Introduction
Emergency arbitration (“EA”) is a pre-cursory mechanism in the arbitration process that allows parties to seek urgent interim reliefs prior to the constitution of the arbitral tribunal. To invoke EA, the party invoking the process must establish that it would face irreparable harm if the protection/ measures sought in the EA are not granted before the constitution of the arbitral tribunal.
EA in international arbitral institutions
The concept of EA can be traced back to the early 1990s when the International Chamber of Commerce (“ICC”) under the Pre-Arbitral Referee Rules[1] provided for the appointment, procedures, powers, etc., of an emergency arbitrator.
Over time, the International Centre for Dispute Resolution (“ICDR”) introduced the concept of EA in the International Dispute Resolution Procedures (including Mediation and Arbitration Rules).[2] Following this, the other international arbitration institutions also established frameworks to conduct EA efficiently. For instance, the London Court of International Arbitration (“LCIA”) under its rules—LCIA Arbitration Rules[3]—mandates the appointment of an emergency arbitrator within 3 (three) days of receiving a reference [Article 9B Rule 9.6]. Similarly, the rules of the Arbitration Institute of the Stockholm Chamber of Commerce—SCC Arbitration Rules, 2023[4] —mandate the appointment of an emergency arbitrator within 24 (twenty-four) hours of reference, with an interim order required to be passed no later than 5 (five) days [Appendix II Article 4]. The ICC Arbitration Rules, 2021,[5] requires that the emergency arbitrator, who must be appointed within 2 (two) days from the date of reference, render a decision within 15 (fifteen) days from the reference [Appendix V-Article 1 and 6].
The recent amendments to the Singapore International Arbitration Centre Rules[6] (“SIAC Rules”) introduced on December 9, 2024, and implemented since January 1, 2025, represent a notable advancement in EA. While EA has been part of the SIAC Rules since 2010, the amendment allows a party to appoint an emergency arbitrator without notifying all other parties to the dispute, making SIAC one of the first major international arbitration institutions to provide for ex parte relief in EA. Under the SIAC Rules, the applicant can seek a protective preliminary order from the emergency arbitrator without notifying the parties. A similar provision is available in the rules of the Swiss Chambers of Commerce Association for Arbitration and Mediation—Swiss Rules of International Arbitration, 2025[7] [Article 26.3].
The use of EA has surged since its introduction; however, the amendment to SIAC Rules (allowing ex parte orders in EA) is particularly significant for India, considering Indian parties have been consistently using these rules to govern arbitration proceedings. According to the 2024 Annual Report of SIAC,[8] India ranks third among the top ten foreign users of SIAC. Since 2010, SIAC has accepted 173 emergency arbitrator applications, with the number of emergency arbitrators increasing from 11 in 2023 to 21 in 2024. Of the 167 awards in 2024, 16 were issued by emergency arbitrators for urgent interim relief.
EA in India
EA gained prominence in India when the Law Commission of India in its 246th Report (2014)[9] suggested, inter alia, an amendment to the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). One of the key recommendations was the revision of the definition of “arbitral tribunal” under Section 2(1)(d) of the Arbitration Act[10] to include emergency arbitrators.
Subsequently, in 2017, the High-Level Committee on Arbitration Institutionalisation[11] headed by the Hon’ble Justice B.N. Srikrishna, Retired Judge, Supreme Court of India— acknowledged the gaps in the enforcement of EA awards. The committee emphasised the need for EA provisions in the Arbitration Act, inter alia, for the recognition and enforcement of emergency awards.
On February 4, 2024, the Expert Committee of the Indian Ministry of Law & Justice (“Committee”) issued a report[12] (“Report”), recognising the need for EA provisions. The Committee suggested the inclusion of Section 12B to the Arbitration Act to recognise EA and to facilitate the enforcement of the order passed by emergency arbitrators under Section 17(2) of the Arbitration Act.
