DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

Alternative Dispute Resolution

Final Draft

EMERGENCY ORDER/AWARD UNDER

ARBITRATION

SUBMITTED TO: SUBMITTED BY :

MS. SHAKUNTALA ‘SANGAM’ NISCHAY NEHRA

ASSISTANT PROFESSOR (LAW) B.A.LL.B. (B) VI SEM.

Dr. RMLNLU ENROLL. NO. 150101088

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Acknowledgment

Expressing gratitude is a pleasant but difficult job when one sincerely tries to put them in
words. To list them all is not practicable, even to repay them in words is beyond the domain
of my lexicon.

I am highly indebted to Ms. Shakuntala ‘Sangam’, our Professor and Guide of the subject for
firstly, allowing me to take this topic just on the ground that I have interest in the topic,
secondly, for providing me outstanding assistance at every step of my preparation of this
project. I am extremely thankful to her for her constructive criticism and helpful suggestions.
Her constant encouragement helped me to work harder.

Further, I would like to give my sincere gratitude to the Madhu Limaye Library, Librarian sir
Mr. Manish Bajpayee and his team for helping me in finding material on the topic. Without
their support this project could not have been completed because finding detailed material on
this topic is not easy task.

I would also in cryptic gratitude toward my parents who ensure my capabilities and raise my
confidence, also maintain mental and physical balance.

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 Index

1. Research Question………...……………………………………………...3
2. Introduction……………………………………………………………....3
3. Features of Emergency Arbitration………………………………………4
4. Test to be applied………………………………………………………...5
5. Domestic Arbitration………………………………………………….….6
6. International Arbitration……………………………………………….....8
7. Solutions and Conclusion……………………………….……………….10

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Research Question

This research paper is mainly concerned with the analysis of the legal status of the
enforcement of an emergency award/order under the Indian Arbitration and Conciliation Act,
1996. If at all the Indian Act is equipped with the enabling provisions for the enforcement of
a domestic emergency award/order (when the seat of arbitration is in India) and a foreign
emergency award/order (when the seat of arbitration is abroad)?

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Introduction

The law must adapt to remain relevant. Foremost among the new developments in the field
of arbitration stands the concept of emergency arbitration. Although emergency arbitration is
a relatively new phenomenon, it has gained significant traction. This is reflected in both the
number of institutional rules that allow the parties to appoint emergency arbitrators and the
frequency with which the parties use this mechanism.

In an emergency arbitration, an application for relief is to be made to an arbitrator appointed

by the arbitral institute (institutional arbitration) which is prior to the constitution of an
arbitral tribunal. As per the ICC Rules, “A party that needs urgent interim or conservatory
measures that cannot await the constitution of an arbitral tribunal may make an application
for such measure to the emergency arbitrator.” 1

The emergency arbitrator derives power from the parties’ agreement to arbitrate under
arbitral rules that provide for emergency arbitration, just as the regular arbitral tribunal
derives its power from the agreement to arbitrate. This can be seen as the parties delegating
their party autonomy to the arbitral institution which they have mutually chosen. If these
rules provide for emergency arbitration, then the parties choosing to arbitrate under these
rules are deemed to have agreed to these provisions.

In many jurisdictions, the legislations have broadened their horizon to include within its
ambit an ‘emergency arbitrator’.2 The following institutional rules provide for the
appointment of emergency arbitrators: the ICC Rules; the London Court of International
Arbitration (LCIA) Rules; International Centre for Dispute Resolution (ICDR) Rules; the
Swiss Rules of International Arbitration (Swiss Rules); Rules of the Stockholm Chamber of
Commerce (SCC); the Hong Kong International Arbitration Centre (HKIAC) Rules; and the
Singapore International Arbitration Centre (SIAC) Rules. But in India, the 246th Law
Commission Report suggested widening the scope of the term ‘arbitral tribunal’ by
incorporating the term ‘emergency arbitrator’ within its definition. However, the same was
not incorporated in the Arbitration and Conciliation (Amendment) Act, 2015 and did not find
its way into the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). As such, for
now, India remains a step behind other countries in developing itself as an arbitration friendly
country.
1
I.C.C. Arbitration Rules, Art. 29, cl. 1.
2
Singapore International Arbitration Centre Rules, 2016.

