Emergency Arbitration: A Necessity for Legislative Clarifications?

By Saumya Vanwari, Fourth 12 months Scholar at Institute of Regulation, Nirma College

The long-awaited dispute on the enforceability of “Emergency Award” was lastly settled by the Supreme Court docket in ‘Amazon.com NV Funding Holdings LLC v. Future Retail Restricted & Ors. The 2-judge bench dominated in favour of Amazon and declared the Emergency Arbitration (“EA”) handed by the Singapore Arbitrator as enforceable in India. It additionally concluded that besides SLP, the only decide’s order on emergency award was not appealable inside Part 37(2) of the Arbitration and Conciliation Act (“A&C Act”).

On this article, the creator intends to discover the intricacies of the case that led to the dispute of EA. The article will analyse (i) the arguments of the respondent and (ii) the Court docket’s strategy in the direction of the EA in gentle of the A&C Act. It’ll additionally shed the sunshine on the complexities which may come up as a result of lack of legislative provisions regarding EA.


On 29August 2020, Reliance Retail Ventures Restricted (“RRVL”) entered into an settlement to accumulate property of Future Retail Restricted (“FRL”) – a subsidiary of Future Coupons Personal Restricted (“FCPL”). Nevertheless, Amazon challenged this settlement on the bottom that it violated the Shareholders settlement (“SHA”) signed between Amazon and FCPL. The phrases of the Share Subscription Settlement clearly state that Amazon’s ‘funding on FCPL would “stream down” to FRL’. The settlement was primarily based on the premise that after the funding of Amazon in FCLP, FRL can not take the choice to switch its retail asset till FCPL, and in the end Amazon offers its consent. Additional, inside Schedule III of the SHA, FRL was restricted from coming into into an settlement with a ‘sure group of entities’ and that included “RRVL”.

Thereby, Amazon opposed the RRVL-FRL Settlement and appeared earlier than the EAr of Singapore Worldwide Arbitration Centre (“SIAC”). The EAr voted for Amazon and restrained the enforcement of 24, 731 crore deal till the arbitral tribunal gave its remaining determination.

Following the Emergency Arbitrator’s order, Amazon moved to the Delhi Excessive Court docket (seat being Delhi) through Part 17(2) of the A&C Act. The Single-judge bench of the HC upheld the Emergency Award and restraint the RRVL-FRL acquisition settlement. Contesting this order, FRL appealed earlier than the division bench of the HC underneath Order 43, Rule 1(3) of Code of Civil Process, 1908 (“CPC”) which put a keep on the Single-bench Order.

Via the Particular Depart Petition filed by Amazon, the Apex Court docket stayed the proceedings of the Excessive Court docket and framed two issues- firstly, whether or not the “award” handed by Emergency Arbitrator underneath the SIAC guidelines is enforceable in India. Secondly, whether or not the order handed by the single-judge bench of Delhi Excessive Court docket underneath Part 17(2) of the Arbitration Act to implement emergency award be appealable-under Arbitration Act or CPC?

On this article, the creator will take care of the primary concern on ‘enforceability of EA’. Earlier than analysing the problems, it’s important to grasp the time period “EA”. In easier phrases, ‘Emergency Arbitration’ is the method of offering pressing aid earlier than the structure of precise/everlasting tribunal. The award granted by Emergency Arbitrator is short-term and might be modified later by the arbitral tribunal.

Recognition of Emergency Award-Part 17(1)

1. Part 2(1)(d) being exhaustive in nature

Future Retail argued that Part 2(1)(d) of the A&C Act is exhaustively outlined and ‘Arbitral Tribunal’ solely consists of ‘sole arbitrator or panel of arbitrators’. The tribunal is constituted by the events to not solely go interim orders but in addition render the ultimate award. Because the emergency awards are short-term orders and by no means end in remaining award, the ‘Emergency Arbitrator’ can not fall underneath the ambit of arbitral tribunal outlined inside Part 2(1)(d) of the act.

The Court docket rejecting respondent’s contentions said that though Part 2(1)(d) of the Act doesn’t explicitly consists of ‘Emergency Arbitrator’. However the definition solely applies ‘until the context in any other case requires’. Part 2(1)(a) defines arbitration to incorporate each home and institutional arbitration. Whereas Part 2(6) and Part 2(8) spotlight the get together autonomy and make it clear that if the events have agreed to be ruled by institutional guidelines or administered by everlasting arbitral establishments of their settlement, then the provisions of these guidelines definitely can be relevant. In different phrases, the events herein have referred to SIAC guidelines (i.e. institutional type of arbitration), thus the ‘emergency arbitrator’ provisions can be included throughout the definition of ‘arbitral tribunal’.

2. Emergency Arbitrator not akin to Arbitral Tribunal

Future Retail relied on Schedule 1 and Rule 3 of SIAC guidelines to level out that the President of SIAC has to resolve whether or not the Emergency Arbitrator is to be appointed or not. Additional, the Emergency Arbitrator holds no energy as soon as the arbitral tribunal is constituted. Because the Emergency Arbitrator just isn’t an unbiased quasi-judicial physique like tribunal, so it can’t be an ‘arbitral tribunal’ throughout the A&C Act.

