An emergency arbitrator’s order from an India-seated arbitration is enforceable in India. The same order from Singapore, London or Hong Kong is not. The Draft Arbitration Amendment Bill of 2024 would codify the first and leave the second untouched. This note explains the gap, the workaround, and how to draft for it.
India-seated: enforceable
In Amazon v. Future Retail the Supreme Court held that an emergency arbitrator appointed under institutional rules in an India-seated arbitration is an arbitral tribunal, that its order is an order of the tribunal under Section 17, and that it can be enforced as if it were a court order.[1] Since then an emergency award in a Delhi- or Mumbai-seated institutional arbitration is directly enforceable.
Foreign-seated: no route
Section 17 is in Part I of the Act, which does not apply to foreign-seated arbitrations except for the few provisions specifically extended.[2] Section 17 is not one of them. Part II, which deals with foreign awards, enforces only awards that decide the dispute.[3] An emergency order does not decide anything; it protects the position until the tribunal is formed, and it is subject to the tribunal’s own view. It is not a foreign award, and Part II has no provision for enforcing interim orders of any kind from a foreign tribunal.
Other countries have legislated. Singapore treats emergency arbitrators as tribunals and enforces their foreign orders.[4] Hong Kong enforces emergency relief granted in or outside Hong Kong.[5] India has no equivalent.
The workaround: Section 9
A party holding a foreign emergency order can apply to an Indian court under Section 9 for the same relief. The Delhi High Court recognised this route in Raffles Design v. Educomp: the
[1] Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209; Arbitration and Conciliation Act, 1996 (“the Act”), s. 17(1) and (2).
[2] Act, s. 2(2), proviso (ss. 9, 27, 37(1)(a) and 37(3) only).
[3] Act, s. 44 (definition of foreign award).
[4] International Arbitration Act 1994 (Singapore), s. 2(1) as amended in 2012; CVG v. CVH [2022] SGHC 249.
[5] Arbitration Ordinance (Cap. 609) (Hong Kong), Part 3A.
Singapore emergency award could not be enforced in India, but the party could apply under Section 9, and the court would decide on the merits.[6]
Three things follow. The Indian court decides afresh; the emergency arbitrator’s findings are persuasive evidence, not binding. The rule that a court should defer to the tribunal once it is formed does not apply, because the emergency arbitrator is not the tribunal.[7] And the court can only grant what Section 9 allows, which may be narrower than what the emergency arbitrator ordered.
There is a limit. In Ashwani Minda v. U-Shin a party to a Japan-seated arbitration asked an emergency arbitrator for relief, lost, and then asked the Delhi High Court for the same relief under Section 9. The Court refused, and the Division Bench upheld the refusal. Having chosen the emergency route and lost, the party could not try again in India.[8] The lesson: Section 9 substitutes for the missing enforcement mechanism. It is not a second bite after the emergency arbitrator has said no.
What the Draft Bill would do
The Draft Arbitration and Conciliation (Amendment) Bill, 2024 was published for consultation in October 2024 and has not been introduced in Parliament.[9] It would add a new Section 9A allowing institutions to appoint emergency arbitrators and making their orders enforceable like tribunal orders. Section 9A sits in Part I. The Bill does not extend it to foreign-seated arbitrations. It would give statutory footing to what Amazon already decided for India-seated cases and leave foreign emergency orders exactly where they are.
Worse, the Bill would restrict Section 9 to before the arbitration starts and after the award is made, removing the court’s power to act during the arbitration.[10] For an India-seated case that is manageable, because Section 17 and the new Section 9A fill the gap. For a foreign-seated case there is no Section 17, no Section 9A, and no enforceable emergency order. A party with Indian assets to protect would have access to an Indian court before the arbitration and after the award, and nothing in between. That is exactly when emergency relief is needed. The workaround would close at the moment it is needed.
How to draft
Preserve Section 9 expressly. It applies to foreign-seated arbitrations unless the parties agree otherwise, and a general exclusion of Part I or a clause giving the seat’s courts exclusive jurisdiction may count as such an agreement. State that Indian courts may grant interim relief in support of the arbitration wherever it is seated. Ashwani Minda makes this the difference between having the route and not.
[6] Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd., 2016 SCC OnLine Del 5521.
[7] Act, s. 9(3).
[8] Ashwani Minda v. U-Shin Ltd., 2020 SCC OnLine Del 721, affirmed by the Division Bench.
[9] Department of Legal Affairs, Ministry of Law and Justice, Draft Arbitration and Conciliation (Amendment) Bill, 2024, published for public comment on 18 October 2024; proposed ss. 2(1)(ea) and 9A.
[10] Draft Bill, proposed amendment to s. 9(1).
Decide whether to opt in to the emergency procedure with India in mind. If the assets are mainly in India, the emergency procedure adds little and creates the risk that a refusal will shut Section 9; go straight to the Indian court. If the assets are mainly abroad, the emergency procedure is the primary tool and Section 9 the supplement.
Consider the seat. Where both parties or the assets are Indian, an India-seated institutional arbitration gives an enforceable emergency order and an enforceable tribunal order, with no gap. A foreign seat between Indian parties is valid,[11] but it trades that certainty for the Section 9 workaround. Price it.
Sequence the applications. If you expect to need protection in India, apply under Section 9 first or at the same time as the emergency application, not after. Section 9 relief obtained before the emergency arbitrator acts is not undone by a later refusal at the seat. The reverse is not true.
The open questions
Whether an Indian court could ever treat a foreign emergency order as enforceable under the current Act. On the text, no. Whether Ashwani Minda applies where the emergency arbitrator granted relief and the party seeks the same relief under Section 9 to give it teeth in India, rather than to reverse a refusal. The better view, consistent with Raffles Design, is that it does not. And whether the Bill will be amended before introduction to extend Section 9A to foreign seats. Consultation raised the point; the Government has not answered it. The drafting above holds whichever way each is resolved.
This note is published for general information. It states the position as understood on the date shown and is not legal advice. It does not create a lawyer–client relationship and is not an invitation to engage the firm.
[11] PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd., (2021) 7 SCC 1.