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Features of emergency arbitration

Before discussing the problems associated with the effective implementation of the
emergency arbitration the essential features need to be highlighted as well. Firstly,
an emergency arbitration must be conducted in a rapid manner that is consonant with (and
does not prejudge) the applicant's depiction of the situation as requiring urgent interim relief.
The emergency arbitrator must respect the right of both sides to have sufficient opportunity of
presenting their case.3 This includes giving the respondent the time to review the papers that
have been served, and to prepare a suitable answer (whether in written or oral submissions, or
both).

Secondly, the emergency arbitration is demanding in terms of time and effort. For an
emergency arbitrator, in particular, it is important that they ensure that they duly finish the
proceedings in which the emergency arbitration is due to take place. Institutions have
reported that emergency arbitrators spend around ten to forty hours on emergency
arbitration proceedings.4

Thirdly, the relationship between the emergency arbitrator and the arbitral tribunal can affect
how an emergency arbitration proceeds. For example, the definition of the ‘arbitral tribunal’
in the KLRCA Arbitration Rules 2013 5 states that the definition of arbitral tribunal includes
the emergency arbitrator.

Fourthly, the impact of the relationship between the emergency arbitration and tribunal can
have an effect on whether the decision of the emergency arbitrator will be enforceable
through the national courts in the country where enforcement is needed in the particular case.
Some countries, such as Singapore and Hong Kong,6 have included express amendments in
their arbitration laws to permit the enforcement of the decisions of emergency arbitrators. In
other countries, the question may remain open as to whether an emergency arbitrator's
decision would be enforceable.

One of the major hurdles in the successful implementation of the provisions of emergency
arbitration is in deciding whether an emergency arbitrator’s decision is in the form of an
3
UNCITRAL Model Law on International Commercial Arbitration, Art. 18.
4
SIAC, The Emergency Arbitrator and Expedited Procedure in SIAC: A New Direction for Arbitration in
Asia, available at www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/420-the-emergency-
arbitrator-and-ex.
5
Kuala Lumpur Regional Centre for Arbitration Rules, 2013, Rule 4(2).
6
Singapore International Arbitration Act, (Chap. 143A), § 2(1) & 12(6); Hong Kong Arbitration Ordinance,
Cap. 609, § 22B.

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‘award’ or an ‘order’. Furthermore, is such an interim measure ordered by an emergency
arbitrator enforceable, when it is in fact not 'final'? Therefore, the ultimate test of the nature
of emergency arbitration and the enforceability of decisions by emergency arbitrators is
whether the international arbitration community, and importantly, state courts, are willing to
accept emergency arbitration as a procedure resulting in a final and binding decision that can
be enforced as an arbitral interim measure or as an arbitral award.

Article 29(2) of the ICC Rules of Arbitration 2012 state that the decision of the emergency
arbitrator will take place in the form of an order. 7 However, in contrast, the SIAC, has simply
stated in their rules that the emergency arbitrator will have the powers to order or award
interim and conservatory relief.8 The question of whether such power vested in the
emergency arbitrator is that of granting an award or an order, is specific to the rules and must
be handled on a case - by - case basis.

Some states have sought to label certain interim measures ordered by the tribunals as
‘awards’, at least as far as their legislation goes. In New Zealand 9, the provision on
enforcement of awards is applicable to interim measures order as well. Both the Paris Cour
d'Appel and US Federal Court of Appeals have classified certain arbitral decisions entitled
‘orders’ by tribunals as ‘awards’.10 This makes them susceptible to annulment and/or
recognition and enforcement proceedings in the national courts. However, this is not the case
in every jurisdiction.

7
International Chamber of Commerce Arbitration Rules, 2013, Article 29 (2).
8
Singapore International Arbitration Centre (SIAC) Rules, 2016 Schedule 1(8).
9
New Zealand Arbitration Act 1996, Sch. 1, Article 17L.
10
R EDFERN AND HUNTER ON INTERNATIONAL ARBITRATION 504 (6th ed. Oxford University Press 2015).

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 Test to be applied

Arbitral rules specify that there must be an ‘emergency’ – indicating that the claimant must
demonstrate that the application cannot wait for the appointment of the arbitral tribunal but
never elaborate upon this.  The ACICA Arbitration Rules, exceptionally, contain an express
statement of the test that must be applied, as follows:

‘Before the Emergency Arbitrator orders or awards any Emergency Interim Measure, the
party requesting it shall satisfy the Emergency Arbitrator that:

a. irreparable harm is likely to result if the Emergency Interim Measure is not ordered;

b. such harm substantially outweighs the harm that is likely to result to the party affected by the
Emergency Interim Measure if the Emergency Interim Measure is granted; and

c. there is a reasonable possibility that the requesting party will succeed on the merits, provided
that any determination on this possibility shall not affect the liberty of decision of the Arbitral
Tribunal in making any subsequent determination. 11

However, this test in not applicable in all scenarios. Alternatively, the emergency arbitrator
may be more directive about the appropriate test at the outset (while also taking into account
the parties' views). This has the advantage of enabling the parties to tailor their submissions
more effectively. 

