Tertiary jurisdiction?

A court that has jurisdiction to (i) assist in arbitration and/or (ii) annul or set aside an arbitral award is said to have primary jurisdiction. A court that has jurisdiction to enforce or refuse enforcement of an arbitral award is said to have secondary jurisdiction. It appears that a new type of jurisdiction is emerging — tertiary jurisdiction — referring to a court that grants anti-arbitration injunctions.

As follows from the Delhi High Court's decision dated July 25, 2025, MSA GLOBAL LLC (Oman) commenced ICC arbitration proceedings, seated in Singapore, against EPIL (India). The arbitral tribunal was constituted in 2023.

In 2025, EPIL challenged the constitution of the arbitral tribunal before the High Court of Singapore. This is consistent with the principle that such challenges should be brought before the court of the primary jurisdiction.

EPIL also obtained an anti-arbitration injunction from the Delhi High Court (India). The Delhi High Court held that it 'has the jurisdiction to entertain this civil suit as the arbitration proceedings are prima facie vexatious and oppressive in nature'. As long as the seat of arbitration is not in India, this appears to introduce a third jurisdiction—i.e., a State in which a court may issue injunctions against arbitral proceedings seated elsewhere.

📑 The Delhi High Court’s decision dated July 25, 2025 is available at the following link - https://delhihighcourt.nic.in/app/showFileJudgment/59625072025IA97242025_170255.pdf

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