Abstract

The Arb-Med-Arb Protocol is a procedural sequence designed to combine the consensual strength of mediation with the enforcement strength of arbitration. Originated at SIAC and SIMC in 2014, it has become the recommended route for cross-border commercial settlement in jurisdictions where enforceability of mediated settlement matters. India is one such jurisdiction. This article sets out the SIAC-SIMC architecture, the Indian Mediation Act 2023 implications, the Singapore Convention on Mediation 2019 enforcement layer, and the operational discipline for counsel structuring an Arb-Med-Arb clause in an Indian-anchored contract.

Part I — The structural problem Arb-Med-Arb solves

Mediation’s enforcement weakness

A mediated settlement, in its native form, is a contract between the parties. It is enforceable as a contract. For cross-border settlements, the procedural distance becomes unworkable. A mediated settlement in India, breached by an overseas counterparty, requires the Indian party to navigate that jurisdiction’s contract-enforcement procedure.

The Singapore Convention on Mediation 2019 was designed to fix this. Where the Convention applies, a mediated settlement reached internationally is recognised and enforced in contracting States without requiring a fresh judgment. The procedural distance collapses.

Arbitration’s settlement weakness

Conversely, arbitration is built for adjudication, not settlement. Where parties wish to settle mid-arbitration, the tribunal can record the settlement as a consent award (Article 30 of the UNCITRAL Model Law; section 30 of the Indian 1996 Act). But the structural orientation of arbitration is adversarial. Arb-Med-Arb is the architectural answer: the arbitration is the framework; the mediation is an institutional intermission; the consent award is the output if mediation succeeds; the resumed arbitration is the fallback if it does not.

Part II — The SIAC-SIMC architecture

The 2014 origin

The Singapore International Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC) jointly issued the Arb-Med-Arb Protocol in 2014. The architecture has been replicated, with variations, by HKIAC, ICC, and CIArb.

The five-stage sequence

Stage 1 — Commencement of arbitration. The claimant files the Notice of Arbitration under the chosen institutional rules. The arbitration is constituted. The tribunal is appointed. The procedural calendar is fixed. The respondent’s statement of defence is filed.

Stage 2 — Suspension for mediation. The parties, on joint application, request the tribunal to suspend the arbitration for institutional mediation. The institution refers the matter to the mediation arm.

Stage 3 — Mediation window. The mediator is appointed within a defined timeframe (typically seven days from the suspension order). The mediation proceeds under institutional mediation rules. The mediation window is defined (typically sixty days). The mediator is a person other than any member of the constituted arbitral tribunal.

Stage 4 — Mediated settlement converted to consent award. If the mediation produces a settlement, the parties return to the tribunal. The tribunal records the settlement as a consent award. The consent award is enforceable under the curial law of the seat and (in cross-border cases) under the New York Convention 1958.

Stage 5 — Resumption if mediation fails. If the mediation window closes without settlement, the arbitration resumes on the original procedural calendar with adjusted milestones.

The key structural insight

The Protocol’s power comes from a single architectural choice: the mediator is institutionally distinct from the tribunal. The mediator hears settlement-mode discussions, including off-record positions, without contaminating the tribunal’s adversarial role. If mediation fails, the tribunal proceeds without having heard the parties’ settlement positions.

Part III — The Indian implementation

The Mediation Act 2023

India enacted the Mediation Act 2023 to provide a statutory framework for mediation, including provisions for the enforceability of mediated settlements. For purely domestic mediations, a mediated settlement is enforceable as a decree of a civil court under the Act. For international mediations subject to the Singapore Convention 2019 (when India’s ratification takes effect), the cross-border enforcement layer activates.

The Arbitration and Conciliation Act 1996 interface

Section 30 of the 1996 Act permits the parties to settle during arbitration and the tribunal to record the settlement as an arbitral award. The Arb-Med-Arb Protocol fits cleanly within the Indian statutory architecture: the arbitration runs under the 1996 Act; the mediation runs under the Mediation Act 2023 (or institutional rules); the settlement is recorded as a consent award under section 30; the consent award is enforceable under the curial law of the seat.

