Authored By: Siddharth Pariani
Symbiosis Law School, Pune
Abstract
This article is a critical examination of enforcement of emergency arbitrator (EA) awards in India based on the Supreme Court judgment in Amazon v. Future Retail (2021). Despite the Court interpreting EA awards to be binding under Section 17(2) of the Arbitration and Conciliation Act, 1996, the same remains silent in the Act. This has led to contradictory judgments, increased litigation, and uncertainty among investors. Alternatively, Singapore and Hong Kong offer statutory enforcement of EA awards with a guarantee of clarity and procedural consistency. The article argues that India’s excessive reliance on judicial discretion disempowers India’s arbitration ambitions. It suggests particular legislative reforms of Section 17B to subject EA enforcement to a specified legal framework in alignment with international arbitration best practices.
Introduction
The collapse of the 3.4-billion-dollar deal of Future Retail and Reliance[1] in 2021, suspended by Amazon through emergency arbitration (EA) of the SIAC Rules[2], uncovered an enormous void in Indian law of arbitration. Emergency arbitration facilitates immediate interim relief before the setting up of a formal tribunal and is widely accepted in institutional rules like those of SIAC, ICC, and LCIA. But no specific provision for EA or enforcement of awards is made under India’s Arbitration and Conciliation Act, 1996.
In Amazon v. Future Retail (2021)[3], the Supreme Court upheld EA awards as enforceable under Section 17(2) as though made by a tribunal. Although the decision met with approval, its doctrinal ground is tenuous. Earlier judgments such as HSBC v. Avitel (2020)[4] had taken a contrary view, refusing enforcement due to the absence of a constituted tribunal. These conflicting judgments mirror a broader ambivalence that undermines India’s regime of arbitration.
The article argues that India’s reluctance to enact legislation for the recognition of EA awards creates a void in law. The parties are then forced to rely on the discretion of the court or fragmented precedent, which inflates costs and delays. It also discourages the users from opting for Indian-seated arbitration or institutions like MCIA[5]. By examining Indian case law, cross-checking pro-enforcement jurisdictions such as Singapore and Hong Kong, and structural inconsistencies determination, the article calls for legislative reform in urgency. The determination of the position of EA in Indian law is key to the provision of procedural certainty and upholding the credibility of India’s arbitration regime.
Legal Framework
- Lack of Statutory Recognition
The Arbitration and Conciliation Act, 1996[6] does not directly recognize emergency arbitration. Courts may, according to Section 9, grant interim relief, and arbitral tribunals may, according to Section 17, grant such relief. The 2021 added Section 17B facilitates enforcement of interim orders granted by the tribunal. However, emergency arbitrators fall beyond the meaning of the term “arbitral tribunal” under Section 2(1)(d)[7] and therefore EA awards fall beyond the ambit of the Act. Thus, parties are compelled to look to Order XXXVIII of the Code of Civil Procedure, 1908[8], which is not apt for the speed and flexibility inherent in arbitration. This statutory gap adds undue procedural complexity and water down the finality which can be anticipated in interim orders.
- Comparative Statutory Models
Other countries have removed this doubt by way of legislation. The Singapore International Arbitration Act[9] expressly covers emergency arbitrators within the definition of “tribunal” under Section 2(1), therefore EA orders can be enforced under Section 12(6)[10]. Similarly, Hong Kong’s Arbitration Ordinance[11] specifically covers EA awards under Section 22B, considering them to be orders of a constituted tribunal. These provisions reflect the amendments to the 2006 UNCITRAL Model Law[12], particularly Article 17H, which prefers the enforceability of interim measures issued by any authority, including emergency arbitrators. These courts demonstrate that clarity of statute optimizes procedural efficiency and curbs judicial interlopation that is unjustified.
- Indian Judicial Workarounds
In Amazon v. Future Retail (2021)[13], the Supreme Court has upheld an EA award by making it enforceable under Section 17(2), read with Order XXI of the CPC. The Bombay High Court in HSBC v. Avitel (2020)[14] on the other hand refused enforcement, holding that there was no jurisdiction of an emergency arbitrator under the Act. The divergent judgments reveal the failure of judicial improvisation and reassert the value of legislative precision. In the absence of specific recognition, EA implementation is doubtful, raising questions on India’s seriousness for a proper system of arbitration.
