What is Emergency Arbitration

What is Emergency Arbitration?

Emergency arbitration is a mechanism whereby disputing party apply for urgent interim relief before an Arbitration Tribunal has been formally constituted for dissolution of disputes. 

Such arbitration is usually agreed to and arranged by the parties themselves without taking recourse to a regular Arbitral Tribunal at the first instance. The proceedings either domestic or international are conducted by an Arbitrator as per the agreement between the parties or with the concurrence of the parties.

An Emergency Arbitration can order for interim measures or conservatory relief only for a fixed period of time. An Arbitrator appointed for the purposes of an Emergency Arbitration is known as an Emergency Arbitrator. The Emergency Arbitrator becomes functus officio once the Interim Order is passed.

Under 'International Arbitration' Emergency arbitration is looked upon as a mechanism which allows a disputing party to apply for urgent interim relief before a regular Arbitration Tribunal has been formally constituted. 

What is the legal status of an Emergency Arbitration in India?

In order to recognise emergency arbitrations, The Law Commission's 246th Report² on amendments to the Arbitration and Conciliation Act, 1996, proposed an amendment to Section 2(d) of the Act. This amendment was to ensure that institutional rules such as the SIAC Arbitration Rules, or ICC Rules or any other rule which provide for an appointment of an emergency arbitrator are given statutory recognition in India:

"Section 2(d): "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators and, in the case of an arbitration conducted under the rules of an institution providing for appointment of an emergency arbitrator, includes such emergency arbitrator."

It was expected that the Arbitration and Conciliation (Amendment) Act, 2015³ would embrace this global turn of tide and create provisions for appointment of Emergency Arbitrator. The Amendment of 2015, however, failed to incorporate the recommendation of the Law Commission and does not provide at all for Emergency Arbitration.

'Domestic Arbitration' Law in India do not contain any provision for Emergency Arbitration. WHenever any Party is in need to seek urgent relief the are permitted to approach the Courts under Section 9 of Arbitration and Conciliation Act, 1996. In case it is a pending Arbitration matter urgent relief can be sought by invoking Section 17 of Arbitration and Conciliation Act, 1996. However lately Delhi High Court gave recognition to an Interim Award passed by an Emergency Arbitration of Singapore in Amazon.com vs Future Coupons Pvt. Ltd, 2021 Latest Caselaw 907 Del which was upheld by Hon'ble Supreme Court for the purpose of its Execution in India in Amazon.Com NV Investment Holdings LLC v. Future Retail Limited & ors, 2021 Latest Caselaw 312 SC.

Supreme Court's this decision in Amazon v. Future is being looked upon as an important precedent strengthening the party autonomy in India. In so far as this decision gives legitimacy to an emergency awards made under the rules of an arbitral institution by treating it on par with an interim order made by an arbitral tribunal seated in India it paves the way for an emergency arbitration award in an India-seated arbitration to be enforced by Indian courts in the same way as if it were a decree of an Judicial forum in Indian.