Emergency arbitration procedures are now embedded in the rules of most leading arbitral institutions across the globe. But is legislative backing essential to the effectiveness of those procedures in order to ensure that interim relief is enforceable? On the eve of the second anniversary of the release of India’s Draft Arbitration and Conciliation (Amendment) Bill 2024 (“the Arbitration Amendment Bill“), we pause to reflect on the much needed recent amendment made in 2025 to the Arbitration Act 1996 in England, to support the recognition and enforcement of orders made by emergency arbitrators. In doing so we illustrate the advantages which India would also stand to benefit from if it were to enact the similar provisions in its Arbitration Amendment Bill.
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History
Prior to recent legislative reforms in England and other jurisdictions, arbitral institutions had, for well over two decades, been reforming arbitral rules and practice to address a lacuna: that parties had agreed to efficient and confidential dispute resolution by arbitration, but the resolution procedure was being hampered by: i) temporal delays in the constitution of arbitral tribunals during which evidence could be destroyed or assets dissipated; ii) an absence of clarity as to the enforceability of interim orders to preserve evidence and assets; and iii) the need to uncloak a confidential arbitration to pursue open justice in the courts for interim relief in the absence of certainty of enforcement.
In the late 1990s, the International Chamber of Commerce championed change to address this lacuna by the introduction of a “Pre-Arbitral Referee” procedure, under which an independent referee could order interim measures. But it had to be expressly agreed in parties’ contracts, and uptake was rare in practice, perhaps because the provision was not very well known (and was not therefore considered at the contract drafting stage).
The modern emergency arbitrator regime emerged in the mid-2000s and gained widespread adoption during the 2010s with the inclusion of emergency arbitrator provisions directly within the rules of various arbitral institutions. This effectively extended the availability of arbitral remedies into the period before constitution of the tribunal, closing the temporal lacuna that previously existed. Clear, defined timelines and the availability of a vast pool of potential emergency arbitrators who could be appointed at very short notice – even during busy or holiday periods – provide a highly attractive proposition to businesses requiring urgent relief.
However, in England, silence by the legislature about the enforceability of interim awards made by emergency arbitrators continued to create uncertainty and to hamper overall effectiveness. The practical consequence was to direct parties to national courts which possessed clear, easily enforceable powers to freeze assets, preserve evidence and grant injunctions in support of arbitration. Why risk uncertainty over the enforceability of an interim order made by an emergency arbitrator when an application for relief to court was more certain? That said, parties would have to engage with both arbitration and court procedures, and in turn experience more duplication and so more cost.
At the same time, they are forced to grapple with the fear that the “confidentiality” promised by arbitration could be illusory.
In England pressure mounted for change given the significance of arbitration as a dispute resolution tool for international business. The amendments ultimately enjoyed broad cross-party support and were seen as largely non-controversial. As Lord Ponsonby of Shulbrede said during the second reading of the Arbitration Bill 2025: “The benefits that arbitration brings to this country are plain to see. The Law Commission estimates that the sector is worth at least £2.5 billion to the British economy each year, while according to industry estimates, international arbitration grew by some 26% between 2016 and 2020. Of course, London remains the world’s most popular seat for arbitration by some stretch. However… our legal system too must continue to adapt and evolve if we are to remain ahead of the curve.”
The English Amendment
The manner in which the Arbitration Act 1996 was amended in England is straightforward: section 41A(2) of this Act provides that emergency arbitrators may make peremptory orders and section 42 expressly says that court may make an order requiring a party to comply with a peremptory order made by an emergency arbitrator (in addition to those made by “the tribunal” as finally constituted). Non‑compliance can expose the party to usual court penalties.
In order to obtain a peremptory order in the first place, a party must demonstrate to the emergency arbitrator that the other party has failed to comply with any earlier order or directions of the emergency arbitrator. However, once made, provided the court is satisfied that the peremptory order has been made properly and disregarded without sufficient cause, the High Court will make prompt and efficient orders to enforce.
By contrast, there is a pre-existing enforcement mechanism in section 66 of the Act which is concerned with finality and execution of the substantive issues in dispute: once the tribunal has issued its final award, the successful party may obtain the court’s leave to enforce that award as if it were a judgment or order of the court, enabling the full range of execution methods (e.g third party debt orders, charging orders etc). The two provisions therefore operate at different stages of the arbitral process. However, pursuant to the recent amendments, both can now be effectively enforced by the courts.
Appointments of emergency arbitrators can only be made where parties have previously agreed to adopt institutional rules that provide a mechanism to do so. As most leading institutional rules do not provide for ex parte relief, it follows that ex parte peremptory orders will not be made unless specific changes are made to relevant institutional rules, and those rules continue to be adopted by parties entering into arbitration agreements. Further, unlike court interventions, interim orders made by emergency arbitrators cannot be made against third parties who have not agreed to be bound by the arbitral process, so there is no jurisdiction to compel them to do so.
