The Scope Of Emergency Arbitration In India: An Overview

INTRODUCTION

In today's fast-paced commercial world, where time is often as valuable as the assets at stake, traditional dispute resolution mechanisms may prove too slow to prevent irreparable harm. In this backdrop, Emergency Arbitration has emerged as a critical innovation in alternative dispute resolution, offering parties a way to obtain urgent interim relief when time is of the essence, and is an effective solution in light of challenges surfacing in institutional arbitrations across the globe. This concept of Emergency Arbitration ("EA"), which requires the appointment of a temporary arbitrator, provides speedy resolution of the dispute within days, given the urgency of the matter and the reliefs sought therein.

EMERGENCY ARBITRATION IN INDIA: CURRENT FRAMEWORK

The concept of EA gained significance in India when the Law Commission of India, in its 246^th Report, (2014)¹ suggested, inter alia, an amendment to the Arbitration and Conciliation Act, 1996 ("Arbitration Act"), regarding the revision of the definition of "arbitral tribunal" under Section 2(1)(d) of the Arbitration Act² to include provision for emergency arbitrators. Thereafter, in 2017, a committee headed by Hon'ble Justice B.N. Srikrishna, emphasised the need for EA in India, inter alia, the recognition and enforcement of emergency awards. Subsequently, in 2024, the Expert Committee of the Indian Ministry of Law & Justice issued a report³ highlighting the need for provisions on EA in India. The said report suggested "the inclusion of proposed Section 12B to the Arbitration Act in order to, recognise EA and for the purpose of facilitating the enforcement of the order passed by emergency arbitrators under Section 17(2) of the Arbitration Act." Further, the latest proposal for the amendment of the Arbitration Act, i.e the Draft Arbitration and Conciliation (Amendment) Bill, 2024 ("Amendment Bill, 2024") has specifically, for the first time, proposed for the codification of the procedure of EA via addition of Section 9A to the Arbitration Act. This new proposed Section 9A provides for appointment of an emergency arbitrator prior to the constitution of an arbitral tribunal by arbitral institutions for the purpose of grant of interim measures referred to under section 9 of the Arbitration Act. Further, Section 9A provides that "orders passed by an emergency arbitrator shall be enforced in the same manner as if it is an order of an arbitral tribunal under subsection (2) of section 17 of the Arbitration Act". Furthermore, the Hon'ble Supreme Court, in a recent judgement, has again categorically urged the Ministry of Law and Justice to conduct a thorough examination of the arbitration regime in India, while the Amendment Bill is still under consideration⁴.

It is also important to highlight that several Indian Arbitration Institutions, like the Mumbai Centre for International Arbitration ("MCIA") by virtue of Rule 19.1 of MCIA Rules, 2025⁵, provide for the appointment of an Emergency Arbitrator in cases of urgent relief, wherein such arbitrators are under a mandate to decide on the claim for emergency relief, not later than 14 days from the date of their appointment. Similarly, the Delhi International Arbitration Centre ("DIAC") by virtue of Rule 14.4 of DIAC Rules, 2023⁶, provides for the appointment of an emergency arbitrator within two days of such application along with an interim order, which is required to be passed within 14 days of their appointment. In the event of failure in appointment of the said arbitrator within two days no fee shall be payable to such arbitrator as per Rule 14.10 of DIAC Rules, 2023. Even, the Rules of Indian Council of Arbitration ("ICA Rules"), as per Rule 33.6⁷, mandate that the emergency arbitrator so appointed to decide on emergency relief and pass an order within 30 days of their appointment.

In India, the binding nature of emergency arbitration is yet to be formally codified which often leads to uncertainties in its enforcement. There is no statutory recognition to the order passed by an Emergency Arbitrator. The Arbitration Act, gives certain provisions for emergency arbitration in India, though the relationship remains complex and somewhat ambiguous. Traditionally, parties seeking urgent interim relief before the constitution of an arbitral tribunal had only one recourse - approaching the courts under Section 9⁸ of the Arbitration Act. However, the emergence of Emergency Arbitration has introduced an alternative avenue, offering parties the opportunity to obtain urgent interim relief not only during the pre-arbitration stage but also throughout the arbitration proceedings, particularly when the main tribunal cannot convene immediately. Furthermore, even though the 2015 amendments to the Act have brought some clarity by indicating that emergency awards could be enforced if specifically provided for in the arbitration agreement, still the lack of explicit statutory recognition continues to create procedural complications. Besides, the distinction between Section 9 relief and emergency arbitration is particularly noteworthy. Section 9 operates through the judicial machinery, resulting in court-ordered interim measures that carry direct enforceability. In contrast, emergency arbitration functions as a private, expedited process, governed primarily by the parties' arbitration agreement and institutional rules, operating independently of court intervention.

