ABSTRACT

The paper explores the novel concept of Emergency Arbitration by analyzing its nature, evolution, and growing statutory recognition in India. It Initially explains the concepts of Emergency arbitration and Emergency arbitrator and the circumstances which make both essential as a mechanism for granting interim relief before the constitution of an arbitral tribunal. It further discusses the evolution of Emergency arbitration at the global and domestic levels. The analysis identified that there is a legislative vacuum or absence of explicit statutory provisions in the Arbitration and Conciliation Act, 1996, a gap partially addressed by a landmark Supreme Court ruling in Amazon v. Future Retail that validated emergency arbitrator orders. To overcome this legislative vacuum, the central bill Arbitration and Conciliation (Amendment) Bill, 2024 (Proposed), aims to formally incorporate emergency arbitration through Section 9A. Finally, the paper examines the impact of this legal recognition, highlighting key benefits such as speedy relief, stronger legal certainty, and support for economic growth, while also addressing concerns related to party autonomy, high costs, and certain procedural challenges.

Keywords: Emergency Arbitration, Emergency Arbitrator, Amazon v Future Retail, Section 9A, Interim Relief

Introduction

Arbitration emerged as the most preferred resolution mechanism for resolving disputes, which is typically faster and less complex than traditional litigation mechanisms. Now, arbitration mechanisms are commonly used by parties for resolving their disputes in a speedy manner. They are employed in disputes relating to commercial transactions, both at international and domestic levels, and focus on civil disputes such as contractual agreements, industrial disputes, and other civil disputes. Getting a quick or speedy settlement is one of the major features of the arbitration. However, sometimes the process of arbitration takes time, especially in the case of disputes arising in commercial transactions; at this point, either of the parties may raise the urgent and immediate need for interim relief. The “Emergency Arbitration” is a process that the party can seek for the constitution of an “Emergency Arbitrator” granting interim relief before the main Arbitral Tribunal is formed to deal with the original dispute between the parties. The idea of emergency arbitration globally emerged as a mechanism for interim relief during 2006 by the International Centre For Dispute Resolution; later it was widely recognized by various international bodies focusing on arbitration.

In India, the process of arbitration was governed under the provisions of the Arbitration And Conciliation Act,1996 (Hereinafter ‘Act of 1996’). But the Act did not expressly mention the provisions relating to’ emergency arbitration’ or’ ‘emergency arbitrator’. In 2014, the Law Commission suggested statutory recognition of emergency arbitration in India. In 2021, the Hon’ble Supreme Court upheld the order of the emergency arbitrator in the case of Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors (2021) AIR SC 3723. The Draft Arbitration And Conciliation (Amendment) Bill, 2024 (hereinafter ‘The Bill’) was introduced by the Government of India and is currently under consultation, which proposes the insertion of emergency arbitration provisions to the Act of 1996. This study is about emergency arbitration and examines what happens when it gets thumbs up legally in India.

What Is Emergency Arbitration?

The term ‘Emergency’ means an unforeseen or pressing situation that demands effective and speedy intervention. The ‘Emergency Arbitration’ is a part of the arbitration process which only occurs in the instance where a party in dispute may seek an immediate and urgent relief before the constitution of the arbitral tribunal. For example, there was a dispute between ‘Company A’ and ‘Company B’ regarding the trademark of both companies. Both parties have agreed to resolve their dispute through arbitration. Therefore, company A is seeking the appointment of an emergency arbitrator for passing an order of interim injunction against company B to restrict them from using the trademark until the final award is passed by the Arbitral Tribunal. When a party in the dispute (agreed to be resolved through arbitration) has an urgent or immediate need for relief, otherwise facing a huge loss or deprivation of their rights, the process of emergency arbitration will come into play. It only happens before the real arbitral tribunal is formed. Emergency Arbitration is therefore a specialised mechanism permitting a party to obtain interim relief when delay would result in irreparable harm or prejudice.

Who is an Emergency Arbitrator?

Generally, an ‘Arbitrator’ is a person who acts much like a judge and also a neutral third party in a dispute. He determines or resolves the disputes between the parties in the arbitration. In short, an arbitrator is a neutral adjudicator appointed by parties to resolve their disputes. Sec 2 (1)(D) of the Act of 1996 defines the Arbitral Tribunal, and Sections 10 and 11 provide for the appointment of arbitrator(s). The Emergency Arbitrator (in short ‘EA’) is a temporarily appointed decision-maker, who has the authority to grant interim Relief in the process of emergency arbitration.

The Singapore International Arbitration Center (SIAC) rules on Arbitration 2025 explain that the EA is appointed upon the application filed by a party in the dispute for seeking interim relief, and that the EA is only appointed before the constitution of the main arbitral tribunal. The EA has the power to conduct emergency interim proceedings, also holds similar powers to a tribunal, such as the power to rule its own jurisdiction, hold hearings, allow written submissions, and documentary evidence from the parties. Following the hearing, the EA should pronounce the award within 14 days from the date of their appointment. The EA also has the power to reconsider, modify, or vacate any order or award. Furthermore, the rules prohibit the appointed EA from acting as an arbitrator during the original arbitration proceedings, unless the parties agree otherwise. The 2024 Amendment Bill proposes a new Section 9A to formally integrate this mechanism, assigning procedural oversight to the Arbitration Council of India and clarifying the enforceability of emergency orders.

Evolution Of Emergency Arbitration

Emergency arbitration was developed in response to the need for swift interim relief in international commercial disputes. The idea of Emergency arbitration was introduced for the first time in 2006 by the International Centre for Dispute Resolution (ICDR). Later, it was adopted by the International Chamber of Commerce (ICC) in 2012. Several other Institutions on Arbitration, like the Netherlands Arbitration Institution (NAI), Singapore International Arbitration Centre (SIAC), and Stockholm Chamber of Commerce (SCC), also included emergency arbitration in their arbitration process, thus allowing the parties to seek urgent and immediate interim relief. The proceedings for conducting emergency arbitration will be based on the rules provided by these bodies.

