9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

Emergency arbitrator : the unresolved conundrum

By Sneha Mahawar - September 12, 2022

This article is written by Jagruti Shah. This article has been edited by Ojuswi (Associate,
Lawsikho). 

This article has been published by Sneha Mahawar.

Table of Contents 
1. Introduction 
1.1. Fumus boni iuris 
1.2. Periculum in mora 
2. The legal status of an emergency arbitrator
3. The unsettled debriefs
3.1. Adhoc arbitration 
3.2. Recognition and enforceability 
3.3. Foreign seated arbitration 
3.4. The duplicity of proceedings 
3.5. Lack of finality of an interim award passed by an EA 
3.6. Effect of non-compliance 
4. Conclusion 
5. References

Introduction 
Through this article, the author will deliberate on what is an emergency arbitrator, the
Indian perspective on an emergency arbitrator and unsettled questions around the same. 

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 1/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

The word ‘emergency’ straightforwardly means exigency. When a party is under a threat
that the subject matter of the Arbitration will be destroyed, rendering him remediless, such
situations require immediate relief to avoid the entire proceeding from being infructuous.
Accordingly, the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’)
offers interim reliefs. In Section 9 (before the Arbitral Tribunal is formed), the aggrieved
party can appeal to a national court that has jurisdiction, or in Section 17 (after the Arbitral
Tribunal is established), the Arbitral Tribunal can provide interim relief to protect the
arbitration’s subject matter. Section 9 provides for interim reliefs by the Courts at three
stages namely – before, during and after the passing of arbitral award but, before the
enforcement of the award under Section 36 of the Act. Section 17 of the Act, provides for
interim reliefs by the Arbitral Tribunal after its constitution only during the Arbitration
proceedings. Therefore, it is pertinent to note that in cases where Arbitral Tribunal is not
constituted and there is a need for an urgent relief to preserve the matter in status quo
until the dispute is heard on merits, the only option left with the party is to approach a
National court having jurisdiction under Section 9 of the Act which is a long drawn process.

The formation of an Arbitral Tribunal is also a time-consuming task and hence, the concept
of Emergency Arbitrator (‘EA’) becomes crucial as it provides for pro-term or conservatory
measures to the party/parties before the establishment of an Arbitral Tribunal. The concept
of EA is similar to the concept of ad-interim injunction as provided by Section 37 of the
Specific Relief Act, 1963 and regulated by the Code of Civil Procedure, 1908, wherein in
both cases the primary intention is to maintain the status quo of the subject matter of
Arbitration. The EA provides the party/parties with a mechanism to avoid approaching the
Court and waiting tirelessly due to endless delays and decongesting the Courts as it can
grant urgent relief before the constitution of the Arbitral Tribunal. The efficacy of an EA,
invoked by a party, survives on two maxims as below:

Fumus boni iuris 

The reasonable possibility that the requesting party will succeed.

Periculum in mora 
If the measure is not granted immediately, the loss would not and could not be
compensated by way of damages.

An EA is capable of granting conservatory measures to the parties before the formation of

the Arbitral Tribunal only for a limited period of time. The EA becomes “functus officio” after
passing the interim award. 

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 2/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

The legal status of an emergency arbitrator

While the concept of EA has gained a lot of eminences globally, in India the Act does not
particularly provide for EA. The definition of Arbitral Tribunal under Section 2 (1) (d) of the
Act reads as follows “Arbitral Tribunal means a sole Arbitrator or a panel of Arbitrators”. This
clearly articulates that there is no express statutory provision nor recognition of the concept
of EA in the Act.

However, there is undeniably considerable precision provided by the Hon’ble Supreme Court
(SC) post its landmark judgment in the famous case ‘Amazon.com NV Investment Holdings
LLC v/s Future Retail Ltd’. The SC, by passing a pro-Arbitration judgment, acknowledged the
interim award passed by the EA appointed under Singapore International Arbitration Centre
(“SIAC Rules”) in Indian seated arbitration under Section 17(1) of the Act and stated that it
would be enforced as an order of the Court under Section 17(2) of the Act. 

