An arbitrator's failure to disclose a prior engagement can, on its own, defeat enforcement of a foreign award in India, the Delhi High Court has held in MSA Global LLC (Oman) v. Engineering Projects (India) Limited. Treating the duty of disclosure as an independent component of the fundamental policy of Indian law, the court refused to enforce a partial award rendered in a Singapore-seated international arbitration conducted under the International Chamber of Commerce (ICC) Rules of Arbitration.
The decision is notable because the court reached this conclusion without any finding of actual or apparent bias — a departure from the two-tier structure that normally governs disclosure and challenge.
How the dispute arose
The underlying claim stemmed from a sub-contract between an Omani security systems integrator (the award holder) and an Indian public sector undertaking (the award debtor) for an electronic surveillance system. The award holder nominated co-arbitrator Mr. Andre Yeap SC, who declared that he had no facts or circumstances requiring disclosure under the ICC Rules.
After the award was issued, the award debtor learned that Mr. Yeap had previously been involved in arbitral proceedings connected to the chairman of the award holder. It challenged his impartiality in parallel forums:
- before the ICC Court under Article 14(1) of the ICC Rules; and
- before the Singapore High Court, on an application to set aside the award.
Both forums rejected the impartiality challenge, finding that the non-disclosure did not support an inference of apparent bias. The Delhi High Court had earlier granted an anti-arbitration injunction, taking the view that the non-disclosure undermined the tribunal's neutrality.
The enforcement ruling
When the award holder sought enforcement before the Delhi High Court, the central question was whether Mr. Yeap's non-disclosure placed the award in conflict with Indian public policy. The court held that the obligation to disclose is sacrosanct in India, transcending mere procedure to become a safeguard of natural justice. On that basis, the court concluded that a failure to disclose — by itself — renders an award contrary to Indian public policy.
Significantly, the court did not assess whether the circumstances surrounding the non-disclosure were capable of giving rise to justifiable doubts as to impartiality. It acknowledged that the prior engagement "may not, in itself, be disqualifying," yet still found that non-disclosure of those same facts breached the arbitrator's duty.
Why it matters
Under Section 12(1) of the Arbitration and Conciliation Act 1996, arbitrators must disclose circumstances "likely to give rise to justifiable doubts" as to independence or impartiality, guided by the Fifth Schedule. A successful bias challenge under Section 12(3) read with Section 13 requires that such doubts actually exist. The two inquiries share the "justifiable doubts" threshold but operate at different levels.
The ruling appears to collapse that structure by elevating disclosure to an absolute fundamental-policy principle. It also sits uneasily with the internationally recognised, narrow public policy standard that Indian courts have applied to foreign awards, and with the 2024 IBA Guidelines on Conflicts of Interest in International Arbitration, which treat disclosure and the existence of a conflict as distinct inquiries. Comparable reasoning appears in the UK Supreme Court's Halliburton v. Chubb and the Court of Appeal for Ontario's Aroma Franchise decision, both of which treat non-disclosure as relevant to, but not determinative of, apparent bias.
Read broadly, the ruling suggests that any non-disclosure — however minor or made in good faith — could justify refusing enforcement on public policy grounds, leaving India's treatment of foreign awards uncertain pending further clarification.