The Report led to the introduction of the Draft Arbitration and Conciliation (Amendment) Bill, 2024[13] (“Amendment Bill”), which proposed inserting Section 9A[14] to the Arbitration Act. This proposal is currently under consideration. In a recent ruling, the Supreme Court of India urged the Department of Legal Affairs, Ministry of Law and Justice, to undertake a serious review of the arbitration regime in India as the Amendment Bill was being considered.[15]
The arbitration institutions in India have also incorporated provisions for EA in their rules. The Mumbai Centre for International Arbitration (“MCIA”), under Rule 19.1 of MCIA Rules, 2025,[16] provides for the appointment of an emergency arbitrator in cases of exceptional urgency. The applicant must submit a statement outlining the nature and circumstances of the reliefs sought along with a certification that all other parties have been notified. The emergency arbitrator must decide on the claim within 14 (fourteen) days. However, such interim relief is not subject to an appeal, review, or recourse before any court [Rule 19.8].
Similarly, the Delhi International Arbitration Centre (“DIAC”), requires the appointment of emergency arbitrator within 2 (two) days of the application [Part E Rule 14 of DIAC (Arbitration Proceedings) Rules, 2023[17]]. The emergency arbitrator must schedule a hearing and pass interim orders within 14 (fourteen) days of the appointment, failing which no fee is payable [Rule 14.10].
The rules of the Indian Council of Arbitration (“ICA”)—ICA (Rules of International Commercial Arbitration)[18]—allow the parties to file pleadings within 7 (seven) days of the appointment of the emergency arbitrator, providing for a reasonable opportunity for a hearing [Rule 33.5]. The emergency arbitrator must pass an order within 30 (thirty) days (excluding the non-business days) of the appointment [Rule 33.6].
Judicial precedence
In Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors (Amazon-Future Retail)[19], Amazon.com NV Investment Holdings LLC sought an injunction against Future Retail Limited by way of EA under the SIAC Rules. The emergency arbitrator granted interim reliefs, which Amazon.com NV Investment later sought to enforce in India as an order under Section 17(2) of the Arbitration Act. The Supreme Court has held that an award passed by an emergency arbitrator in an India-seated arbitration is enforceable under Section 17(2) of the Arbitration Act, as an interim order under Section 17(1) of the Arbitration Act. While this judgment has provided much-needed clarity on the status of enforcement of orders passed by emergency arbitrators in domestic arbitrations, uncertainty persists over foreign-seated arbitrations.
In contrast, in Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd.,[20] the Petitioner secured interim orders from the emergency arbitrator appointed under the SIAC Rules in a foreign-seated arbitration, with the Indian parties agreeing on Singapore as the seat of arbitration.
When the Petitioner approached the Delhi High Court under Section 9 of the Arbitration Act, the Court held that the Arbitration Act does not contain provisions for enforcement of interim orders granted by an arbitral tribunal outside India. Thus, the interim orders could not be enforced under the Arbitration Act. However, the Delhi High Court opined that an Indian Court can independently apply its mind and grant interim reliefs under Section 9 of the Arbitration Act.
In Ashwani Minda v. U-Shin Ltd.,[21] the Delhi High Court held that if the party failed to get an interim relief from the emergency arbitrator, it would be barred from approaching the court under Section 9 of the Arbitration Act. This ruling was based on the fact that the parties had agreed to refer the dispute to the Japan Commercial Arbitration Association, which provide that the emergency measures are deemed to be interim measures granted by the tribunal.
To enforce the EA orders passed in a foreign-seated arbitration in India, a party must apply before the relevant court in India under Section 9 of the Arbitration Act. This raises the question of whether it would be prudent to approach the courts in India under Section 9 of the Arbitration Act, given that the order by the emergency arbitrator is not directly enforceable and the decision rests entirely on the independent assessment of merits by the courts in India.
Section 9 of the Arbitration Act vs EA
Section 9 of the Arbitration Act provides parties with a remedy for seeking interim relief before the constitution of an arbitral tribunal. However, a key drawback is the potential for delays in the hearing of Section 9 petitions because of the heavy backlog of cases, which may render the remedy infructuous. Moreover, the public nature of court proceedings increases the risk of the publication of confidential information, which could be mitigated in an EA proceeding.
The amendments suggested in the Amendment Bill are a stepping stone to integrating EA into India’s arbitration framework. EA is particularly beneficial for parties engaged in cases involving large sums of money, value, and risk, as it ensures urgent and immediate relief. It also preserves confidentiality, allowing the parties to keep sensitive details of the dispute private.