This is assuredly an embracing judgment and will drive India closer to being a conducive
destination for International Commercial Arbitration. Nevertheless, there are still a lot of
questions that need clarity and it is critical to get answers to these questions if India wants
to inch closer and be amongst the top 5 favourable destinations in International Commercial
Arbitration.

The unsettled debriefs

Adhoc arbitration 
Most Arbitrations in India are Adhoc i.e. are not governed by Institutional Rules. While the
Amazon.com NV Investment Holdings LLC v/s Future Retail Ltd judgment is embracing, it
only provides lucidity to EA in an Arbitration which is governed by Institutional rules
providing for an EA. Where the parties have chosen Adhoc Arbitration there is no headway
as the Act does not provide statutory recognition to EA.

Recognition and enforceability 

The foremost challenge of an EA is in its recognition and enforceability. While the concept of
EA is adopted in major There are several international arbitration centres, including

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 3/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

Singapore International Arbitration Centre ( SIAC ), London Court of International

Arbitration ( LCIA ), International Chamber of Commerce ( ICC ), and International Centre
for Dispute Resolution ( ICDR ). In some countries, it is still at a nascent stage. It might be
challenging to enforce an interim award passed by an EA appointed under the governing
institutional rule in another jurisdiction that does not recognize their sanctity.

Foreign seated arbitration 

The concept of EA in Indian seated Arbitration is now settled with the famous Amazon v/s
Future Retail case. However, due to the lack of expressed statutory provision for an EA in
the Act, it is not possible to enforce an interim award passed by an EA in foreign seated
Arbitration.  

The duplicity of proceedings 

A high possibility exists that parallel proceedings may clog the already burdened courts due
to the non-recognition of EAs in foreign seated arbitrations. Under Section 9 of the Act, the
claimant must seek interim relief from a National Court with jurisdiction despite an interim
award by an EA. In Raffles Design International India Pvt Ltd v/s Educomp Professional
Education Ltd, the EA in Singapore granted certain interim reliefs to the petitioner. As a
result, the petitioner contacted the Delhi High Court when the respondent acted in violation
of the interim award granted by the EA. As the Act does not contain any provisions for
enforcing an emergency/interim award issued in foreign-seated arbitration, the award
cannot be enforced in India. However, it did state that the only relief available to the parties
was to approach the Court under Section 9 of the Act. Hence, it resulted in duplicity of
proceedings and the party directed to approach the Court thereby defeating the key
objective of the Act i.e. speedy resolution.

Lack of finality of an interim award passed by an EA 

The award of an EA is not binding on the Arbitral Tribunal which will be subsequently
formed. The Arbitral Tribunal has the autonomy to amend/modify or suspend the award
passed by an EA if the time stipulated for such an award is not expired. And hence there is
no finality and there will always be a constant threat to the person in whose favour the
interim award is passed that the award can be set aside post the formation of the Arbitral
Tribunal.

Effect of non-compliance 
One of the serious stumbling blocks of an interim award passed by an EA is there is the
absence of clarity around the effect of non-compliance. Although, Article 29 (2) of the ICC
Rules requires the parties to comply with the order passed by an EA, the same is silent
about any ramifications of non-compliance with the same. Hence, as there is no express
clarity around the consequence of non-compliance, it can be challenging for a party who has
received an award in his favour to get it enforced. It can be another long-drawn legal battle

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 4/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

for the struggling party as he might be forced to take recourse to the Courts for enforcing
such an award thereby defeating the entire purpose of an EA.

Conclusion 
The Amazon.com NV Investment Holdings LLC v/s Future Retail Ltd judgment is assuredly a
quantum jump in making India an Arbitration friendly destination. It would certainly stand
the test of minimum judicial intervention which is envisaged in Article 5 of the UNCITRAL
MODEL LAW on International Commercial Arbitration and the same is adopted in Section 5
of the Act. It also sets cardinal precedence in upholding a key objective i.e. party autonomy
which is the cornerstone of the Act. However, there is a compelling necessity to find
answers to the above questions. Non-clarity around these will continue to pose a hindrance
for India to be a favoured Nation for International Commercial Arbitration. Few swift actions
required by the Indian Judiciary which can if not entirely eliminate but bridge the gaps are:

1. Proactively provide clarity around recognition and enforceability of EA award in foreign

seated Arbitration. This can be done by making an amendment to Part II which
specifically provides for enforceability of foreign awards rather than waiting for landmark
judgment which will subsequently serve as a precedent. This can go a long way in
enhancing India’s credibility as a pro-Arbitration nation.

