An Illusion of Coherence: Judicial Pragmatism, Legislative Inertia, and the Section 9–17Dichotomy in Indian Emergency Arbitration

-ABSTRACT-

Emergency arbitration addresses the period between the commencement of a dispute and the establishment of arbitral panels. Nevertheless, in the context of India, there is no legal provision regarding emergency arbitration under the Arbitration and Conciliation Act, 1996. As such, this study argues that the Indian scenario qualifies as de facto recognition devoid of legal recognition.

By critically analysing the Amazon.com NV Investment Holdings LLC v Future Retail Ltd case, it is evident that, despite the necessity of judicial intervention that enables the enforceability of Indian arbitrations through purposive interpretation, such interventions lead to dysfunctional enforcement mechanisms. Emergency award orders are enforceable and binding in accordance with Section 17 of the Indian arbitration laws. However, the award decisions are subjected to judicial scrutiny according to Section 9 of the law when there are foreign-seated arbitrations.

This paper highlights the problems associated with the structure of law, including duplication of procedures, near-finality of emergency arbitrations vis-a-vis New York Convention, and the limitations posed on judicial flexibility by the absence of statutory laws. This paper

asserts that at present, India faces legal uncertainty, whereby judicial pragmatism maintains the process but legislative inactivity renders it unpredictable.

Finally, the paper provides recommendations for amendments to be made in the relevant statute to restore the significance of arbitration.

Keywords:- Emergency Arbitration; Enforcement Paradox; Arbitral Primacy; Section 9–17 Dichotomy; De Novo Adjudication; Judicial Activism; Legislative Inertia; Cross-Border Interim Relief;

New York Convention; Party Autonomy; Sovereign Immunity

-METHODOLOGY-

In this paper, doctrinal research methodology is adopted where legal analysis will be conducted on laws pertaining to emergency arbitration under the Arbitration and Conciliation Act, 1996 along with the landmark judgments that deal with emergency arbitration in India. It adopts a purposive approach to legal interpretation by analysing decisions of courts, where precedents have stressed upon pragmatic objectives behind arbitration as opposed to textual limitations. The study will also adopt comparative research methodology by comparing the position of India vis-a-vis other best arbitrations jurisdictions in order to identify deficiencies of cross-border enforcement.

Apart from doctrinal analysis, critical analysis approach is adopted in order to identify discrepancies in the doctrine, for example, section 9 and 17, repetitions of procedures and enforcement issues. It is expected that this research approach will enable blending legal analysis along with criticism which will be policy-oriented, thereby producing concrete

proposals for reform.

-LITERATURE REVIEW-

Current research on emergency arbitration in India mainly centers on the lack of clear rules under the Arbitration and Conciliation Act, 1996 1 , and how this affects enforceability. Insights from leading practitioners and firms like AZB & Partners and Amlegals show that emergency arbitration has emerged to fill the procedural gap before tribunal formation, while also pointing out the uncertainty regarding its legal standing. These studies recognize the importance of the case Amazon.com NV Investment Holdings LLC v Future Retail Ltd in giving legal legitimacy to emergency arbitrators, especially for arbitrations held in India.

Nevertheless, most of the studies have a descriptive approach and consider emergency arbitration through the prism of recognition rather than exploring its structural consequences. Little has been said about the bifurcated enforcement mechanism of domestic versus international arbitrations and the overlapping of processes in Section 9

procedures.

The issues of double dipping, the temporality of emergency awards according to the New York Convention, as well as sovereign immunity doctrines in relation to them remain underexplored too.

The present paper makes an extension of the current studies by switching the perspective from recognition to coherence and offering a critique of enforcement discrepancies along with suggestions for particular legislation improvements.

The study relies on the existing literature but pays particular attention to the issue of coherence rather than recognition. Inconsistencies of enforcement are critically analyzed, and legislative improvements are offered.

-RESEARCH GAP-

Existing literature acknowledges the acceptance of emergency arbitrations in Indian courts; however, attention continues to be paid to the issues associated with their acceptance. Sufficient discussion of the structural conflicts associated with enforceability within the country and internationally is still missing.

-RESEARCH PROBLEM-

The lack of statutory recognition of emergency arbitrations within the Arbitration and Conciliation Act of 1996 creates ambiguity regarding the validity and enforcement of such emergency arbitrations, especially when they are held outside India.

-RESEARCH OBJECTIVES-

This study tries to explore the legality of emergency arbitration in India, trends in judiciary after Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., and the problems of enforcing such awards domestically as well as internationally. The study also aims at suggesting certain amendments in laws for better clarity and understanding.

-HYPOTHESIS-

The introduction of emergency arbitration in India law has led to the creation of a legal regime that is characterized by confusion. Whereas domestic use has been made possible due to purposive interpretation, cross-border recognition of such rulings remains problematic.

