Script

What is EA : Emergency arbitration is a process where an arbitrator is appointed on an

urgent basis to grant interim relief before the full arbitral tribunal is constituted. It allows
parties to seek urgent remedies without waiting for the tribunal's formation.

Provision
Type
Governing Appointment Time for Ex Parte
Institution of Enforceability
Emergency of Arbitrator Decision Allowed?
Relief
Arbitration
International Article 29 & Binding but not directly
24 15
Chamber of Appendix V, ICC Order No enforceable under the New
hours days
Commerce (ICC) Rules (2012) York Convention
Singapore
Schedule 1, 24 hours for Recognized
International 24 PPO,
SIAC Rules PPOs, 14 days Yes under Singapore
Arbitration Centre hours Order
2025 for orders law
(SIAC)
London Court of Article 9B, Award enforceable
3 14 Order or
International LCIA Rules No under the New York
days days Award
Arbitration (LCIA) (2014) Convention
American Arbitration Article 37, Award
1
Association – International ICDR No fixed Order or enforceable under
business No
Centre for Dispute Rules deadline Award the New York
day
Resolution (AAA-ICDR) (2006) Convention
Stockholm Chamber of Appendix II, SCC 24 5 Binding but requires
Order No
Commerce (SCC) Rules (2010) hours days court enforcement
Hong Kong
Schedule 4, Award enforceable
International 24 14 Order or
HKIAC Rules No under the New York
Arbitration Centre hours days Award
(2013) Convention
(HKIAC)
Swiss Article 43, Swiss Yes
24 15 Order or Enforceable
Arbitration Arbitration Rules (exceptional
hours days Award under Swiss law
Centre (2021) cases)

What are the general procedure

The specific emergency arbitration procedure depends on the institutional rules in question.
However, procedures are largely similar under all arbitration rules:

 A party submits an application or a request for emergency arbitration, in some cases,

even before the arbitration is initiated,[3] but typically together with its Request for
Arbitration/Notice of Arbitration, or at any time prior to the formation of the arbitral
tribunal.[4]
  The application or request for an emergency arbitrator must contain details regarding
the nature of the relief and the urgency of the situation and be accompanied by
confirmation that the respective fees have been paid.

 The institution in question then determines whether such an application is acceptable.

[5]

 Upon receipt of the application or request, an emergency arbitrator is typically

appointed within 1 to 3 days.

The emergency arbitrator enjoys broad powers to conduct the proceedings and has limited
time to issue its decision on the requested relief, typically between 5 and 15 days, depending
on the institutional rules in question.1

The jurisdiction of the emergency arbitrator is generally limited to the interim relief sought
and does not extend to the full dispute. Emergency arbitrators can issue orders with respect to
specific issues that need urgent attention, but they do not have jurisdiction to address the
entire dispute.

Typically, an emergency arbitrator may not act as arbitrator in any arbitration relating to the
dispute that gave rise to the application and in respect of which the emergency arbitrator has
acted unless otherwise agreed by the parties to the arbitration.

Important Ingredients:
. Ingredients of the Application It can be noticed that the international EA rules provide for
three common and basic ingredients on an EA application. The applicant is required to
provide i. the background and nature of the urgent claim, ii. the reasons why such an urgent
claim is required, and iii. proof of notification to the other parties regarding such
application.2

1
Pursuant to the ICC Rules, the order shall be made no later than 15 days from the date on which the file was
transferred to the emergency arbitrator (ICC Rules, Appendix V, Article 6(4)); under the LCIA Rules, within 14
days following the appointment (LCIA Rules, Article 9.8); under the SIAC Rules, 14 days as of the appointment
of the emergency arbitrator; under the SCC Rules, within 5 days from the referral of the application to the
emergency arbitrator (Appendix II, Article 8); under the HKIAC Rules, within 14 days from the date of the
transmission of the file to the emergency arbitrator (Schedule 4, Article 12); under the Swiss Rules, within 15
days (Article 43(7)).

