Section 36 of the Arbitration and Conciliation Act: The Enforcement Paradox in India's Arbitration Landscape

[Gurman and Sharad are students at National Law Institute University, Bhopal.]

The Supreme Court in March, 2025 in its landmark ruling in the case of Periymal v. Rajamani observed that, “A litigant endures prolonged procedural hurdles to obtain justice, only to face renewed obstacles at execution, where the promised relief, once within reach, recedes again into distant uncertainty.”

The plague of delay in enforcement of execution petition also spreads to arbitration execution petitions filed u/s 36 as well. Parties choose arbitration to escape the protracted procedures of civil courts, seeking instead a faster, more economical, and efficient mechanism for resolving disputes. Yet this promise faces a significant obstacle in Section 36 of the Arbitration and Conciliation Act 1996 (A&C Act). Section 36 creates a fundamental paradox that undermines the very efficiency arbitration promises to deliver. Rather than providing streamlined enforcement, Section 36 requires award holders to go back into the judicial system they sought to avoid, thereby impeding the purpose of choosing arbitration in the first place.

In these circumstances, the SC in Periymal observed that execution delays are a travesty of justice and issued a direction to all High Courts to ensure that execution petitions are decided and disposed of within a period of six month. Through this piece, the authors will dissect the problems faced due to section 36 of the A&C Act. Further, the authors will analyze whether a similar landmark directive as issued in the Periyamal is required to be issued for section 36 as well. Lastly the authors shall be providing a comparative analysis and suggest some ways forward.

The Emerging Paradox

The famous adage by the Privy Council: “the difficulties of a litigant in India begin when he has obtained a decree,” aptly captures the challenges faced by parties seeking to enforce not just court decrees but also arbitral awards in India.

When an arbitral award is rendered, it represents the conclusion of a private dispute resolution process that has theoretically circumvented civil court procedures. Section 35 of the A&C Act ensures the finality and binding nature of such awards. However, to translate this award into tangible relief, Section 36 mandates that the award be enforced as if it were a decree of the civil court. This deemed decree framework forces award holders to navigate the Code of Civil Procedure 1908 (CPC), experiencing the very delays and complications they sought to avoid.

The process of getting an arbitral award through arbitration is of limited benefit as once the award is treated as a decree, its enforcement faces delays as it is then executed under the provisions of CPC, which results in significant time being lost. Consequently, the enforcement of the award is delayed, defeating the primary purpose of arbitration i.e. speed and efficiency in resolving disputes.  

Thus, Section 36 presents an incongruity: parties who wanted to insulate themselves from the domestic courts when they decided to choose arbitration as the medium to solve their dispute have to rely on the domestic courts for getting the ultimate benefit of the award produced by the arbitral proceedings.

The Practical Reality of Delays

The consequences of this procedural framework are evident in empirical evidence. The case of Chopra Fabricators v. Bharat Petroleum starkly illustrates the problem. An arbitral award was passed in 1992, yet when an execution petition was filed in 2003, the matter remained pending. After 30 years from the original award and 19 years of pending execution proceedings, the Supreme Court lamented that the award holder could not enjoy the fruits of the award. Consequently, the Court appointed a special committee to investigate the extent of the problem.

In Uttar Pradesh alone, 30,154 execution petitions for awards were pending before district courts, with the oldest dating back to 1981. In commercial courts, 13,367 such petitions were pending, with the oldest from 2002. These figures represent merely one state across India.

The national judicial backlog compounds this difficulty. According to data from the National Judicial Database, the district and taluka courts across India have 11,13,321 pending execution petitions. The High Courts are faced with 56,498 pending execution petitions, while the Supreme Court itself has 72,381 pending cases. Against this backdrop, the delay in execution of arbitral awards is not merely a failure of the arbitration system but an inevitable consequence of an overburdened judiciary forced to apply standard civil procedures to awards.

These problem of judicial backlogs at the execution stage was also highlighted in Periymal, where the court based its judgment on previous precedents held that litigators should not be made to wait to get the fruits of their litigation by hanging at the execution stage and issued a directive to the High Courts to make a data of remaining execution petitions and make steps to reduce the backlog and dispose of the execution petitions within a strict timeline of six months. As a result, in October 2025, the Supreme Court recorded that 3,38,685 execution petitions were disposed, while 8,82,578 remained pending nationwide. Calling prolonged execution alarming and a travesty of justice, the court demanded accountability from High Courts, stressed expeditious enforcement, and warned against procedural laxity in execution proceedings.

The Periyammal judgment shows that delays at the execution stage are a system wide problem. The same delay affects enforcement of arbitral awards under Section 36. Therefore, a similar time bound and monitored directive for Section 36 cases is necessary to ensure arbitration delivers timely and effective relief.

