to arbitration under ICC Rules with a Singapore seat[7]. The predictability that gives arbitration agreements their significance is seriously compromised when Indian courts are permitted to reconsider these rulings in light of domestic notions of natural justice.
Institutional reform should be the proper response to disclosure failures rather than judicial intervention. Courts may be tempted to fashion equitable remedies, but systematic solutions better serve the long-term interests of dispute resolution. In international arbitration, the perfect must not become the enemy of the predictable. The Delhi High Court's decision, while animated by understandable concerns, ultimately represents judicial overreach disguised as equity.
References
[1] Engineering Projects (India) Ltd. v. MSA Global LLC, CS(OS) 243/2025
[2] Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552
[3] Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd., (2017) 7 SCC 678
[4] Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78
[5] Code of Civil Procedure, 1908, § 151
[6] Constitution of India, art. 142
[7] ICC Rules of Arbitration, art. 11