Emergency Arbitration in India: The Need for Statutory Recognition

Authored by Aziz Umar, B.A.LLB Integrated from Faculty of Law, Jamia Millia Islamia, New Delhi

Imagine two commercial parties entering into a carefully negotiated contract. They anticipate that disputes may arise, but instead of submitting themselves to ordinary civil litigation, they expressly choose arbitration. The choice is deliberate: arbitration promises party autonomy, confidentiality, procedural flexibility and, above all, a specialised forum for resolving disputes.

But what happens when the dispute becomes urgent before the arbitral tribunal has been constituted?

An asset may be transferred overnight. Confidential information may be disclosed. A bank account may be emptied. A party may attempt to terminate a crucial contract or dispose of property which is central to the dispute. The final arbitral award, even if eventually favourable, may become practically worthless if the subject matter of the dispute disappears in the meantime.

This exposes one of the most important structural gaps in Indian arbitration law. Section 17 of the Arbitration and Conciliation Act, 1996 permits an arbitral tribunal to grant interim measures, but there may be no tribunal when the emergency arises. Section 9 consequently becomes the immediate judicial remedy. The result is paradoxical: parties who consciously chose arbitration to avoid ordinary court proceedings may be compelled to approach a court precisely because arbitration has not yet become institutionally operational.

The supplied pre-reading captures this problem succinctly: a tribunal may take weeks or months to constitute, while the asset requiring protection may be lost within days. Emergency arbitration is the institutional response to this gap.

The question, therefore, is no longer whether emergency arbitration has a place in modern dispute resolution. It already does. The more important question for India is whether its legal framework should continue to leave emergency arbitration dependent primarily on institutional rules and judicial interpretation, or whether it should receive express statutory recognition. This article argues for the latter.

I. The Institutional Idea Behind Emergency Arbitration

The fundamental attraction of arbitration lies in party autonomy. Parties decide not merely whether to arbitrate, but frequently how, where and before whom their disputes will be resolved.

Institutional arbitration strengthens that autonomy by incorporating an arbitral institution's procedural machinery into the parties' agreement. Emergency arbitration is one such institutional mechanism.

An emergency arbitrator is appointed, ordinarily by the arbitral institution, before the constitution of the main arbitral tribunal, for the limited purpose of deciding an urgent application for interim or conservatory relief. The emergency arbitrator's mandate is temporary and ordinarily terminates once the main tribunal assumes jurisdiction.

This makes emergency arbitration fundamentally different from ordinary interim relief under Section 17. The question is not whether an existing tribunal should protect the subject matter of arbitration. The question is who should provide that protection during the institutional vacuum before the tribunal exists?

The answer offered by emergency arbitration is simple: an emergency arbitrator.

Its rationale is equally compelling. It allows the parties to remain within the arbitral framework, preserves confidentiality, permits an expert arbitrator to deal with the dispute and avoids unnecessary recourse to a national court.

In other words, emergency arbitration attempts to ensure that the absence of a constituted tribunal does not become a reason for abandoning the arbitral process itself.

II. From Innovation to Mainstream: The Evolution of Emergency Arbitration

Emergency arbitration is not a recent experiment. Its development reflects a broader international movement towards making arbitration capable of responding to urgent commercial situations.

The modern concept is generally traced to the International Centre for Dispute Resolution (ICDR), which introduced emergency arbitrator provisions in 2006. The ICC subsequently incorporated emergency arbitration into its 2012 Rules, and SIAC, SCC and other leading institutions developed comparable mechanisms.

The development of emergency arbitration also coincided with the broader evolution of international arbitration law. The 2006 amendments to the UNCITRAL Model Law created a more sophisticated framework for interim measures and preliminary orders, including mechanisms addressing circumstances in which advance notice might frustrate the very purpose of the relief.

The trajectory is significant. Emergency arbitration began as an institutional innovation; it has increasingly become part of the architecture of modern arbitration legislation and institutional practice.

The contemporary institutional landscape demonstrates how far the mechanism has evolved.

SIAC

Under the SIAC Rules 2025, an emergency arbitrator is ordinarily appointed within 24 hours, and the emergency arbitrator is required to issue an order or award within 14 days. The 2025 Rules have also introduced a protective preliminary-order mechanism that can operate without prior notice where notification itself could frustrate the requested relief.