Recent developments signal awareness of these challenges at the policy level. In February 2024, the Expert Committee on Arbitration Law, chaired by Dr TK Vishwanathan, submitted comprehensive recommendations for reform in arbitration law. The committee identified Section 36 enforcement delays as a critical impediment to India’s arbitration development and recommended that enforcement petitions be disposed of within nine months.

Understanding Section 36’s Necessity

Yet dismissing Section 36 entirely would overlook legitimate governance concerns. Section 36 exists precisely because arbitration, as a private dispute resolution mechanism, operates outside the framework of public accountability that characterizes state adjudication. While domestic courts are subject to certain standards of judicial accountability, arbitration is viewed as lacking in this regard.

This skepticism regarding arbitration has also been highlighted in the Ministry of Finance Guidelines released in June 2024 in which the government raised concerns about transparency, corruption, and accountability in behind closed doors proceedings. These concerns hold weight. Judicial oversight through Section 36 ensures that awards do not suffer from fraud or corruption. Judicial oversight under Section 36 ensures that the enforcement of an arbitral award is carried out in line with the law. Arbitration, although an alternative form of dispute resolution, cannot bypass or undermine the legal procedures established for the enforcement of judgments

International Perspectives and the Attitude Factor

A comparative examination of arbitration enforcement in Switzerland, England, and Singapore reveals an interesting truth. The procedures for enforcing arbitral awards in these jurisdictions are substantively similar to India's approach. In Switzerland, awards are enforced through state courts with involvement of the Swiss Code of Civil Procedure. England similarly requires court involvement for enforcement of arbitral awards under the Arbitration Act 1996. Singapore's Arbitration Act 2001, likewise involves courts in the enforcement process. Yet these jurisdictions have become leading seats for international arbitration while India struggles to develop as an arbitration hub.

The critical difference lies not in procedural mechanisms but in judicial attitude. Singapore courts have consistently adopted a pro arbitration stance with minimal interference in arbitration matters. In Swire Shipping Pte Limited v. Ace Exim, the Singapore High Court reiterated that judicial intervention should be minimal and that awards can be set aside only in narrow circumstances. Switzerland similarly maintains a streamlined approach. England's Arbitration Act 1996, ensures that courts recognize and enforce awards with limited scrutiny, restricting their intervention to specified grounds such as lack of jurisdiction or violation of public policy.

India presents a starkly different picture. The Supreme Court has repeatedly stated that minimal judicial intervention should characterize arbitration matters. Yet decisions from various High Courts frequently contradict this principle. This lack of judicial discipline creates ambiguity and delay. Award holders cannot predict how courts will treat their enforcement petitions. This unpredictability discourages both domestic and international parties from selecting India as an arbitration seat.

Toward Viable Solutions

Addressing these challenges requires multifaceted reform. The most feasible solution involves amending Section 36 itself to impose strict time limits. The proposed amendment would mandate that courts dispose of enforcement petitions within three months of filing, extendable to an additional three months only in extraordinary circumstances and only where reasons are recorded.

Additionally, establishing dedicated arbitration divisions within High Courts would prevent arbitration matters from competing with general civil litigation for judicial resources. Such specialized forums could develop expertise in arbitration law and maintain consistency in judgments. The government must also empower and support arbitration centers like the Delhi International Arbitration Centre, Mumbai Centre for International Arbitration, and a proposed Indian International Arbitration Centre, modeled on Singapore's International Arbitration Centre and the London Court of International Arbitration.

Professionalization of arbitrators through mandatory licensing and ethics codes, as advocated by  Justice (Retd.) Hima Kohli, would enhance award quality and reduce Section 34 and 36 challenges. The recent establishment of the Arbitration Bar of India in May 2024 represents a step toward treating arbitration as a primary profession rather than a part time endeavor. Furthermore, the judiciary must issue comprehensive guidelines emphasizing pro arbitration principles, minimal intervention post award, and adherence to strict procedural timelines. These guidelines should require that executing courts focus on verifying procedural compliance and reasoning quality rather than revisiting the merits of awards.

Conclusion

Section 36 embodies a genuine tension between the efficiency arbitration promises and the accountability that public policy requires. The problem is not judicial oversight itself but its execution without temporal constraints and procedural clarity. International experience demonstrates that countries combining judicial involvement with pro arbitration attitudes, streamlined procedures, and time bound processes achieve both efficiency and legitimacy. India's path forward requires statutory amendment to impose strict disposal timelines, institutional development through dedicated arbitration forums and centers, professionalization of the arbitration community, and consistent pro arbitration judicial discipline.

The 2024 draft bill represents progress on this front, yet its adequacy depends on implementation without further delay. With these reforms, Section 36 can transition from an enforcement roadblock into a gateway ensuring both the speedy arbitration promises and the accountability justice demands. Until such reforms materialize, arbitration in India will remain theoretically attractive but practically unachievable for parties seeking timely resolution and realization of their awards. The time for reform is now, and the roadmap is clear.