The cross-border layer

For cross-border matters, the consent award produced through Arb-Med-Arb has two enforcement channels: (1) the New York Convention 1958 channel for the arbitral award; (2) the Singapore Convention on Mediation 2019 channel for the underlying mediated settlement. The dual track gives more enforcement options than either pure arbitration or pure mediation alone.

Part IV — When Arb-Med-Arb is the right choice

Predictor 1 — Cross-border counterparty. The structural value of Arb-Med-Arb is highest when the counterparty is overseas and enforcement of any settlement will require cross-border recognition.

Predictor 2 — Continuing commercial relationship. Where the parties expect to continue dealing with each other, the consensual orientation of mediation preserves the relationship.

Predictor 3 — Multi-issue dispute. Where the dispute spans several heads of claim, several contractual instruments, or several counterparties, mediation permits package settlement.

Predictor 4 — High confidentiality requirement. Where regulatory, reputational, or competitive concerns make adjudication unattractive, the absolute confidentiality of mediation is more protective.

Part V — Drafting the Arb-Med-Arb clause

The institutional model clause

Under the Consolidated Rulebook v1.3 of Lex Arbitrate Centre, the Customisation Wizard at Article 2.2 permits parties to construct a bespoke arbitration clause with the Arb-Med-Arb add-on elected. The clause produced by the Wizard reads:

Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration administered by Lex Arbitrate Centre for Alternative Dispute Resolution under its Consolidated Rulebook v1.3. The seat of arbitration shall be [seat]. The language of the arbitration shall be [language]. The Tribunal shall consist of [one / three] arbitrator(s). The parties further agree that following constitution of the Tribunal, the parties shall in good faith attempt to settle the dispute through mediation administered by Lex Arbitrate Centre under its Mediation Rules and the Arb-Med-Arb Protocol at Article 21 of the Consolidated Rulebook. The mediation window shall be sixty days from appointment of the mediator. Any settlement reached in mediation shall be recorded by the Tribunal as a consent award.

Drafting pitfalls to avoid

• Do not make mediation conditional precedent to arbitration. Multi-tier clauses that require mediation before arbitration commencement create procedural disputes about whether the mediation step was satisfied.
• Do not over-specify the mediation procedure. Leave detail to the institutional mediation rules.
• Do specify the mediation window. Sixty days from mediator appointment is the institutional default.
• Do clarify that the mediator and the tribunal are different persons. Removes ambiguity.
• Do consider the seat carefully. The seat determines the curial law for the arbitration and the consent-award enforceability.

Part VI — The role of the institution

The Arb-Med-Arb Protocol depends on institutional capacity: a constituted Mediator Panel separate from the arbitrator Panel; procedural coordination between suspension of arbitration, appointment of mediator, conclusion of mediation, and recording of consent award; enforceability hygiene to ensure the consent award satisfies the curial law of the seat and the New York Convention 1958.

Lex Arbitrate Centre’s Rulebook v1.3 codifies the Arb-Med-Arb Protocol at Article 21. The Mediator Panel is constituted separately. The Customisation Wizard produces the Arb-Med-Arb clause as a tickbox option. The institutional Registrar reviews the consent award before issue under Article 16. For cross-border matters, the institutional record is preserved in a form calibrated for enforcement.

Conclusion

The Arb-Med-Arb Protocol is the architectural answer to the structural weaknesses of mediation (enforcement) and arbitration (settlement orientation). For cross-border commercial disputes, particularly those involving continuing commercial relationships, multi-issue claims, or high confidentiality requirements, it is the recommended pathway. The Indian implementation, under the 1996 Act and the Mediation Act 2023, is operationally workable now and will become substantially more powerful as India’s Singapore Convention 2019 ratification takes effect.