2. Provide push to Institutional Arbitration domestically. The majority of domestic

Arbitration are Adhoc and hence, though the institutional rules provide for an EA those
cannot be effectively used. The amendment to the Act and insertion of PART I-A will
definitely prove to be beneficial. However, the implementation of the same should be in
the letter and in spirit. It is to be noted that though the amendment took place in 2019 it
is yet to be implemented thereby making the entire effort counterproductive. 

Despite the Amazon (supra) judgment moving us closer to being one of the most preferred
seats in international commercial arbitration, we have a long way to go before we reach our
goal.

References

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 5/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

https://www.mondaq.com/advicecentre/content/3958/Emergency-Arbitration-In-India-
Concept-And-Beginning

https://www.scconline.com/blog/post/2022/03/26/emergency-arbitration/

https://www.whitecase.com/insight-alert/supreme-court-india-paves-way-enforcement-
emergency-arbitration-awards-india-seated

https://blog.ipleaders.in/enforcing-emergency-arbitral-awards-in-india/ 

https://hsfnotes.com/arbitration/2021/10/01/indian-supreme-court-confirms-
enforceability-of-india-seated-emergency-arbitration-awards/

https://articles.manupatra.com/article-details/ENFORCEMENT-OF-EMERGENCY-
ARBITRATION-AWARDS-DONE-YET-UNDONE

https://www.ibanet.org/emergency-arb-india

https://www.argus-p.com/papers-publications/thought-paper/recognition-and-
enforcement-of-emergency-arbitration-in-india-a-comment-on-the-supreme-courts-
ruling-in-amazon-future-dispute/ 

https://www.mondaq.com/india/trials-appeals-compensation/1216676/enforceability-
under-emergency-arbitration

https://www.scconline.com/blog/post/2021/03/26/the-conundrum-of-emergency-
arbitration-in-india-the-amazon-future-dispute/ 

https://blog.ipleaders.in/emergency-arbitration-india-stand/

https://www.legalserviceindia.com/legal/article-8026-growth-of-emergency-arbitration-
an-analysis-with-respect-to-indian-way-of-resolving-dispute.html

https://www.azbpartners.com/bank/the-emergency-arbitrator-in-india-status-and-
enforceability/

Students of Lawsikho courses regularly produce writing assignments and work on practical

exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and
various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal

content.

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 6/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

Name

Email Address

10-6=?

SUBSCRIBE!

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 7/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

17th Sept - 19th Sept, 6 - 9 p.m IST (each day)

Free and online 3-Day Bootcamp on NCA exam for

Indian lawyers and law students who want to practice in
Canada - How to prepare?

Ramanuj Mukherjee CEO & Co-founder,

LawSikho

Abhyuday Agarwal COO & Co-Founder,

LawSikho

Register now
Name

Your Name
Email

Your Email
Which country are you from?
Select your country Select your country

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 8/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