-INTRODUCTION-

Efficiency, adaptability, and autonomy have been highlighted in this case in relation to arbitration proceedings. However, there is an essential contradiction in this situation due to the fact that arbitration will prove ineffective when speed becomes a concern 13 . In particular, the interval between the moment at which the dispute comes into existence and the creation of an arbitral tribunal presents a risk where one party is exposed to the danger of being exposed to an irreplaceable loss, liquidated assets, or changes in the status quo which are irreparable.

It should be stressed that this time gap can be considered significant on account of two main considerations. The first one is that the necessity of closing the dispute resolution process within an arbitral tribunal seems to lack justification due to the above-mentioned delays. It

should be pointed out that while courts have the right to grant provisional measures, arbitration will always be a private issue until the creation of an arbitral tribunal.

Due to this structural problem, there exists another concept known as Emergency Arbitration (EA). This system may be provided for by rules such as those of SIAC and ICC, whereby emergency arbitrators are appointed temporarily in order to grant immediate relief pending

the establishment of the arbitral tribunal when such relief is necessary. In practice, Emergency Arbitration is a fast process for making a decision to maintain the sanctity of the arbitration process.

Nonetheless, it should be mentioned that behind this seemingly efficient process lies a more serious issue concerning its legality. While emergency arbitrators certainly have the capacityto make decision upon agreement, which is not the case with conventional arbitral tribunals,

it is true that they lack any statutory backing.

The position of the Indian arbitration, accordingly, is thus one marred by compromises. It must be seen as an effort to integrate EA through interpretive modifications made by courts. However, any lack of recognition of EA in the legislative domain continues to create uncertainty, particularly regarding enforcement and cross-border disputes.

The legal framework appears quite sophisticated in terms of functionality, yet there is some uncertainty in the doctrinal aspect.

These controversies are reflected in practice by the discriminatory attitude adopted toward domestic versus foreign-seated arbitrations, as well as the continued dependence on supplementary court procedures. The developments raise the question of the consistency of the arbitration regime in India and how it is in tandem with the international standards.

This paper will contend that judicial intervention, most notably in Amazon.com NV Investment Holdings LLC v Future Retail Ltd has addressed some of the issues of enforceability domestically, but has also highlighted some underlying structural contradictions. The question, however, is not merely whether or not emergency arbitration is recognised in India, but whether such recognition can be able to continue to sustain itself without any obvious legislative support, when compared to the more substantial systems of major international seats such as Singapore and Hong Kong. Is it possible to use a contract-based mechanism in a statutory framework in which the existence of such a mechanism is not formally acknowledged?

-CORE ANALYSIS-

I. Legislative Framework and Structural Lacuna.

The Indian law regarding emergency arbitration should be placed in the backdrop of the Arbitration and Conciliation Act, 1996 which regulates international and domestic commercial arbitration. It is important to note that the Act does not formally acknowledge the principle of an emergency arbitrator, nor does it give a procedural means of granting or enforcing an interim relief in pre-tribunal fora by an emergency arbitrator. This silence is not one of a textual nature- it is the root cause of the ambiguity of the doctrine on emergency arbitration in India.

Structurally, the Act contemplates a two-polar system of interim relief. Section 9 gives the courts the authority to give interim measures at any point in the arbitral process and Section 17 gives the arbitral tribunals the power to give interim measures once they are constituted, and their interim orders can be enforced in the same way as orders made by a

court. Nevertheless, this structure has its glaring lacuna: it does not consider the existence of an adjudicatory authority pre-constitution of the tribunal. The statutory design, thus, does not apply to emergency arbitration.

This is especially important when we consider it in connection with the interaction of Section 2(1)(d) and 2(8). Section 2(8) ensures party autonomy by allowing parties to adopt institutional rules most of which encompass emergency arbitration. This is the consenting basis of emergency arbitrators. Section 2(1)(d) on the other hand defines an arbitral tribunal in such terms that they have constitutive legal force giving such bodies the power to make binding orders under Section 17.

The exclusion of emergency arbitrators from the definition under Section 2(1)(d) is neither a matter of lack of a definition nor an unintended lacuna in the law but rather a problem of

enforcement.

Without considering the emergency arbitrator as a tribunal constitutively defined, the order made by the emergency arbitrator can hardly be treated as an interim measure under Section 17. There lies a paradox between the party autonomy to establish an emergency arbitration process and the recognition of its power by the law.