ICC

The ICC Arbitration Rules 2026, effective from 1 June 2026, retain emergency arbitration under Article 31 and Appendix IV. The President of the ICC Court normally appoints an emergency arbitrator within two days, while the emergency arbitrator ordinarily has 15 days from receipt of the file to make the order. The 2026 Rules expressly recognise preliminary orders, including orders that may initially be granted without notice where necessary to prevent frustration of the emergency measure.

MCIA

India is not completely absent from this development. The MCIA Rules 2025 contain a dedicated Rule 19 on Emergency Arbitrators. The Chairperson may seek to appoint an emergency arbitrator within one business day, and the emergency arbitrator must decide the application within 14 days, subject to narrowly defined extensions. Importantly, the MCIA Rules treat emergency relief as an interim measure of the tribunal and provide that the main tribunal may subsequently confirm, vary, discharge or revoke the emergency order.

This demonstrates an important point: India's institutional architecture is evolving faster than its statutory architecture.

III. The Indian Paradox: Amazon Recognised What Parliament Has Not Expressly Codified

The most important development in Indian emergency arbitration came from the Supreme Court's decision in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.

The case concerned a SIAC emergency arbitrator in an India-seated arbitration. The emergency arbitrator restrained the Future Group from proceeding with a transaction, and Amazon subsequently sought enforcement of that decision under Section 17(2).

The Supreme Court accepted that where parties have agreed to institutional rules providing for an emergency arbitrator, the expression “arbitral tribunal” in Section 17(1) is sufficiently broad to include the emergency arbitrator. Consequently, the emergency arbitrator's decision could be treated as an order under Section 17(1) and enforced under Section 17(2). The Court further held that an order enforcing an emergency arbitrator's decision under Section 17(2) was not appealable under Section 37.

Amazon was therefore a significant judicial innovation. It demonstrated that the existing statutory language could accommodate institutional emergency arbitration without requiring the Court to invent an entirely separate statutory mechanism.

Yet Amazon also reveals the limits of judicial interpretation.

The Court's solution is particularly effective for India-seated arbitrations. The problem becomes more complicated where the arbitration is seated abroad. Section 17 belongs to Part I and does not ordinarily govern foreign-seated arbitrations. The Arbitration Act does not expressly provide a general mechanism for recognising and enforcing foreign emergency arbitrator orders in India. The party may therefore have to approach an Indian court under Section 9, relying upon the statutory framework applicable to interim measures in aid of foreign-seated arbitration.

The result is a peculiar situation:

India can recognise an emergency arbitrator judicially, yet does not expressly recognise the emergency arbitrator legislatively.

That distinction matters.

IV. Does Emergency Arbitration Make Section 9 Obsolete?

A statutory recognition of emergency arbitration should not be understood as an attempt to eliminate Section 9.

That would be both unnecessary and undesirable.

Section 9 performs functions that an emergency arbitrator cannot always perform. Courts possess coercive powers over third parties, assets and persons who may not be bound by the arbitration agreement. Courts may also be required where the relief sought involves governmental authorities, third-party assets or circumstances beyond the institutional jurisdiction of the emergency arbitrator.

The better approach is therefore complementarity rather than replacement.

The relationship should be understood chronologically:

Before tribunal constitution

→ Emergency arbitrator, where the arbitration agreement and institutional rules provide for it

→ Section 9 remains available where judicial intervention is necessary or appropriate.

After tribunal constitution

→ Section 17 becomes the principal arbitral mechanism for interim relief.

Judicial intervention

→ Section 9 continues as a supporting mechanism, particularly where the statutory conditions require judicial assistance or the relief cannot effectively be obtained from the tribunal.

This preserves the principle that courts should support, rather than displace, arbitration.

The institutional rules themselves reflect this philosophy. For example, the ICC's 2026 Rules expressly state that emergency arbitrator provisions do not prevent a party from seeking interim or conservatory measures from a competent judicial authority.

Thus, emergency arbitration should not be seen as the death of Section 9; it should be seen as the first arbitral response where urgent relief is capable of being provided within the arbitral framework.

