WHETHER THE DECISION OF A FOREIGN SEATED EMERGENCY ARBITRATOR

CAN BE ENFORCED IN INDIAN COURTS? : A QUESTION LEFT UNANSWERED

Introduction

The ICC Arbitration Rules provide for a procedure to the parties that want to seek an urgent
temporary relief and are unable to wait for the constitution of Arbitral Tribunal. Uncertainty
regarding the enforceability of such temporary relief in national courts has posed a serious
problem and the same had come to the Supreme Court, directly or indirectly in plethora of cases,
but answer to this question has always been given in an ambivalent way. This article specifically
deals with the un-enforceability of the DECISION of an emergency arbitrator seated outside
India. The Arbitration and Conciliation Act 1996 does not incorporate any provision relating to
the emergency arbitrator and the same has been discussed in detail in the upcoming paragraphs.

Any DECISION passed by the emergency arbitrator is, in fact, an order and not an award
per se.

An arbitral tribunal’s decision upon a controversy submitted before it is— an award. 1An award is
described as ‘final determination of a particular issue or claim in arbitration’. 2 It is the result of
consensual justice3, by an arbitrator of parties’ own choice. 4 The award is the result of judicial
decision.5 However, not every decision by an arbitration tribunal is an award.6 The arbitral
tribunals make numerous decisions during arbitration proceedings having different effects.7
Some of them which give remedy in substantive issue —are awards while others are not. 8 Only
an instrument that the tribunal intends to be final expression of its decision on some or the
parties’ entire claim can be regarded as an award.9

Several arbitral legislations have expressly excluded orders and directions from the definition of
award.10 An emergency arbitrator order, however, is intended to deal only with application for
interim relief and, does not fall under the definition of award u/s 2(c) of Arbitration and
Conciliation Act 1996.11 Hence, an emergency arbitrator order is unenforceable.12 Where a
foreign seated arbitral tribunal renders an ‘interim order’, there is unfortunately nothing under
Arbitration and Conciliation Act 1996 that would support such orders. There is also no scope for
the courts to interfere since Section 513 restricts the extent of judicial intervention except where
so provided.14 Keeping aside an emergency arbitrator’s order, India doesn’t even have an
enforcement provision for interim orders passed by an ordinary arbitral tribunal. An ‘interim
order’ passed by an emergency arbitrator would simply hold no good. In the present case, interim
order passed by emergency arbitrator fails to determine any substantive issue finally, therefore it
falls short of being an award and hence unenforceable.

Interim measure passed by the Emergency Arbitrator is unenforceable in the court of Law.

As per the ICC Rules, a party that needs urgent interim measures that cannot await the
constitution of an arbitral tribunal may make an application for the appointment of emergency
Arbitrator.15 Thus, an emergency arbitrator is one who can grant interim measures in the form of
an order.16

Section 17 of Arbitration and Conciliation Act 1996 17 merely states that the tribunal may pass an
interim measure. The Supreme Court of India has observed: It neither confers the tribunal the
power to enforce its order nor provides for judicial enforcement of such order thereof. 18 Section
17 gives the arbitral tribunal the power to pass orders the same cannot be enforced as orders of a
Court.19

It is, undoubtedly, inferred from Sections 17(1) and 37(2)(b)20 that an ‘interim order’ u/s 17 is
not an ‘interim award’ but, strictly an ‘interim order’. Where a foreign seated arbitral tribunal
renders an ‘interim order’, there is unfortunately nothing under the Indian arbitration law that
would support such orders. Keeping aside an emergency arbitrator’s order, India doesn’t even
have an enforcement provision for interim orders passed by an ordinary arbitral tribunal. 21

Interim measure cannot be enforced u/s 9 of Arbitration and Conciliation Act 1996 as well.

In HFCL v UOI22 it was held that the petition u/s 9 of Arbitration and Conciliation Act 1996 for
the enforcement of emergency measures is non-maintainable. If ultimately the orders that are
made in foreign land are incapable of being enforced in India, then surely there is no scope for
even considering grant of interim reliefs by resort to section 9 of the Act, particularly as such
interim reliefs are meant to be only in aid of final relief. Obviously no question of the Indian
Courts entertaining the plea for grant of interim relief by resort to section 9 of the Act arises. 23

There is no Legislative intent in India for the incorporation of the provision relating to
Emergency Arbitrator.

