Silence is consent: the Supreme Court's reading of Section 29A waiver in arbitration

The Arbitration and Conciliation Act, 1996, was amended in 2015 to insert Section 29A — a provision designed to address the chronic problem of arbitral proceedings that did not conclude. The section gave the tribunal twelve months from completion of pleadings, extendable by six months on consent of the parties; further extension required application to the court; and on the expiry of the period, with or without extension, the mandate of the arbitrator was to terminate, "unless the court extends" the period.

Section 29A is one of those well-intentioned reforms whose application has produced more questions than the section itself answered. Between the 2015 amendment and 2025, the High Courts had taken divergent positions on three central questions: which court had jurisdiction to extend; whether an application for extension could be filed after the mandate had expired; and whether substitution of the arbitrator on extension was automatic or discretionary. By the time the Supreme Court reached the question, the practitioner's bookshelf on Section 29A had become substantial.

The current Bench's 26 May 2026 ruling is the third major Supreme Court intervention on Section 29A in 2026, and it addresses a question that the earlier two had not directly answered: what happens when the mandate is treated as expired by one of the parties, but the proceedings have continued without objection from the other?

The doctrinal context

To read the 26 May ruling correctly, it has to be placed against two earlier Supreme Court decisions from the same year.

C. Velusamy v. K. Indhera (3 February 2026, 2026 INSC 112). A bench of P.S. Narasimha and A.S. Chandurkar JJ. held that an application under Section 29A for extension of the mandate is maintainable even after the expiry of the period under Section 29A(4), and even after an award has been passed during that period. The Court held that there is no statutorily prescribed time limit on the court's power to extend, save for the court's own discretion. The decision aligned the jurisdiction of the Court under Section 2(1)(e) of the Act with the extension power under Section 29A(4), correcting an earlier misalignment that had directed extension applications to the Section 11 referral court.

February 2026 ruling on substitution. The Court clarified that substitution under Section 29A(6) is discretionary, not automatic. The expiry of the mandate does not, of itself, oust the arbitrator; substitution requires a separate exercise of court discretion taking into account the conduct of the proceedings, the conduct of the parties, and the stage at which the mandate expired.

The 26 May 2026 ruling addresses the residual question: what does the conduct of the parties — particularly continued participation — do to the substantive challenge to the award itself?

The holding

The reasoning

The doctrinal foundation of the holding draws on three connected threads.

The waiver provision of Section 4

Section 4 of the Arbitration and Conciliation Act, 1996, embodies a general waiver rule. It provides that a party who knows of any non-compliance with any provision of Part I or with any requirement under the arbitration agreement, but proceeds with the arbitration without stating the objection "without undue delay" or within the period specified for raising it, "shall be deemed to have waived his right to so object."

The Bench's reading is that participation in arbitral proceedings post-mandate-expiry, without objection, falls squarely within the architecture of Section 4. The party that knows of the non-compliance (mandate expiry) and proceeds without objection (continues to file pleadings, attend hearings, lead evidence) has, in the statutory phrase, waived the right to object.

The good-faith principle in arbitration

The second thread is the more general arbitral good-faith principle. The doctrine that a party cannot, by silence, reserve a procedural objection while testing the outcome of the proceedings is a feature of international commercial arbitration practice as well as of Indian arbitration law. Parties are required to raise objections at the earliest reasonable opportunity; failure to do so attracts the doctrine of estoppel.

The Bench's reading applies this principle to the mandate-expiry question. The party that proceeds with the arbitration, post-expiry, signals consent — both to the continuation and to the implicit extension that the continuation embodies.

The interaction with Section 29A's structure

The third thread is structural. Section 29A is designed to bring arbitration to closure — not to provide a residual ground of challenge to be invoked after the award has been delivered. To allow a party who has participated in post-expiry proceedings to raise mandate expiry at the Section 34 stage would invert the statute's design: the section intended to discipline tribunal timelines would become a backdoor route to invalidating awards on technical grounds.