Why this toolkit exists

The Indian Kompetenz-Kompetenz doctrine, as set out in Vidya Drolia v Durga Trading Corporation (2021) 2 SCC 1 and In re Interplay (2024), is now stable. The tribunal-priority position is settled. What is less settled, in actual practice, is how the practising advocate translates the doctrine into operational discipline: when to raise a section 16 objection, how to preserve it through the proceeding, and what survives the section 34 review afterwards. This toolkit is the operational layer beneath the compendium published earlier in this Knowledge Centre.

Read this article alongside Kompetenz-Kompetenz in Indian Arbitration: A Compendium (Knowledge Centre, 27 April 2026). The compendium states the doctrine; this article applies it.

Part I — The timing question

Section 16(2) — the statement-of-defence window

Section 16(2) of the Arbitration and Conciliation Act 1996 requires a jurisdictional objection to be raised not later than the submission of the statement of defence. The provision is procedural but its consequence is substantive. Failure to raise timely is treated as waiver.

The window is unforgiving in practice. Tribunals routinely refuse to entertain jurisdictional objections raised for the first time mid-hearing. A party who intends to challenge tribunal jurisdiction must act at the statement-of-defence stage or in a dedicated preliminary objection filed before the statement of defence.

Earlier-than-statement-of-defence preliminary objections

A respondent who is confident that the tribunal has no jurisdiction may file a preliminary objection before submitting the statement of defence. This is the cleaner course where the objection is foundational (no arbitration agreement, manifest non-arbitrability). The tribunal hears the objection as a preliminary matter; the statement of defence follows only if the objection fails.

Section 16(3) — the new-objection-mid-proceeding window

Section 16(3) of the Act permits a jurisdictional objection raised after the statement of defence if the ground for the objection arises only after that stage. The provision is narrowly construed. Tactical lesson: do not rely on section 16(3) as a safety net. Raise every conceivable jurisdictional objection at the statement-of-defence stage.

Part II — Categories of objection that hold up

Category 1 — No arbitration agreement at all

Where the claimant has not pleaded or cannot prove the existence of an arbitration agreement, the objection is clean. Documentary evidence of the clause, the counterparty’s signature, and the date is the foundation. The objection prevails at the tribunal stage and survives section 34 review on the same evidence.

Category 2 — Claim falls outside scope

Where the clause covers “disputes arising out of this agreement” and the claim relates to a separate agreement, the scope objection is arguable. Post-Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40, the Indian position is liberal: courts read arbitration clauses broadly, presuming commercial parties meant a single forum.

Category 3 — Non-arbitrability under the four-fold test

Per Vidya Drolia at paragraph 76, a dispute is non-arbitrable where: (1) it relates to actions in rem that do not pertain to subordinate rights in personam arising out of rights in rem; (2) it affects third-party rights and requires centralised adjudication; (3) it relates to inalienable sovereign and public-interest functions of the State; or (4) it is expressly or by necessary implication non-arbitrable under a specific statute.

Category 4 — Invalidity of the arbitration clause itself

Where the clause is void for vagueness (no seat, no governing law, no procedure), fraud in the formation of the arbitration agreement itself (not the main contract, by separability), or is contrary to statute. The separability doctrine means that fraud in the main contract does not, without more, infect the arbitration clause.

Category 5 — Lapse or expiry

Where the arbitration clause has been superseded by a later agreement without a clause, or has been exclusively terminated. Often arises in long-running commercial relationships where parties have re-papered without carrying forward the arbitration provisions.

Part III — Categories that typically do not hold

Stamp-duty objections

Post-In re Interplay (2024), stamping is a curable deficiency. The tribunal can proceed; stamp-duty issues are addressed separately. The majority position in N N Global Mercantile Pvt Ltd v Indo Unique Flame Ltd (2023) 7 SCC 1 was overruled by the seven-judge Constitution Bench in In re Interplay.