In India, the idea of emergency arbitration is not expressly mentioned in the Act of 1996, but in 2014, the 246thth Report of the Law Commission recommended the statutory inclusion of emergency arbitration to the Act. The commission stressed that the rules related to emergency arbitration will be drafted in accordance with SIAC rules. The 2015 amendment omitted this suggestion. In 2022, the Hon’ble Supreme Court in the case of Amazon.com NV Investment Holdings v. Future Retail Limited & Ors (2021) AIR SC 3723 upheld the enforceability of an emergency arbitrator’s order under Section 17(2) and stated that the merger between Future Group Pvt.Ltd and Mukesh Dhirubhai Ambani Group would result in loss of market share to Amazon in India. In 2024, the Government of India introduced a Draft of the Arbitration and Conciliation (Amendment) Bill 2024, which gave legislative recognition to the idea of emergency arbitration in India.

Provisions of emergency arbitration under the newly proposed bill

The Draft Arbitration And Conciliation (Amendment) Bill,2024, proposes the constitution of emergency arbitrators. The provisions related to the emergency arbitrators U/s 9A of the Act. Section 9 already provides that the court can grant interim orders in the arbitration proceedings. The following are the major proposed amendments in relation to the emergency arbitrators to this provision.

• Sub-section 1 of 9A provides for the appointment of emergency arbitrators for the purpose of granting interim measures referred to in Section 9 of the Act, and such appointment is prior to the constitution of the Arbitral tribunal.

• Sub-section 2 of the Sec 9A authorises the Arbitration Council of India shall specify the manner in which the emergency arbitrator shall perform his functions.

• Sub-section 3 of the sec 9A provides that the order passed by the emergency arbitrator shall be enforced in the same manner as if it were an order of an Arbitral tribunal mentioned u/s 17(2) of the Act.

• Sub-section 4 of Section 9A, along with Sec 17 (DA), prescribes that the order of the emergency arbitrator may be confirmed, modified, or vacated, in whole or in part, through an order or award of the Arbitral tribunal, and such order is passed after the appropriate hearing of affected parties.

These are the key proposed amendments to the 1996 Act. These provisions collectively aim to streamline interim relief mechanisms and align Indian arbitration law with global institutional standards. The bill has not yet been presented to the parliament, which is currently undergoing consultation.

Effects Of Recognition Of Emergency Arbitration In India

The emergency arbitrator serves as an effective mechanism for accessing the right to get interim relief in urgent and immediate circumstances. The parties can seek immediate relief before the commencement of an arbitral tribunal. By inserting the provision of an emergency arbitrator in the Act of 1996, which confirms the changing trends of the global arbitration process, and also shifts the Indian arbitration process to international standards.

In general, both courts and arbitral tribunals are empowered to grant interim relief under Sections 9 and 17 of the Arbitration and Conciliation Act, 1996. Courts may provide such relief before, during, or after arbitration proceedings. While arbitration serves as an alternative dispute resolution mechanism aimed at reducing judicial pendencies, the provisions allowing parties to approach courts for interim relief can, paradoxically, contribute to increasing the burden on the judiciary. The emergency arbitration is an alternative mechanism for reducing judicial pendencies. By virtue of Sec 9A, the parties in the dispute can seek interim relief from an emergency arbitrator before the constitution of the arbitration tribunal rather than going to court. The statutory recognition of emergency arbitrators, the orders of Emergency Arbitrators are legally binding or similar legal effect as an arbitral award until the final award is pronounced.

One of the major features of the arbitration is speedy resolution. The term denotes that the parties can resolve their dispute in a timely and speedy manner without wasting more time and money for the process. We know that delayed justice is denied justice, so sometimes the arbitration process can take time. So this time, the party may tend to seek interim relief for preserving its rights or maintaining the status quo. Emergency arbitration is a mechanism for protecting the rights of the parties until the final award is passed and the order of the emergency arbitrator is valid due to its legal recognition. This helps in urgent situations like if someone is trying to hide or sell assets, hostile takeover attempts, and Cancellation of key contracts where irreparable harm is imminent.

Emergency Arbitration also promotes the country's economic growth by creating an investor-friendly atmosphere. The confidentiality and speedy procedure are the common features of arbitration. By providing interim relief through emergency arbitration, which complies with these core ideas, and also reducing the court interventions. This helps the foreign investors to choose India as a seat for commercial arbitration.

Despite these advantages, there are some complexities in the process of arbitration. The disputing parties have the autonomy to appoint the arbitrator as per the arbitration clause. But in the case of emergency arbitration, the parties were not bound by the decision, which may also impact the idea of parties autonomy. The insertion of emergency arbitration may become more costly than the regular arbitration process. In short, issues relating to party autonomy and procedural expectations may arise. Balancing speed with fairness will therefore remain central to the development of this framework.

CONCLUSION

In conclusion, the incorporation of emergency arbitration marks a significant and progressive step taken by the legislature, which allows the parties to preserve their rights and maintain the status quo until the final award is passed. Later, the interim was passed only by the court or arbitration tribunal,but now the law recognised a separate body for administering the interim relief matters. which existed and was recognised by other international bodies like the International Centre for Dispute Resolution (ICDR), International Chamber of Commerce (ICC), Netherlands Arbitration Institution (NAI), Singapore International Arbitration Centre (SIAC), Stockholm Chamber of Commerce (SCC) etc. By inserting the provision to the Act of 1996 which may strengthen India’s domestic arbitration with international arbitration standards and also provide interim justice in a timely and effective manner.  

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