From Amazon NV to Section 9A: Assessing the Evolution of Emergency Relief in Indian Arbitration

From Amazon NV to Section 9A: Assessing the Evolution of Emergency Relief in Indian Arbitration

By Rudra Singh Krishna* and Suhani Suri**

A. Introduction

Emergency Arbitration (EA) has transitioned from a procedural novelty to an essential component of the global arbitration landscape. Since its debut in the International Centre for Dispute Resolution Rules of 2006, major institutions like the Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre (SIAC), and the International Chamber of Commerce (ICC) have adopted EA to provide urgent relief before a formal tribunal is constituted. [1] The efficiency of EA has been undermined by questions regarding its enforceability. The central issue stems from a core legal ambiguity: the New York Convention does not explicitly cover emergency arbitrators and since their decisions are interim and subject to later modification, they often fail the finality test required for a traditional “award.” This lack of finality has contributed to a significant enforcement gap with a global survey indicating that over 70% of the practitioner’s view enforcement as the primary hurdle facing EA. [2]

Despite the domestic momentum generated by the Amazon NV v. Future Retail decision, India’s treatment of emergency relief is trapped in a restrictive dichotomy which penalizes foreign seated proceedings. This difference is centered on whether an emergency order is “self-enforcing” or requires a fresh trial on merits. This article argues that by subjecting foreign EA to a de novo review, thus affording the losing party a second opportunity, the current regime overrides party autonomy and undermines the efficacy of EA. It proposes an alternative framework drawing upon the United Nations Commission on International Trade Law (UNCITRAL Model law) and other jurisdictions to remedy this defect.

B. Domestic Seats and the advantage of automatic enforcement

The Indian Supreme Court’s decision in Amazon.com NV v. Future Retail establishes a clear enforcement path. [3] It held that an emergency arbitrator qualifies as an arbitral tribunal under Section 17(1) of the Arbitration and Conciliation Act. [4] This classification triggers the automatic enforcement mechanism under Section 17(2), which deems such awards to be akin to decrees of a civil court. 5 In the instant case, owing to the seat of arbitration being Delhi and Section 17 being applicable solely to India seated arbitrations, this progressive decision has failed to reach foreign seated ones. Even though the Supreme Court has recognized the “concept” of emergency arbitration, a fact echoed by the recent Draft bill seeking to amend the act, the applicability of Amazon is limited. [6]

Foreign seats and “second bite” conundrum

Foreign seated emergency awards fall within part 2 of the Arbitration Act, which lacks a Section 17 equivalent. Under the precedent set in Raffles Design, a party seeking enforcement of a foreign seated emergency award must file a separate petition for interim relief under Section 9. 7. This empowers the court to consider the case “de novo” essentially rendering the EA proceedings infructuous. The de novo consideration entails that the court is not bound by the findings of the EA, hence the losing party gets another opportunity to present its case before the court — giving it a “second bite” at the “cherry.” As highlighted in Ashwani Minda, [8] using Section 9 as a de facto appeal against an EA award is an abuse of process and vitiates the efforts of the EA. [9]

C. The 2023 Draft Bill and its gaps

The proposed Section 9A of the Draft Arbitration Bill 2023 attempts to codify the Amazon NV principle but introduces new rigidities which may further complicate the landscape. [10] Firstly, it excludes ad hoc, EA by restricting it to institutional settings by requiring appointments by recognized arbitral institutions. [11] This leaves parties who prefer ad hoc arbitration (for instance, by using UNCITRAL Rules) without a statutory remedy. [12]

Secondly, it erodes party autonomy by empowering the Arbitration Council of India (ACI), a substantially inactive body, to regulate EA procedures by “regulating the manner in which the EA may conduct proceedings.” [13] This threatens to override the flexible institutional rules like ICC or SIAC which are voluntarily chosen by the parties. It also brings into question the validity of the entire process since parties may argue that they have been forced to arbitrate through a procedure which has been imposed upon them against their will.

Thirdly, while the draft bill aims to recognize foreign seated EA, it notably omits the enforcement clause (Section 9A(3)) from applying to foreign seated arbitrations. Section 2(2) of the bill lays down the provisions which have applicability over foreign seated arbitrations, and it specifically mentions Sections 9 and 9(2), but not 9A(3). 14 Furthermore, 9A(3) itself mentions that foreign EAs will be deemed to be decrees under Section 17(2) which itself is inapplicable to foreign seated arbitrations by virtue of its non-mention in Section 2(2). [15]

Hence, the draft bill fails to address the crucial problem while increasing the issues faced by emergency arbitration in India.

