Arbitrability of Disputes in India: The Vidya Drolia Four-Fold Test (2026)

Last verified: July 2026

Two partners in a family jewellery business fell out. One of them relied on a “Deed of Admission and Retirement” to claim she had been brought into the firm and the others eased out. The other partner said she had never signed any such thing, that the deed was forged and fabricated top to bottom. Buried inside that disputed deed was an arbitration clause. So when the matter reached the Supreme Court in February 2026, the judges faced a deceptively simple question that goes to the heart of arbitrability of disputes in India: if the very document carrying the arbitration clause is said to be a forgery, can an arbitrator be asked to decide anything at all?

The answer, in Rajia Begum v. Barnali Mukherjea (2026), was no. Where a serious allegation of forgery strikes at the existence of the arbitration agreement itself, the dispute stops being a private, contractual matter and belongs before a civil court. It is a small case with a big lesson. An arbitration clause is only ever as strong as the disputes the law will actually let an arbitrator hear.

That lesson catches people out constantly. You can draft the tightest arbitration clause in the country and still be sent to a consumer forum, the National Company Law Tribunal, a rent controller, or a criminal court, because the subject matter is simply off-limits to private arbitration. Whether a dispute can be arbitrated at all is decided not by your contract but by statute and by the Supreme Court. For a decade the guiding map was Booz Allen (2011). In 2020, a three-judge bench in Vidya Drolia v. Durga Trading Corporation distilled it into a single four-fold test that courts now apply every day.

---

Arbitrability decides whether a dispute can be resolved by arbitration at all, no matter what the contract says. In India, the Supreme Court’s four-fold test in Vidya Drolia v. Durga Trading Corporation (2021) treats a dispute as non-arbitrable when it involves rights in rem, binds third parties with erga omnes effect, touches inalienable sovereign or public-interest functions, or is barred expressly or by necessary implication by a statute.

This guide walks through what arbitrability means, the rights in rem versus rights in personam engine that drives it, the four-fold test limb by limb, a full map of what is and is not arbitrable, the fraud line from 2010 to 2026, who gets to decide arbitrability, and what happens when a non-arbitrable dispute slips into arbitration anyway.

---

---

What is arbitrability of disputes in India?

Arbitrability answers one question: is this particular subject matter capable of being settled by private arbitration, or does the law reserve it for the courts and public tribunals? It is not about whether your arbitration clause is well drafted. A perfectly valid clause cannot make an inherently non-arbitrable dispute arbitrable. Think of it as a gate that sits before the arbitration even begins.

In practice, a court faced with an arbitration objection asks three separate questions, and it helps to keep them apart. First, is there a valid arbitration agreement between these parties? Second, does the dispute fall within the scope of that agreement? Third, and this is arbitrability proper, is the subject matter of the dispute one that the law permits to be arbitrated at all? A dispute can clear the first two hurdles and still fail the third. If you want the groundwork on the mechanism itself, our explainer on how arbitration works in India covers the basics that this guide assumes.

Where does arbitrability live in the statute? The Arbitration and Conciliation Act, 1996 does not contain a neat list of non-arbitrable disputes. Instead, Section 2(3) preserves the field: it says that Part I of the Act “shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.” Arbitrability then surfaces twice more, at the exit. Under Section 34(2)(b)(i), a domestic award can be set aside if the court finds “the subject-matter of the dispute is not capable of settlement by arbitration.” Under Section 48(2)(a), enforcement of a foreign award can be refused on the same ground. So non-arbitrability is both a threshold objection and a defect that can sink an award years later.

What experienced practitioners keep straight, and beginners often blur, is the difference between arbitrability, jurisdiction, and admissibility. Jurisdiction asks whether this tribunal has authority over this dispute. Admissibility asks whether a claim can be heard now (for instance, has a pre-condition been met). Arbitrability is prior to both: it asks whether the dispute belongs to arbitration as a category. A common question that comes up is whether calling a dispute “commercial” makes it arbitrable. It does not. The label is irrelevant; what matters is the nature of the right being enforced, which is where the next section begins.

The pitfall here is treating an arbitration clause as a guarantee. It is not. If your likely disputes fall into a reserved category, the clause will not save you, and discovering that only after a two-year arbitration is an expensive way to learn the rule.

