BRICS, India and International Commercial Arbitration: Another Enforcement Problem?

[Dhruv and Harsh are students at Jindal Global Law School and Jaipur University, respectively.]

Arbitration in India presently sits within a visible policy contradiction. On one hand, the State has shown increasing reluctance to rely on arbitration in public contracts, particularly after the 2024 guidelines on domestic public procurement. On the other hand, India continues to project itself as an arbitration-friendly jurisdiction through initiatives such as the India International Arbitration Centre, the proposed GIFT City dispute resolution framework, and now the BRICS ADR framework. 

Against this context, this post seeks to analyse the BRICS ADR framework around this tension. The framework is intended to strengthen cooperation among emerging economies by building capacity in mediation and arbitration, improving institutional coordination, and creating a more balanced dispute resolution mechanism for international commercial disputes. Its objective is not to create an immediate replacement for existing arbitral institutions, but to support a shared framework through which BRICS economies can develop greater confidence in arbitration to facilitate commercial dispute resolution within BRICS jurisdictions.

However, it can be best understood in the light of India’s evolving cross-border dispute landscape and its recent chairmanship of the BRICS Justice Ministers’ meeting. India sought to position itself not merely as a participant in BRICS legal cooperation, but as a jurisdiction with larger ambitions of becoming a hub of international commercial arbitration. This piece argues that without resolving the Section 44 reciprocity gap in the Indian Arbitration structure and coherence of framework, the BRICS framework shall remain inert regardless of its purported objectives.

Contextualizing the BRICS ADR Framework in Current Indian Arbitral Regime

The recent BRICS engagement with arbitration arises from a broader institutional concern. Trade, infrastructure development, energy projects, digital commerce and investment flows are increasingly taking place across emerging economies. Yet, cross-border disputes involving such transactions continue to gravitate towards established arbitral centres such as Singapore, London, Paris and Hong Kong.  Under India’s BRICS 2026 Chairmanship, the Senior Officials’ Meeting and Justice Ministers’ Meeting at Gandhinagar focused on strengthening ADR through mediation and arbitration, institutional cooperation, capacity building, digital tools and cross-border dispute resolution. There is also a historical caution. A BRICS dispute resolution centre was earlier associated with Shanghai, but it did not develop meaningful caseload or streamlined mechanisms. Despite institutional backing, it reportedly failed to attract arbitration filings or become a meaningful choice for commercial parties. This suggests that the present BRICS initiative must address user confidence, enforceability and procedural credibility, rather than assume that a BRICS-labelled forum will flourish by itself.

Tangible Effects and Implications for India

The BRICS ADR framework may provide Indian companies with a more familiar dispute resolution route for intra-BRICS commercial contracts. Indian corporations increasingly engage with BRICS economies in sectors such as energy, technology, construction, ports, mining, infrastructure finance and public procurement. These sectors often involve long-term contracts, and performance obligations across jurisdictions. A BRICS-facing arbitration framework could help parties avoid domestic litigation in unfamiliar courts while also avoiding automatic dependence on non-BRICS institutions.

Additionally, the framework may support India’s domestic ambition to become an arbitration hub. A BRICS framework could complement this project if India uses it for India-based arbitration. For example, BRICS commercial contracts involving Indian parties could be encouraged to choose India as the seat, or designate Indian institutions for India-linked disputes, or have common courts to directly execute awards in India. 

The most important Indian law issue is enforcement. India is a party to the New York Convention, but it follows a reciprocity reservation. Under Section 44 of the Arbitration and Conciliation Act, 1996, a foreign award qualifies for enforcement only if it is made in a territory notified by the Central Government as a reciprocating territory. Notably, several BRICS members Iran, Egypt, Ethiopia and Indonesia fall entirely outside the purview of Part II regardless of these countries being New York Convention signatories. Indian parties must examine whether the relevant BRICS seat has been notified under Section 44.

This affects the commercial value of the arbitration clause. If a BRICS-seated award cannot enter India through Part II of the Act, the award-holder may have to rely on less direct enforcement routes. 