The continued existence of such a lacuna is especially noteworthy considering that such an omission has been repeatedly pointed at by the professional organizations. The 246th Law Commission Report suggested that the definition of arbitral tribunal should be extended so that it would encompass emergency arbitrators, so that their decisions would have a legal basis. In the same manner, the B.N. Srikrishna Committee Report highlighted that lack of statutory clarity regarding emergency arbitration was a major challenge to the Indian dream of becoming an international arbitration centre. The fact that these recommendations continue to be only on paper indicates the lack of a simple legislative inertia, but a long- running resistance to the need to incorporate the dynamic arbitral practice into the law.

The contextualisation of this reluctance is further added by the provisions of Section 2(2) added by the 2015 Amendment, which allows parties to foreign-seated arbitrations to seek interim relief under Section 9 (unless otherwise agreed). This provision undoubtedly offers judicial protection, such that there is always some measure of protection in a cross-border case. However, there is a very high cost to this form of protection conceptually.

Maintaining court-based remedies, the legislature weakens the functional imperative of emergency arbitration, despite the fact that judicial intervention is necessarily slower and more cumbersome.

What is obtained is a framework of internal contradiction. Although the Act aims to encourage arbitral independence and reduce judicial interference, its inability to acknowledge emergency arbitration forces the parties to turn to the courts at the verymoment when arbitral processes are most needed. The statutory silence in this sense does not

just introduce an ambiguity, but in fact, it brings the efficiency rationale of arbitration as such into question.

Emergency arbitration in India is therefore a non-statutory yet practically effective device, the existence of which is supported by party autonomy, condoned by the law, yet not fully legitimised by the law.

II. Judicial Evolution

The absence of emergency arbitration in the statute, left the Indian courts with a question yet to be answered: could the mechanism based on party autonomy, though not explicitly written in the text, be fitted into the statutory framework? The resultant jurisprudence displays an

early period of judicial restraint, then moved to a decisive turn to purposive accommodation.

During the pre-Amazon case era, courts hesitated to consider the work of emergency arbitrators as an authority that could make independently enforceable orders. The Delhi high court recognized the validity of the procedure of emergency arbitration in Raffles Design

International India Pvt Ltd v Educomp Professional Education Ltd, but refused to give the order of the emergency arbitrator the status of an enforceable order under the Act. The Court, instead, instructed the wronged party to find redress under Section 9, thus exposing

the dispute to a de novo hearing in a judicial body. The same strategy was taken in the case of Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd, where the Bombay high court did not grant interim relief in enforcing the emergency award but on its own.

The practical implication of such a strategy was immense. Emergency arbitration was not discredited per se, but its usefulness was seriously undermined: parties had to reassign the same matters in the courts, which essentially doubled the cost and reduced the effectiveness of speed and efficiency, which emergency arbitration was meant to offer. Doctrinally, emergency arbitration at this stage was an adjunct to litigation in form of contract, not an adjudicatory procedure of its own.

This stance was significantly changed in Amazon.com NV Investment Holdings LLC v Future Retail Ltd decision by the Supreme Court. The Court followed a purposive and teleological approach to interpretation, and specifically emphasised the effectiveness of the arbitral process, as opposed to a literal interpretation of Section 2(1)(d 51 ). By doing so, it would not make party autonomy, as recognised by Section 2(8) ‘a dead letter due to statutory silence’'The Court also decided that in cases where parties had agreed on institutional rules which contained an emergency arbitration clause, the emergency arbitrator would be regarded as a part of an arbitral tribunal to the limited extent of allowing interim measures 53.

Therefore, any order made by such an arbitrator was enforceable under Section 17(2) as though it was an order of the court.

The ratio of the Amazon case is therefore based on a practical balance of consent and statutory power: institutional rules are adopted by consent, and statutory rules provide enforceability. This interpretative step was successful in sealing the gap that was observed in previous decisions and introduced emergency arbitration into the domestic enforcement system.

Nonetheless, this innovation in judicial practices is limited in nature. The decision in Amazon was made in the context of Part I of the Act that regulates India-seated arbitrations. As Section 17 and, by implication, the enforcement mechanism that Section 17(2) provides, will

only apply to Part I, the enforcement bridge that the Court creates is not applicable to foreign-seated arbitrations that fall under Part II.

The legal avenue that facilitated the acknowledgment and implementation of emergency awards in Amazon is just non-existent in such situations.

Although Amazon, thus, clears the way to the enforceability of emergency arbitration in India-seated proceedings, the more difficult question of cross-border enforceability remains unanswered. However, rather than solving all the legal questions presented by this case, the decision highlights a deeper flaw in the system, namely that of being able to offer interim relief within the jurisdiction while being torn apart internationally.