The foundation: Booz Allen and the rights in rem versus in personam test

Before Vidya Drolia gave us a unified test, the anchor was Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011). Why does an old mortgage case still matter? Because it supplied the conceptual engine that every later judgment runs on: the distinction between a right in rem and a right in personam.

A right in rem is a right exercisable against the world at large: title to property, the validity of a patent, the status of a marriage. A right in personam is a right against a specific person or persons, typically arising from a contract. Booz Allen held the general principle plainly. Disputes over rights in rem are, as a rule, non-arbitrable, because they affect the public and demand adjudication by a court or public forum. Disputes over rights in personam are, as a rule, arbitrable.

Here is the part most summaries skip, and it is the most useful part in practice. The Court carved out a middle category: subordinate rights in personam that arise from rights in rem are arbitrable. Take a mortgage. A suit for enforcement of a mortgage by sale of the property is an action in rem and cannot be arbitrated. But a lender’s straightforward money claim against a borrower, arising from the same transaction, is a subordinate right in personam and can be. The right in rem sits in the background; the claim being pressed is personal. That single distinction resolves a surprising number of “is this arbitrable” arguments.

Booz Allen also listed categories that Indian courts had long treated as non-arbitrable: disputes arising out of criminal offences, matrimonial disputes, guardianship matters, insolvency and winding-up, testamentary matters such as grant of probate, and eviction or tenancy governed by special statutes. A later decision, Vimal Kishor Shah v. Jayesh Dinesh Shah (2016), added a seventh: disputes governed by the Indian Trusts Act, 1882. In practice, most lawyers still reach for this list first and only then apply the four-fold test as the sharper tool.

The trap with the Booz Allen categories is treating them as frozen. They were never meant to be exhaustive, and Vidya Drolia later moved two of them, tenancy and fraud, out of the non-arbitrable column. Rely on the list for orientation, then check whether a newer judgment has shifted the specific category you care about.

The Vidya Drolia four-fold test explained

If you remember one thing from this guide, make it this section. Vidya Drolia v. Durga Trading Corporation (2021) is the case every arbitration practitioner cites, and the four-fold test is what referral courts and tribunals actually apply.

The case reached a three-judge bench on a narrow reference about whether landlord-tenant disputes governed by the Transfer of Property Act, 1882 are arbitrable. The Court used the occasion to do something larger: it built a general framework for arbitrability that consolidated Booz Allen and the cases after it. So what does the test say?

A dispute is non-arbitrable, the Court held, when the cause of action or subject matter falls into any of four situations. Read them slowly, because the language is precise. First, when it relates to actions in rem that do not pertain to subordinate rights in personam arising from rights in rem. Second, when it affects third-party rights, has erga omnes effect (an effect “towards all”), and requires centralised adjudication where mutual adjudication between the two parties would be inappropriate. Third, when it relates to the inalienable sovereign and public-interest functions of the State. Fourth, when it is expressly or by necessary implication rendered non-arbitrable by a specific statute.

The Court was careful to add a warning that gets quoted less often but matters just as much. These four tests, it said, are “not watertight compartments; they dovetail and overlap,” and must be applied “with care and caution.” A single dispute can trip more than one limb. A winding-up petition, for example, is both an action affecting third parties (limb two) and a matter statutorily entrusted to the National Company Law Tribunal (limb four). The limbs are lenses, not boxes.

Vidya Drolia did not just supply a test. It changed two outcomes on the spot. On tenancy, it overruled Himangni Enterprises v. Kamaljeet Singh Ahluwalia (2017) and held that ordinary tenancy disputes under the Transfer of Property Act are arbitrable, keeping only rent-control tenancies out. On fraud, it approved the view that fraud is largely arbitrable and overruled the old contrary authority in N. Radhakrishnan v. Maestro Engineers (2010). Both moves are covered in detail below.

Which disputes are arbitrable in India

Most guides only tell you what you cannot arbitrate. That is the wrong way round, because the default in Indian law is that a dispute is arbitrable. Non-arbitrability is the exception that has to be justified. So what safely falls inside the tent?

The core of arbitrable territory is commercial and contractual disputes: breach of contract, recovery of money, damages, disputes under supply, distribution, construction, shareholder and joint-venture agreements, and the ordinary run of commercial fallings-out between two parties. These are quintessential rights in personam. If two businesses have a payment or performance dispute and an arbitration clause, that dispute is arbitrable, full stop.

