By Saransh Sood and Khyati Maurya
Saransh Sood and Khyati Maurya are fourth year BA.LLB. students at Gujarat National Law University, Gandhinagar.
Emergency arbitration serves as an expedited mechanism that enables parties to obtain urgent interim relief before the constitution of the arbitral tribunal. It plays a crucial role in preserving the subject matter of disputes and preventing irreparable harm during the initial stages of arbitral proceedings. While the Supreme Court in Amazon NV Investment Holdings LLC v. Future Retail Ltd. recognised the enforceability of emergency arbitrator orders in India-seated arbitrations by treating them as orders of arbitral tribunal under Section 17 of the Arbitration and Conciliation Act, 1996, the enforceability of emergency awards arising from foreign-seated arbitrations remains uncertain. Against this backdrop, the present piece examines the existing legal position in India and analyses the various alternative mechanisms that parties may attempt to invoke to give effect to such awards. It further evaluates the practical limitations of these alternatives and highlights the need for legislative reform to ensure a coherent and effective enforcement framework.
Emergency arbitration refers to an expedited mechanism that enables parties to seek interim relief before the constitution of the arbitral tribunal. The procedural framework for emergency arbitration, in cases of institutional arbitration is primarily established and governed by the rules of various arbitral institutions. In contrast, while the ad hoc arbitration lacks a formally established mechanism for emergency proceedings, the parties retain the autonomy to expressly agree upon a specific procedure to govern emergency arbitration.
Although by agreeing to arbitrate under such institutional frameworks, parties contractually undertake to comply with the decisions of emergency arbitrators, thereby creating a binding inter se obligation. However, notwithstanding this contractual commitment, voluntary compliance is not always forthcoming. In such circumstances, parties are compelled to seek enforcement through domestic courts and hence the recognition of decisions of emergency arbitrators and it’s enforcement mechanism under the domestic law becomes crucial.
In India, while the Supreme Court has settled the position concerning the enforceability of emergency arbitration awards rendered in India-seated arbitrations, the legal status of emergency awards arising from foreign-seated arbitrations remains uncertain. Even the Draft Arbitration and Conciliation (Amendment) Bill, 2024 that is currently pending before the Parliament also falls short of adequately addressing concerns surrounding the recognition and enforcement of foreign-seated emergency arbitration awards.
Against this backdrop, this piece seeks to serve three objectives. First, the authors examine the current legal position in India concerning the recognition and enforcement of foreign-seated emergency arbitration awards. Second, the authors, critically analyse the alternative procedural and substantive routes that parties may attempt to invoke before Indian courts to give effect to foreign-seated emergency arbitral awards and demonstrates how each of these pathways is doctrinally constrained and ultimately inadequate under the existing statutory framework, leaving parties without a legally secure mechanism for enforcement. Third, it proposes legislative reforms aimed at ensuring effective enforcement of foreign-seated emergency arbitration awards in India.
In India, a quietus was laid on the question of the enforceability of emergency arbitration awards in domestically seated arbitration by the Supreme Court in Amazon NV Investment Holdings LLC v. Future Retail Ltd. & Others (“the Amazon Case”). The Court held that an ‘award’ passed by an emergency arbitrator possesses the same legal character as an interim order granted by an arbitral tribunal under Section 17(1) of the Arbitration and Conciliation Act, 1996. Consequently, such an order is capable of enforcement in the same manner as an order of a court by virtue of Section 17(2) of the Act.
By equating the emergency arbitration awards to the interim orders of the arbitral tribunals under section 17 of the Act, the judgment extends the deeming fiction created in section 17(2) to emergency arbitration awards as well. Consequently, the awards passed by an emergency arbitrator are binding on the parties and enforceable inter se. In effect, this prevents the parties from circumventing the emergency arbitrator’s decision by invoking the non-recognition of such awards as a defence before the enforcement courts.
However, this legal position is confined to arbitrations seated in India and does not apply to emergency awards issued in foreign-seated arbitrations. This limitation arises because Section 17 forms part of Part I of the Act, which, pursuant to Section 2(2), governs only arbitrations whose juridical seat is located in India. Arbitrations seated outside India fall within the framework of Part II, which deals with the recognition and enforcement of awards passed in arbitrations whose juridical seat is outside India.