- Judicial Trends: Divergent Approaches and Doctrinal Ambiguity
India’s experience with emergency arbitration has gone hand in hand with an inconsistent judicial approach, producing conflicting doctrinal explanations. While the Supreme Court’s ruling in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.[15] brought to life the acknowledgment of emergency arbitration, subsequent judgments and current litigation continue to render it impracticable to enforce in fact.
The 2021 Amazon ruling interpreted an emergency arbitral award under the Singapore International Arbitration Centre (SIAC) rules as pari materia to an order under Section 17(1) of the Arbitration and Conciliation Act, 1996. The Court declared the award binding in nature on the parties and also enforceable under Section 17(2). This reading effectively extended the scope of enforceable interim orders to include those made by emergency arbitrators; without express statutory reference. It was a bold judicial endorsement of India’s pro-arbitration stance.
However, this confidence did not last long. Subordinate courts and high courts have since formed differing positions, which brought in a high level of uncertainty. For instance, in HSBC PI Holdings v. Avitel Post Studioz Ltd. (2020)[16], the Bombay High Court refused enforcement of an emergency award and considered it non-binding. Although this verdict precedes Amazon, it is still referred to in order to further the argument that emergency arbitrators are not statutorily authorized in Indian law.
This divergence is once more reiterated through the pending case of Ashwini Mhatre v. Ericsson India[17], awaiting disposal by the Supreme Court. The straightforward question here is whether a spur-of-the-moment award under the International Chamber of Commerce (ICC) Rules is enforceable. The case presents the Court with an opportunity to decide whether Amazon’s logic can be extended to other institutional arrangements or is confined to the SIAC case only.
Discrepancies mainly result from a lack of express legislative guidance. Courts remain conflicted about whether emergency arbitrators fall within the statutory meaning of “arbitral tribunal” in Section 2(1)(d). Judicial interpretation hence diverges depending on the institution in question, the extent of perceived binding of emergency relief, and the procedural state of the case.
At a commercial level, this reluctance on the part of the judiciary has real-world consequences. It incentivizes defaulting parties to resist emergency relief orders, undermining the finality and purpose of such orders. In addition, the prolonged enforcement schedule undermines the immediacy that emergency arbitration promises to deliver.
Failing consistent statutory support, Indian courts are now the final arbiters of procedural legitimacy. While some have tried to hold on to the values of international best practices, others have clung to an austere interpretation of the Arbitration Act. This in-doctrine distance fuels uncertainty, a severe disincentive for foreign investors who rely on Indian arbitration-friendly stories.
For the return of coherence, the best would be an authoritative decision by the Supreme Court establishing the enforceability of emergency awards across the land under universal institutional provisions. Even such a decision, however, would remain susceptible to future re-interpretation in the absence of legislation. Until then, judicial inclinations will keep swinging between progressive enforcement and literalism of the statutes.
- Critical Gaps: Structural Ambiguity and Practical Barriers
Despite certain positive judgments, Indian law on emergency arbitration remains infested with inherent ambiguities. Some of these are definitional disputes, procedural hurdles, and systemic delays—all combining to eviscerate the efficacy of emergency relief in real cases.
- Legal Ambiguity: Core Definitional Conflicts
The most glaring ambiguity is whether an emergency arbitrator constitutes an “arbitral tribunal” for the purposes of Section 2(1)(d) of the Arbitration and Conciliation Act[18]. The Act mandates that an arbitral tribunal be either a sole arbitrator or multiple arbitrators. Emergency arbitrators, who are appointed before the constitution of the complete tribunal, find themselves in a procedural limbo. The question of whether they are included under this legislative definition is affirmatively neither confirmed nor categorically excluded. This position of legal ambiguity forces courts to stretch or narrow statutory words, depending on the interpretative strategy employed.
Such uncertainty also undermines institutional transparency. Arbitral institutions like SIAC or ICC analogously equate emergency arbitrators with complete tribunals functionally in awarding interim relief. However, without domestic statutory convergence, their orders can be liable to be struck down by Indian courts as not possessing jurisdictional legitimacy.
- Procedural Delays and Inconsistent Enforcement
The utility of emergency arbitration is in the urgency of relief. However, in India, the process from award issuance to judicial enforcement is generally tardy owing to procedural objections and jurisdictional issues. No statutory direct enforcement procedure is available for emergency awards under Part I of the Act[19], unlike final arbitral awards. This results in parties going to Section 9[20] for interim relief or holding on to constitution of the main tribunal and then going under Section 17[21], prejudicing the very intent of emergency arbitration.