V. The Remaining Problem: India Has an Institutional Solution but an Incomplete Statutory Framework

The central weakness in India's present position is therefore not that emergency arbitration is unavailable.

It is that its availability and enforceability remain too dependent upon the interaction between institutional rules, statutory interpretation and judicial intervention.

This is particularly problematic for a jurisdiction aspiring to become a major international arbitration centre.

The Arbitration Act does not expressly define an “emergency arbitrator” or provide a standalone statutory mechanism for enforcement of emergency arbitrator decisions. The supplied material accordingly identifies statutory silence as one of the principal problems confronting Indian arbitration.

The Supreme Court's decision in Amazon has significantly reduced uncertainty, but judicial interpretation cannot substitute indefinitely for legislative clarity.

Consider the difference between these two propositions:

Institutional rule:

“The parties have agreed that an emergency arbitrator may grant interim relief.”

Statutory recognition:

“Indian law recognises the emergency arbitrator as an arbitral authority capable of granting specified interim measures, and provides a mechanism for recognition and enforcement of those measures.”

The second is considerably stronger.

It provides predictability not only to parties but also to courts, arbitral institutions and foreign investors.

VI. The 2024 Reform Proposal: An Opportunity Waiting for Legislative Action

The case for reform became particularly significant following the work of the Expert Committee on Arbitration Law chaired by Dr T.K. Viswanathan.

The Committee reported in February 2024. Subsequently, the Department of Legal Affairs released the Draft Arbitration and Conciliation (Amendment) Bill, 2024 for public consultation in October 2024.

The Draft Bill proposed express recognition of the emergency arbitrator and contemplated a new Section 9A, providing for the appointment of an emergency arbitrator before constitution of the arbitral tribunal and creating machinery concerning enforcement of emergency relief.

This is perhaps the most important legislative development in the Indian debate.

But its status must be stated carefully: the 2024 Draft Bill is not presently law. It remains a consultation proposal and has not been enacted.

That distinction is crucial because the problem identified by the Draft Bill continues to exist under the operative statutory framework.

The legislative question is therefore no longer whether India has identified the problem. It has.

The question is whether India will now complete the reform.

VII. What Should Statutory Recognition Look Like?

Statutory recognition should not attempt to reproduce every institutional rule within the Arbitration Act. That would undermine the flexibility which makes institutional arbitration attractive.

Instead, legislation should create a legal foundation, while leaving procedural detail to arbitral institutions.

A future amendment could address at least five issues.

1. Statutory definition

The Act should expressly define an “emergency arbitrator” as an arbitrator appointed under institutional arbitration rules for determining urgent interim or conservatory measures before constitution of the arbitral tribunal.

2. Recognition of institutional appointment

The statute should recognise an emergency arbitrator appointed pursuant to institutional rules incorporated into the arbitration agreement.

This would strengthen the foundation already laid by Amazon.

3. Enforceability of emergency orders

The legislation should expressly provide that an emergency arbitrator's order or award shall be enforceable in a manner comparable to an interim order of the arbitral tribunal, subject to safeguards and judicial review on narrowly defined grounds.

4. Relationship with Sections 9 and 17

The legislation must clearly state that emergency arbitration does not extinguish Section 9.

Instead, the statute should establish a hierarchy of functional remedies:

Emergency arbitrator → arbitral tribunal → court assistance where necessary.

This would reduce unnecessary judicial intervention without denying access to courts.

5. Due-process safeguards

Emergency relief must remain exceptional.

The legislation should therefore preserve safeguards concerning:

• genuine urgency;
• imminent and serious harm;
• necessity of immediate intervention;
• independence and impartiality of the emergency arbitrator;
• reasonable opportunity of hearing;
• security where appropriate;
• subsequent review by the constituted arbitral tribunal; and
• time-bound termination of the emergency arbitrator's mandate.

These safeguards are particularly important where preliminary or ex parte relief is permitted.

The evolution of international rules demonstrates that speed and due process need not be opposites. The ICC's 2026 framework, for example, permits preliminary orders without notice in appropriate cases but requires the emergency arbitrator to provide the affected party a reasonable opportunity to present its case immediately thereafter.