The question of enforcing such foreign-seated emergency arbitrator decisions was first considered by the Delhi High Court in Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd. wherein, it observed that the part II of the Act does not contain any provision in Part II that is pari materia to section 17 of the Act, nor does it incorporate a provision similar to Article 17 of the UNCITRAL Model Law, which expressly provides for the enforcement of interim measures issued by arbitral tribunals irrespective of the seat of arbitration. In the absence of such a statutory framework, the Court held that an emergency arbitration award rendered in a foreign-seated arbitration cannot be enforced under the Act. The Court further noted that the only remedy available to the parties in such cases is to seek interim relief under section 9. However, while considering a section 9 application, the court shall, independently apply its mind to the facts of the case in determining whether to grant the interim relief and would be unfettered by the findings of the arbitral tribunal. In effect, the findings of the arbitral tribunal or the emergency arbitrator would not bind the Court and would merely have persuasive value.
This position was subsequently considered by the Supreme Court in the Amazon case, where the Court affirmed the approach adopted by the Delhi High Court and has been reiterated by the Bombay High Court in the recent case of the Ashok Kumar Goel & Anr. v. Ebixcash Limited. & Others.[1] and Calcutta High Court in the case of Uphealth Holdings India. v. Glocal Healthcare Systems Private Limited. & Others.[2], wherein the courts independently applied its mind to the facts of the case in deciding the question of granting interim relief. However, this approach where the enforcement is done indirectly by way of a section 9 application is also problematic as analysed in the next section.
[1] Ashok Kumar Goel and Another v. Ebixcash Ltd. and Ors. 2024 SCC OnLine Bom 3233
[2] Uphealth Holdings Inc. v. Glocal Healthcare Systems Pvt. Ltd. and Ors. 2023 SCC OnLine Cal 2442
The practice of courts independently applying their mind to the facts of a case in cases of applications made under section 9 of the Act 1996, without due regard to the reasoned decisions of emergency arbitrators, has given rise to considerable uncertainty and potential misuse. Two recent decisions of Qatar Holding LLC v. Byjus Investments Pvt. Ltd.[1] and Ashwani Minda and Another. v. U-Shin Ltd. and Another.[2] illustrate the problematic consequences of this judicial stance.
In the case of Ashwani Minda & Another. v. U-Shin Ltd. & Another., the applicants had first invoked emergency arbitration and unsuccessfully sought interim relief from the Emergency Arbitrator. Having failed to obtain a favourable order, they subsequently approached the Delhi High Court under section 9 of the Arbitration and Conciliation Act, 1996, seeking substantially the same reliefs that had already been declined in emergency arbitration. The High Court categorically rejected this approach, holding that section 9 cannot be used as an appellate forum against an emergency arbitral order. Permitting such recourse would allow a party to “have a second bite at the cherry”. In effect, the section 9 application was being used by the applicants as an appeal against the order of the emergency arbitrator which is a blatant misuse of the legislative lacuna.
Similarly, in the case of Qatar Holding LLC v. Byjus Investments Pvt. Ltd. [3] the petitioner had succeeded before the Emergency Arbitrator in a foreign-seated arbitration and had also enforced the emergency award before the Singapore High Court. Despite this, the petitioner approached the Karnataka High Court under section 9 seeking additional and wider interim reliefs in India, including reliefs that went beyond the express scope of the emergency arbitration award. Thereby, effectively attempting to modify/supplement or widen the scope of the Emergency Arbitration Award is legally untenable. The court reiterated that section 9 cannot be employed as a backdoor mechanism to improve upon or expand that award.
Although in both cases the courts, upon independently applying their mind to the facts, declined to grant the relief sought by the applicants, the broader concern persists. Moreover, courts remain legally competent to pass orders that may run contrary to the emergency arbitrator’s award. This position is deeply problematic, as it opens the floodgates to frivolous litigation wherein parties dissatisfied with the outcome of emergency arbitration attempt to re-agitate the same issues before courts.
Further, a de novo consideration of disputes under section 9 runs contrary to the fundamental principles of party autonomy in international commercial arbitration and the legislative objective of minimal court intervention as also contained in section 5 of the Act. This practice also runs contrary to the legislative intent underlying section 9, particularly after insertion of section 9(3) by 2015 amendment which prohibits the courts from entertaining the application for interim relief post the constitution of the arbitral tribunal and availability of a efficacious remedy before the same. Since Emergency Arbitrator also gets its jurisdiction from the arbitration agreement, it must be recognised and any remedy before it must be enforced instead of promoting judicial intervention by way of section 9 applications.
