The deliberation regarding the Emergency Arbitration and Emergency Award got impetus in the country after the dispute between Amazon and Future Group, concerning enforcement of an 'Emergency Award' ("EA"), was brought before the Delhi High. The concept of Emergency Arbitration is unknown to the Arbitration and Conciliation Act, 1996 ("Act"), however, its existence was not new for the Indian courts and various arbitration institutions established across the nation.

The EA is essentially a mechanism by which the parties can elect to obtain urgent interim relief or measure, in a case where one of the parties cannot wait till the formation of the arbitral tribunal or where waiting may cause such damage or loss to the party which would be irreparable. The EA is passed by an Emergency Arbitrator either with the consensus of the parties or according to the agreement executed and thereafter, the Emergency Arbitrator vacates its office i.e., becomes functus officio.

One of the shortcomings of the arbitration tribunal is that the arbitral tribunal cannot grant any interim measure until it is formed.  Thus, the parties used to take recourse to the civil courts, which in general, are easily accessible specifically under Section 9 of the Act. However, these proceedings are normally excessively lengthy and time consuming and there is no assurance of a speedy relief. Therefore, the EA plays an important role especially in international arbitrations, which enables a party to obtain urgent reliefs without wasting time in the formation of the tribunal.

Advent of Emergency Arbitration in India and the Law Commission Reports:

In today's time as well, this remains a fact that the concept of EA or Emergency Arbitration is not part of the Act. However, to give recognition to Emergency Arbitrations, the Law Commission's 246th Report1 and the B.N. Srikrishna Committee Report2 on amendments to the Act had proposed an amendment to Section 2(d)3 of the Act and incorporation of the term "Emergency Award" under the definition of "arbitral award", which currently only includes the "interim award" under Section 2(1) (c) of the Act. The amendments,4 however, failed to incorporate the recommendation/s of the said reports and do not provide at all for Emergency Arbitration.

Although, after the 2015 Amendment, interim orders of India seated arbitrators, were declared to be enforceable under Section 17 of the Act. The term "only arbitration tribunal" [as has been defined in Section 2(d) of the Act] did not include the Emergency Arbitrator and there were/are no provisions similar to Section 17 under Part II of the Act.

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1. The Law Commission's 246th Report dated 05.08.2014.

2. [MergedFile (].

3.  Proposed amendment to "Section 2(d): "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators and, in the case of an arbitration conducted under the rules of an institution providing for appointment of an emergency arbitrator, includes such emergency arbitrator."

4. The Arbitration and Conciliation (Amendment) Act, 2015 and the Arbitration and Conciliation (Amendment) Act, 2019.

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