III. Seated Distinction: A Disjointed Imposition Regime.

Incorporation of the emergency arbitration process in the Indian legal system, particularly after the landmark judgment in the case of Amazon.com NV Investment Holdings LLC v Future Retail Limited, has not managed to develop an integrated mechanism of enforcing such awards. Instead, it led to the emergence of a dichotomy where awards made during emergency arbitration could be enforced depending on the seat of arbitration. In this case, there lies a deeper underlying discrepancy in the Arbitration and Conciliation Act of 1996.

Arbitrations that are situated in India are quite settled now. The Supreme Court made the emergency arbitrators fall under the broad interpretation of the term arbitral tribunal allowing their orders to be enforced under Section 17(2) as though they were orders of a court. What is important about this development is its efficiency in the procedure: the decision of the emergency arbitrator is deemed as a primary relief, and cannot be considered again by the court 64. The enforcement here is not an adjudicatory practice, but a mechanical continuation of the arbitral practice.

The situation is significantly different in foreign-seated arbitrations. Section 17 applies to arbitrations in India since it is part of Part I of the Act 65 . Emergency arbitral orders made in foreign countries thus are not subject to the statutory mechanism of enforcement which is

known in Amazon. Those parties who wish to make use of such orders will need to invoke Section 9 based on the provision of Section 2(2), which authorizes Indian courts to issue interim measures to support arbitrations with their seat elsewhere.

Nonetheless, this route shifts the essence of the relief under pursuit radically. Cases pursued under Section 9 are not enforcement tools, but are an exercise of judicial authority on their own. It is not the crystallisation of a right that the emergency arbitrator has already undertaken under which the court will enforce the right, but rather a fresh, and regularly de novo inquiry into whether or not interim relief should be granted. This means that the relief the court grants is secondary in form, but primary in substance; it is not based on the award of emergency, but rather based on the jurisdiction of the court itself. The order of the emergency arbitrator is whittled to evidentiary matter and is not binding.

This difference manifests a structural tension at the core of the Indian structure. Although emergency arbitration claims to provide binding interim relief, in foreign-seated cases it can solely do so at the discretion of the court to repeat the relief. Consequently, there will be

redundancy in operations, additional expenses, and delays that will adversely affect the efficacy of the emergency arbitration procedure.

Partly, the problem can be attributed to the drafting of the 2015 Amendment itself. By adding a provision to Section 2(2) through Parliament, the aim was to extend the scope of Section 9 to arbitrations seated outside the jurisdiction in order to create an insurance policy for the courts. However, Section 17 was notably excluded from this application. This omission is not without significance. Section 17 gives a privately appointed arbitrator coercive power equivalent to the State unlike Section 9, which vests power in the courts. This is indicated by the unwillingness to grant this power to tribunals that are located abroad and is perhaps an indication of deliberate legislative reluctance to allow non-domestic arbitral institutions to exercise the coercive machinery of Indian law.

Being possibly defensible in terms of sovereignty, this design of legislation has unwanted effects. It establishes a system where courts are still pivotal to the application of the interim relief in international arbitration even when parties have chosen the arbitral mechanisms that are meant to prevent the intervention of the court.

The issue is further aggravated when it is considered in the light of the New York Convention. The Convention mainly helps to enforce final awards, but emergency arbitral orders are interim in nature and may be amended by the tribunal. By this means, they can hardly be accommodated in the structure of enforcement of the Convention. The challenge of enforcing emergency awards in foreign-seated arbitrations is thus not merely Indian but an indicative structural constraint of the international arbitration law. However, this world-wide problem is aggravated by the Indian position which does not provide a similar statutory mechanism to recognise such orders. Other jurisdictions have been reacting by legislative intervention 75 but India has persistently been using indirect judicial paths thus perpetuating procedural inefficiencies.

Thus, the country has a two-tier system of enforcement 76 where the emergency arbitration process has an obligatory effect at the national level and a non-binding effect at the international level. Not only does this pose questions regarding the consistency of international commercial arbitration, but this situation raises serious concerns about the reliability of the arbitral process within India.

IV: Mainstream Enforcement Hindrances

Recognition of emergency arbitration in India has not become a consistent enforcementn system. Rather, it has generated a cycle of structural tensions that weaken its main purpose of offering fast and efficient interim relief devoid of courts. The following tensions can be best observed in the relationship between Section 17 and 9 77 , duplication of proceedings, the issue of finality in cross-border enforcement and the doctrinal confusion which accompanies the emergency adjudication.

The nearest difficulty is presented by the difference in the route to enforcement based on the seat of arbitration. In India-seated proceedings, after Amazon.com NV Investment Holdings LLC v Future Retail Ltd, orders of emergency arbitrators are considered as interim orders under Section 17 and can be enforced under Section 17(2) without a substantive reconsideration by a court. Here, the emergency award will be primary relief supplemented

by the court acting as facilitator.