It also frustrates the very purpose of emergency arbitration, which is to provide urgent and time-sensitive interim relief. Interim relief, by its very nature, is exigent, and the prevailing practice of courts independently re-examining the dispute on merits risks defeating the objective of timely and effective protection that emergency arbitration is designed to achieve.
[1] Qatar Holding LLC v. Byjus Investments Pvt. Ltd., 2025 SCC OnLine Kar 170
[2] Ashwani Minda & Anr. v. U-Shin Ltd. & Anr., 2020 SCC OnLine Del 1648
[3] Qatar Holding LLC v. Byjus Investments Pvt. Ltd., 2025 SCC OnLine Kar 170
In this backdrop, the parties despite obtaining a favourable order by an emergency arbitrator will lack an efficacious remedy if the seat of arbitration is abroad, because, as explained in the preceding sections, there is no mechanism for the recognition and enforcement of the foreign seated emergency arbitration awards in India.
a. Alternatives discussed by Law Commission of India Report
In such a scenario, the party seeking to enforce the emergency arbitration award may adopt two possible strategies, which has also been discussed by the Law Commission in its 246th report.[1] First, the party may consider obtaining an interim order from a foreign Court where the arbitration is seated or the arbitral tribunal itself and thereafter file a civil suit in the Indian Court to enforce the right created by such interim order in India under the provisions of the CPC for the enforcement of foreign judgments. At this juncture, it must also be noted that an emergency award cannot be converted into a foreign decree because it is of interim nature and is not delivered on merits. However, this interim order would not be enforceable directly by filing an execution petition as it would not qualify as a “judgment” or “decree” for the purposes of sections 13 and 44A of CPC, which provide a mechanism for enforcing foreign judgments, because such an interim order is not conclusive in nature and does not finally and conclusively decide the issues between the parties.[2]
Second, in the event, the party does not adhere to the terms of the interim order of the foreign court, the other party seeking enforcement of the emergency arbitration award can initiate proceedings for contempt in the foreign Court and enforce the judgment of the foreign Court under sections 13 and 44A of the CPC. However, given the time-bound nature of the emergency arbitration award, following such a protracted litigation strategy would be of little practical significance to the parties. Therefore, neither of these remedies is likely to provide a practical remedy for the party’s enforcement of the emergency arbitration award. In such a scenario, it is possible that a party, even if it obtains an arbitral award in its favour, may realise, soon after, that it lacks any effective remedy to enforce the award (¶41).[3]
b. Decision of the High Court of Singapore
A third possible route for enforcing a foreign emergency arbitration award is the one adopted by the High Court of the Republic of Singapore in the case of CVG v. CVH[4] In this case, the High Court was faced with a question of whether a foreign-seated emergency arbitration award is enforceable under the International Arbitration Act 1994 (“IAA”) which is the primary legislation governing the arbitration framework in Singapore. Similar to the Arbitration and Conciliation Act 1996 in India, the law in Singapore is bifurcated into distinct parts, with Part II applicable to domestic arbitrations and Part III applicable to foreign-seated arbitrations.
The question before the High Court arose because, while Part II had an express provision for the enforcement of an Emergency Arbitration Award, the same was missing in Part III of the IAA 1994, thereby creating a legal ambiguity similar to what Indian law is currently experiencing.
The question of whether a foreign-seated emergency arbitration award is enforceable under the IAA, was answered by the High Court in affirmative. The High Court reasoned that the IAA under section 29 provides for the enforcement of “any foreign award” which is defined in part III of IAA under section 27(1) to mean an arbitral award made pursuant to arbitration agreement in any country signatory to New York Convention, other than Singapore.
The definition of “arbitral award” in section 27(1) is not restricted to only the final award on merits but also includes an interim order(s) made by an “arbitral tribunal” before the passing of the final arbitral award. The scope of definition of ‘arbitral award’ is thus, not restricted to the ‘award’ passed by the tribunal, which conclusively decides the issues before the court and extends to even the interim orders passed by the arbitral tribunal. Hence, the question to be decided was whether an emergency arbitration award will be considered to have been passed by an “arbitral tribunal” as contemplated by IAA under section 27(1).