Fraud, limitation, accord and satisfaction

Post-Vidya Drolia, simple and serious fraud are arbitrable. Limitation under section 3 of the Limitation Act 1963 is for the tribunal, not a jurisdictional ouster. Accord and satisfaction is a substantive defence, not a jurisdictional bar.

Part IV — How to preserve the objection through the proceeding

The three-step discipline

Step 1 — Plead in the statement of defence. A dedicated paragraph raising the jurisdictional objection. Specify the ground. Attach or reference the supporting documents. Use the heading “Preliminary Jurisdictional Objection”.

Step 2 — Record the adverse ruling. If the tribunal holds that it has jurisdiction, secure a written ruling. Where the tribunal rules orally, request a written record on the same day.

Step 3 — Participate under protest. Continue to participate in the remainder of the arbitration with the protest on the record. Section 16(5) and (6) do not permit interlocutory court review; the challenge must be preserved for section 34.

Part V — The section 11 stage

Post-Vidya Drolia, the section 11 referral court conducts only a prima facie examination. The court asks: does an arbitration agreement prima facie exist? Is it prima facie valid? Is the dispute prima facie arbitrable? If the answers are prima facie yes, the matter is referred to the tribunal. Practising lesson: at the section 11 stage, frame objections that are obviously meritorious. Save the complex doctrinal challenges for the tribunal under section 16.

Part VI — The section 34 consequence

A section 16 ruling that the tribunal has jurisdiction can be challenged only on section 34 grounds after the award. The available grounds under section 34(2) are limited: incapacity, invalid arbitration agreement, notice defects, subject matter outside submission, composition or procedure non-conformity, non-arbitrability, public-policy conflict, fraud or corruption.

The section 34 review of a tribunal’s jurisdictional finding is deferential on fact but more rigorous on law. A tribunal’s factual findings carry weight; its legal characterisation does not bind the court.

Conclusion

The Indian Kompetenz-Kompetenz doctrine is settled. Tribunal priority is the operative position. What remains for the practising advocate is operational discipline. Section 16 objections must be raised early, framed within the recognised categories, preserved through the proceeding under protest, and channelled into section 34 with the documentary record intact.

For matters administered under the Consolidated Rulebook v1.3 of Lex Arbitrate Centre, the institutional architecture provides additional support: the Customisation Wizard at Article 2.2 reduces ambiguity at the drafting stage; the Institutional Review Panel opt-in at Article 18 provides an intra-institutional appellate forum; the scrutiny of draft awards by the Registrar (Article 16) catches structural defects before issue.

Abstract

The doctrine of Kompetenz-Kompetenz, the principle that an arbitral tribunal has jurisdiction to rule on its own jurisdiction, is foundational to modern commercial arbitration. Its Indian statutory form sits in section 16 of the Arbitration and Conciliation Act 1996, read with sections 8 and 11. Its doctrinal form has evolved across more than two decades of Supreme Court jurisprudence, from Konkan Railway (2002) through SBP & Co (2005), Boghara Polyfab (2009), Ayyasamy (2016), Vidya Drolia (2021), N N Global (2023), and Re Interplay (2024). The current position, post-Re Interplay, is a strong version of tribunal priority — national courts at the section 8 and section 11 stages conduct only a prima facie review, referring disputed questions of jurisdiction, arbitrability, and scope to the tribunal. This compendium states the Indian position, traces its development, situates it comparatively, and offers a practising advocate’s working guide to when jurisdictional challenges hold and when they do not.

Part I — Doctrine

1. What Kompetenz-Kompetenz means

Kompetenz-Kompetenz is a German-law term carried into comparative arbitration in its original spelling because translation obscures it. A literal translation is “competence-competence”, the competence of the tribunal to decide its own competence. The doctrine has a positive dimension (the tribunal has the power to decide its own jurisdiction) and a negative dimension (national courts, faced with the same question at a pre-award stage, defer to the tribunal).