If BRICS cooperation results in another external forum seated outside India, Indian companies may simply face one more foreign arbitral option without strengthening India’s domestic institutional ecosystem. That would dilute the objective of a better enforcement framework through BRICS altogether. The better approach is to use BRICS cooperation to feed Indian institutions, not bypass them. Without resolving this Section 44 threshold enforcement issue, the BRICS ADR initiative would remain commercially fragile, regardless of its institutional ambition.    

A more ambitious model would be a BRICS-level direct execution mechanism, under which an award rendered under the BRICS framework could be executed through a designated BRICS court or enforcement chamber without passing through domestic recognition proceedings under the New York Convention. For example, if an Indian company obtained a BRICS award against a Brazilian or UAE counterparty with attachable assets in another BRICS jurisdiction, it could seek direct attachment before the BRICS enforcement forum rather than initiating separate recognition proceedings before national courts. Such a mechanism would strongly incentivise parties to choose BRICS arbitration because it would bypass ordinary court pendency, reduce dependence on India’s Section 44 reciprocity requirement, and avoid the delays associated with New York Convention enforcement.

Practical and Geopolitical Friction Points

The first structural problem is the divergence of public policy standards across BRICS jurisdictions. Indian law has narrowed public policy review in foreign award enforcement. In Renusagar, the Supreme Court adopted a restrained public policy standard for foreign awards. Shri Lal Mahal further limited merits review at the enforcement stage. Vijay Karia confirmed that Section 48 is not an appellate provision and that enforcement should be refused only on limited grounds.

This pro-enforcement trend supports cross-border arbitration. But it does not remove the difficulty that other BRICS jurisdictions may apply public policy differently. Russia, China, India, Brazil, South Africa, UAE, Iran, Saudi Arabia, Egypt, Ethiopia and Indonesia do not share identical approaches to arbitrability, sanctions, state contracts, foreign exchange controls, public procurement, insolvency or national security. A BRICS award may therefore face different levels of judicial scrutiny depending on where enforcement is sought.

The second problem is geopolitical neutrality. BRICS is not a private arbitral institution. It is a political grouping. This matters because several high-value disputes within BRICS may involve state-owned enterprises, public-sector undertakings, sovereign wealth-linked entities or strategic infrastructure. India-China commercial disputes illustrate the concern most clearly. A dispute involving an Indian corporation and a Chinese state-owned enterprise cannot be assessed only through ordinary private law assumptions. The political relationship between the states may affect perceptions of institutional independence, even where the tribunal itself is formally neutral.

The third problem is India’s own inconsistency in public-sector arbitration. A significant part of BRICS commerce is likely to arise in sectors where governments or government-controlled entities are contracting parties. Yet India’s 2024 Ministry of Finance guidelines discourage routine arbitration in domestic public procurement contracts, especially in high-value disputes. This creates a policy tension. India cannot promote arbitration in BRICS commercial cooperation while expressing distrust of arbitration in its own government contracts.

The fourth problem concerns interim relief. Commercial parties often need urgent protection before a final award, especially in infrastructure, supply chain and project finance disputes. India has recognized emergency arbitration in the context of India-seated institutional arbitration in Amazon v. Future Retail, but foreign-seated emergency awards do not enjoy a straightforward enforcement route under Part II. Parties will still need to approach Indian courts under Section 9 for interim protection with a fresh application. 

Conclusion: The Road Ahead

Though the framework in the foreseeable future is not a replacement of institutions such as SIAC and LCIA, it is a bid to put India as a suitable arbitration avenue down the line. Primarily, India should review the Section 44 notification status of BRICS members and reduce avoidable enforcement uncertainty where reciprocal conditions are satisfied. Simultaneously, India ought to leverage BRICS collaboration to strengthen IIAC and GIFT City as preferred seats for India-linked disputes, including incorporation of Indian institutional seat preferences in model BRICS contract clauses. A structure that frequently steers away from Indian institutions will compromise India's arbitration aspirations. 

As a legislative action, the draft Arbitration and Conciliation (Amendment) Bill 2024 must codify enforcement pathways for foreign-seated emergency awards. This prevents parties facing urgent interim relief needs from defaulting to other arbitration friendly jurisdictions where such enforcement infrastructure already exists. If designed around enforceability, neutral appointments, emergency relief and institutional cooperation, the BRICS framework can become a credible parallel route for intra-BRICS commercial disputes and beyond.