The High Court concluded that although the term ‘arbitral tribunal’ is not defined in section 27(1) or elsewhere in Part III of the IAA, the text is capable of being interpreted to include emergency arbitrators. The court drew support from Part II of the Act, observing that such an interpretation shall also be consistent with the overall scheme and context of the IAA, particularly since the definition of ‘arbitral tribunal’ in section 2(1), contained in Part II of the IAA, includes emergency arbitrators.[5]
In 2012, the definition of ‘arbitral tribunal’ in section 2(1) of IAA was amended to include emergency arbitrators. Further, the definition of ‘arbitral award’ in section 27(1) was also amended to include orders or directions made or given in respect to certain measures, such as an interim injunction.[6]
Therefore, applying a purposive interpretation, the HC concluded that ‘arbitral award’ in section 27(1) includes the awards passed by emergency arbitrator, and consequently, the term ‘foreign award’ also includes the awards passed by the emergency arbitrator. Therefore, the section 29(1), which provides for the recognition and enforcement of foreign awards can be extended to recognise and enforce the foreign seated emergency arbitration awards.[7]
While the section 29(1) of IAA is materially similar to the section 46 of the Indian Arbitration Act, such an interpretation cannot be adopted by the Indian courts or be relied upon by the parties for two reasons. First, the definition of ‘arbitral award’ or ‘foreign award’ in India has not been expanded to include interim orders passed by arbitral tribunals. Therefore, the emergency arbitration awards, which are in effect equivalent to the interim order of the arbitral tribunal, irrespective of the nomenclature, as also explained by the apex court in the Amazon Case, falls outside the definition of the foreign award or arbitral award.
Second, unlike in Singapore, the definition of “arbitral tribunal” has also not been expanded to include the emergency arbitrators appointed in accordance with the rules of the arbitral institution. It is noteworthy that this inclusion has also not been proposed by the legislature in the Draft Arbitration Amendment Act 2024. Therefore, since neither of the bases upon which the High Court in Singapore allowed the enforcement of foreign seated emergency arbitration awards under the IAA 1994 is present in the 1996 Act of India, therefore, this route cannot be adopted by the parties seeking enforcement of the foreign seated emergency arbitration awards in India.
[1] Law Commission of India Report no. 246 at para 41
[2] Narayan v. Pratirodh, AIR 1991 Cal. 53.
[3] Law Commission of India Report no. 246 at para 41
[4] CVG v. CVH, [2022] SGHC 249
[5] Id. at para 30
[6] Id. at para 31
[7] Id. at para 35
The persistent issue of the courts’ ability to override or disregard Emergency Arbitration awards is not adequately resolved even in the 2024 Draft Arbitration Amendment Bill. While the Bill proposes the insertion of a new section 9A, which formally recognises and provides for the enforcement of emergency arbitration awards, its scope remains confined to Part I of the Act, which, by virtue of section 2(2), does not apply to arbitrations seated outside India unless expressly stated. Although the proviso to section 2(2) is also expanded to include section 9A(2), however, this remains insufficient to enforce the emergency arbitration awards for foreign seated arbitrations in India because section 9A(2) merely empowers the Arbitral Council to prescribe procedures for emergency arbitration proceedings, it merely recognises such orders of the emergency arbitrator.
The operative provision for enforcement is contained in section 9A(3), which states that “any order passed by an emergency arbitrator under sub-section (2) shall be enforced in the same manner as if it were an order of an arbitral tribunal under sub-section (2) of section 17 of the Act.” However, since this operative provision, which allows the enforcement of emergency arbitration awards, is not extended to Part II of the Act, it will not be applied to arbitrations where the seat of arbitration is outside India. As a result, uncertainty and ambiguity around the enforceability of Emergency Arbitration awards in foreign-seated arbitrations remains unaddressed.
To ensure clarity and consistency in the enforcement framework either of two pathways may be adopted. First, the legislature may explicitly include section 9A(3) within the proviso to section 2(2), thereby ensuring the operative provision of Section 9A is uniformly applicable to both domestic and foreign seated arbitrations. Second, it may consider incorporating a provision along the lines of Article 17H of the UNCITRAL Model Law, which recognises the enforceability of interim measures (including emergency relief) irrespective of the seat of arbitration.
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