JUDICIAL PRECEDENTS

Even though the concept of Emergency Arbitration is not yet formally codified in India, the Indian Judiciary has time and again delivered landmark judgements on Emergency Arbitration. The first instance was before Bombay HC in the case of HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd. 2014 SCC OnLine Bom 102. In the said case, the seat of arbitration was Singapore, and the proceedings were covered under SIAC rules. Emergency Arbitration was invoked by the petitioner under the SIAC Rules and Emergency Award was passed in their favor. Thereafter, a Section 9 petition to get the same executed in India, was filed before the Indian Courts. The primary issue dealt with by Bombay HC was w.r.t the applicability of Section 9, which was enshrined in Part I, to foreign seated arbitrations. In this matter, Bombay HC did not go into the question of recognition of Emergency Arbitration under the Arbitration Act, however, it passed a similar order to that of the Emergency Arbitrator, implying the recognition and the deemed relevance of Emergency Awards.

Until the decision of the Supreme Court in the Amazon-Future dispute in 2022, there was uncertainty and unsettled legal position pertaining to the legal status of EA in India. In Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Limited⁹, the Petitioner had secured interim orders from the Emergency Arbitrator in a foreign-seated arbitration under SIAC Rules. The Delhi HC held that the order passed by an Emergency Arbitrator could not be enforced under the Arbitration & Conciliation Act, 1996, in a foreign-seated arbitration. This decision undermined the objective and enforceability of EA in India. However, the Court opined that the parties may seek recourse or reliefs under Section 9 of the 1996 Act. Subsequently, conflicting observations were made in the cases of Ashwani Minda v. U-Shin Limited¹⁰, wherein the Delhi High Court held that when an emergency arbitrator had already been appointed under institutional rules of arbitration and the party failed to obtain an interim relief from the Emergency Arbitrator, the Courts cannot intervene under Section 9(3) of the Arbitration & Conciliation Act, 1996. These conflicting judicial observations created uncertainty and raised questions w.r.to the legal status of EA in India.

The legal position of EA in India was clarified to an extent in the case of Amazon NV Investment Holdings LLC v. Future Retail Ltd. (2022) 1 SCC 209, a landmark judgement which marked a significant evolution in India's Emergency Arbitration framework. The Supreme Court adopted a progressive interpretation of Section 17 of the Arbitration and Conciliation Act, 1996, recognizing emergency arbitrators' awards under institutional rules, specifically those made under SIAC Rules. The Court's analysis was on two critical questions: (a) the enforceability of emergency arbitration awards under Section 17(1) of the Arbitration Act; and (b) the appealability of enforcement orders under Section 17(2) of the Arbitration Act. In addressing these issues, the Court emphasized the principle of party autonomy, noting that nothing in the Act prohibited parties from agreeing to emergency arbitration provisions. The Court interpreted Section 17(1)'s phrase "during arbitral proceedings" expansively, including emergency arbitration proceedings that commence after the arbitration notice receipt under institutional rules. Section 17 of the Act, particularly after its 2015 amendment, emerges as a crucial provision in this context. The amendment transformed Section 17(1) into a mirror image of Section 9(1), equipping arbitral tribunals with powers equivalent to courts in granting interim relief. Section 17(2) further strengthened this by making such orders enforceable as court orders. The Court rejected arguments treating the Arbitration Act as an ouster statute, instead viewing it as legislation favouring arbitration to reduce civil court burden. The Court's ruling established that institutional rules providing for emergency arbitration align with the Act's framework, particularly when reading Sections 2(6) and 2(8) together. Regarding enforcement and appeals, the Court made several significant determinations. It held that Section 37 serves as a complete code for appeals under the Act, excluding appeals under Order 43 Rule 1 of the Civil Procedure Code. Importantly, the Court clarified that enforcement proceedings under Section 17(2) fall outside the appeal provisions of Section 37, which only covers orders granting or refusing interim measures under Section 17(1). This interpretation provides much-needed clarity on emergency arbitration's status in India, though questions regarding third-party rights in enforcement proceedings remain open for future consideration. Clear statutory recognition would resolve these issues by ensuring consistent enforcement of both domestic and foreign emergency decisions, eliminating the need for roundabout enforcement methods.

TRACING THE RISE OF EMERGENCY ARBITRATION

The concept of Emergency Arbitration ("EA") was adopted for the first time by the International Centre for Dispute Resolution ("ICDR") in 2006; followed by, the 2012 version of the International Chamber of Commerce ("ICC") Rules, that also adopted the same provisions as that of the ICDR with respect to the EA, with the same being then followed by Netherlands Arbitration Institute ("NAI"), the Singapore International Arbitration Centre ("SIAC"), Institute of the Stockholm Chamber of Commerce ("SCC"), the Australian Centre for International Commercial Arbitration ("ACIA") as well. Moreover, EA calls for the appointment of an emergency arbitrator, when the party needs urgent interim or conservatory measures, and cannot await for the constitution of an Arbitral Tribunal or the urgency is as such, that requires immediate intervention and award of the relief to the affected party. Besides, for the purpose of invoking EA, the fundamentals of a binding arbitration agreement have to be strictly met, i.e the provision of EA is enforceable only wherein the parties have signed an arbitration agreement and unless have expressly excluded themselves from the clause of emergency arbitration.