2
The SIAC Rules, 2016, Schedule 1, Cl. 1; The LCIA Rules, 2020, Art. 9.5; The HKIAC Administered Arbitration
Rules, 2018, Schedule 4, Cl. 2; The ICC Arbitration Rules, 2021, Appendix V, Art. 1(2); The SCC Arbitration Rules,
2017, Appendix II, Art. 2; The Swiss Rules of International Arbitration, 2021, Art. 43(1)(c); The CIETAC
Arbitration Rules, 2015, Appendix III, Art. 1(3).
Case Laws:
1. HSBC vs Avitel (Bombay high court)
Coram : The judgment was delivered by Justice R.D. Dhanuka
2014
Facts:
 nvestment & Alleged Fraud: HSBC invested $60 million in Avitel based on
representations that the company was securing a lucrative contract with the British
Broadcasting Corporation (BBC).
 Discovery of Misrepresentation: HSBC later discovered that no such contract existed
and alleged that the investment was induced through fraudulent misrepresentation.
 Arbitration Clause & EA Invocation: The dispute resolution clause provided for
arbitration under SIAC Rules, with Singapore as the seat. HSBC invoked Emergency
Arbitration (EA) under SIAC Rules and obtained an order from the Emergency Arbitrator.
 Petition Under Section 9: HSBC filed a petition under §9 of the Arbitration and
Conciliation Act, 1996, before the Bombay High Court to enforce the EA order in India.

DECISION

 First Recognition of EA in India: The Bombay High Court in HSBC PI Holdings v.

Avitel Post was the first to address the recognition of Emergency Arbitration (EA) in India.

 Foreign-Seated Arbitration & SIAC Rules: The arbitration was seated in Singapore and
governed by the SIAC Rules, 2016.

 EA Order & §9 Petition: The petitioner invoked EA under SIAC Rules and later sought
enforcement under §9 of the Arbitration and Conciliation Act, 1996.

 Key Issue – §9 Applicability: The Court examined whether §9 (under Part I) applied to
foreign-seated arbitrations, considering the BALCO ruling, which excluded Part I from such
arbitrations.

 Exception to BALCO: Since the arbitration agreement predated BALCO and explicitly
retained §9, the Court ruled that §9 remained applicable.

 Court’s Relief Based on EA Order: Without directly ruling on EA’s recognition, the
Court granted relief mirroring the EA order under §9.

 Implied Recognition of EA: The judgment indicated that Indian courts consider EA
orders relevant for granting interim relief when §9 applies.

2. RAFFLES DESIGN V. EDUCOMP PROFESSIONAL

Justics : VIBHU BAKHRU, J
Facts :
 3.  Foreign-Seated Arbitration & EA Order: The arbitration was seated in
Singapore under SIAC Rules, and the petitioner obtained an Emergency Arbitration
(EA) order.
4.  Key Issue – Applicability of §9: Unlike HSBC, the agreement was post-BALCO
and did not expressly retain §9. The respondent argued that §9 was inapplicable due
to the foreign seat.
5.  Reliance on 2015 Amendment: The Delhi High Court referred to the 2015
amendment to §2(2), which allowed §9 to apply to foreign-seated arbitrations in
international commercial disputes.
6.  Rationale Behind Amendment: The amendment aimed to enable Indian courts to
grant interim relief when assets in India were at risk, aligning the 1996 Act with the
UNCITRAL Model Law.
7.  Independent Review of §9 Petitions: Unlike HSBC, where relief mirrored the EA
order, the Court in Raffles Design ruled that EA orders are not automatically
enforceable under §9. Instead, courts must independently assess and grant interim
relief.
8.  Final Holding: The Court upheld that parties in international commercial
arbitration with a foreign seat can seek interim relief under §9. However, prior EA
orders are not binding or enforceable under §9.

Ashwani Minda & Anr v. U-Shin Ltd & Anr[4]: A Section 9 petition was filed before the
Delhi High Court for interim reliefs that had already been refused by a detailed order of an
EA appointed under the JCAA Rules. The Delhi High Court held that “this Court in a petition
under Section 9 of the Act cannot sit as a Court of Appeal to examine the order of the
Emergency Arbitrator.”[5] Thus the Delhi High Court, whilst refusing jurisdiction under
Section 9 (on the grounds of implied exclusion of the provision by parties) also recognised
that since there was a detailed EA award it could not be reviewed by the Delhi High Court as
if it were an appeal court.

4. Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors.

Coram: Justice R.F. Nariman and Justice B.R. Gavai

Facts

 Amazon invested in Future Coupons Pvt. Ltd. (FCPL), which held shares in
Future Retail Ltd. (FRL).
 The agreement restricted FRL from selling assets to "Restricted Persons," including
Reliance Retail.
 Despite this, FRL entered into a deal with Reliance, leading Amazon to initiate
emergency arbitration under SIAC Rules.
 The Emergency Arbitrator (EA) issued an award restraining FRL from proceeding
with the Reliance deal.
 Amazon sought enforcement of the EA award in India under Section 17(2) of the
Arbitration & Conciliation Act, 1996.

