In commercial arbitrations, securing interim relief before the constitution of the arbitral tribunal can often be crucial, since potential delays may jeopardise asset preservation and frustrate the recovery process, thereby compromising the parties' rights. While Section 9 of the Arbitration and Conciliation Act, 1996 (Act) provides a default statutory route for Courts to grant such relief, judicial delays and mounting caseloads often hinder timely protection. To bridge this gap, arbitral institutions introduced the emergency arbitration mechanism, allowing for the swift appointment of an emergency arbitrator empowered to grant urgent and binding interim protection.
Globally, a host of arbitral institutes such as SIAC, ICC, LCIA, MCIA, and NDIAC have established comprehensive rules to facilitate emergency arbitral proceedings, outlining the procedure for appointment of the emergency arbitrator, conduct of hearings, powers of such arbitrator, and binding scope of the emergency awards. However, the enforceability of such emergency awards is ultimately subject to legislative endorsement in the domestic law where enforcement is sought. This note traces India's reluctant yet evolving relationship with emergency arbitration and the challenges in the enforcement of foreign-seated emergency awards.
In the Indian context, the Act, based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on international commercial arbitration, supports the grant of interim measures for safeguarding interests in commercial disputes under Section 17 of the Act. However, it does not formally provide for recourse to emergency arbitration or recognition of emergency awards despite repeated recommendations by the Law Commission vide its 246th Report in 2014, the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in 2017, and most recently, by the Expert Committee to Examine the Working of the Arbitration Law.
Given the above context, although Indian arbitral institutions provide the mechanism for emergency arbitration, the absence of legislative support has led to uncertainty on enforceability of emergency arbitral awards, particularly in cases where the arbitration is not seated in India. However, the 2021 decision of the Supreme Court of India in the matter of Amazon.com NV Investment Holdings LLC v. Future Coupons Ltd1 illuminated this discourse by upholding the enforceability of an emergency arbitral award issued under SIAC Rules in a dispute between Amazon and Future Retail. The decision clarified that Indian law does not bar parties from pursuing emergency arbitration using institutional rules, and emergency awards, at least in India-seated arbitrations, are binding and enforceable.
However, despite this ruling and the incorporation of emergency arbitration by several domestic and international arbitral institutions, the lack of formal recognition under the Act continues to cast doubts on the enforcement of foreign emergency awards, particularly for international entities seeking to collaborate with Indian companies or having commercial operations in India. As there is no mechanism for direct enforcement of foreign emergency awards in India, parties often seek recourse through the Section 9 route, which continues to remain the only statutory avenue for interim protection. Therefore, it is important to understand the judicial discourse surrounding the recognition of foreign emergency awards in India. While Section 9 is often seen as a more procedurally certain and authoritative redressal mechanism, emergency arbitration offers distinct advantages, particularly in international or cross-border disputes, such as jurisdictional neutrality, accessibility for foreign parties who may not immediately have local legal representation in India, and the application of mutually-agreed laws to guide interim relief. The following are some of the pertinent judicial decisions in this regard:
- Raffles Education Investment (India) Pvt Ltd v. Educomp Professional Education Ltd:2 The Delhi High Court rejected the enforcement of a Singapore-seated emergency award as there was no statutory basis under the Act for enforcing a foreign award. However, it was held that there is no bar on the Courts to grant relief under Section 9 in case of a foreign arbitration after an independent application of mind to the facts of the case.
- Shanghai Electric Group Co Ltd v. Reliance Infrastructure Ltd:3 During the pendency of an arbitration before the SIAC, Shanghai Electric approached the Delhi High Court under Section 9 seeking directions on Reliance to deposit the claimed amount apprehending alienation of its assets. The Court held that in case of a foreign arbitration, an application under Section 9 would be maintainable as there was no direct recourse for seeking enforcement of any interim order passed by a foreign arbitral tribunal, rendering any alternative mechanism for enforcement of such interim order to be 'inefficacious'. Similar to a petition for enforcement of an award, a petition for interim relief would also lie where the party's assets are situated.
- Ashok Kumar Goel v. Ebixcash Ltd:4 The petitioner approached the Bombay High Court seeking interim relief against Ebixcash on the same lines as granted vide a foreign emergency award under the SIAC framework. The Court reiterated that such an award cannot be directly enforced under the Act as it does not adjudicate and finally determine any part of the dispute between the parties. However, the Court held that party autonomy, which is the bedrock of arbitration, extends to agreement to the SIAC Rules, including being bound by the procedure and decision of the emergency arbitrator. Since the Section 9 relief is intended to support arbitration, there is no reason not to accept a well-reasoned emergency arbitral award that remains unchallenged on merits or procedural fairness. This approach ensures the effectiveness of arbitration, preventing a party that had agreed to institutional rules and participated in emergency arbitration proceedings from later claiming that the ruling is non-binding or invalid.
In contrast to India's guarded approach, international jurisdictions such as Singapore5 and Hong Kong have enacted amendments to their arbitration regimes in a manner that recognises both domestic and foreign emergency awards. The absence of such recognition poses a serious challenge for Indian businesses as it hampers a party's ability to protect its interests, especially when its counterparty's core assets and operations are located in India, where enforcement would ultimately be sought. Since the enforcement of interim or emergency awards passed by foreign arbitral tribunals against Indian parties is difficult, it creates the possibility of frustration of the arbitration proceedings, as the arbitration could ultimately prove fruitless if the Indian party is not efficaciously restrained from alienating its assets.
In order to effectively navigate the evolving emergency arbitration landscape in India and ensure the enforceability of interim relief, parties should consider the following strategic measures:
- Pursue parallel relief: Always initiate emergency arbitration through institutional rules; enforce domestically under Section 17(2) and rely on Section 9 for foreign awards.
- Draft clear clauses compatible with emergency arbitration: Ensure arbitration agreements expressly incorporate institutional rules allowing emergency arbitration and recognise the binding nature and enforceability of such proceedings and orders.
- Evaluate asset location strategically: Assess whether the counterparty's assets are in India, and be prepared to invoke Section 9 for enforcement where foreign emergency awards may face hurdles.
- Engage counsel with expertise in emergency arbitration: Retain experienced legal teams familiar with institutional emergency arbitral processes and Indian enforcement mechanisms for effective relief.
Given that enforcement of the final foreign award is recognised in India, and Indian Courts have enforced Indian-seated emergency awards issued by international arbitral institutions irrespective of the nationality of the arbitrators and the substantive law being followed to adjudicate the dispute, it is unclear why enforcement should be denied solely because the seat is not in India. While Indian Courts have made encouraging strides, especially through landmark rulings like Amazon-Future and Ebixcash, legislative inertia continues to limit the full potential of emergency arbitration. To truly integrate emergency arbitration into the Indian dispute resolution framework, legislative reform is essential, including formally recognising emergency arbitration under the Act; creating a mechanism to enforce foreign emergency awards akin to the New York Convention; clarifying the interplay between emergency arbitration and Section 9; and promoting consistency in judicial decisions through structured training and clear procedural guidance. For India to position itself as a preferred arbitration hub, it must move beyond 'judicial improvisation' and adopt clear statutory measures that bridge the existing legal gaps.
Footnotes
1. Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd, (2022) 1 SCC 209
2. 2016 SCC Online Del 5521
3. 2024 SCC OnLine Del 1606
4. 2025 SCC OnLine Bom 698
5. CVG v CVH, (2022) SGCA 41
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