Select your country

+91 - IN (India)
+376 - AD (Andorra)
+971 - AE (United Arab Emirates)
+93 - AF (Afghanistan)
+1268 - AG (Antigua And Barbuda)
+1264 - AI (Anguilla)
+355 - AL (Albania)
+374 - AM (Armenia)
+599 - AN (Netherlands Antilles)
+244 - AO (Angola)
+672 - AQ (Antarctica)
+54 - AR (Argentina)
+1684 - AS (American Samoa)
+43 - AT (Austria)
+61 - AU (Australia)
+297 - AW (Aruba)
+994 - AZ (Azerbaijan)
+387 - BA (Bosnia And Herzegovina)
+1246 - BB (Barbados)
+880 - BD (Bangladesh)
+32 - BE (Belgium)
+226 - BF (Burkina Faso)
+359 - BG (Bulgaria)
+973 - BH (Bahrain)
+257 - BI (Burundi)
+229 - BJ (Benin)
+590 - BL (Saint Barthelemy)
+1441 - BM (Bermuda)
+673 - BN (Brunei Darussalam)
+591 - BO (Bolivia)
+55 - BR (Brazil)
+1242 - BS (Bahamas)
+975 - BT (Bhutan)
+267 - BW (Botswana)
+375 - BY (Belarus)
+501 - BZ (Belize)
+1 - CA (Canada)
+61 - CC (Cocos (keeling) Islands)
+243 - CD (Congo, The Democratic Republic Of
The)
+236 - CF (Central African Republic)
+242 - CG (Congo)
+41 - CH (Switzerland)
+225 - CI (Cote D Ivoire)
+682 - CK (Cook Islands)
+56 - CL (Chile)
+237 - CM (Cameroon)
+86 - CN (China)
+57 - CO (Colombia)
+506 - CR (Costa Rica)
+53 - CU (Cuba)
https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 9/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

+238 - CV (Cape Verde)

+61 - CX (Christmas Island)
+357 - CY (Cyprus)
+420 - CZ (Czech Republic)
+49 - DE (Germany)
+253 - DJ (Djibouti)
+45 - DK (Denmark)
+1767 - DM (Dominica)
+1809 - DO (Dominican Republic)
+213 - DZ (Algeria)
+593 - EC (Ecuador)
+372 - EE (Estonia)
+20 - EG (Egypt)
+291 - ER (Eritrea)
+34 - ES (Spain)
+251 - ET (Ethiopia)
+358 - FI (Finland)
+679 - FJ (Fiji)
+500 - FK (Falkland Islands (malvinas))
+691 - FM (Micronesia, Federated States Of)
+298 - FO (Faroe Islands)
+33 - FR (France)
+241 - GA (Gabon)
+44 - GB (United Kingdom)
+1473 - GD (Grenada)
+995 - GE (Georgia)
+233 - GH (Ghana)
+350 - GI (Gibraltar)
+299 - GL (Greenland)
+220 - GM (Gambia)
+224 - GN (Guinea)
+240 - GQ (Equatorial Guinea)
+30 - GR (Greece)
+502 - GT (Guatemala)
+1671 - GU (Guam)
+245 - GW (Guinea-bissau)
+592 - GY (Guyana)
+852 - HK (Hong Kong)
+504 - HN (Honduras)
+385 - HR (Croatia)
+509 - HT (Haiti)
+36 - HU (Hungary)
+62 - ID (Indonesia)
+353 - IE (Ireland)
+972 - IL (Israel)
+44 - IM (Isle Of Man)
+964 - IQ (Iraq)
+98 - IR (Iran, Islamic Republic Of)
+354 - IS (Iceland)
+39 - IT (Italy)
+1876 - JM (Jamaica)
https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 10/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

+962 - JO (Jordan)
+81 - JP (Japan)
+254 - KE (Kenya)
+996 - KG (Kyrgyzstan)
+855 - KH (Cambodia)
+686 - KI (Kiribati)
+269 - KM (Comoros)
+1869 - KN (Saint Kitts And Nevis)
+850 - KP (Korea Democratic Peoples Republic
Of)
+82 - KR (Korea Republic Of)
+965 - KW (Kuwait)
+1345 - KY (Cayman Islands)
+7 - KZ (Kazakstan)
+856 - LA (Lao Peoples Democratic Republic)
+961 - LB (Lebanon)
+1758 - LC (Saint Lucia)
+423 - LI (Liechtenstein)
+94 - LK (Sri Lanka)
+231 - LR (Liberia)
+266 - LS (Lesotho)
+370 - LT (Lithuania)
+352 - LU (Luxembourg)
+371 - LV (Latvia)
+218 - LY (Libyan Arab Jamahiriya)
+212 - MA (Morocco)
+377 - MC (Monaco)
+373 - MD (Moldova, Republic Of)
+382 - ME (Montenegro)
+1599 - MF (Saint Martin)
+261 - MG (Madagascar)
+692 - MH (Marshall Islands)
+389 - MK (Macedonia, The Former Yugoslav
Republic Of)
+223 - ML (Mali)
+95 - MM (Myanmar)
+976 - MN (Mongolia)
+853 - MO (Macau)
+1670 - MP (Northern Mariana Islands)
+222 - MR (Mauritania)
+1664 - MS (Montserrat)
+356 - MT (Malta)
+230 - MU (Mauritius)
+960 - MV (Maldives)
+265 - MW (Malawi)
+52 - MX (Mexico)
+60 - MY (Malaysia)
+258 - MZ (Mozambique)
+264 - NA (Namibia)
+687 - NC (New Caledonia)
+227 - NE (Niger)
+234 - NG (Nigeria)
+505 - NI (Nicaragua)
https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 11/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