The positive dimension is nearly universal. Every major arbitration statute recognises that an arbitral tribunal can decide, in the first instance, whether it has jurisdiction to hear the claim before it. Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (1985, as amended 2006) states the position: “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.” Indian section 16 of the Arbitration and Conciliation Act 1996 adopts this substantially verbatim. English section 30 of the Arbitration Act 1996 is to the same effect. Swiss article 186 PILA, French article 1448 CCP, Singapore section 21 IAA, all recognise tribunal Kompetenz-Kompetenz.

The negative dimension, the deference of national courts at the pre-award stage, varies by jurisdiction. The French position (article 1448 CCP) is the strongest: national courts must decline jurisdiction over matters subject to an arbitration agreement unless the agreement is “manifestly null or manifestly inapplicable.” The Swiss position under article 186 PILA is similar. The English position under Fiona Trust [2007] UKHL 40 and Dallah [2010] UKSC 46 permits a more searching review at certain stages. The US position under First Options of Chicago v Kaplan, 514 US 938 (1995) requires “clear and unmistakable” delegation of the gateway question to the tribunal; by default, courts decide.

The Indian position, as it stood after Vidya Drolia (2021) and Re Interplay (2024), sits closer to the French and Swiss end of this spectrum than to the US end. Referral courts conduct a prima facie examination only; disputed questions are for the tribunal. This section of the compendium traces how that position was arrived at.

2. The statutory architecture — section 16 read with sections 8 and 11

The 1996 Act’s jurisdictional architecture operates in three places.

Section 16 is the tribunal-facing provision. A party wishing to challenge tribunal jurisdiction does so before the tribunal itself, not later than the submission of the statement of defence. The tribunal rules on the challenge. If the tribunal holds that it has jurisdiction, the aggrieved party cannot seek court review at that stage (section 16(5)), the challenge is preserved for section 34 (setting-aside after award). If the tribunal holds that it does not have jurisdiction, section 16(6) permits an appeal under section 37(2).

Section 8 is the judicial-authority-facing provision when a suit has already been filed. A judicial authority before which a suit is brought, that is the subject of an arbitration agreement, must refer the parties to arbitration “unless it finds that prima facie no valid arbitration agreement exists.” The 2015 Amendment added the “prima facie” qualifier explicitly; the post-Vidya Drolia position has given this qualifier strong operational meaning.

Section 11 is the appointment-facing provision when no suit is pending. A party may apply to the Supreme Court or High Court (or their designate) for appointment of an arbitrator. The 2015 Amendment introduced section 11(6A), confining the inquiry to existence of an arbitration agreement. Section 11(6A) was omitted by the 2019 Amendment but the substantive restriction has been reintroduced via the post-Vidya Drolia prima facie standard.

3. Why the doctrine exists

Kompetenz-Kompetenz is not a technical accident. It serves three functions. First, procedural efficiency. If every tribunal-jurisdiction question required prior judicial determination, arbitration would be impossibly slow. Second, party autonomy. Parties who have agreed to arbitrate have expressed a preference for a private forum; allowing one party to restart the jurisdictional question in court defeats that preference. Third, tribunal competence. Arbitral tribunals are usually better placed than referral courts to assess jurisdictional questions that turn on the commercial context, the parties’ dealings, the industry practice, or the interplay between the arbitration clause and the main contract.

Part II — The case law

Phase 1 — Konkan Railway to SBP & Co (2002 to 2005)

The Indian line opens with a five-judge Constitution Bench in Konkan Railway Corporation Ltd v Rani Construction Pvt Ltd (2002) 2 SCC 388. The question was narrow: is the Chief Justice’s function under section 11 of the 1996 Act judicial or administrative? The Court held it was administrative. The practical consequence was that the Chief Justice, faced with a section 11 application, would refer the dispute to arbitration without entering into jurisdictional questions; those were for the tribunal to decide under section 16.