The High Courts disagree on whether or not emergency awards are directly enforceable under Section 17(2). Even when the courts recognize their enforceability, the procedure is far from efficient. No set rules of procedure translate into uncertainty and, more times than not, delay strategies by parties objecting to the legality, forum, or scope of the award. The lack of expedited procedures for confirmation and enforcement of the awards reduces their very purpose further.
- Empirical Data: Judicial Challenge Prevalence
According to the MCIArb India Arbitration Survey (2024)[22], 43 percent of emergency awards to parties seated in India were challenged in court within three months of their issuance. Of those, a significant proportion were on procedural objections or definitional distinctions. The next figure illustrates a familiar trend: emergency relief is not treated as binding advice but as a tentative suggestion subject to complete judicial review.
Overall, these praetorian gaps expose the emergency arbitration procedure to strategic abuse. As much as international investors select institutions with EA provisions expecting speedy protection, the Indian regime of enforcement dilutes that guarantee. This gap may be filled not only by consistency of the judiciary but also by legislative clarity acknowledging the procedural roles of emergency arbitrators.
- Global Lessons: Pathways to Certainty
- Singapore and Hong Kong: Models of Statutory Clarity
Singapore: The International Arbitration Act (IAA) incorporates emergency arbitrators under the definition of “arbitral tribunal” in Section 2(1), thus making their awards enforceable directly as court orders. The SIAC Rules for compliance within 21 days have resulted in a 95% voluntary rate of enforcement[23]. Such statutory certainty has minimized the intervention of courts, further sustaining investor confidence.
Hong Kong: Through Section 22B of the Arbitration Ordinance, courts have the ability to enforce EA awards as though they were orders from a full tribunal. Post this amendment, post-award litigation has decreased by 70%[24], demonstrating that court-backed infrastructure for EA compliance enhances procedural effectiveness.
- China: A Cautionary Tale of Judicial Overreach
The 2018 Supreme People’s Court Notice[25] only allows EA enforcement in foreign-seated arbitrations, not domestic ones. In G v. R (2022)[26], a Shanghai court set aside an ICC EA award against the will of the parties, challenging party autonomy. As a result, China is Asia’s worst performer in interim relief efficiency. This warns against the risk of discretionary enforcement powers absent legislative clarity.
- UNCITRAL Model: A Global Blueprint
Article 17H of the UNCITRAL Model Law (2006) requires enforcement of interim measures “irrespective of issuing authority.” Enacted in 79 countries, including Canada and Australia, this innovation has reduced delays in enforcement by 40%.
India’s failure to implement this norm has negative consequences: 78% of SIAC arbitrations with Indian parties[27] now incorporate EA exclusion clauses. The lack of a uniform Indian law encourages forum shopping and undermines local arbitral institutions’ credibility.
Takeaway: Jurisdictions with express statutory recognition of emergency arbitration awards in clear manner, Singapore and Hong Kong, are characterized by high levels of voluntary compliance and little judicial intervention. This ensures procedural certainty and maintains the effectiveness of arbitral institutions. It is the opposite for jurisdictions such as India and China, lacking explicit legislative recognition or providing only scattered enforcement channels, risking a conversion of emergency arbitration into a procedural mirage. Although the mechanism is present on paper, its real-world effect is watered down through uncertainty, inconsistent decisions, and judicial hesitation, finally eroding investor confidence and legitimacy of interim relief mechanisms.
Reform Proposals: Legislative & Institutional Fixes
- Amend Section 17B to Cover EA Awards
Enlarge Section 2(1)(d) of the Arbitration and Conciliation Act to make emergency arbitrators “arbitral tribunals“.
Amend Section 17B to clearly provide that it shall be applicable to “orders passed by emergency arbitrators“, thus negating the restrictive rationale of HSBC v. Avitel.
- Notify Central Enforcement Rules under Section 82
Authorize the Central Government to formulate binding procedural rules for EA enforcement:
- Timeline: Direct court orders within 30 days of EA award enforcement
- Grounds for Refusal: Restrict to those under Section 34[28], fraud, jurisdictional mistakes, or public policy.
- Protocol: Make EA appointment procedures uniform across institutions to minimize delay and discretion.
Refine MCIA’s Model Rules
Modify MCIA Rule 14[29] to read: “Emergency awards are final and binding unless challenged under Section 34.“
This is a copy of SIAC Rule 30(3)[30], which has been effective in preventing non-compliance. A contractual basis for enforcement would fill the existing statutory lacuna until legislative amendments come into force.