The emergency arbitrator should be careful not to supplant the role of the arbitral tribunal. If
the timing of the claimed emergency allows the arbitral tribunal to deal with the application
for interim relief directly after its appointment, the emergency arbitrator should probably
postpone the application for the tribunal to hear rather than to tackle it themselves. It would
be more efficient and promote the resolution of the overall dispute if the same decision-maker
hears the application for interim relief, as will ultimately decide the dispute.12

Domestic arbitration in India

11
Australian Centre for International Commercial Arbitration Rules 2016, Schedule 1, para. 3.5.
12
London Court of International Arbitration Rules 2014, Art.9.8.

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As per Section 2(c), Arbitration Act, an arbitral award includes an interim award as well.
Therefore, any interim award given by the emergency arbitrator would have been enforceable
in India. An interim order that is passed by the arbitral tribunal, shall be binding as an order
of the Court. 13 In context of the second question, as per Section 35 of the Arbitration Act, an
arbitral award shall always be final and binding upon the parties. Hence, any arbitral award
(even an interim award) would be binding and enforceable in India.

In India, for example, The Mumbai Centre for International Arbitration (M.C.I.A.) Rules lays
down the provisions for emergency arbitration, Rule 14.7 14, in very simple terms puts the
controversy, of whether an interim measure is in the nature of an ‘order’ or an ‘award’, to
rest. It states that any interim relief ordered by the emergency arbitrator can be in the form of
an ‘order’ or an ‘award’ which will be binding on the parties just like an interim measure
ordered by a Tribunal.

When we come to the question of an arbitral tribunal granting interim measures, Section 17
of the Arbitration Act, comes into play. Earlier, the tribunal was neither conferred with the
power to enforce its order nor with any judicial enforcement of such order. But the 2015
Amendment to Section 17 of the Arbitration Act, clarified that an order of the tribunal would
be enforceable like any other order of the court in cases of interim relief granted by arbitral
tribunals. 15

Earlier, the applicability of Section 17 was perused and comprehended in light of Section 9
since they were corresponding in nature. In M.D., Army Welfare Housing Organisation v.
Sumangal Services (P) Ltd.,16 the Supreme Court conceded the restricted extent of Section 17
and held that the section does not bestow any power upon the arbitral tribunal to implement
its order or even for judicial enforcement of the same. This is where Section 9, Arbitration
Act, came to the rescue of the parties’ even during the continuation of the arbitral
proceedings, thereby enhancing court intervention.

However, with the amendment to Section 17, the intervention of the court was minimized and
the pre-referral form of arbitration can now take the front seat. Further by proviso to section

13
Arbitration and Conciliation Act, 1996 § 17.
14
Mumbai Centre for International Arbitration Rules, available at http://mcia.org.in/mcia-rules/english-
pdf/#mcia_rule14.
15
Arbitration and Conciliation (Amendment) Act, 2015.

16
M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., (2004) 9 S.C.C. 619.

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2, the applicability of section 9 has been extended to international commercial arbitrations,
even if the place of arbitration is outside India. 17

Therefore, an interim award/order passed by an emergency arbitrator can be enforced as now

the arbitral tribunal has all the powers of a civil court and the Court should only be allowed to
grant any interim measures in case of ‘urgency’ only when the provisions of emergency
arbitration aren’t available. 18

International Arbitration

17
Arbitration and Conciliation Act, 1996 § 2.
18
Gerald Metal S.A. v. Timis & Ors, (2016) E.W.H.C. 2327 (Ch).

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When it comes to an interim order which is given in a seat of arbitration abroad, there is no
provision in the Indian Act that determines its enforceability. On the other hand, an interim
award which is given by a seat of arbitration abroad (“Foreign interim award”), the
enforceability of such awards would be governed by the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, 1958.

