Regrettable or Fatal? Arbitrator Non-Disclosure Before the Delhi High Court
Introduction
On July 25 2025, the Delhi High Court (“DHC”) in the case of Engineering Projects (India) v MSA Global (“EPI”) granted the plaintiff an anti-arbitration injunction for a Singapore-seated arbitration governed under the 2021 ICC Arbitration Rules (“ICC Rules”). The DHC determined the continuation of the proceedings would be oppressive and vexatious, justifying the grant of an injunction. The case revolved around an arbitrator, Mr. Yeap’s non-disclosure of his prior involvement in an arbitration linked to the defendant’s Managing Director.
In this article, after setting out the brief facts of EPI, we critique the grant of the injunction by the DHC on two grounds. First, that the standard to determine whether proceedings are ‘oppressive’ should not be subjective, as in Article 11 of the ICC Rules which concerns arbitrator disclosure. Instead, it should be based on whether “justifiable doubts” as to the impartiality and independence of the arbitrator arose, as under Article 14 of the ICC Rules for challenge to arbitrators. And second, given this, the DHC glossed over the holding of the ICC Court in determining whether “justifiable doubts” arose. Third, we briefly delineate what the normative framework for such challenges ought to look like. Finally, taking a step back, we situate EPI against the backdrop of existing jurisprudence in India.
While the case has been critiqued elsewhere by Agrawal, we go one step further by focusing on how the DHC holding disregards the procedural framework envisioned under the ICC rules and across multiple arbitration institutions. Moreover, our argument uniquely fleshes out an answer to the question of which standard ought to be applied by the DHC for the grant of an injunction.
Facts & Holding In EPI
The case concerned a contract between an Indian public sector enterprise and an Omani company for a border security system at the Oman-Yemen border. Arbitration commenced with the Omani company nominating Andre Yeap as co-arbitrator. After proceedings began, the Indian side discovered Mr. Yeap’s prior involvement in a matter connected to the defendant’s Managing Director, which had not been disclosed. A challenge before the ICC Court failed, and parallel proceedings were initiated before the Singapore High Court under the UNCITRAL Model Law. While that was pending, the Singapore court granted the defendant an anti-suit injunction restraining the Delhi High Court proceedings.
However, the DHC held the suit to be maintainable. It held intervention was necessary where proceedings are oppressive and vexatious. The Court saw this as a deliberate non-disclosure undermining the tribunal’s neutrality and thus, legitimacy. They also held that the defendant-claimant’s actions were calculated to frustrate legitimate processes. Thus, applying the tests of a prima facie case being made out, balance of convenience, and irreparable harm, the DHC granted an anti-arbitration injunction.
The Erroneous Application Of Article 11 Of The ICC Arbitration Rules By The DHC.
Irrespective of the question of whether the DHC could or should have intervened, we examine whether the court paid adequate attention to the jurisprudence surrounding Articles 11 and 14 of the ICC Rules. We submit the answer is no, on two fronts: first, on the standard employed by the DHC for granting an anti-arbitration injunction and second, on whether there were “justifiable doubts” as to the impugned arbitrator’s impartiality.
Subjectivity Misapplied?
The DHC acknowledged the ICC’s judgement which pronounced the arbitrator’s non-disclosure as “regrettable,” though insufficient to raise reasonable doubts as to his impartiality (EPI, ¶82). However, the DHC held that this was not relevant to the inquiry; what was more pressing was the fact of non-disclosure ipso facto which went to the root of the process (EPI, ¶¶81, 83), rendering the continuation of arbitration proceedings oppressive and vexatious (EPI, ¶¶85, 90, 101). What tied these findings together was the Court’s view that “oppressiveness” for granting an anti-arbitration injunction must be judged from the applicant’s subjective perspective (EPI, ¶68). This, according to the DHC, aligns with the standard for disclosure under Article 11 of the ICC rules, requiring that disclosures be made for matters that may give rise to doubts in the “eyes of the parties” (EPI, ¶76).
The DHC erred in two respects here.
First, the DHC conflated the concepts of impartiality and independence. Though it acknowledged that there was a difference in ¶70, it applied a subjective standard for impartiality. However, as per Article 11(2), while independence depends on “the eyes of the parties,” impartiality depends on “reasonable doubts.”