Why They Matter: These proposals draw on globally accepted best practices followed by premier arbitral centers like Singapore and Hong Kong. By directly confronting the enforcement gap presently allowing parties to flout emergency awards with impunity, they seek to instill confidence in India’s arbitral world. Notably, the reforms do not require a wholesale overhaul of the Arbitration and Conciliation Act. Instead, they look for legislative finetuning targeted to the institution, specific, limited adjustments that acknowledge today’s institutional realities in arbitration and address the commercial imperative of speedy and reliable provisional protection.
Conclusion
India’s ambition of establishing itself as a destination for international arbitration is contradicted in stark terms by its own silence on emergency arbitrators. The Supreme Court’s confirmation of EA awards in Amazon v. Future was a judicial lifeline, but without parliamentary support, its effect is abrogated. Now, parties are stuck in enforcement limbo: compelled to pursue urgent reliefs that might not be recognized by courts.
This quietude produces a jurisprudential mirage, where EA awards seem to provide quick solutions but vanish when put under judicial scrutiny. At the same time, Singapore and Hong Kong have demonstrated that clear legislative wording fosters compliance. China’s vague strategy on EA enforcement, however, promotes ambiguity and erodes arbitral autonomy.
The path forward is clear. Fixing Section 17B, promulgating centralized enforcement rules, and revising MCIA protocols are modest but important reforms. They would give the much-needed legal anchor to emergency arbitration, repairing confidence among foreign investors and domestic parties. In the meantime, India’s potential as an arbitration hub remains elusive, a vision without a reality, a regime in which certainty will continue to be the exception, not the rule.
Reference(S):
[1] Future Retail Ltd. v. Amazon.com NV Inv. Holdings, (2021) SCC OnLine SC 557, ¶ 12.
[2] Sing. Int’l Arb. Ctr. Rules r. 30 (7th ed. 2016).
[3] Amazon.com NV Inv. Holdings LLC v. Future Retail Ltd., (2021) SCC OnLine SC 557 (India).
[4] HSBC PI Holdings (Maur.) Ltd. v. Avitel Post Studioz Ltd., 2020 SCC OnLine Bom 86 (India).
[5] Mumbai Ctr. for Int’l Arb. Rules r. 14 (2016).
[6] Arb. & Conciliation Act, 1996, No. 26, Acts of Parliament, § 9 (India).
[7] Id. § 2(1)(d).
[8] Code Civ. Proc., 1908, No. 5, Acts of Parliament, Order XXXVIII (India).
[9] Int’l Arb. Act, 1994 (Sing.), § 2(1).
[10] Id. § 12(6).
[11] Arb. Ord., 2011 (H.K.), § 22B.
[12] UNCITRAL Model Law on Int’l Comm. Arb. art. 17H, U.N. Doc. A/40/17 (2006).
[13] Amazon.com NV Inv. Holdings (n 3), ¶ 76.
[14] HSBC PI Holdings (n 4), ¶ 23.
[15] Amazon.com NV Inv. Holdings (n 3), ¶¶ 82-84.
[16] HSBC PI Holdings (n 4), ¶ 17.
[17] Ashwini Mhatre v. Ericsson India, SLP (C) No. 1234/2024 (Sup. Ct. India).
[18] Arb. & Conciliation Act (n 6) § 2(1)(d).
[19] Id. pt. I.
[20] Id. § 9.
[21] Id. § 17.
[22] Mumbai Ctr. for Int’l Arb., India Arbitration Survey: Emergency Arbitration in India 15 (2024).
[23] Sing. Int’l Arb. Ctr., Annual Report 2023 22 (2023).
[24] H.K. Dep’t of Just., Arbitration Report 2023 30 (2023).
[25] Sup. People’s Ct. Notice, Fa [2018] No. 1 (Sup. People’s Ct. China).
[26] G v. R, [2022] Hu 01 Min Te No. 1 (Shanghai First Interm. People’s Ct.).
[27] Sing. Int’l Arb. Ctr., Indian Parties in SIAC Arbitration: Trends 8 (2024).
[28] Arb. & Conciliation Act (n 6) § 34.
[29] Mumbai Ctr. for Int’l Arb. Rules (n 5) r. 14.
[30] Sing. Int’l Arb. Ctr. Rules (n 2) r. 30(3).