If the relief is obtained in the form of an ‘order’ or ‘award’, that emergency ‘order’ or
‘award’ will not be enforceable under the New York Convention. Since, the decision of the
emergency arbitrator can be reviewed and modified by the arbitral tribunal, an ‘order’ or
‘award’ of an emergency arbitrator will never attain finality. As the New York Convention,
has not defined ‘arbitral award’, whether an award rendered by an emergency arbitrator could
be recognized and enforced as if it were a court order is dependent on the National
legislation.

According to Article 17, UNICTRAL Model Law on International Commercial Arbitration

1985, the arbitral tribunal has the power to order interim measures. Article 17H of the
UNCITRAL Model Law, provides for recognition and enforcement of interim measures
granted by the arbitral tribunal to be binding, with the exception of the grounds specified in
Article 17I. The UNICTRAL Model Law under Article 17H specifies that interim measure
issued by an arbitral tribunal would be recognised as binding and enforced upon an
application to the competent court, irrespective of the country in which it was issued. This
validates the enforcement of an interim measure even when it is not given in the country
where the arbitration took place (lex arbitri). However, the essence of the same has not been
incorporated by the legislators in the Indian Arbitration Act.

To answer the question of finality of an award, there is no straightforward answer to these

questions, not least of all because different national courts have approached the broader issue
of whether a tribunal's interim decision lacks finality for the purposes of enforcement in
different ways. In Sweden, for example, an emergency arbitrator's interim decision would
also not be enforceable through the national courts. 19 In contrast, in other jurisdictions such
as Hong Kong,20 the relevant national legislation allows national courts to enforce interim
measures ordered by a tribunal.

19
Swedish Arbitration Act (SFS 1999:116) (Swed.) § 27.
20
Hong Kong Arbitration Ordinance, 2011 (Cap 609) L.N. 38 of 2011 (H.K.) § 35

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The fate of the awards of an emergency arbitrator in India has been detailed in the leading
cases of HSBC v. Avitel21 and Raffles Design International India Private Limited & Ors. v.
Educomp Professional Education Limited & Ors22, the Bombay High Court and the Delhi
High Court respectively, have emerged as the torch bearers wherein interim reliefs were
granted by the Courts in sync with the order of the Emergency Arbitrator.

In HSBC v. Avitel, the case concerned an arbitration agreement in which the parties had
preserved the right to seek interim relief before the national courts of India, even though the
arbitration was conducted outside of the Country. One of the parties obtained the order from
the Emergency Arbitrator seated in Singapore and sought to enforce it under the interim
measures provisions in India. Even though Part II of Indian Arbitration Act states that only
final awards are enforceable, the Bombay High Court passed interim reliefs in similar terms
to those in the arbitration order. In the view of the court, the ‘…petitioner has not bypassed
any mandatory conditions of enforceability…’ since it was not trying to obtain a direct
enforcement of the interim award. Instead, it was independently asking for interim measures
against the respondent, by virtue of parties’ agreement set out in the contract. Although the
court did not directly enforce the emergency arbitrator’s order, this case provides an
additional example of the indirect enforceability of the emergency arbitrator’s orders.

But the Delhi High Court in Raffles Design case held that an emergency award in a foreign
seated arbitration cannot be enforced in India under the Act. The Court held that a party is not
precluded from seeking interim measures from a court merely because it obtained a similar
order from an arbitral tribunal. It further held that the court, in considering a petition under
section 9, should not be influenced by the orders of the arbitral tribunal. The Act conferred
jurisdiction on Indian courts to grant interim relief even if the seat of arbitration was outside
India.23 In this context, the Court also observed that the Act does not contain any provisions
for enforcement of an emergency/ interim award issued in a foreign seated arbitration, and
therefore, an emergency award was unenforceable in India. Therefore, an application under
section 9 is probably the only recourse left for the parties to seek interim measures of
protection in India, for foreign seated arbitrations.

But this court ruling only enhances the intervention of the Courts in the arbitration
proceedings and defeats the whole purpose of the concept of emergency arbitration, which
21
Arbitration Petition No. 1062/2012, Judgment of 22 January 2014.
22
MANU/DE/2754/2016.
23
Arbitration and Conciliation Act, 1996 § 2(2).

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was to limit the court intervention. Therefore, it is important that the Supreme Court put this
controversy to rest as soon as possible.

Solutions and Conclusion

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The legislative and judicial trend worldwide is to bring municipal arbitration laws to
recognize and enforce emergency awards. Raffles Design24 case highlighted the lacunae
under Indian law in relation to enforcement of foreign seated emergency arbitrator awards.
Had the amendment to section 2(1)(d) of Act as recommended by the Law Commission of
India been accepted, brought India would have certainly fallen into line with the global trend
to enforce emergency awards by way of legislative provision. However, such an attempt
would only be applicable for domestic seated emergency awards which can still possibly be
enforced resorting to section 17(2) of the Act.