VIII. Emergency Arbitration and the Future of Indian Arbitration

The debate ultimately concerns more than one procedural device.

It concerns what arbitration means in India.

If arbitration is genuinely intended to provide an autonomous alternative to litigation, then the arbitral system must be capable of responding to disputes not only after the tribunal has been constituted, but also during the critical period immediately preceding constitution.

Otherwise, arbitration contains a structural contradiction.

A party agrees:

“I will arbitrate my dispute.”

But when the dispute suddenly becomes urgent, the legal system effectively responds:

“First, go to court.”

Section 9 is an essential safety valve, but a system that requires courts to be the default response to every urgent pre-tribunal situation risks weakening the very autonomy that arbitration is intended to protect.

Emergency arbitration addresses this problem without seeking to abolish judicial supervision.

Its strength lies precisely in its temporary character. The emergency arbitrator does not replace the main tribunal. The emergency decision does not finally determine the merits. Once the tribunal is constituted, it can ordinarily confirm, modify, terminate or revoke the emergency relief. The ICC framework expressly adopts this model, and MCIA's 2025 Rules similarly empower the constituted tribunal to revisit emergency relief.

This makes emergency arbitration a bridge, rather than a parallel system.

IX. The Way Forward: From Judicial Accommodation to Legislative Certainty

India's present position reflects an interesting paradox.

On one side, Indian courts have demonstrated considerable willingness to accommodate emergency arbitration within the existing statutory framework. On the other, Indian arbitral institutions are increasingly adopting sophisticated emergency-arbitration mechanisms. MCIA's 2025 Rules, for example, now expressly provide for appointment of an emergency arbitrator within one business day and determination of emergency relief within 14 days.

International institutions are moving in the same direction. The ICC's 2026 Rules have strengthened emergency arbitration through preliminary orders, while SIAC's 2025 Rules have similarly enhanced the mechanism.

The missing component is therefore legislative certainty.

India should enact the proposed statutory framework for emergency arbitration, preferably through the next amendment to the Arbitration and Conciliation Act, 1996.

But the reform should be carefully designed.

The objective should not be to turn emergency arbitration into a miniature court system. Nor should statutory intervention eliminate the procedural flexibility of arbitral institutions. Instead, Parliament should establish the legal validity, jurisdictional foundation and enforceability of emergency-arbitrator decisions while leaving procedural details to institutional rules.

Such reform would produce three major benefits.

First, it would strengthen party autonomy. Parties would be able to obtain urgent protection through the very arbitral mechanism they chose in their contract.

Second, it would reduce unnecessary judicial intervention. Courts would remain available where judicial assistance is genuinely necessary, but they would no longer be the automatic first resort merely because the tribunal has not yet been constituted.

Third, it would strengthen India's credibility as an international arbitration jurisdiction. International commercial parties do not evaluate an arbitral seat only by the quality of its final-award jurisprudence. They evaluate the entire life cycle of a dispute—including the ability to protect assets and evidence when the dispute first erupts.

Conclusion: Arbitration Must Protect the Arbitration

The deepest justification for emergency arbitration is ultimately simple.

Arbitration must be capable of protecting the arbitration itself.

A final award cannot protect an asset that has already disappeared. Compensation cannot always repair the destruction of confidential information. A successful claim cannot necessarily undo a transaction completed before the tribunal was constituted.

The emergency arbitrator fills this temporal gap.

India has already taken an important step through Amazon. Its arbitral institutions are developing increasingly sophisticated emergency procedures. International practice has moved decisively towards recognising emergency arbitration as an ordinary component of institutional arbitration. The Viswanathan Committee and the 2024 Draft Amendment Bill have also acknowledged the need for legislative intervention.

What remains is for the legislature to convert this judicially accommodated and institutionally developed practice into a clear statutory framework.

The goal should not be to replace Section 9.

It should be to ensure that Section 9 is no longer the only door available merely because the arbitral tribunal has not yet entered the room.

If India wants arbitration to be a genuinely autonomous, efficient and internationally competitive mechanism of dispute resolution, the law must recognise that the most important moment in an arbitration may sometimes occur before the tribunal itself exists.

That is precisely where emergency arbitration belongs—and precisely where Indian arbitration law can no longer afford to remain silent.