The mechanism is, however, not available in foreign-seated arbitrations. Parties are to do so pursuant to the provision of Section 2(2) under Section 9. It brings enforcement to adjudication proceedings. In this regard, the court does not make use of the decision of the emergency arbiter, but instead reconsiders the interim relief application from scratch . In this regard, this order is not premised on the emergency award but on the court’s own ruling. The above-mentioned enforcement/adjudication difference brings to light another anomaly regarding the process of international emergency arbitration, since its outcomes become binding in their home countries but just persuasive in other jurisdictions. The aforesaid dichotomy further creates the situation when the emergency arbitration proceedings result in a ‘double-dip’ . This means that even though the party has already approached emergency arbitration to seek relief, the latter seeks additional protection in the courts of law through Section 9 proceedings.

Emergency arbitration does not serve as an alternative to judicial intervention but rather, as an increasing number, acts as a preliminary to judicial intervention. Its adoption is therefore greatly undermined by the lack of efficiency rationale.

The complexity of the problem is also compounded by the New York Convention framework that mainly acknowledges final arbitral awards. Emergency arbitral orders are interim and open to revision, and so do not meet the finality requirement of the Convention. Therefore, their cross border enforceability is restricted in nature. Although this is an international limitation, the Indian framework exaggerates it by lacking a domestic statutory means of identifying such orders in arbitrations which are seated in foreign jurisdiction.

Emergency arbitration is closely related to interim injunctions in the traditional law at a doctrinal level. The common triad of prima facie case 84 , irreparable harm and balance of convenience are used by emergency arbitrators. In practice, therefore, emergency arbitration

is a privatised injunction system. However, in contrast to courts, emergency arbitrators work under tight deadlines and minimal scrutiny of the evidence. This leads to the merits paradox: although emergency proceedings are supposedly non-adversarial, they are by nature a process requiring prima facie evaluations of substantive rights, which may in practice establish the direction of the process.

Lastly, the enforceability of emergency awards is especially doubtful when it comes to state entities or government sector undertakings. The intersection of arbitration and the doctrine of Sovereign immunity provides another hurdle, as the court may shy away from providing

interim orders on matters that affect the public domain or services. It is a clash between the process of arbitration and limitations placed by public authorities in the use of the law.

In summary, the above factors highlight the lack of cohesion in the enforcement mechanism. Emergency arbitration operates efficiently within the Indian jurisdiction but has inherent constraints outside the jurisdiction. In conclusion, the process of arbitration in the case of

emergency does not always achieve its objectives of expediency and independence.

V: The Role of Teleology in Interpretation and the Approach of Pragmatism in Judicial Decisions.

The Indian case law on the issue of judicial recognition of emergency arbitration proceedings reflects an overall approach of pragmatism towards the interpretation of statutes in the light of practical realities of arbitration.

Where no specific legislative identification was done, the Supreme Court in Amazon.com NV Investment Holdings LLC v Future Retail Ltd took a teleological approach to interpretation where the efficacy of the arbitral process was given precedence over a literal interpretation of

the Arbitration and Conciliation Act, 1996. This interpretative approach was the only way to make sure that statutory silence did not make party autonomy, as understood under Section 2(8), a nullity.

Conceptually, this method can be construed as a continuation of the principle of competence- competence in Section 16 of the Act 88 . When an arbitral tribunal is given the authority to decide on its own authority, it would then imply that the validity of that authority is founded

on the fact that such a choice is based largely on party consent and not necessarily on statutory acknowledgment.

This judicial integration of emergency arbitrators into the framework of the concept of arbitral tribunal can therefore be seen as a logical extension: it allows the arbitral power to be exercised at an earlier level, without the tribunal being formally constituted. In that regard,

the Court reasoning supports the notion that the power of arbitral is based on the consensus of the parties and the statute is a facilitating framework but not an exhaustive source of power.

The ruling in Amazon can thus be regarded as the peak of pro-arbitration sentiment of the Indian judiciary. By interpreting Sections 2(1)(d) and 2(8) in a balanced manner, the Court hoped to avoid having a defect in their drafting impact on achieving the basic goals of

arbitration such as being efficient, allowing parties autonomy and limiting judicial interference in arbitration. This is because in this instance, the underlying intention of the legislation is more important than its literal meaning.

However, the application of a purposive interpretation has received criticism as potentially being problematic. The critics suggest that through the use of such construction, the Court runs the risk of introducing some element of confusion or legislative uncertainty. This is

because by reading into Section 2(8), the Court is in effect legislating on an area that Parliament had explicitly chosen not to legislate upon. Although this kind of construction is functional and convenient for businesses, it is nevertheless problematic since it introduces some risk of a “due process” issue.