Tenancy is the headline change. After Vidya Drolia, a landlord-tenant dispute governed by the Transfer of Property Act, 1882, including a claim for eviction or arrears, is arbitrable, because it is an action in personam between the landlord and the tenant. The exception is a tenancy governed by a rent-control statute that gives exclusive jurisdiction to a rent controller or special court; those remain non-arbitrable under the fourth limb. If tenancy is your issue, our deep dive on the arbitrability of tenancy disputes under the Transfer of Property Act works through the line the courts draw.

Two more areas sit inside, with a caveat. Fraud simpliciter, meaning an ordinary allegation of fraud between contracting parties, is arbitrable after Vidya Drolia; only “serious” fraud is carved out, and that carve-out has narrowed sharply, as the fraud section explains. And intellectual property throws up a split that trips people up. The grant, registration, or validity of a patent or trademark is a right in rem and is non-arbitrable, but a contractual dispute over an IP licence, royalties, or assignment between two parties is a subordinate right in personam and can be arbitrated. A common question practitioners raise is whether “an IP dispute” is arbitrable; the honest answer is that you have to ask which right is actually being enforced. Our analysis of the arbitrability of trademark disputes shows how a court separated the two.

The pitfall on the arbitrable side is over-confidence. Just because a dispute is arbitrable in principle does not mean a clumsy claim will survive; if you wrap a genuinely non-arbitrable relief (say, cancellation of a registered instrument affecting the world) inside a contractual prayer, expect the tribunal or the court to see through it.

Which disputes are non-arbitrable in India: the category map

This is the section most readers come for. Which disputes will an Indian court simply refuse to send to arbitration? The settled non-arbitrable categories flow from the Booz Allen list as sharpened by the four-fold test, and the table below is the working map. Treat it as a starting point and always check for a category-specific update.

The traditional core is stable. Disputes arising out of criminal offences cannot be arbitrated, because the State, not a private tribunal, prosecutes crime. Matrimonial disputes such as divorce, judicial separation, and restitution of conjugal rights are out, as are guardianship and child-custody matters, both being questions of status with effects beyond the two parties. Testamentary matters (probate, letters of administration, succession certificates) are non-arbitrable because a grant operates in rem. And insolvency and winding-up are reserved for the specialised forum.

Consumer disputes deserve their own note, because the rule is subtler than “non-arbitrable.” In Emaar MGF Land Ltd. v. Aftab Singh (2019) and again in M. Hemalatha Devi v. B. Udayasri (2023), the Supreme Court held that a consumer cannot be dragged into arbitration merely because a builder or seller inserted an arbitration clause in a standard-form contract. The Consumer Protection Act is welfare legislation, and the remedy before the consumer forum is an additional protection the consumer may insist on. The nuance: it is the consumer’s choice. A consumer may elect to arbitrate; the other side cannot compel it.

Insolvency shows the four-fold test working dynamically. In Indus Biotech Pvt. Ltd. v. Kotak India Venture (Offshore) Fund (2021), the Court held that the moment a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 is admitted, the proceeding becomes an action in rem binding all creditors, and any dispute is then non-arbitrable. Before admission, if a Section 8 arbitration application is filed, the adjudicating authority must first decide whether a default has occurred. Our spoke on the arbitrability of insolvency disputes in India unpacks that sequencing. Company-law disputes over oppression and mismanagement sit in the same reserved space, entrusted to the National Company Law Tribunal under Sections 241-242 of the Companies Act, 2013. The pitfall across all of these is assuming that a private commercial flavour rescues the dispute; once a statute hands a matter to a dedicated forum with in rem consequences, the arbitration clause goes quiet.

Fraud and arbitrability: from N. Radhakrishnan to Rajia Begum (2026)

No area of arbitrability has swung as much as fraud, and it is where the freshest 2025-26 law sits. The question sounds binary, are fraud disputes arbitrable, but the honest answer is a moving line, and knowing where the line is today is what separates a current answer from a stale one.

Start with the low point. In N. Radhakrishnan v. Maestro Engineers (2010), the Supreme Court held that where a dispute involves serious allegations of fraud, it should be tried by a court rather than an arbitrator, because fraud needs elaborate evidence. For a decade this was used to derail arbitrations: allege fraud, and argue the whole dispute must go to court. It was a charter for delay.