We expect to see an increase in applications for peremptory orders made by emergency arbitrators in English seated arbitrations, though businesses and practitioners may need time to develop confidence in the practice. Parties remain reliant on arbitral institutions to act quickly to process an application for appointment of an emergency arbitrator and it can be costly to persuade them to do so. In the case of the rules of the London Court of International Arbitration, for example, the LCIA Court must determine whether an emergency arbitration procedure is warranted after receipt of an application setting out (i) the specific grounds for requiring, as an emergency, the appointment of an Emergency Arbitrator; and (ii) the specific claim, with reasons, for emergency relief. If a party does not overcome this entry threshold, it is liable to incur costs and to experience delays. But if it does, the LCIA Rules require that an emergency arbitrator be appointed by the LCIA Court within three days of the Registrar’s receipt of the application (or as soon as possible thereafter). The appointed arbitrator is unlikely to be chosen if juggling the same workload and demands as judges in the national courts, which should result in more efficient decision-making and case management.
The Arbitration Amendment Bill in India
The stated purposes of India’s Arbitration Amendment Bill are threefold: strengthen dispute resolution, reduce court interventions in arbitrations, and ensure timely conclusion of arbitration proceedings. It contains provision for emergency arbitrations which, as discussed above, brings clear benefits. One difficulty with enacting the proposed changes to recognise emergency arbitrations, however, is that those amendments are in the same Amendment Bill as more controversial changes, like the establishment of appellate arbitral tribunals.
Similar to the position in England, the role of an emergency arbitrator is proposed to be expressly recognised, and the position will only be able to be filled by appointment in accordance with the rules of an arbitral institution. A significant difference, however, is that proceedings before an emergency arbitrator would need to be conducted “as may be specified” by the Arbitration Council of India. An order then passed by the emergency arbitrator would be enforceable in the same manner as a final order of the fully constituted arbitral tribunal.
Oversight by the Council may leave less room for a myriad of international arbitral institutions to dictate the procedure for emergency arbitration. It would be for the Council to frame norms, lay down a model code of conduct and issue model rules of procedures and guidelines which must be complied with. Whilst this may mean less flexibility, businesses and their advisors could have more certainty about how emergency arbitrations will be conducted in practice for arbitrations seated in India, which could prove beneficial.
For now, though, it appears that the Arbitration Amendment Bill is in cold storage: it remains a consultation draft, and has not yet progressed to become a parliamentary bill. Instead, the courts have stepped in to support emergency arbitrations through the development of caselaw, which interprets the Arbitration and Conciliation Act as it currently stands, in a manner which recognises the decisions of emergency arbitrators in the absence of express statutory recognition.
For example, in Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors Civil Appeal Nos. 4492–4493 of 2021; AIR 2021 SC 3723; (2022) 1 SCC 209, the Indian Supreme Court ruled in favor of Amazon, holding that an Emergency Arbitrator’s award made in an India seated arbitration in accordance with the Singapore International Arbitration Centre Rules was valid and enforceable as an order under section 17(1) of the Arbitration and Conciliation Act. The Supreme Court recognised that the Act leaves full party autonomy to have a dispute decided in accordance with institutional rules, which, in this case, included provision for emergency arbitrators. The public policy benefits of recognition were also acknowledged as important particularly by helping to decongest civil courts and affording expeditious interim relief to parties.
However, enshrining the position in statute is the most fool-proof way to avoid a divergence of reasonable minds and to ensure clarity and certainty of the procedural mechanism (avoiding the confusion as to the state of the law which encouraged the myriad of appeals that led to the Supreme Court proceedings in Amazon). This aspect of the Arbitration Amendment Bill would provide statutory recognition to emergency arbitration beyond India-seated arbitrations. Therefore, legislative reforms remain important to codify and build upon the foundation laid by the courts.
Conclusion
Institutional rule-making created the procedural mechanism for emergency arbitration, while legislative reform has underpinned its enforceability, and so effectiveness, in jurisdictions such as England. Such measures have helped to close the temporal and enforcement lacuna that previously drove parties to seek duplicitous court intervention to preserve evidence and assets pending arbitration.
Enactment of the emergency arbitration provisions in the Arbitration Amendment Bill into law in India will align it with the approaches adopted in England, and other leading arbitration jurisdictions like Singapore and Hong Kong, and assist it to compete for a greater share of the business of international arbitration. It will ultimately help to maintain the efficiency and confidentiality which is promised by arbitration as a dispute resolution mechanism, and assist to ease the burden on national courts being relied upon to develop the law of enforcement for interim orders made by emergency arbitrators.
Authored By:
Arish Bharucha is a Partner at Howard Kennedy LLP and Head of the firm’s India Group, specialising in international arbitration, commercial litigation and civil fraud. A dual-qualified Solicitor-Advocate in England & Wales and Delhi, he is particularly recognised for advising on complex cross-border disputes, with a strong focus on India-related matters and arbitrations under LCIA, ICC, SIAC and UNCITRAL rules.
Eloise Crompton is a Senior Associate at Howard Kennedy LLP, qualified in Australia, who advises clients on international arbitration, commercial litigation and investigations, with particular experience in complex, high-value contentious matters.
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