This case shows how interpretation may not always lead to desired results. While judicial practicality may be able to solve any problems, legislative reforms are still required in areas such as international enforcement of awards and jurisdiction. The interpretation process leads

to a system which, although practical, lacks legitimacy.

By taking an interpretive approach to arbitration, the judiciary has made emergency arbitration possible in India. But it also shows how there is a limitation to interpretation where certain problems require legislative reforms.

VI: Contemporary Developments: Judicial Impetus and Legislative Delay

It has been observed lately that the issue of emergency arbitration in India has transformed from mere uncertainty to a pressing one 97 . In other words, it has come to the notice of the judicial system that the existing provisions require changes and that certain laws should be made in order to enhance the existing framework. This transformation may be inferred from the case of ASF Buildtech v Shapoorji Pallonji, wherein it was suggested by the Supreme Court that the Indian arbitration regime needs to be strengthened through proper legislation.

This significance is more of an institutional nature, rather than the significance of any decision per se. After having followed a wider interpretation approach in the case of Amazon, it seems that the judiciary understands that innovation by the court itself cannot cover up the absence of legislation all the time. The ongoing transformation may thus be seen as one wherein there is a shift from judicial activism to legislative intervention.

This development may also be seen as some sort of legal twilight zone. The courts have taken on most of the work by incorporating the notion of emergency arbitration within the enforcement regime for disputes with an Indian seat, while the legislature is still failing to

provide a proper legal base for the same. Therefore, the procedure operates efficiently, although there is no legal justification for it.

There are other legislative initiatives highlighting this idea as well. In particular, the Arbitration and Conciliation (Amendment) Bill, 2024 is designed to tackle the deficiencies of current legislation including the lack of recognition of the role of the emergency arbitrator. Nevertheless, the indefinite postponement of its adoption means that certain problems highlighted earlier still persist. The delay in the process of implementing this highly effective legal mechanism can have wider consequences as well. In fact, delay in the process entails several economic disadvantages. In modern days of competitive arbitration process across the globe, jurisdiction advantages involve not only procedural ones but also enforcement of the award. Quick and efficient interim measures become an essential factor of “exit certainty” for international investors. Uncertainty related to the possibility of implementing the procedure of emergency arbitration becomes a stumbling block for India's standing, as far as doing business is concerned.

Moreover the present situation in India is made more ironic by the institutional developments that are taking place with respect to arbitration. In India, there are currently multiple centres for arbitration, including some that are located in GIFT City 103 and others that have been established as part of the India International Arbitration Centre (IIAC), all of which have now adopted emergency arbitration through their institutional rules. These developments represent the progressive incorporation of global arbitration practices into Indian arbitration centres.

The coming of emergency arbitration to India through legislation may be delayed; however, such delay is a product of institutional inertia. The resultant delay will lead to uncertainty in doctrine concerning emergency arbitration and will ultimately undermine the competitive

advantage that India enjoys in the field of international arbitration.

VII: Reform Framework: From Judicial Innovation to Legislative Design

The analysis clearly indicates that issues related to the emergency arbitrator in India do not stem from an absence of knowledge of the terminology but from structural deficiencies. The judiciary has made it possible to adopt emergency arbitration in the Indian scenario by interpreting laws purposefully. However, the adoption is only partial and occasional. What is required then, is not further elaboration but necessary legal amendments which preserve arbitral autonomy while solving enforcement problems.

Firstly, the ambiguity surrounding the definition of the terms contained within the Arbitration and Conciliation Act, 1996 must be rectified. Simply expanding the definition of arbitral tribunal to include “emergency arbitrator” within Section 2(1)(d) does not seem like an effective measure. An alternate approach would be that of creating a deeming provision within the law which reads, “Arbitral Tribunal includes, for the purposes of Section 17, an emergency arbitrator appointed under institutional rules.” This measure becomes necessary owing to certain reasons. For starters, limiting emergency arbitrators to making interim reliefs prevents any confusion about whether they have the authority to decide on substantive matters arising out of the dispute.

The next reform should deal with the matter of overlapping proceedings resulting from Section 9. The introduction of yet another section of law namely, Section 9-A, would enshrine the concept of the primacy of arbitration when granting interim measures. Courts

must refrain from entertaining applications for interim orders if the parties have an alternative means available in the person of an emergency arbitrator, subject to certain limitations.

Such limitations may be applicable when an order of that kind cannot be issued by the emergency arbitrator or when the order cannot take effect owing to third parties not being covered by the decision of the arbitrator.