The Bench's reading reads Section 29A consistently with that design. The mandate-expiry argument is preserved for parties who raise it; it is lost for parties who proceed.

A party that participates without protest cannot later challenge on a ground it carried into the proceedings in silence.

The reach of the rule

Three boundary questions deserve attention.

The rule applies to participation post-mandate-expiry. It does not, on its terms, foreclose challenges where the participation was under protest, where the party had reserved its position in writing, or where the objection was raised at the earliest reasonable opportunity but the tribunal had proceeded notwithstanding. The waiver flows from silent participation; structured participation under protest is not waiver.

The rule does not address whether the award is otherwise valid. A finding of waiver on mandate expiry says nothing about the underlying merits of the Section 34 challenge. Other grounds — patent illegality, conflict with public policy, jurisdictional excess, due process failures — remain available subject to their own constitutive thresholds.

The rule is consistent with the C. Velusamy framework. Because C. Velusamy holds that an application for extension is maintainable even after mandate expiry, the silent participation in post-expiry proceedings amounts to participation in proceedings whose continuation was statutorily capable of being regularised. The waiver, then, operates with respect to a defect that was capable of being cured by court order — and is, accordingly, the kind of defect that the bar should be alive to either curing or objecting to at the relevant time.

What the practitioner does with this

Three operational guides emerge.

For respondent counsel. If the arbitrator's mandate is approaching or has crossed the Section 29A(4) date, the position must be addressed expressly — either by joining in a consent extension, by filing an application under Section 29A(4) for court extension, or by formally objecting to the continuation of the proceedings. Silent continuation is now a waiver, and the cost of silence is the loss of the mandate-expiry ground at the Section 34 stage.

For claimant counsel. The relevant strategic point is to ensure that the respondent's participation is on the record. Where the respondent is participating notwithstanding the mandate having expired, the claimant should consider documenting that participation — by way of meeting minutes, correspondence references to the respondent's continued engagement, or affirmative observations in the procedural orders. The record builds the waiver argument that the 26 May ruling now supplies.

For arbitrators. Tribunals approaching the Section 29A(4) date should be procedurally alive to the issue. The cleanest course is a written record of the parties' position on continuation — either by way of consent extension or by way of express direction to apply for court extension. Where the parties' position on continuation is on the record, the post-award challenge ground is doctrinally constrained.

The pre-2015 amendment

A small but consequential point: Section 29A was inserted into the 1996 Act in 2015. Arbitrations commenced before the 2015 amendment are not governed by the section, and the waiver doctrine in this judgment does not transpose to that context. For arbitrations that straddle the 2015 amendment date, the bar should be alert to the temporal question of which framework governs.

The doctrinal cycle on Section 29A in 2026

The 26 May 2026 ruling is the third in a sequence. The cycle, taken together, gives the bar a working framework:

1. Jurisdiction — the relevant court for Section 29A purposes is the Court under Section 2(1)(e), not the Section 11 referral court (clarified in C. Velusamy).
2. Timing — applications for extension are maintainable even after mandate expiry and even after award (C. Velusamy again).
3. Substitution — discretionary, not automatic (February 2026 ruling).
4. Waiver — silent participation in post-expiry proceedings precludes later challenge on mandate-expiry (26 May 2026).

For practitioners, the four propositions together substantially declutter what had been a confusing landscape. The doctrinal posture of the Court has been to read Section 29A as an instrument of arbitration discipline, not as a residual ground of challenge — and to require parties to raise their objections in time or lose them.

The bottom line

Silence is consent — applied to arbitral participation — is the doctrinal contribution of the 26 May 2026 ruling. A party who proceeds with arbitration after the mandate has expired, without objection, has waived the right to challenge the award on that ground. The rule completes the 2026 Section 29A cycle, supplies operational clarity for tribunal continuity, and tells the bar that procedural diligence on mandate timelines is no longer a soft requirement. The party that misses the Section 29A timing question at the right stage misses it altogether.

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Verify against the reasoned judgment when uploaded. The interaction between the waiver rule and other Section 34 grounds is a live question that subsequent decisions will refine.