In order to expressly recognize the emergency awards in foreign seated arbitrations, a new
statutory legislation or amendments to Part II of the Act would be required. But as of now, in
the absence of a statutory provision and a conclusive judgment of the Supreme Court, the
only remedy available for indirect enforcement of emergency awards appears to be for the
parties to apply for interim measures under section 9 of the Act.

In order to rectify the problem, Article 14.10 of the 2014 Rules for Administered Arbitration
of International Disputes of the International Institute for Conflict Prevention and Resolution
(CPR) can be looked into which provides that the special arbitrator for emergency relief ‘may
state in [his/her] award or order whether or not [he/she] views the award or order as final
for purposes of any judicial proceedings in connection therewith’. To this extent the intention
of the emergency arbitrator can be a relevant factor in the court’s analysis, this provision may
enhance the enforceability of decisions of special arbitrators. 25 However, notifying the
intention of an arbitrator to be a relevant factor in determination of the finality of an
order/award would render the whole process subjective in nature.

Lastly, upon applying the substance-over-form approach26, which states that the
nomenclature given to the transaction in question, is not a decisive factor, but what matters is
the substance of the document, the nature of an order can be decided. For example, in U.S.A.,
in Publicis Communication v True North Communications,27 the 7th Circuit Court
considered a request to enforce an interim measure that had been rendered in the form of an
order. Challenging both the substance of the order and its character as an order, the party
attempted to resist enforcement on the basis that an order is not a final dispositive award as
24
Supra note 17.
25
Article 14.10, Rules for Administered Arbitration of International Disputes, International Institute for Conflict
Prevention and Resolution.
26
Mathai Samuel and Others v. Eapen Eapen & others, (2012) 13 S.C.C. 80.
27
206 F 3d 725 (7th Cir 2000).

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required by the US Federal Arbitration Act and the New York Convention. The court held
that it is the content of a decision, not its nomenclature that determines its finality. Herein, the
Court didn’t pay heed to the fact that it was an interim order, but still allowed its
enforcement. It can thus be suggested, that the U.S. courts are very likely to enforce any relief
made under Art.37 of the ICDR Rules whether they are emergency orders or awards.28

Just as the 2015 Amendment gave power to the tribunals under section 17, to enforce the
order of a tribunal like any other court order, the same rationale should be applicable to
measures rendered by an emergency arbitrator as well because, like the ‘temporary interim
relief’, emergency relief may also be essential to preserve assets or enforce performance
which, if not preserved or enforced, may render a final award meaningless. 29

It should not be the role of the courts to undermine the comprehensive grant of authority
given to arbitrators by prohibiting an arbitral award that ensures a meaningful final award.
Emergency arbitration is an effective means of avoiding court intervention and it should be
promoted more. Countries can amend their arbitration laws to allow for the enforcement
of emergency arbitration awards, as Singapore and Hong Kong have already done. 30
Singapore International Arbitration Act 31 provides that:

All orders or directions made or given by an arbitral tribunal in the course of an arbitration
shall, by leave of the High Court or a Judge thereof, be enforceable in the same manner as if
they were orders made by a court and, where leave is so given, judgment may be entered in
terms of the order or direction. 

The 2013 Amendment to the Hong Kong Arbitration Ordinance adopted a similar solution. It
states that:

any emergency relief granted, whether in or outside Hong Kong, by an emergency arbitrator
under the relevant arbitration rules, is enforceable in the same manner as an order or
direction of the court that has the same effect, but only with the leave of the court. 

28
Guillaume Lemenez & Paul Quigley, ICDR Emergency Arbitrator Procedure in action, Dispute Resolution
Journal, November 2008, 3.
29
Arrowhead Global Solutions v. Datapath Inc., 3 166 Fed. Appx. 39, 44 (4th Cir. 2006).
30
Ben Giaretta, The practice of Emergency Arbitration, B- ARBITRA, B ELGIAN REVIEW OF ARBITRATION ,
105 (2017).
31
Supra note 7.

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Hence, it is necessary that India move forward with the countries around it in context of the
current social, economic and political trends in the law. Only then can India adapt to being an
arbitration friendly country and become a hub for commercial dispute resolution.

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