The problem of foreign-seated arbitrations requires a more cautious approach. The application of direct measures concerning foreign emergency arbitral awards might create issues concerning sovereignty and judicial jurisdictions. Nonetheless, this should not prevent any action to be taken on the matter. Section 27(5) empowers courts with the ability to fine the parties failing to comply with procedures. Therefore, in recognizing that failure to adhere to an emergency arbitral award, regardless of whether local or foreign, amounts to contempt, enforcement of the award is possible without raising it to the same level as a court ruling. Through such backdoor enforcement, we can maintain judicial oversight and enhance emergency arbitration.

Moreover, it is crucial for India to adopt a balanced approach towards cross-border recognition using reciprocity mechanisms. We may amend Section 44 on recognition of foreign awards to indicate that any emergency arbitral awards rendered in a foreign country would be recognized in India provided that the foreign country recognizes India's emergency arbitral decisions as well.

Ultimately, there are considerations of public law limits that have to be made, particularly where the state has something to do with the matter. Rather than leave sovereign immunity to cover everything under the sun, public law can introduce an exception that permits interim relief from government entities provided that there is little to no public interest involved.

In summary, the proposed reforms will do away with any intention to overhaul the arbitral process. What the reforms attempt to achieve is the completion of the existing process by recognizing the importance of emergency arbitration in modern times. It is not about extending the reach of the process; rather, it is all about making the process legal and

formalized through law.

-CONCLUSION-

The Indian approach towards the emergency arbitration process, thus, can be described as a paradox of functionality in the face of lack of coherence in its doctrine. Whereas the judiciary; most prominently illustrated by the landmark case of Amazon.com NV Investment

Holdings LLC v Future Retail Ltd; has proven to have achieved success in embedding the concept of emergency arbitrators into the domestic enforcement mechanism, such achievements are, at best, superficial.

This study has established that the current dual enforcement scheme ; direct enforcement in cases of Indian-seated arbitrations under Section 17 and de novo judicial enforcement in cases involving foreign seats under Section 9; effectively negates the very objective which

was sought to be achieved through the introduction of emergency arbitration as a means to enhance efficiency. The issues of procedural redundancy, quasi-finality of emergency awards in light of the New York Convention, and sovereign immunity illustrate the shortcomings of a system based only on judicial accommodation.

Thus, the Indian legal framework in relation to emergency arbitration can certainly not be viewed from the perspective of doctrinal development but rather of incompleteness of the legal system.

In summary, the success of emergency arbitrations in India depends on the definite move from creation by judiciary to codification by legislation, where the principle of arbitral autonomy will be ensured both practically and legally.

Refrences

1. The Arbitration and Conciliation Act, 1996, No. 26 of 1996, INDIA CODE (1996).

2. Law Commission of India, 246th Report on Amendments to the Arbitration and Conciliation Act 1996 ¶¶ 41–45 (2014).

3. AZB & Partners, Emergency Arbitration in India: A Step Towards Institutionalisation (2021); Amlegals, Emergency Arbitration in India: Enforceability and Challenges (2020).

4. SIAC Arbitration Rules 2016, Sch. 1 (Emergency Arbitrator); ICC Arbitration Rules 2021, art. 29.

5. Gary B. Born, International Commercial Arbitration, pp 2496–2502 (2d ed. 2014).

6. Amazon.com NV Inv. Holdings LLC v. Future Retail Ltd., (2022) 1 S.C.C. 209 (India).

7. Sumeet Kachwaha, Emergency Arbitration: A New Dimension in Arbitration Law, 7 INDIAN J. ARB. L. 1 (2018).

8. Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 S.C.C. 155 (India); Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 S.C.C. 712 (India).

9. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. I, June 10, 1958, 330 U.N.T.S. 3.

10. Hazel Fox & Philippa Webb, The Law of State Immunity, pp 567–580 (3d ed. 2015).

11. Supra, Note 2.

12. Supra, Note 5, pp 77-80 (2d ed. 2014).

13. Id., pp. 2496- 2502 (2d ed. 2014)

14. Id.

15. Id.

16. The Arbitration and Conciliation Act, 1996, No. 26 of 1996, § 9.

17. Supra, Note 13.

18. Supra, Note 4.

19. Id.

20. Supra, Note 2.

21. Supra, Note 6.

22. Supra, Note 2.

23. Bhatia Int’l v. Bulk Trading S.A., (2002) 4 S.C.C. 105 (India); Bharat Aluminium Co. v. Kaiser Aluminium Tech. Servs. Inc., (2012) 9 S.C.C. 552 (India).

24. Supra, Note 8.

25. International Arbitration Act 1994 (Singapore); Arbitration Ordinance (Cap. 609) (H.K.).

26. Supra, Note 1.

27. UNCITRAL Model Law on International Commercial Arbitration, G.A. Res. 40/72, U.N. Doc. A/RES/40/72 (Dec. 11, 1985).

28. Supra, Note 2.

29. Supra, Note 16.

30. The Arbitration and Conciliation Act, 1996, § 17; Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 S.C.C. 712 (India).