Thus, while independence of an arbitrator, dealing with the existence of a relationship between the arbitrator and the parties, is based on a subjective standard, impartiality depends on an objective standard. This has been acknowledged in the Secretariat’s Guide to the 2012 ICC Arbitration Rules (containing an identical provision) as well in ¶3-386. The rationale is to avoid trivial or excessive disclosure: since impartiality concerns an arbitrator’s subjective state of mind, applying a subjective disclosure test would make the standard unworkably broad. Therefore, it is submitted that the DHC erred in applying a subjective standard to impartiality.
However, it is true that disclosure must have a lower threshold as a rule of prudence. As the DHC also observes in ¶82, complete disclosure allows parties to make an informed decision at the beginning of the arbitration proceedings (2021 ICC Note, III.A.24). It ensures that cultural traditions that may affect interpretations of disclosure are accommodated in an international setting (Secretariat’s Guide, ¶3-387). Additionally, it ensures efficiency by encouraging disclosures at the earliest possible stage, reducing the scope for proceedings to be disrupted later (Secretariat’s Guide, ¶3-388). Consequently, a lower threshold for disclosure incentivizes complete disclosure.
This brings us to our second critique of the DHC holding. We argue that an injunction predicated on bias must apply the challenge standard (Art 14), not the disclosure standard (Art 11).
The DHC ignores the distinction between Article 11(2) (concerning disclosures) and Article 14 (challenge of arbitrators). While Article 11(2) has a lower threshold, as explained above, a successful challenge under Article 14 requires “justifiable doubts” (See the decision of the ICC Court in ¶78 of EPI).
The requirement of justifiable doubts in case of challenges or objections to confirmation is well-established across institutional rules (See Art 12.1 UNCITRAL Rules, Art. 11.6 HKIAC Rules, Art. 26.1(a) SIAC Rules, Art. 10.1 LCIA Rules, ICSID Case No. Arb/17/14 ¶217) for example). As stated in the IBA Guidelines on Conflicts of Interest in International Arbitration, which are accepted as guidance (see ¶3.1.2) for the ICC Rules, doubts are considered justifiable if a reasonable third person would perceive bias. Logically, it must not be sufficient for an arbitrator to be disqualified only by virtue of one party believing that they lack impartiality – it must meet an objective standard (PAD v Douala, ¶39).
Yet, the DHC states that Article 11 is subject to the “justifiable doubts” requirement (¶79). Elsewhere, they make a reference to “legitimate doubts” arising in the mind of the plaintiff owing to the non-disclosure (¶101). Therefore, it is unclear what precise standard the DHC is applying. The court has glossed over Article 14 altogether in determining whether to grant an anti-arbitration injunction. While this may not appear problematic since the DHC never purports to apply Article 14, we submit that Article 14 is a better anchor to determine whether proceedings would be oppressive or not. Therefore, Article 14 must guide an inquiry of whether a proceeding is oppressive or not.
This is because Article 11 of the ICC Rules sets a deliberately low threshold for disclosure, to structure incentives for arbitrators. Additionally, disclosure by itself does not affect the tribunal’s authority; it only gives parties the chance to decide whether to raise a challenge. But using this same low threshold as the basis for judicial intervention produces distorted results. If non-disclosure suffices, application for injunctions become routine dilatory tactics. In such a framework, seeking an anti-arbitration injunction would only require pointing to non-disclosure to claim that the proceedings were oppressive. Then, the twin requirements of ‘oppressive and vexatious’ under Indian law would be diluted and the exceptional nature of the remedy would be defeated. Thus, importing the subjectivity underlying Article 11 of the ICC Rules here overlooks the distinct incentive structure that Article 11 seeks to establish for arbitrators.
Thus, given the exceptional nature of anti-arbitration injunctions and the mandate of minimal curial intervention, claims of ‘oppressiveness’ grounded in arbitrator bias must be assessed under Article 14’s objective “justifiable doubts” test, not Article 11’s disclosure threshold.
However, it may be argued that the non-disclosure in the specific facts of EPI ipso facto justifies viewing the continuation of arbitral proceedings as oppressive. This brings us to the next section, where we submit that the DHC essentially raised a parallel argument to justify its holding, omitting reference to the reasoning underlying the ICC Court’s decision.
Whether there were justifiable doubts at all?
The DHC failed to appreciate the holding of the ICC Court for why justifiable doubts were not raised under Article 14 despite the non-disclosure by the arbitrator.