The correction came in stages. A. Ayyasamy v. A. Paramasivam (2016) drew the crucial distinction between “fraud simpliciter,” an ordinary allegation of fraud that a tribunal can handle, and “serious fraud” that permeates the entire contract or has public implications. Rashid Raza v. Sadaf Akhtar (2019) reduced this to a workable twin test: does the fraud go to the validity of the whole contract including the arbitration clause, and does it have a public flavour rather than affecting only the two parties? Then Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd. (2021) confirmed that fraud is arbitrable as a rule, with only a narrow exception, and Vidya Drolia formally overruled N. Radhakrishnan. The delay charter was gone.

The 2025 and 2026 cases sharpen the point from opposite ends, and reading them together is what gives you the current rule. In The Managing Director, Bihar State Food and Civil Supply Corporation Ltd. v. Sanjay Kumar (2025), custom rice-milling contracts with an arbitration clause were caught up in a public distribution scam involving alleged misappropriation of over ₹1,500 crore and more than a thousand FIRs. The State argued that serious fraud plus parallel criminal proceedings made the dispute non-arbitrable. The Supreme Court disagreed. It held that the scrutiny at the appointment stage is confined to the existence of an arbitration agreement, that fraud simpliciter is arbitrable, and that even pending criminal investigations do not, by themselves, bar arbitration. Questions of serious fraud, if any, are for the tribunal to decide.

Then came Rajia Begum v. Barnali Mukherjea (2026), the case from the opening of this guide. Here the fraud did not sit in the underlying dispute; it attacked the arbitration agreement itself, through an allegation that the deed carrying the clause was forged. The Court held that where forgery or fabrication strikes at the very existence of the arbitration agreement, the dispute is non-arbitrable and must go to a civil court. After Rajia Begum, the serious-fraud exception has effectively narrowed to two situations: fraud that impeaches the existence or validity of the arbitration agreement, and fraud that raises genuine public-law questions. That is a far cry from the 2010 position, where any serious allegation could stall the reference.

So if your contract has an arbitration clause and the other side cries fraud, can you still arbitrate? Usually yes. The one place you will lose is if the fraud is aimed at the authenticity of the agreement that contains the clause. That is the practical residue of two decades of litigation.

Who decides arbitrability: the court or the arbitral tribunal?

There is a second question hiding behind the first, and confusing the two causes half the arguments in this field. Even once you know a dispute might be non-arbitrable, who gets to decide that: the court at the doorstep, or the tribunal once it is constituted?

The starting principle is competence-competence. Under Section 16 of the Arbitration and Conciliation Act, 1996, the arbitral tribunal is empowered to rule on its own jurisdiction, including any objection that the dispute is not arbitrable. The statute wants the tribunal to be the first mover on these questions, with court review saved for the end.

At the doorstep, the court’s role is deliberately thin. When a party applies under Section 8 (before a judicial authority) or Section 11 (to appoint an arbitrator), the court conducts only a prima facie examination. Section 11(6A) confines the court to “the examination of the existence of an arbitration agreement.” Worth flagging: the 2019 amendment that proposed to delete Section 11(6A) was never notified into force, so the sub-section still governs. The gate is narrow by design.

How narrow? NTPC Ltd. v. SPML Infra Ltd. (2023) described the referral court’s inquiry as passing through the “eye of the needle”: look at the existence and validity of the arbitration agreement, and otherwise leave arbitrability to the tribunal, rejecting only claims that are ex-facie and manifestly non-arbitrable. Vidya Drolia gave this a memorable formulation: when in doubt, refer. And in SBI General Insurance Co. Ltd. v. Krish Spinning (2024), the Court pulled the reins in further, holding that at the Section 11 stage the court should confine itself to the existence of the arbitration agreement and leave even questions like “accord and satisfaction” (whether a full-and-final settlement has extinguished the claim) to the tribunal. The trend across these cases is unmistakable: less at the gate, more for the tribunal.

There is a narrow exception, and it is where Rajia Begum fits. If a claim is manifestly non-arbitrable on a plain look (a purely criminal matter, a matrimonial dispute, or an arbitration agreement that is itself alleged to be forged), the court can and should decline at the threshold rather than force the parties into an arbitration that is doomed. The skill, in practice, is telling a genuinely threshold-level objection apart from a merits argument dressed up as one; tribunals and courts are quick to see through the latter. A second-order effect worth noting: because the gate has narrowed, the real fight over arbitrability increasingly happens inside the arbitration under Section 16, and then again at the Section 34 set-aside stage, rather than at appointment.