The fundamental premise of EA lies in its ability to address time-sensitive disputes that cannot await the constitution of an arbitral tribunal. EA serves as a mechanism for parties to seek immediate intervention that, functions through the appointment of an emergency arbitrator by an arbitral institution specifically tasked with handling the application for interim relief. Usually, a sole arbitrator is appointed as an Emergency Arbitrator, who enjoys wide discretion to set the procedure for the said arbitral proceedings. These emergency arbitrators exercise their authority within a stipulated timeframe and for a limited purpose in hand. Their mandate dissolves once the immediate adjudicating issue is addressed or the designated time period expires. Besides, this concept ensures that the parties do not have to wait for the final award to receive relief, born out of the need to make arbitration more self-reliant. To sum up, the key advantages of EA lies in its speedy, efficient and confidential dispute resolving ability.

Moreover, Singapore International Arbitration Centre ("SIAC") stands out being the first Asian Institution to introduce provision pertaining to emergency arbitration. SIAC's approach is particularly different because of its 'opt-out' rather than 'opt-in' structure, making emergency arbitration provision automatically applicable to arbitration agreements unless explicitly excluded. SIAC's framework, established under. Rule 12 of SIAC Rules¹¹ (7^th edition, 1 January 2025), allows the party to apply for the appointment of an Emergency Arbitrator, prior to the constitution of the Tribunal, in accordance with the procedure set out in Schedule 1 of the Rules. Emergency arbitrators enjoy broad discretion in granting interim relief but their authority is temporally limited. Any relief granted expires if the tribunal is not constituted within 90 days, and the emergency arbitrator's mandate terminates accordingly.

Thus, Emergency Arbitration enhances the credibility and attractiveness of arbitration as a preferred mode of dispute resolution by ensuring timely, confidential, and enforceable interim protection, thereby upholding the fundamental objectives of fairness and efficiency in adjudication of disputes.

CONCLUSION

To sum up, the concept of EA has categorically emerged as a vital tool in the arena of ADR, highlighting the need for prompt interim reliefs in certain time-sensitive disputes. However, there are challenges pertaining to the concept of EA in terms of its recognition, enforceability, and compliance. This is because there are questions with respect to the finality and binding nature of the order passed by an Emergency Arbitrator. Although the said concept, has already been recognised by various jurisdictions across the globe, yet in India, it is still in the process of being formally codified in the statutes. However, with proposed amendments to the Arbitration Act, particularly the proposed addition of Sections 9A and Section 12B to the Act, positively indicate, that India is ready to officially embrace Emergency Arbitration within its legal framework; as this move would not only bring Indian arbitration law in line with international standards but also improve the efficiency of arbitration processes in the nation. Besides, judicial precedents as discussed above, already, implies a holistic and progressive judicial approach by the Indian Judiciary to imbibe this evolving concept so as to ensure speedy resolution of dispute.

Footnotes

1. 246^th Report, Law Commission of India, August 2014 (available at: 2022081615.pdf).

2. Section 2(1)(d), Arbitration & Conciliation Act, 1996.

3. Report of the Expert Committee on Arbitration Law dated 7 February 2024 (available at: https://www.livelaw.in/pdf_upload/report-of-the-expert-committee-members-on-arbitration-law-2-526205.pdf

4. ASF Buildtech Private Limited vs Shapoorji Pallonji and Company Private Limited, judgment dated May 2, 2025, passed by the Supreme Court of India in Civil Appeal No. 5823 of 2025.

5. Rule 19, MCIA Rules, 2025 (available at: http://mcia.org.in/pdfs/MCIA-Rules-2025.pdf).

6. Rule 14, DIAC Rules, 2023 (available at: https://dhcdiac.nic.in/wp-content/uploads/2023/03/notification-amended-diac-rules-082975-j2sLkuMj.pdf).

7. Rule 33, Rules of International Commercial Arbitration, Indian Council of Arbitration (available at: https://icaindia.co.in/pdf/Rules%20of%20International%20Commercial%20Arbitration.pdf)

8. Section 9, Arbitration & Conciliation Act, 1996.

9. Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Limited, judgment dated 7 October 2016, passed by the Delhi High Court in 2016 SCC OnLine Del 5521.

10. Ashwani Minda v. U-Shin Limited, judgment dated 7 July 2020, passed by the Delhi High Court in 2020 SCC OnLine Del 721.

11. Rule 12, SIAC Rules, 2025 (available at: SIAC-Rules-7th-Edition_100325-full.pdf).

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