+31 - NL (Netherlands)
+47 - NO (Norway)
+977 - NP (Nepal)
+674 - NR (Nauru)
+683 - NU (Niue)
+64 - NZ (New Zealand)
+968 - OM (Oman)
+507 - PA (Panama)
+51 - PE (Peru)
+689 - PF (French Polynesia)
+675 - PG (Papua New Guinea)
+63 - PH (Philippines)
+92 - PK (Pakistan)
+48 - PL (Poland)
+508 - PM (Saint Pierre And Miquelon)
+870 - PN (Pitcairn)
+1 - PR (Puerto Rico)
+351 - PT (Portugal)
+680 - PW (Palau)
+595 - PY (Paraguay)
+974 - QA (Qatar)
+40 - RO (Romania)
+381 - RS (Serbia)
+7 - RU (Russian Federation)
+250 - RW (Rwanda)
+966 - SA (Saudi Arabia)
+677 - SB (Solomon Islands)
+248 - SC (Seychelles)
+249 - SD (Sudan)
+46 - SE (Sweden)
+65 - SG (Singapore)
+290 - SH (Saint Helena)
+386 - SI (Slovenia)
+421 - SK (Slovakia)
+232 - SL (Sierra Leone)
+378 - SM (San Marino)
+221 - SN (Senegal)
+252 - SO (Somalia)
+597 - SR (Suriname)
+239 - ST (Sao Tome And Principe)
+503 - SV (El Salvador)
+963 - SY (Syrian Arab Republic)
+268 - SZ (Swaziland)
+1649 - TC (Turks And Caicos Islands)
+235 - TD (Chad)
+228 - TG (Togo)
+66 - TH (Thailand)
+992 - TJ (Tajikistan)
+690 - TK (Tokelau)
+670 - TL (Timor-leste)
+993 - TM (Turkmenistan)
https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 12/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

+216 - TN (Tunisia)
+676 - TO (Tonga)
+90 - TR (Turkey)
+1868 - TT (Trinidad And Tobago)
+688 - TV (Tuvalu)
+886 - TW (Taiwan, Province Of China)
+255 - TZ (Tanzania, United Republic Of)
+380 - UA (Ukraine)
+256 - UG (Uganda)
+1 - US (United States)
+598 - UY (Uruguay)
+998 - UZ (Uzbekistan)
+39 - VA (Holy See (vatican City State))
+1784 - VC (Saint Vincent And The Grenadines)
+58 - VE (Venezuela)
+1284 - VG (Virgin Islands, British)
+1340 - VI (Virgin Islands, U.s.)
+84 - VN (Viet Nam)
+678 - VU (Vanuatu)
+681 - WF (Wallis And Futuna)
+685 - WS (Samoa)
+381 - XK (Kosovo)
+967 - YE (Yemen)
+262 - YT (Mayotte)
+27 - ZA (South Africa)
+260 - ZM (Zambia)
+263 - ZW (Zimbabwe)
No results

Phone

Your Phone
I want to know more about the lawsikho courses
Yes
No
Register now
Bootcamp starting in
4
Days
19
HRS
43
MIN
2
SEC

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 13/14
9/12/22, 10:16 PM Emergency arbitrator : the unresolved conundrum - iPleaders

Ramanuj Mukherjee CEO & Co-founder,

LawSikho

Abhyuday Agarwal COO & Co-Founder,

LawSikho

https://blog.ipleaders.in/emergency-arbitrator-the-unresolved-conundrum/ 14/14