Three years later, a seven-judge Constitution Bench reversed the characterisation. In SBP & Co v Patel Engineering Ltd (2005) 8 SCC 618, the Court held that the Chief Justice’s function was judicial, not administrative. At the section 11 stage, the Chief Justice was entitled to decide whether an arbitration agreement existed, whether it was valid, whether the claim was “live”, and whether the procedural conditions for appointment were met. This represented a substantial narrowing of Kompetenz-Kompetenz.

Phase 2 — Operational framework (2009 to 2016)

National Insurance Co v Boghara Polyfab Pvt Ltd (2009) 1 SCC 267 built on SBP & Co by articulating a tri-partite classification of issues that might arise at the section 11 stage. Category (a) issues the Chief Justice must decide. Category (b) issues the Chief Justice may decide or may leave to the tribunal. Category (c) issues the Chief Justice should leave to the tribunal. The classification became the operational framework for trial courts and High Courts for six years.

In parallel, the doctrine of non-arbitrability developed. Booz Allen & Hamilton Inc v SBI Home Finance Ltd (2011) 5 SCC 532 articulated the Indian list: actions in rem, matters involving sovereign functions, testamentary matters, matrimonial disputes, guardianship, insolvency and winding-up, tenancy matters governed by special statutes, matters reserved for tribunals by special statute. A Ayyasamy v A Paramasivam (2016) 10 SCC 386 addressed fraud, distinguishing “simple” fraud (arbitrable) from “serious” fraud (non-arbitrable at the arbitral level). The Ayyasamy distinction would itself be overtaken in 2021.

Phase 3 — Vidya Drolia and the recast (2021)

Vidya Drolia v Durga Trading Corporation (2021) 2 SCC 1 is the single most important Indian Supreme Court decision on Kompetenz-Kompetenz in the last decade. A three-judge bench (Ramana, Khanna, Murari JJ) comprehensively recast the doctrine of non-arbitrability and, simultaneously, the role of the referral court.

On non-arbitrability, the Court introduced a four-fold test. A dispute is non-arbitrable where: (1) the cause of action and subject matter relate to actions in rem that do not pertain to subordinate rights in personam; (2) the cause of action affects third-party rights, is in rem, and requires centralised adjudication; (3) the cause of action relates to inalienable sovereign and public-interest functions of the State; or (4) the subject matter is expressly or by necessary implication non-arbitrable under a specific statute.

On the referral court’s role, Vidya Drolia held that the referral court, whether at section 8 or section 11, confines itself to a prima facie examination. The court asks: does an arbitration agreement prima facie exist? Is it prima facie valid? Is the dispute prima facie arbitrable? If the answers are prima facie yes, the matter is referred to the tribunal. The standard was deliberately restrictive. “Prima facie” was to be read as “when in doubt, refer.”

Phase 4 — Post-Vidya Drolia refinement (2022 to 2024)

Intercontinental Hotels Group (India) Pvt Ltd v Waterline Hotels Pvt Ltd (2022) 7 SCC 662 operationalised the Vidya Drolia standard at section 11. Cox and Kings Ltd v SAP India Pvt Ltd (2023) confirmed the group-of-companies doctrine in India.

N N Global Mercantile Pvt Ltd v Indo Unique Flame Ltd (2023) 7 SCC 1 addressed the stamping question. A five-judge Constitution Bench held by 3:2 majority that an arbitration agreement contained in an unstamped instrument was unenforceable until duly stamped. Approximately seven months later, a seven-judge Constitution Bench overruled the NN Global majority. In re Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, decided 13 December 2023, restored the severability-based position. The Court held that an unstamped instrument containing an arbitration clause is not void; stamp duty is a curable deficiency; the tribunal can proceed.

Post-Re Interplay, the Indian doctrine sits at its most tribunal-favourable position since Konkan Railway, two decades earlier.

Part III — Comparative jurisprudence

Indian law does not develop in isolation; it draws on the UNCITRAL Model Law tradition and on the comparative practice of leading arbitration jurisdictions.