Conclusion
As the Arbitration Act does not yet have a provision for EA, parties can invoke EA only if they agree to refer disputes to arbitration institutions that prescribes EA. To effectively integrate EA into the Indian arbitration regime, it is necessary to include an expedited procedure for the appointment of emergency arbitrators, passing of orders, and enforcement of such orders, both in domestic and foreign-seated arbitrations, within specific time frames. While both, the Section 9 of the Arbitration Act and EA have their respective merits and drawbacks, their efficacy is context dependent. The judicial landscape in India, characterised by procedural delays and varying interpretations, necessitates a strategic approach in choosing the appropriate mechanism for interim reliefs. As the legal framework continues to evolve, a nuanced understanding of both pathways is essential for navigating the complex terrain of arbitration in India.
[1] Pre-Arbitral Referee Rules, 1990 (available at: Pre-Arbitral Referee rules – ICC – International Chamber of Commerce)
[2]International Centre for Dispute Resolution Rules, 2021 (available at: ICDR_Rules_1.pdf)
[3]London Court of International Arbitration Rules, 2014 (available at: LCIA Arbitration Rules (2014))
[4] Stockholm Chamber of Commerce Arbitration Rules, 2023 (available at: SCC_Arbitration_Rules_2023_English.pdf)
[5] International Chamber of Commerce Arbitration Rules, 2021 (available at: 2021 Arbitration Rules – ICC – International Chamber of Commerce)
[6] Singapore International Arbitration Centre Rules, 2025 (available at: SIAC Rules 2025 – Singapore International Arbitration Centre)
[7]Swiss Rules of International Arbitration, 2012 (available at: SwissRules2012_English_2019-1.pdf)
[8] SIAC Annual Report, 2024, page 33 (available at: SIAC_Annual-Report-2024.pdf)
[9] The Law Commission’s 246th Report dated 5 August 2014, page 10 (available at: 2022081615.pdf (s3waas.gov.in)
[10] Section 2(1)(d) of the Arbitration and Conciliation Act, 1996
[11] The High Level Committee, Report of the High Level Committee to Review the Institutionalisation of Arbitration Mechanism in India dated 30 July 2017 (available at: https://legalaffairs.gov.in/sites/default/files/Report-HLC.pdf)
[12] Report of the Expert Committee on Arbitration Law dated 7 February 2024 (available at: report-of-the-expert-committee-members-on-arbitration-law-2-526205.pdf (livelaw.in))
[13] Draft Arbitration and Conciliation (Amendment) Bill, 2024 (available at: 2024-Draft-Arbitration-Amendment-Bill.pdf (scobserver.in)). The Amendment Bill has been removed from the website of the Government of India.
[14] ―9A. Emergency arbitrators – (1) Arbitral institutions may, for the purpose of grant of interim measures referred to in Section 9, provide for appointment of an emergency arbitrator prior to the constitution of an arbitral tribunal.
(2) The emergency arbitrator appointed under sub-section (1) shall conduct proceedings in the manner as may be specified by the Council.
(3) Any order passed by an emergency arbitrator under sub-section (2) shall be enforced in the same manner as if it is an order of an arbitral tribunal under sub-section (2) of section 17 of the Act.
(4) An order of the emergency arbitrator may be confirmed, modified, or vacated, in whole or in part, by an order or arbitral award made by the arbitral tribunal.
[15] 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.
[16]Mumbai Centre for International Arbitration Rules 2016 (available at: MCIA Rules 2025 :: MCIA)
[17] Delhi International Arbitration Centre (Arbitration Proceedings) Rules, 2023 (available at: Delhi International Arbitration Centre| DIAC (Arbitration Proceedings) Rules, 2023)
[18] Indian Council of Arbitration (Rules of International Commercial Arbitration), 2016 (available at: Inside-Rules of International Final file.cdr)
[19] Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors., (2022) 1 SCC 209
[20] Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd., (2016) 234 DLT 349
[21] Ashwani Minda v. U-Shin Ltd, AIR 2020 (NOC 953) 314 [This order was challenged before the Division Bench, Delhi High Court (2020 SCC Online Del 721) and later before the Supreme Court. The Supreme Court refused to interfere with the order of the Division Bench, Delhi High Court (2020 SCC Online SC 1123)].