What happens if a non-arbitrable dispute is referred to arbitration

Suppose the gate fails and a non-arbitrable dispute goes all the way to an award. What then? This is not a hypothetical; it is precisely why arbitrability is a threshold worth taking seriously rather than an academic curiosity.

For a domestic award, the answer is Section 34(2)(b)(i). A court hearing a set-aside challenge may vacate the award if it finds that “the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.” Note two features. The court can raise this on its own, without the party having pleaded it, because it goes to the legality of the award. And it is separate from the public-policy ground in Section 34(2)(b)(ii), though a non-arbitrable subject matter will often offend public policy too.

For a foreign award, the mirror provision is Section 48(2)(a), which lets an Indian court refuse enforcement if the subject matter “is not capable of settlement by arbitration under the law of India.” This is the arbitrability defence in the New York Convention framework, and it is one of the standard resistances raised at the enforcement stage. If you are on the enforcement side of a cross-border award, our guide to enforcing a foreign arbitral award and the Section 48 defences works through how these objections play out.

The practical cost is the real point. An award built on a non-arbitrable dispute is not just vulnerable; it is close to worthless. The winning party can spend two or three years and substantial fees, secure an award, and watch it collapse at the Section 34 or Section 48 stage, sometimes on a ground the court raises itself. That is why the smart money screens for arbitrability before the notice of arbitration goes out, not after the award comes in.

Recent developments and what is changing (2023-2026)

Arbitrability does not sit still, and a few 2023 to 2026 developments matter for anyone advising on it today. Are these changes to arbitrability itself, or to the machinery around it? Mostly the latter, which is exactly why they get confused with arbitrability and are worth clearing up.

The biggest source of confusion is stamping. In In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 (2023), a seven-judge Constitution Bench held that an unstamped or insufficiently stamped arbitration agreement is inadmissible in evidence but not void, and that the defect is curable. This overruled the earlier view that unstamped agreements were unenforceable. It is important to be precise about what this case is and is not. It is about the admissibility and enforceability of the agreement, not about whether the subject matter is arbitrable. An arbitration agreement can be perfectly well stamped and still concern a non-arbitrable dispute.

Two more threads are worth tracking. On non-signatories, Cox and Kings Ltd. v. SAP India Pvt. Ltd. (2023), a Constitution Bench, confirmed that the “group of companies” doctrine is part of Indian law, so a non-signatory can in some circumstances be bound by an arbitration agreement. That is a “who is bound” question rather than a “what is arbitrable” one, but it shapes the same referral-stage battleground. And the Arbitration and Conciliation (Amendment) Bill, 2024, still a draft rather than enacted law, proposes changes to the arbitration architecture such as emergency arbitrators and an appellate mechanism. It does not rewrite the arbitrability categories, and it should be described as a proposal, not current law; our tracker on the Arbitration and Conciliation (Amendment) Bill, 2024 follows its progress.

Looking ahead, early signals suggest the live frontier is intellectual property and competition. As institutional arbitration grows and tribunals apply competence-competence more confidently, expect more first-instance rulings drawing the line between arbitrable in-personam IP and licensing claims and non-arbitrable questions of grant, validity, or market-wide competition harm. Practitioners expect the map to keep filling in at the edges rather than the core.

Practical takeaways: drafting and strategy

All of this doctrine is only useful if it changes what you do. So how should arbitrability shape drafting and litigation strategy in practice? Three habits separate lawyers who get caught out from those who do not.

First, screen before you sign. When you negotiate a dispute-resolution clause, pressure-test the disputes that are actually likely to arise from this relationship and ask whether they are arbitrable. If your foreseeable disputes include eviction under a rent-control statute, consumer grievances, or matters that will end up before the National Company Law Tribunal, an arbitration clause may give you false comfort. Getting the clause itself right is a craft in its own right; our guide to drafting an arbitration agreement that holds up covers the mechanics.

Second, protect the authenticity of the agreement. This is the direct lesson of Rajia Begum. If forgery or fabrication of the document carrying the arbitration clause can be alleged with a straight face, you risk losing arbitrability altogether. Execute arbitration agreements cleanly: proper signatures, witnessing where sensible, and a clear audit trail for electronically signed contracts. The better practice, in our view, is to treat the execution formalities of the arbitration agreement as seriously as its wording.