The UNCITRAL template

Article 16 of the UNCITRAL Model Law is the template from which section 16 of the Indian 1996 Act is directly drawn. Indian section 16 reproduces the structure substantially. The Indian commitment to the UNCITRAL tradition is therefore built in statutorily; the case law is the operational elaboration.

The French and Swiss positions

The strongest version of Kompetenz-Kompetenz in comparative practice is the French. Article 1448 CCP (as amended 2011) provides that when a dispute subject to an arbitration agreement is brought before a national court, the court “shall declare itself without jurisdiction unless the arbitration agreement is manifestly null or manifestly inapplicable.” Article 186 of the Swiss Private International Law Act 1987 is substantially aligned. Both represent the civil-law commitment to tribunal priority.

The English position

English law under the Arbitration Act 1996 also recognises tribunal Kompetenz-Kompetenz (section 30). Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40 established the “one-stop shop” presumption: commercial parties entering into an arbitration clause are presumed to have intended a single forum for all disputes arising out of the relationship. Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs [2010] UKSC 46 illustrated the English position on enforcement: at the New York Convention enforcement stage, an English court may conduct a full de novo review.

The US position and Singapore

First Options of Chicago, Inc v Kaplan, 514 US 938 (1995), held that whether the parties have delegated the gateway jurisdictional question to the arbitrator is itself a question for the court. Unless the parties have “clearly and unmistakably” delegated the jurisdictional question to the tribunal, the court decides. This is a much narrower Kompetenz-Kompetenz than the civil-law position. Singapore’s position under Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57 is closer to the Indian Vidya Drolia standard.

Situating India

Against this spectrum, India sits closer to the Swiss-French-Singaporean end than to the US end. The Indian prima facie standard under Vidya Drolia is less deferential than the French “manifestly null or inapplicable” formulation but more deferential than the US “clear and unmistakable” standard. Functionally, a referral court in India after 2021 declines to enter into disputed questions of jurisdiction, arbitrability, scope, or validity, referring them to the tribunal unless the case is prima facie one of the small categories the court itself must decide.

Part IV — Practice for the practising advocate

When to raise a section 16 challenge

Section 16(2) requires that a jurisdictional objection be raised not later than the submission of the statement of defence. Failure to raise timely is treated as waiver. Categories of section 16 objection that hold up in practice: (1) no arbitration agreement at all; (2) claim falls outside the scope of the arbitration clause; (3) non-arbitrability under the Vidya Drolia four-fold test; (4) invalidity of the arbitration clause itself; (5) lapse or expiry of the clause.

Categories that typically do not hold: stamp-duty objections (post-Re Interplay, stamping is a curable deficiency); fraud allegations as a freestanding jurisdictional objection (post-Vidya Drolia, simple and serious fraud are arbitrable); limitation; accord and satisfaction.

How to preserve the objection

A section 16 objection must be pleaded in the statement of defence as a dedicated paragraph specifying the ground. If the tribunal holds that it has jurisdiction, record the adverse ruling, ideally in writing. Continue to participate in the remainder of the arbitration under protest, with the protest on the record. The challenge is preserved for section 34.

The section 34 consequence

A section 16 ruling that the tribunal has jurisdiction can be challenged only on section 34 grounds after the award. The available grounds under section 34(2) are limited: incapacity of a party, invalidity of the arbitration agreement, notice defects, subject matter falling outside submission, non-arbitrability, fraud or corruption, or conflict with public policy of India. The section 34 review is deferential on fact but de novo on law.

Conclusion

The Indian doctrine of Kompetenz-Kompetenz has undergone two decades of active development, culminating in a strong tribunal-priority position after Vidya Drolia (2021) and Re Interplay (2024). Referral courts at section 8 and section 11 examine only prima facie; substantive jurisdictional inquiry is for the tribunal under section 16; review of the tribunal’s jurisdictional findings is preserved for section 34 after award. The Indian position aligns broadly with the Swiss, French, and Singaporean approaches and is more tribunal-favourable than the US First Options standard. For the practising advocate, the current doctrine is stable and internationally coherent.