As per the DHC, the non-disclosure went to the root of the matter, militating against party autonomy and procedural fairness (¶81). The non-disclosure was considered to be a calculated and deliberate move to avoid objections by the opposing party (¶83), amounting to an “incurable foundational fallacy” (¶90) and giving rise to “legitimate doubts” in the mind of the plaintiff (¶101). While Agrawal has argued that the DHC identified a real problem, we submit to the contrary. This is clear from a reading of the ICC Court’s holding on the matter, which the DHC glosses over (See EPI ¶78).
Preliminarily, non-disclosure alone rarely warrants disqualification. While it may be one factor weighing in the favour of disqualification/replacement of an arbitrator, it is usually insufficient alone (2021 ICC Note, ¶26). Flexibility in considering challenges based on non-disclosures is noted as the norm (Secretariat’s Guide, ¶3-373). From a common law standpoint, including in India, bias or even the appearance of bias is not ordinarily presumed based on mere business relationships or past interaction between lawyers and adjudicators (Taylor v Lawrence, ¶¶62, 63). Across international rules, nondisclosure vitiates proceedings only in exceptional cases, such as a refusal to disclose (pp. 799). A recent example is ICSID Case No. ARB/17/14 (June 2025), where nondisclosure of pending criminal proceedings on matters of national importance was found to prejudice the rights of a state party, leading to annulment of the award for improper tribunal constitution. (¶¶412-414, Art. 52(1)(a) ICSID Convention).
Moreover, as the ICC Court held, the previous appointment of the impugned arbitrator was more than 4 years ago (EPI, ¶79). Challenges have failed in earlier cases where a sufficiently long gap separated the prior and current appointments.1 This is mirrored in the IBA Orange List, which states that if an arbitrator has been appointed on two or more occasions by a party or its affiliate in the last three years, it may give rise to justifiable doubts as to bias. However, here, only one appointment was made four years ago, by the defendant-claimant’s MD in his own capacity. This undermines the reasoning of the DHC at two levels: first, as the ICC Court recognised, it shows that the prior appointment did not raise justifiable doubts. Second, it demonstrates that the DHC adopted an overly strict approach to the non-disclosure by claiming that the non-disclosure was calculated. Though “regrettable,” given ICC practice and the Orange List, a reasonable arbitrator could assess the prior appointment to be non-disclosable. Even if the arbitrator acted in contravention of Article 11(2) and its disclosure standards, this does not mean that a justifiable doubt is raised by virtue of a non-disclosure.
This is buttressed by the fact that the prior appointment did not deal with common issues (EPI, ¶79). An appointment concerned with the same dispute or similar factual/legal issues may raise doubts as to the impartiality of the arbitrator, who may enter the present hearing with a pre-disposed view (ICSID Case No. ARB/17/14, ¶203).2 No such concern arises here.
Thus, all things considered, the facts reveal no legitimate basis to question the arbitrator’s impartiality. The Court bypassed this consideration, equating nondisclosure with oppressiveness. Yet, Mr. Yeap’s failure to disclose a prior appointment does not ipso facto justify doubts as to impartiality.
What Should Courts Do In The Future, Then?
We propose that in dealing with a similar question (whether to grant an anti-arbitration injunction in case of an impartiality challenge under the ICC Rules), going forward,
Courts should first bear in mind the differing standards for impartiality as against independence. Second, disclosures under Article 11 of the ICC Rules should be treated as a matter of prudence, not as grounds for curial intervention. Third, challenges should be tested against the higher Article 14 challenge, not the Article 11 disclosure standard. Fourth, anti-arbitration injunctions should remain exceptional and be issued only where non-disclosure creates a genuine risk of unfair proceedings, not merely because a party perceives oppressiveness. Lastly, we submit that courts must also consider the facts of a particular disclosure/challenge – unlike the DHC in EPI.
Throughout this inquiry, courts must also respect the autonomy and institutional significance of the ICC Court and decisions it may take with regards to impartiality. This is in line with a broader respect for party autonomy – if parties have chosen to submit to arbitration under the ICC Rules, they also implicitly agree to the ICC Court and its decisions as an administrator. Thus, in other words, respecting the ICC Court is a step towards respecting the autonomy of the parties opting for arbitration. This approach aligns Indian practice with global arbitral norms while still guarding against abuse.