Third, if you are the one resisting arbitration, know which arguments still work at the gate. After Krish Spinning, “the claim is time-barred” or “we already settled” will not usually keep a matter out of arbitration; those go to the tribunal. What still works at the threshold is genuine, manifest non-arbitrability: a criminal matter, a matrimonial dispute, a reserved statutory forum, or a forged arbitration agreement. Everything else you should expect to argue inside the arbitration under Section 16, and preserve for a Section 34 challenge if it goes against you. That reframing, from “keep it out of arbitration” to “win the arbitrability point in the right forum,” is the strategic shift the recent cases demand.

Frequently asked questions

What is arbitrability of disputes in India?
Arbitrability is whether the subject matter of a dispute can be resolved by private arbitration at all, regardless of what the contract says. Some disputes are reserved by law for courts and public tribunals. Even a valid arbitration clause cannot make an inherently non-arbitrable dispute arbitrable.

What is the Vidya Drolia four-fold test?
It is the Supreme Court’s test from Vidya Drolia v. Durga Trading Corporation (2021). A dispute is non-arbitrable when it relates to actions in rem, affects third-party rights with erga omnes effect and needs centralised adjudication, touches inalienable sovereign or public-interest functions, or is barred expressly or by necessary implication by a statute.

Which disputes can be referred to arbitration in India?
Most commercial and contractual disputes: breach of contract, recovery of money, damages, and disputes under commercial agreements. Tenancy under the Transfer of Property Act, fraud simpliciter, and IP licensing or royalty claims are arbitrable too. The default is that a dispute is arbitrable unless a rule takes it out.

Which disputes are non-arbitrable in India?
Criminal matters, matrimonial and guardianship disputes, testamentary and probate matters, insolvency and winding-up, rent-control tenancy, trust disputes, oppression and mismanagement, the grant or validity of intellectual property, and consumer disputes where the consumer does not consent to arbitrate.

What is the difference between a right in rem and a right in personam?
A right in rem is enforceable against the world at large, such as title to property or the validity of a patent. A right in personam is enforceable against a specific person, typically from a contract. Rights in personam are generally arbitrable; rights in rem generally are not.

Are matrimonial and divorce disputes arbitrable?
No. Divorce, judicial separation, restitution of conjugal rights, guardianship, and child custody are questions of status with consequences beyond the two parties. They fall to the family courts and cannot be arbitrated.

Are landlord-tenant and eviction disputes arbitrable?
Ordinary tenancy disputes governed by the Transfer of Property Act are arbitrable after Vidya Drolia, which overruled the earlier contrary view. Tenancies governed by a rent-control statute that gives exclusive jurisdiction to a special forum remain non-arbitrable.

Are fraud disputes arbitrable in India?
Usually yes. Fraud simpliciter between contracting parties is arbitrable. The narrow exception is “serious” fraud, and after Rajia Begum (2026) the clearest case is fraud that attacks the existence or authenticity of the arbitration agreement itself, which is non-arbitrable.

Are consumer disputes arbitrable?
A consumer cannot be forced into arbitration by a clause in a standard-form contract. The Consumer Protection Act gives the consumer an additional remedy before the consumer forum. The consumer may choose to arbitrate, but the seller or builder cannot compel it.

Are insolvency and IBC disputes arbitrable?
Once a petition under Section 7 of the Insolvency and Bankruptcy Code is admitted, the proceeding becomes an action in rem binding all creditors and is non-arbitrable, as held in Indus Biotech (2021). Before admission, the adjudicating authority first decides whether a default has occurred.

Are intellectual property disputes arbitrable?
It depends on the right. The grant, registration, or validity of a patent or trademark is a right in rem and is non-arbitrable. A contractual dispute over an IP licence, royalties, or assignment is a subordinate right in personam and can be arbitrated.

Who decides whether a dispute is arbitrable, the court or the tribunal?
Both have a role. Under Section 16, the tribunal rules on its own jurisdiction, including arbitrability. The referral court under Sections 8 and 11 does only a prima facie check and refers unless the dispute is manifestly non-arbitrable. When in doubt, the court refers.

What does Section 11(6A) say about the court’s role?
It confines the court, when appointing an arbitrator, to “the examination of the existence of an arbitration agreement.” The 2019 amendment that would have deleted it was never notified, so it remains in force, and cases like Krish Spinning (2024) have reinforced this narrow scope.

