Emergency arbitration in India: A step towards statutory recognition

When it comes to commercial disputes, timing is everything. One party might sell assets, invoke a bank guarantee before the arbitral tribunal is even formed. By the time the tribunal’s ready, the damage is already done.

The purpose of emergency arbitration is to fill this gap. It allows a party to obtain urgent interim relief from an emergency arbitrator before the constitution of the actual arbitral tribunal. The relief is short-lived. It does not settle the ultimate rights of the parties. It merely preserves the subject of dispute until the tribunal can assume control.

This remedy matters in India because parties increasingly choose arbitration for speed, privacy and flexibility. But if the first urgent step still requires a party to approach court, arbitration loses some of its practical value.

Emergency arbitration is a fast-track procedure under the arbitration regime. If the parties have agreed rules providing for emergency arbitration, a party may apply to the institution for relief. The institution appoints an emergency arbitrator to determine whether urgent protection is required.

The relief may involve preserving the status quo, assets, property, information or preventing steps being taken which would render the final award ineffective. In terms of the dispute being defeated in order for arbitration to properly commence, which is prevented by emergency arbitration.

The emergency arbitrator is not a substitute for the Tribunal. Once the tribunal is constituted, it can usually affirm, modify or set aside the emergency order. It keeps the remedy urgent, but contained.

The Arbitration and Conciliation Act, 1996 offers two options for interim relief. Section 9 allows parties to approach courts and Section 17 allows the arbitral tribunal to grant interim measures once it is constituted. The difficulty lies in the intervening period. Relief under Section 17 is unavailable until the arbitral tribunal is constituted. Although parties may seek interim relief from courts under Section 9, such recourse may not always provide the same degree of speed, efficiency, and confidentiality ordinarily associated with arbitral proceedings.

Emergency arbitration, therefore, serves as an effective interim mechanism. It is especially valuable in cross-border transactions, shareholder disputes, infrastructure projects, and technology-related matters, where even minimal delay may result in significant prejudice or irreparable harm.

The concept is not new in India. In its 246th Report, the Law Commission of India recommended that the definition of “arbitral tribunal” should comprise of an emergency arbitrator. However, this recommendation was not followed in the 2015 amendments. Thus, the Act still did not refer to emergency arbitrators, although many institutional rules already recognised them.

Indian courts had supported emergency arbitration only to a limited extent before the Supreme Court took up the issue directly. In HSBC PI Holdings v. Avitel Post Studioz, the Bombay High Court granted interim relief under section 9 similar to that granted by an emergency arbitrator seated in Singapore. In Raffles Design v. Educomp, the Delhi High Court held that even if a foreign-seated emergency award was not directly enforceable under the Act, the successful party could still seek interim relief from an Indian court under Section 9.

These decisions were helpful, but they were indirect. The party still had to go to an Indian court and make out a fresh case. The emergency order had persuasive value, but it was not automatically enforceable.

A major development was in Amazon.com NV Investment Holdings LLC v Future Retail Ltd. The Supreme Court held that an order passed by an emergency arbitrator in an arbitration seated in India under the SIAC Rules was an order under Section 17(1) of the Act and was enforceable under Section 17(2). The Court referred to the principle of party autonomy and noted that the Act did not prohibit the recognition of such an order.

Amazon was a big pro-arbitration decision. But it didn’t answer all questions. It did not create a comprehensive statutory scheme. Nor did it completely settle the status of emergency orders seated abroad or ad hoc arbitrations.

The Department of Legal Affairs has issued the Draft Arbitration and Conciliation (Amendment) Bill, 2024, for public consultation on 18th October 2024. One of its major proposals is the insertion of a new section 9A on emergency arbitrators.

Draft section 9A provides that arbitral institutions may provide for the appointment of an emergency arbitrator before the arbitral tribunal has been constituted. The object is to afford interim relief of the nature mentioned in Section 9. The proposal also provides that an order of an emergency arbitrator shall be enforceable as an order of an arbitral tribunal under Section 17(2). That order may be subsequently confirmed, varied or set aside by the main tribunal.

This is a welcome step. It provides a statutory basis for a remedy that has, until now, depended largely on institutional rules and judicial interpretation. In March 2025, the Government had told the Lok Sabha that the proposed amendments were under discussion and were aimed at promoting institutional arbitration, reducing judicial intervention and facilitating faster resolution of disputes.

First, the proposed Section 9A is institutionally oriented. This is sensible, since emergency arbitration generally works under institutional rules. However, there are still many ad hoc arbitrations in Indian arbitration. The practical use of Section 9A may remain limited unless more parties choose institutional arbitration.

Secondly, uncertainty surrounds foreign-seated emergency orders. Enforcement of emergency relief granted within or outside Hong Kong is allowed with leave of the court. Singapore’s statutory regime also provides for emergency arbitrators.  India may need similar clarity if it is to be seen as a reliable enforcement jurisdiction.

Thirdly, the relationship between Sections 9, 9A and 17 will need careful management. Where there is need for urgent court support, courts should be accessible, particularly where relief is sought against third parties or assets in India. At the same time, courts should not be the default forum where parties have agreed to institutional emergency arbitration.

Emergency arbitration is a practical solution to a practical problem. It protects parties during the short but important period prior to constitution of the arbitral tribunal. Without such protection, the final award may be meaningless because the subject of the dispute may already be lost.

India has already moved from a position of legislative silence to one of judicial recognition. The decision in Amazon’s case marked a significant judicial endorsement of emergency arbitration in India-seated institutional arbitrations. The proposed Section 9A represents the natural progression of this development by seeking to provide the mechanism with an explicit statutory foundation.

However, statutory recognition must extend beyond mere symbolic acknowledgment. The legal framework must clearly address the enforceability of emergency arbitral orders, their interplay with proceedings under Section 9, and the extent to which emergency orders passed in foreign-seated arbitrations would receive recognition and support in India. If these concerns are adequately addressed, emergency arbitration can evolve into an effective and dependable component of India’s arbitral regime. Conversely, in the absence of such clarity, parties may continue to depend substantially on court intervention, thereby undermining the very objective of emergency arbitration.

Emergency arbitration should therefore not be seen as an alternative to courts, but rather as a targeted tool to protect parties until the tribunal is ready. This tool can be made truly effective in the presence of a clear statutory framework and can contribute to India’s larger ambition of becoming a more arbitration-friendly jurisdiction.

About the authors: Chirag Dave is a Senior Associate, Tanvi Bogawat and Shreya Verma are Associates at Rishabh Gandhi and Advocates.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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