Situating EPI In India’s Broader Discourse
The DHC’s error is symptomatic of an overzealous attempt to protect the integrity of the arbitral process, which we can term procedural hyper-vigilance or due process paranoia. The court viewed the non-disclosure as an “incurable foundational fallacy,” indicating extreme sensitivity to any perceived threat to procedural fairness and party autonomy. This is especially in the context of foreign-seated arbitrations, where Indian courts have often refused to intervene (also see here and here). In fact, the DHC in another order had found that anti-arbitration injunctions ought to be ordered when the arbitration agreement itself is “null or void, inoperative or incapable or being performed” (¶57), or if demonstrable injustice/harassment can be shown (¶¶39, 44). Arbitration must only be interfered with rarely (¶59).
Perhaps this can be explained on the peculiar facts leading to the dispute, concerned with arbitrator bias. However, the DHC’s invocation of “oppressiveness” also sits uncomfortably with how Indian law usually polices abusive litigation. In K.K. Modi v. K.N. Modi, the Indian Supreme Court (“INSC”) held that stopping proceedings due to abuse of process must be sparingly done only in exceptional circumstances, when there is “no chance of a suit succeeding” (¶44). By contrast, equating mere non-disclosure with oppressiveness dilutes the standard and risks routine challenges. Non-disclosure may be “regrettable,” as the ICC Court itself acknowledged, but absent an objective risk of bias it should not be treated as a deliberate attempt to subvert the process
The DHC does admittedly refer to the behaviour of the defendant to justify its holding. However, we disagree with the DHC on two counts. First, it seems to infer a mens rea to delay proceedings and abuse process from the actions of the defendant – no independent inquiry into the intention of the defendant is clear. Second, we are hesitant to conclude that merely enforcing one’s procedural rights before the relevant fora (the courts of the seat jurisdiction, Singapore, and the ICC Court) amounts to an abuse of process. The defendant is entitled to approach these fora for enforcing its rights – to read in mens rea from these actions sets a dangerously low bar. All of this has been justified in the name of due process, constituting a classic case of ‘due process paranoia’ or what is essentially procedural hyper-vigilance.
This phenomenon has been observed in several arbitration-friendly jurisdictions, where courts or tribunals lean towards over-protection of procedural rights to insulate awards from later challenges at the enforcement stage, warranting such behaviour. While this is generally used in the context of the arbitral tribunals, it is clear that the same fear reflects in the decision of the DHC as well. While actions (whether of the DHC or a paranoid arbitral tribunal) may be motivated by a desire to ensure fairness, it often produces a twofold problem: first, proceedings become vulnerable to tactical disruption, with parties exploiting every disclosure lapse or procedural irregularity as a ground for delay. Second, it leads to uneconomical and inefficient decisions, due to an overcautious approach.
Put differently, due process paranoia reflects not just judicial caution, but a structural anxiety about legitimacy – courts seek to demonstrate that no allegation of bias or unfairness has been overlooked, even if this requires expanding grounds for intervention beyond what international arbitral practice would endorse.
Thus, EPI stands out as an odd intervention, going against the grain even when situated in the Indian context (also see §5 to the Arbitration & Conciliation Act, 1996).
Conclusion
While the DHC holding in EPI is motivated by a legitimate concern, i.e. preventing an abuse of process, the court erred in its interpretation of the ICC Rules. As noted by Jan Paulsson, overly strict disclosure standards only open the door for unscrupulous parties to tactically raise objections to delay proceedings. In order to ensure that India truly becomes a hub for international arbitration, courts must make an effort to align with international standards of interpretation. Otherwise, courts run reputational risks, as international parties will be aware that the choice of India as seat comes with strings attached: overly strict interpretations of well-settled institutional rules.
*Viraj Thakur is a B.A., LL.B. (Hons.) student at the National Law School of India University (NLSIU), Bengaluru
**Nida Adeel Mohammed is a B.A., LL.B. (Hons.) student at National Academy of Legal Studies & Research (NALSAR) University, Hyderabad
- Thomas H Webster and Michael Bühler, Handbook of ICC Arbitration: Commentary and Materials (5th edn Sweet and Maxwell 2021).[↩]
- Anne Marie Whitesell, ‘Independence in ICC Arbitration: ICC Court Practice concerning the Appointment, Confirmation, Challenge and Replacement of Arbitrators’ (2007) ICC Bulletin, Special Supplement.[↩]