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.