What did Rajia Begum v. Barnali Mukherjea (2026) decide?
The Supreme Court held that where a serious allegation of forgery or fabrication strikes at the existence of the arbitration agreement itself, the dispute is non-arbitrable and must be decided by a civil court. It narrowed the serious-fraud exception to fraud attacking the agreement or raising public-law questions.

Does a pending criminal case make a dispute non-arbitrable?
Not by itself. In Bihar State Food Corporation (2025), the Supreme Court held that even large-scale fraud allegations and parallel criminal proceedings do not automatically bar arbitration. Fraud simpliciter is arbitrable, and questions of serious fraud are left to the tribunal.

Can a non-arbitrable award be set aside under Section 34?
Yes. Section 34(2)(b)(i) allows a court to set aside a domestic award if the subject matter was not capable of settlement by arbitration. The court can raise this ground on its own, because it goes to the legality of the award rather than only the parties’ pleadings.

Can enforcement of a foreign award be refused for non-arbitrability?
Yes. Section 48(2)(a) lets an Indian court refuse enforcement of a foreign award if the subject matter is not capable of settlement by arbitration under Indian law. It is a recognised resistance under the New York Convention framework.

Will the Arbitration and Conciliation (Amendment) Bill, 2024 change what is arbitrable?
Not directly. The 2024 Bill, still a draft, proposes structural changes such as emergency arbitrators and an appellate mechanism. It does not rewrite the arbitrability categories set by Booz Allen and Vidya Drolia, which remain the governing law.

References

Case law

1. Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 – three-judge bench; the four-fold test for non-arbitrability; tenancy under the Transfer of Property Act held arbitrable.
2. Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 – rights in rem versus rights in personam; original categories of non-arbitrable disputes.
3. Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788 – trust disputes non-arbitrable (seventh category).
4. Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 – held tenancy non-arbitrable; overruled by Vidya Drolia.
5. A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386 – fraud simpliciter versus serious fraud.
6. Rashid Raza v. Sadaf Akhtar, (2019) 8 SCC 710 – twin test for the serious-fraud exception.
7. Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713 – fraud largely arbitrable.
8. N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 – fraud non-arbitrable; overruled by Vidya Drolia.
9. Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751 – consumer disputes non-arbitrable.
10. M. Hemalatha Devi v. B. Udayasri, (2024) 4 SCC 255; 2023 INSC 870 – consumer disputes non-arbitrable; arbitration is the consumer’s choice.
11. Indus Biotech Pvt. Ltd. v. Kotak India Venture (Offshore) Fund, (2021) 6 SCC 436 – post-admission of a Section 7 IBC petition, the dispute is in rem and non-arbitrable.
12. NTPC Ltd. v. SPML Infra Ltd. (2023) – the “eye of the needle” standard for referral courts.
13. Cox and Kings Ltd. v. SAP India Pvt. Ltd., 2023 INSC 1051 – group of companies doctrine; non-signatories can be bound.
14. In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, 2023 INSC 1066 – seven-judge bench; unstamped arbitration agreement inadmissible but curable, not void.
15. SBI General Insurance Co. Ltd. v. Krish Spinning, 2024 INSC 532 – Section 11 scrutiny confined to the existence of the arbitration agreement.
16. The Managing Director, Bihar State Food and Civil Supply Corporation Ltd. v. Sanjay Kumar, 2025 INSC 933 – fraud simpliciter arbitrable; parallel criminal proceedings do not bar arbitration.
17. Rajia Begum v. Barnali Mukherjea, 2026 INSC 106; 2026 LiveLaw (SC) 101 – forgery attacking the existence of the arbitration agreement renders the dispute non-arbitrable.

Statutes

1. Arbitration and Conciliation Act, 1996 – Sections 2(3), 5, 7, 8, 11 (including 11(6A)), 16, 34(2)(b), and 48(2).
2. Indian Trusts Act, 1882.
3. Transfer of Property Act, 1882.
4. Companies Act, 2013 – Sections 241-242.
5. Insolvency and Bankruptcy Code, 2016 – Section 7.
6. Consumer Protection Act, 2019.

Note on currency

This article states the law as of July 2026, including Rajia Begum v. Barnali Mukherjea (2026). Arbitrability is an actively developing area; confirm the current position before relying on it in a live matter.

---

This article is for informational and educational purposes only and does not constitute legal advice. For a specific arbitration dispute or an arbitration clause you are drafting, consult a qualified arbitration practitioner.