31. Supra, Note 4.

32. The Arbitration and Conciliation Act, 1996, § 2(1)(d).

33. Raffles Design Int’l India Pvt. Ltd. v. Educomp Prof’l Educ. Ltd., 2016 SCC OnLine Del 5521 (India).

34. Supra, Note 2.

35. High Level Comm. to Review the Institutionalisation of Arbitration Mechanism in India, Report of the High- Level Committee (2017) (B.N. Srikrishna Comm.).

36. The Arbitration and Conciliation (Amendment) Act, 2015, No. 3 of 2016, § 2(2), INDIA CODE.

37. Supra, Note 5.

38. Supra, Note 23.

39. The Arbitration and Conciliation Act, 1996, No. 26 of 1996, § 2(8), INDIA CODE (1996).

40. Supra, Note 5.

41. Supra, Note 7.

42. Supra, Note 33.

43. Id.

44. Supra, Note 16.

45. Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., 2014 SCC OnLine Bom 929 (India).

46. Id.

47. Supra, Note 5.

48. Id.

49. Supra, Note 6.

50. Id.

51. Supra, Note 32.

52. Supra, Note 6.

53. Id.

54. The Arbitration and Conciliation Act, 1996, § 17(2).

55. Supra, Note 6.

56. Id.

57. The Arbitration and Conciliation Act, 1996, pt. I.

58. Id. ; Supra, Note 54.

59. The Arbitration and Conciliation Act, 1996, pt. II.

60. Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. I, June 10, 1958, 330 U.N.T.S. 3.

61. Id., Supra, Note 5.

62. Supra, Note 6.

63. Supra, Note 54.

64. Id. & Supra, Note 6.

65. Supra, Note 1, pt. I. INDIA CODE (1996).

66. Supra, Note 36.

67. Supra, Note 33. & Supra, Note 45.

68. Supra, Note 5. & Supra, Note 7.

69. Supra, Note 36.

70. Supra, Note 30.

71. Supra, Note 2. & Supra, Note 35.

72. Supra, Note 23. & Supra, Note 38.

73. Supra, Note 60.

74. Supra, Note 5.

75. Supra, Note 25.

76. Supra, Note 6. & Supra, Note 2.

77. Supra, Note 1, §§ 9, 17 & Supra, Note 2.

78. Supra, Note 6, ¶¶ 118–126 (India).

79. Bharat Aluminium Co. v. Kaiser Aluminium Tech. Servs. Inc., (2012) 9 S.C.C. 552 (India) & Supra, Note 36.

80. Supra, Note 5.

81. Supra, Note 7.

82. UNCITRAL Secretariat, 2012 Digest of Case Law on the UNCITRAL Model Law, ch. IV.

83. Supra, Note 9.

84. American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.). & Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 S.C.C. 545.

85. Supra, Note 10.

86. William N. Eskridge, Jr., Dynamic Statutory Interpretation 13–28 (1994).

87. Aharon Barak, Purposive Interpretation in Law 109–25 (2005).

88. Supra, Note 1, § 16.

89. Julian D.M. Lew, Loukas A. Mistelis & Stefan M. Kröll, Comparative International Commercial Arbitration 330–42 (2003).

90. Supra, Note 27.

91. Supra, Note 6, ¶¶ 117–126 (India).

92. Supra, Note 1, §§ 2(1)(d), 2(8). & Supra, Note 87.

93. Supra, Note 86.

94. Ronald Dworkin, Law's Empire 225–75 (1986). & H.L.A. Hart, The Concept of Law 124–36 (3d ed. 2012). Id.

95. High Level Comm. to Review the Institutionalisation of Arbitration Mechanism in India, Report of the High- Level Committee (2017).

96. ASF Buildtech (P) Ltd. v. Shapoorji Pallonji & Co. (P) Ltd., (2025) SCC OnLine SC 1016

97. Aharon Barak, The Judge in a Democracy 263–81 (2006).

98. Supra, Note 94.

99. Ministry of Law & Justice, Government of India, Explanatory Memorandum to the Arbitration and Conciliation (Amendment) Bill, 2024.

100. Organisation for Economic Co-operation and Development (OECD), International Investment Perspectives 85–112 (2006).

101. World Bank, Doing Business 2020: Comparing Business Regulation in 190 Economies 66–70 (2020).

102. Gujarat International Finance Tec-City (GIFT City), International Arbitration Centre Rules.

103. India International Arbitration Centre Rules, 2023.

104. Sundaresh Menon, International Arbitration: The Coming of a New Age?, 33 Arb. Int'l 373, 381–90 (2017).