In order to recognise emergency arbitrations, The Law Commission's 246th Report 24 proposed an
amendment to Section 2(d) of Arbitration and Conciliation Act 1996. It was expected that the
Arbitration and Conciliation (Amendment) Act, 201525 would embrace this global turn of tide
and create provisions for appointment of Emergency Arbitrator. But unfortunately the said
amending Act didn’t include the recommendation of the Law Commission. Hence Indian law, as
of now does not expressly recognize “emergency Arbitrator” award.26 The refusal of to adopt the
recommendations of Law Commission’s report proves that legislature has no intention to
embrace emergency arbitrator in the definition of Arbitral tribunal u/s 2(d).

Conclusion

1. The DECISION passed by the emergency arbitrator whether seated in India or in any
foreign country is in the form of an order as it fails to decide any substantive issue in
question;
2. As the DECISIONs are deemed to be in the form of an order hence the same cannot be
enforced under Section 9 of the Act;
3. Section 17 of Arbitration and Conciliation Act, 1996 only provides for arbitral tribunal to
pass an interim measure and not for its enforcement; &
4. Thus, currently there is no provision in Indian Arbitration regime for the enforcement of
the DECISION of emergency arbitrator seated outside India.
1
Singapore International Arbitration Act, 2002 § 2 cl. 1.
2
David St. John Sutton et al., Russel on arbitration, 228-229 (22d ed. Sweet and Maxwell 2003).
3
D.L. Miller & Co. V. Dallu Ram, A.I.R. 1956 Cal. 361.
4
Bhajahari v. Bihari, (1903) I.L.R.33 Cal. 881.
5
Vadilal Chatrabhuj Gandhi v. Thakorelal Chimanlal Munshaw, A.I.R. 1954 Bom. 121.
6
Sundar Rajoo, Law, Practice and Procedure of Arbitration, 557 (2d ed. Lexis Nexis).
7
B Hanotiau & O. Capresse, ‘Introductory Report” in E Gaillard (ed), The Review of International Arbitral Awards, (2010)
p 14-18
8
S Greenberg et al., International Commercial Arbitration: An Asian-pacific Prespective, 393 (1t ed. Cambridge Univ.
Press 2011).
9
G Born, International Arbitration: Law and Practice, (2d ed. Wolter and Kluwer 2015).
10
Singapore International Arbitration Act, 2002 § 12.
11
Arbitration and Concilliation Act, 2015 § 2 cl. 3.
12
Emergency arbitrators in Singapore, (October, 2014) available at
http://www.nortonrosefulbright.com/knowledge/publications/121383/emergency-arbitrators-in-singapore
13
Arbitration and Conciliation Act, 1996 § 5.
14
Gracious Timothy, The Workability of Emergency Arbitrator In India: A Flawed Emergence Of The Emergency
Arbitrator, (March 14, 2016) available at https://www.linkedin.com/pulse/workability-emergency-arbitrator-india-flawed-
gracious-timothy-6115191933284401152
15
ICC Arbitration Rules, 2012 Art. 29 § 1.
16
ICC Arbitration Rules, 2012 Art. 29 § 2.
17
Arbitration & Conciliation Act, 2015 § 17.
18
M.D. Army Welfare Housing v. Sumangal Services Pvt. Ltd., A.I.R. 2004 S.C. 1344
19
Sundaram Finance v. N.E.P.C. India, (2004) 9 S.C.C. 619.
20
Arbitration and Conciliation Act, 1996 § 17 cl. 2 and 37 cl 2.
21
Gracious Timothy, The Workability of Emergency Arbitrator In India: A Flawed Emergence Of The Emergency
Arbitrator, (March 14, 2016) available at https://www.linkedin.com/pulse/workability-emergency-arbitrator-india-flawed-
gracious-timothy-6115191933284401152
22
HFCL v. UOI, (2001)129(3)P.L.R. 624.
23
H.S.B.C. P. I. Holdings (Mauritius) Ltd. v. Avitel Post Studios & Ors., (2014) SCC Online Bom. 929.
24
The Law Commission of India’s 246th Report dated 05.08.2014.
25
The Arbitration and Conciliation (Amendment) Act, 2015.
26
S. Ravi Shanker, Indian law relating to emergency arbitration (December 2, 2017), available at
http://www.lawsenate.com/publications/articles/Indian-Law-relating-to-Emergency-Arbitrator.pdf