Moreover, they contended that the SIAC guidelines agreed between the events had been topic to the provisions of A&C Act. Nevertheless, the Act doesn’t take care of EA, so the Emergency Arbitrator lacked inherent jurisdiction. Thus, the SIAC guidelines regarding Emergency Award can’t be utilized on this case.

Contesting the above-mentioned arguments, the Court docket said that there was no interdict, both specific or essential implication, in opposition to an Emergency Arbitrator. There was nothing opposite to the A&C act when SIAC guidelines are utilized. As per Rule 1.3 of SIAC, an ‘award’ consists of ‘emergency award’ and an ‘Emergency Arbitrator’ consists of an arbitrator appointed underneath Schedule 1. This means that the Emergency Arbitrator’s order supplied underneath Institutional guidelines are just like interim order supplied by Arbitral Tribunal, and accordingly included inside Part 17(1) of the Act. The Court docket additionally careworn upon the truth that get together can not deny the ruling of the EAs award and declare it as a nullity later if they’ve earlier participated in EA proceedings and expressly agreed to SIAC institutional guidelines.

3. 246th Regulation Fee Suggestions-Not Adopted

Future Retail referred to the 246th Regulation Fee Report which recommended the modification underneath Part 2(1)(d) to incorporate ‘EA’. Notably, the Parliament didn’t incorporate this modification into the Arbitration Act. This exhibits that ‘emergency awards’ can’t be included inside Part 17(1) of the act.

The Court docket, nevertheless, nullified the above argument by citing Avitel Submit Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., whereby it was rendered that simply grow to be the advice of Regulation Fee Report was not accepted by Parliament, it will not conclude that it can not grow to be a part of the statute even when the Courts have correctly interpreted it. Furthermore, the B.N. Srikrishna Committee Report additionally recommended the insertion of provisions regarding emergency arbitrators throughout the A&C Act.

4. Part 17(1) software to ‘throughout the arbitral proceedings’

Future Retail argued that underneath Part 17(1), events are allowed to strategy tribunal for interim aid solely ‘throughout the arbitral proceedings’. By contract, within the SIAC Guidelines, the EA normally commences earlier than the structure of an arbitral tribunal, thus the ‘EA’ can not fall inside Part 17(1).

The Court docket put aside the above argument by counting on Part 21 and part 17(1) of the Act. As per Part 21, the arbitral continuing begins when the discover to refer dispute to arbitration is obtained by the respondent. Nevertheless, this provision is topic to “settlement between the events”. Within the current case, the ‘events have agreed’ to undertake SIAC Guidelines because the procedural regulation of the arbitration. As per which, the arbitral proceedings begin when the date of receipt of full discover of arbitration is obtained by Registrar of the SIAC. Subsequently, the provisions for ‘EA proceedings’ (agreed between the events) might be stated to a part of Part 17(1) when  learn with Part 21 of the A&C Act.


The Judgment creatively interpreted the provisions and loopholes of the A&C Act to incorporate ‘EA’ inside its area. Counting on Part 2(8) and Part 19(2), the Court docket has emphasised the importance of the ‘get together autonomy’ in arbitration. The Court docket held the ‘EA’ because the creature of institutional guidelines adopted by events within the contract, and thus Emergency Arbitrator because the ‘arbitral tribunal’ inside Part 2(d) of the A&C Act. By implementing the ‘Emergency Award’ which is majorly present in Institutional guidelines, the Court docket has propelled the event of ‘Institutional Arbitration’ and ‘Ease of doing enterprise’ in India. It has additionally introduced the suggestions of the 246th Regulation Fee of India into motion.

Nevertheless, a number of questions nonetheless stay unresolved. Firstly, the Judgment is barely restricted to arbitrations seated in India’. Now, the emergency award handed in India seated arbitration would have the same impact to the decree of the Court docket. However the applicability of EA for international seated arbitration is but to be determined. Secondly, one other main concern is the influence of emergency award on third events. For example, if the emergency award has earlier been made enforceable in opposition to a 3rd get together and later the arbitral tribunal reverses that emergency award. In such circumstances, the events need to strategy the court docket once more to change the enforceability of such an award in opposition to third get together. On this judgment, the Court docket said that your entire objective of the EA was to decongest the Court docket’s system and to supply pressing interim reliefs to the events. However the burden of the court docket appears to be unending.

Thirdly, it’s a lot simpler for Indian events to strategy the court docket for interim aid underneath Part 9 than to bask in EA. In comparison with Part 9 interim aid, the EA is nothing however a mini-trial that includes includes extra compliances, hefty paperwork, and rigours.

Lastly, the judgment is just too unique to SIAC guidelines. The Judgment has additionally blurred the distinction between interim order and interim award by utilizing it interchangeably. To conclude, though the Judgment brings out the relevance of Occasion Autonomy and Minimal Judicial Intervention in Arbitration however India nonetheless lacks  infrastructure and specialised arbitration guidelines for clean functioning of emergency arbitration. Such afore-mentioned procedural complexities point out the dire want of legislative provisions for EA seated in India. Additional, a clarification for international seated arbitration and amendments throughout the second a part of the act can also be required.

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