HELD:
  he Delhi High Court held that an Emergency Arbitrator qualifies as an
"arbitrator" under Section 2(1)(d) of the Arbitration Act.
 It relied on Sections 2(6), 2(8), and 19(2), which allow parties to agree on
institutional arbitration rules, including those permitting emergency arbitration.
 The High Court ruled that the EA order was an interim order under Section 17(1)
and was enforceable under Section 17(2).
 The Supreme Court upheld this reasoning, confirming that EA orders in domestic-
seated arbitrations are enforceable under Part I of the Arbitration Act.

Distinction from Foreign-Seated Arbitration

 In foreign-seated arbitrations, EA orders are not enforceable under Section 17, as

Part I does not apply (as seen in Raffles Design and HSBC cases).
 Instead, parties must approach Indian courts under Section 9 or file a fresh suit under
the CPC for enforcement.
 Following PASL Wind Solutions v. GE Power Conversion India, two Indian parties
can choose a foreign seat, but the arbitration remains domestic in nature, making
Section 9 applicable.
 To expressly recognize EA orders in foreign-seated arbitrations, a new provision
in Part II of the Arbitration Act is required or an amendment to Section 2(1)(c) to
classify EA orders as awards.

2024 bill amendment:

Section 2 amendment: After clause (e), the clause shall be inserted, namely- ‗(ea)
―emergency arbitrator‖ means an arbitrator appointed under Section 9A.‘

Section 9A:
 Pre-Tribunal Relief: Arbitral institutions can appoint an emergency arbitrator before
the full tribunal is constituted, similar to Section 9 relief.
 Procedure: The Arbitration Council sets the rules for emergency arbitration
proceedings.
 Enforceability: EA orders are enforceable like tribunal orders under Section 17(2) of
the Arbitration Act.
 Tribunal Review: The final tribunal can confirm, modify, or vacate the EA order.

Section 17 amendment:
In section 17 of the principal Act, in sub-section (1), after clause (d), the following clause
shall be inserted, namely: ―(da) confirm, modify or vacate, as the case may be, the ad
interim measures granted under section 9 or order made by an emergency arbitrator under
Section 9A subject to such conditions, if any, as it may deem appropriate after hearing the
affected parties;‖

SIAC

1. Introduction of Protective Preliminary Orders (PPOs):

 o Parties can now request the appointment of an Emergency Arbitrator (EA)
along with an application for a PPO without notifying the opposing parties
(ex parte).

arbitrationblog.kluwerarbitration.com

2. Expedited Decision Process:

o The appointed EA must decide on the PPO application within 24 hours.

arbitrationblog.kluwerarbitration.com

3. Notification and Duration:

o After the EA's decision, the SIAC Secretariat informs all parties. The applicant
must then provide all case documents to the opposing parties within 12 hours
of this notification. Failure to do so results in the PPO expiring three days
after issuance.
o A PPO remains effective for 14 days from issuance.

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COMPARITIVE ANALYSIS
Section 9 (Court- Section 17
Emergency Arbitration
Feature Ordered Interim (Tribunal-Ordered
(EA)
Relief) Interim Relief)
Relief granted by an
Nature of Relief granted by Relief granted by emergency arbitrator
Authority courts arbitral tribunal before the tribunal is
constituted
Only after the
Before, during, or Before the tribunal is
Availability tribunal is
after arbitration constituted
constituted
Moderate (depends
Slower due to court Fastest (relief within 5-15
Speed of Relief on tribunal’s
procedures days)
efficiency)
Applicability to Available under Not applicable to
Not directly enforceable
Foreign-Seated Section 2(2) (post- foreign-seated
under Indian law
Arbitration 2015 amendment) arbitration
Enforceable under Section
Enforceable under 17(2) for domestic
Directly enforceable
Enforceability Section 17(2) (post- arbitration (Amazon case)
as a court order
2015 amendment) but uncertain for foreign-
seated EA
Very high (parties opt for
Limited (court- High (parties choose
Party Autonomy institutional rules allowing
driven) arbitration rules)
EA)
Ex Parte Relief Yes (but subject to No Allowed under some
 Section 9 (Court- Section 17
Emergency Arbitration
Feature Ordered Interim (Tribunal-Ordered
(EA)
Relief) Interim Relief)
institutions (e.g., SIAC 2025
court scrutiny)
PPOs)
Varies; lower than litigation
Expensive due to Cost-effective
Cost Efficiency but depends on institutional
litigation (tribunal-controlled)
fees
Can be enforced as a Interim in nature; final
Can be appealed
Finality of Orders tribunal order, but tribunal can modify/vacate
under Section 37
reviewable by courts EA orders
Used in foreign
arbitration Amazon v. Future Recognized in Amazon case
Key Judicial
enforcement Retail confirmed but lacks statutory backing
Precedents
(BALCO, PASL enforceability for foreign-seated EAs
Wind Solutions)