Delhi HC Refuses to Grant an Anti-Bilateral Investment Treaty Arbitration Injunction

The Delhi High Court in its decision dated January 29, 2019 in Union of India v. Khaitan Holdings (Mauritius) Limited[1] has refused to grant an anti-Bilateral Investment Treaty (‘BIT’) arbitration injunction to restrain Khaitan Holdings (Mauritius) Limited from relying upon the arbitration provision in the BIT agreement entered into between India and Mauritius. It was held that: (i) the A&C Act, would not apply to BIT arbitrations as they were not commercial arbitrations and therefore, the provisions of the Code of Civil Procedure, 1908 would apply; (ii) while the Indian Courts did have jurisdiction to grant anti-BIT arbitration injunctions, such injunctions would only be granted in very rare circumstances given that it is a principle of public policy that the Government has to honour its commitments; and (iii) an arbitral tribunal constituted under a BIT is competent to decide its own jurisdiction.

[1] Union of India v. Khaitan Holdings (Mauritius) Limited, CS (OS) 46 of 2019.

Published In:Inter Alia - Quarterly Edition - March 2019 [ English Chinese japanese ]
Date: March 31, 2019