[Gayatri Kondapalli and Aditi Kanoongo are 4th year B.A., LL.B. (Hons.) students at NALSAR University of Law, Hyderabad]
On January 1, 2025, the seventh edition of the Singapore International Arbitration Centre Rules (“SIAC Rules, 2025”) came into effect, introducing significant procedural changes, particularly in the context of emergency arbitration. Although the rules enhance expediency in granting interim relief by an emergency arbitrator, the practical realization of such relief remains contingent upon the enforcement by the courts. This post considers the existing jurisprudence on emergency arbitration and ex-parte arbitral orders in India to argue that Indian courts are unlikely to enforce interim relief orders passed by emergency arbitral tribunals based on the updated procedure under the SIAC Rules, 2025.
Emergency Arbitration Under the SIAC Rules, 2025
Emergency arbitration provides an expeditious route for parties to obtain interim relief without approaching national courts and before the constitution of an arbitral tribunal that adjudicates on the merits of the case. The SIAC Rules, 2025 introduced two significant amendments to the procedure for emergency arbitration. First, a party may now apply for interim relief from an emergency arbitrator even before the formal commencement of arbitration, which occurs upon receipt of the notice of arbitration by the Registrar of the SIAC. However, it is important to note that the party requesting relief must file such a notice within seven days thereafter. Second, along with an interim relief application, an application for a Protective Preliminary Order (“PPO”) can be filed to seek a preliminary order directing a counterparty not to frustrate the purpose of the interim relief. This provision presumably addresses situations where prior notification of the emergency arbitration application could jeopardize the urgent interim relief sought. For instance, the counterparty could be prevented from disposing of funds or destroying relevant evidence. Notably, the emergency arbitrator must pass an order within 24 hours of their appointment, and all the other parties must be notified within 12 hours of the order being passed. Recognizing that counterparties are not provided with an opportunity to present their case during the emergency arbitration proceedings, the rules provide that a hearing must be granted subsequently at the earliest practicable time.
Enforceability of Emergency Arbitral Orders under SIAC Rules, 2025 in India
Despite the growing reliance on emergency arbitration for interim relief, the lack of explicit recognition within the Arbitration and Conciliation Act, 1996 creates legal uncertainty regarding the enforcement of emergency arbitral orders. This legislative gap was addressed by the Supreme Court in Amazon NV Investment Holding LLC v. Future Retail Ltd. (“Amazon”). The Court referred to the language of section 17 of the Act to grant recognition to emergency interim relief orders within the broader ambit of interim measures passed by arbitral tribunals. Furthermore, since the emergency arbitration in this case was conducted under the SIAC Rules, 2016, the Court upheld the parties’ freedom to choose institutional rules and concluded that emergency arbitral orders passed under these rules would be enforceable in India. However, this post argues that the SIAC Rules, 2025 raise crucial concerns regarding the enforceability of such emergency arbitral orders.
First, paragraph 2 of Schedule 1 of SIAC Rules, 2025 permits the commencement of emergency arbitration before issuing a notice for arbitration to the counterparty, thereby undermining the basis on which the Supreme Court has recognized emergency arbitral orders under the Act. In Amazon, the Court relied on the phrase, “during the arbitral proceedings”, to include emergency arbitral orders within the ambit of section 17 of the Act. The Court reasoned that emergency arbitration proceedings could occur only after the notice of arbitration is served upon the counterparty, as this marks the formal commencement of the arbitration and thus arises ‘during’ the arbitral proceedings. Given this, it is unlikely that the Supreme Court’s interpretation can be extended to include proceedings conducted ‘prior’ to the commencement of arbitration.
Second, emergency arbitral orders granting interim relief ex-parte would likely face resistance in Indian courts, given their emphasis on procedural fairness and reluctance to enforce ex-parte orders issued by arbitral tribunals. In Godrej Properties Ltd. v. Goldbricks Infrastructure Pvt. Ltd., the Bombay High Court set aside an ex-parte interim order by an arbitral tribunal, holding that it violates the provisions of the Act. Through a conjoint reading of section 24 with section 18 of the Act, it held that parties must be given sufficient notice of any hearing and be provided a full opportunity to present their case. The bench explained that these procedural requirements must be fulfilled in all arbitral proceedings, including those for interim relief. Further, the Supreme Court has underscored the importance of due process in emergency arbitral proceedings. In Amazon, it held that emergency arbitrators fall within the ambit of an arbitral tribunal granting interim relief. Consequently, it upheld the emergency arbitrator’s judicial duty to ensure that all the parties are given an opportunity to be heard. Therefore, the enforceability of an ex-parte PPO in Indian courts is shrouded with uncertainty.
Third, a practical challenge arises regarding the consent of the parties for ex-parte orders given by emergency arbitrators under the SIAC Rules, 2025. Unlike an arbitral tribunal, where arbitrators are either appointed by the parties or by a court upon request, the legitimacy of an emergency arbitrator’s appointment stems from the parties’ prior consent to the institutional rules. Consequently, by opting for SIAC Rules to govern their arbitration, the parties agree to the application of all its provisions, including those relating to emergency arbitration. It is to be noted that where an arbitration agreement refers to the SIAC Rules as the applicable institutional rules, the SIAC Rules, 2025 shall apply unless the context requires otherwise. Since the SIAC Rules, 2016 did not permit ex-parte interim relief, it is doubtful whether the parties truly intended to permit such relief under the updated rules.
Conclusion
Emergency arbitration has emerged as a crucial mechanism for securing swift relief before the constitution of an arbitral tribunal. While the SIAC Rules, 2025 take this a step forward by introducing PPOs and allowing emergency arbitration before the formal commencement of arbitration, the enforceability of such emergency arbitral orders may be limited in India due to the courts’ emphasis on the procedural safeguards embedded in the Act.
Despite their emphasis on due process, Indian courts have, in exceptional circumstances, granted ad-interim relief without prior notice to the counterparty, thereby recognizing the necessity of urgent intervention to prevent irreparable harm. A similar necessity may arise in emergency arbitration, where exceptional circumstances may require the granting of ex-parte interim relief to protect the rights of the parties and preserve the subject matter of the dispute. A PPO, through its ex-parte mechanism, seeks to address precisely such situations. Given the lack of a statutory basis to enforce such orders and their conflict with mandatory provisions of the Act as highlighted, article 17B of the UNCITRAL Model Law, which allows the enforceability of ex-parte interim orders, must be adopted into the Act, coupled with suitable amendments. By recognizing the significance of ex-parte emergency interim relief in exceptional circumstances, the legislative reform would reduce legal uncertainty and provide a vital mechanism for the enforcement of emergency arbitral orders issued under the SIAC Rules, 2025.
– Gayatri Kondapalli & Aditi Kanoongo