Fast But Not Final: The Section 9A Gap in India’s Emergency Arbitration Regime

[Rishi is a student at Gujarat National Law University.]

In Amazon.com NV Investment Holdings LLC v. Future Retail Limited (Amazon), decided on 6 August 2021 by the Supreme Court of India, the Court observed that an order of an emergency arbitrator passed in an arbitration seated in India would be an interim order enforceable under Section 17(2) of the Arbitration and Conciliation Act 1996 (Arbitration Act). In our view, what this case did was provide emergency arbitration, the first foothold in the legal framework in India without Parliament using the phrase “emergency arbitrator”. The submission we would make is that the foothold provided by this judgment has achieved lesser ends than its citation count suggests. The judgment addressed the question of enforceability but left open three key questions as to how rigorously the court could examine the emergency award; whether the decision could be applied in a case where arbitration was seated abroad; and whether relief given without prior notice passes the guarantee of fair hearing under Section 18 of the Act. Unless the Draft Arbitration and Conciliation (Amendment) Bill 2024, in its new Section 9A, plugs these three holes, Indian emergency arbitration will remain sharp only at the tip of the order and slow at its core, its enforceability.

The Amazon Fiction

The ambivalence starts from the very text itself. Section 17, which gives authority to an arbitral tribunal to issue interim measures, implies an arbitral tribunal that is already in existence, and Section 2(1)(d), which explains what constitutes an “arbitral tribunal,” makes no mention of any emergency appointment. In the case, when Amazon obtained an injunction issued by an emergency arbitrator appointed under the Singapore International Arbitration Centre (SIAC) Rules to restrain Future Retail Ltd from selling its assets to Reliance Retail, Future Retail contended that there could not have been an order of the arbitral tribunal in its non-existence. The Supreme Court rejected this position by interpreting the term “during the arbitral proceedings” used in Section 17(1) along with Section 21, whereby, pursuant to the SIAC Rules, the arbitral proceedings start on the receipt of the notice of arbitration and well before the tribunal is established. Such an interpretation allowed for an interpretation of Section 17(1) broad enough to treat the emergency arbitration under Section 17(1) such that the award of the emergency arbitrator could be enforced as per Section 17(2) without any possibility of appeal under Section 37. Not only does it matter what Amazon did, but it also matters as much what it did not do. The Court worked around the statutory definition of “arbitral tribunal” rather than through it, and confined its holding to arbitrations seated in India.

Where the Fiction Stops: A Regime Split by Seat

This confinement is at the crux of the matter. Where the seat is beyond the borders of India, an emergency award will be excluded from the category of final awards under the New York Convention and will not fall within Part II of the Arbitration Act, which was already held to be the case by the Delhi High Court five years prior in Raffles Design International India Private Limited v. Educomp Professional Education Limited (Raffles), a dispute involving a Singapore-seated emergency arbitrator. In such cases, the parties have to make an application under Section 9 to an Indian court, with the award made by the emergency arbitrator being persuasive in nature rather than mandatory, a position reinforced by the Delhi High Court in Ashwani Minda v. U-Shin Ltd, where it is determined that the party aggrieved by the emergency award of a foreign seat cannot go for Section 9 application again seeking the same relief. Read together, it can be said that these judgments portray a dual-track system based on the seat of arbitration: emergency arbitration works where the seat is in India, and works only partially where it is not.

Institutions Have Moved Faster than the Statute

Whereas Parliament has remained silent, however, India’s arbitral tribunals have not: the Mumbai Centre for International Arbitration, according to Rule 19.1 of the MCIA Rules 2025, permits the appointment of an emergency arbitrator in circumstances of exceptional urgency, with a decision required within fourteen days, and with no appeal or recourse to court permitted by virtue of Rule 19.8. The Delhi International Arbitration Centre requires that the appointment be made within two days and a decision reached within fourteen, according to Rule 14 of the DIAC Rules 2023, with fees forfeited for any delays. Internationally, though, things have been taken even further forward: from 1 January 2025, the SIAC Rules 2025 became one of the first major institutional regimes to allow the emergency arbitrator to make a protective preliminary order in a completely ex parte fashion, ruling without even informing the other party. According to SIAC’s own 2024 Annual Report, India is the third largest source of foreign users, with 173 emergency arbitrator applications accepted since 2010. An ex parte order is nevertheless incompatible with Section 18 of the Arbitration Act, which provides for equal treatment, and with Articles 14 and 21 of the Constitution, since the quickest form of relief possible anywhere may also be the least certain to withstand the scrutiny of Indian courts.

The Finality Gap: An Order that Must Survive a Second Hearing

While Amazon established enforceability, the question remained open as to how the court should go about enforcement. Having obtained its emergency arbitral award, Amazon was still required to seek the orders of the Delhi High Court under Section 17(2) in conjunction with Order 39 Rule 2A of the Code of Civil Procedure 1908 for the purpose of enforcing the award, which took several months to be made in a first-instance order and then appealed against and stayed by a Division Bench before reaching the Supreme Court of India. An emergency arbitrator decided the underlying question in weeks; in India, it took almost a year for Indian courts to decide whether or not the decision would even be implemented at all. There is no section in the Indian Arbitration Act that prescribes the extent to which a court should review the emergency arbitral award or whether it must restrict itself only to a formalistic approach. The use of Section 17(2), which employs the language of ordinary injunctions in civil proceedings, invites substantive reconsideration, which the process of an emergency arbitrator is meant to circumvent.

Two Jurisdictions that Legislated

This gap has been bridged in Singapore by statute, and not by judicial decision. Under Section 2(1) of the International Arbitration Act 1994 (as amended in 2012), “arbitral tribunal” includes an emergency arbitrator designated pursuant to the rules of the parties, such that the ordinary procedure for the enforcement of Section 12(6) can be used without any need for an interpretative process. The courts in Singapore did not have to arrive at an Amazon; this was already provided in statute. The United Kingdom followed suit with a similar outcome in 2025: Section 41A was inserted into the Arbitration Act 1996 of the United Kingdom by the Arbitration Act 2025, effective from 1 August 2025. This gave the emergency arbitrator power to issue a peremptory order which is enforceable as an order of a constituted arbitral tribunal under Section 42. Also, Section 44 was amended so that an emergency arbitrator could grant permission for applying to the court for supporting relief. Both changes were introduced by Parliament, and not by judicial interpretation of the statute, closing the precise gap Amazon left open.

Correcting Section 9A

The Draft Arbitration and Conciliation (Amendment) Bill 2024, despite being pending for more than two years since its drafting, includes a provision in Section 9A for making provision for emergency arbitrators through arbitral institutions in the same way that orders can be made under Section 17(2). However, the draft Bill only reinforces the silences of Amazon, but fails to address them. The draft makes no provision for foreign-seated emergency awards, keeping the fault line between seats intact; it leaves the standard of review for enforcing the awards unmentioned, ignoring Amazon’s history of enforcing an award in just a year; and it outsources the procedure that an emergency arbitrator is required to follow to the yet-to-be-constituted Arbitration Council of India. Three changes would bridge the gap to where the Indian emergency arbitral process needs to go before it can join its peers in Singapore and the UK:

1. A specific clause ensuring enforcement of an international seat emergency award in India on the same basis as a local award;

2. A review of Section 17(2) / 9A limited strictly to grounds like fraud or patent lack of jurisdiction but no re-evaluation of the case on its merits; and

3. A required hearing after a noticeless emergency order.

A Section 9A incorporating the above three fixes would let Indian emergency arbitration finish what Amazon started.