D. Proposed Solutions

Firstly, India must adopt Articles 17H and 17I of the 2006 UNCITRAL Model Law. Article 17H mandates the recognition and enforcement of interim measures “irrespective of the country in which [they were] issued” effectively bridging the gap between domestic and foreign seats. [16] Article 17I provides an exhaustive and narrow list of grounds for refusal like incapacity or violation of due process which prevents the court from conducting a de novo review on merits. [17]

Secondly, India should consider the 2024 Vishwanathan Committee’s proposed Section 12B instead of 9A. It provides a statutory recognition to emergency arbitrators appointed by institutions or as agreed by parties hence accommodating ad hoc proceedings and presenting flexibility. [18]

Thirdly, Indian Courts must be granted the power to reformulate the interim measure to adapt the foreign EA to recognizable legal format without interfering with merits. [19] If granted, this should have an explicit caveat that Courts must not, under any circumstances, delve into the merits or the reasoning of the EA. [20]

Fourthly, the Act should explicitly codify the principle of estoppel preventing parties who have participated or agreed to EA procedures from later challenging the binding nature of the resulting order in Court. This would align Indian law with the rules of major institutions like the ICC (Rule 29.2). [21]

E. Conclusion

Parties deliberately choose foreign seats to secure specific foreign laws and dispute resolution mechanisms. India’s regime overrides this autonomy by subjecting this autonomy to a time consuming de novo review under Section 9 allowing the losing party a “second bite at the cherry.” Furthermore, the objective behind EA is the urgent nature of the proceeding, a fact which is completely overridden when parties must engage in a separate round of litigation to avail the remedy given by the EA. To achieve its global arbitration hub ambitions ad guarantee legal certainty, India must adopt UNCITRAL Model Law Articles 17H and 17I. Empowering courts to procedurally reformulate and not substantially review ensures a swift enforcement which international commerce demands.

*Fourth year student at West Bengal National University of Juridical Sciences (WBNUJS), Kolkata

**Second year student at Jindal Global law school

[1] Int’l Dispute Resolution Procs. (Am. Arb. Ass’n 2006).

[2] 2025 International Arbitration Survey, Queen Mary Univ. of London (last visited Mar. 13, 2026), https://www.qmul.ac.uk/arbitration/research/2025-international-arbitration-survey/.

[3] Amazon.com NV Inv. Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 129 (The case concerned a Delhi seated emergency arbitration initiated by Amazon to halt Future Retail's multi-billion-dollar asset sale to a third party. The emergency award was challenged by Future who contended that emergency arbitration is not recognized under the Indian Arbitration Act. While recognizing that emergency arbitration orders are directly enforceable under Section 17(2) of the Arbitration Act, the Supreme Court overlooked the aspect that Section 17(2) is applicable solely to India seated arbitrations. This created a dichotomy where India seated emergency arbitrations could be directly enforced whereas foreign seated ones needed approval of the court).

[4] Id.; Arbitration and Conciliation Act, 1996, § 17(1) (India) (It grants the arbitral tribunal broad powers to issue interim measures of protection (such as freezing assets, preserving goods or issuing injunctions during the pendency of the arbitral proceedings)).

[5] Arbitration and Conciliation Act, 1996, § 17(2) (India) (deems the arbitral orders under 17(1) as orders of a Civil Court under the Code of Civil Procedure for the purpose of enforcement).

[6] Arbitration and Conciliation (Amendment) Bill, 2024, § 2, (Draft) (India).

[7] Raffles Design Int’l India Pvt. Ltd. v. Educomp Prof’l Educ. Ltd., (2016) 234 DLT 349 (Following a dispute over a joint venture, the plaintiff obtained an emergency award in a Singapore seated SIAC arbitration. Upon violation of the award by the respondent, the plaintiff approached the Delhi High Court under Section 9 of the Arbitration Act seeking relief mirroring the emergency award. The court ruled that an emergency award from a foreign jurisdiction cannot be directly enforced under the Act since it lacks statutory recognition and does not qualify as a foreign award under Part II of the Act. However, it ruled that the parties could be granted an independent interim order under Section 9, but the court was not bound by the findings of the tribunal and could conduct a “de novo” review of the whole case).

[8] Ashwani Minda v. U-Shin Ltd., (2020) 270 DLT 461 (In a Japan seated arbitration governed by the Japan Commercial Arbitration Association (JCAA) Rules, the Indian applicant sought an emergency injunction to halt a share transfer. Upon rejection by the EA, the applicant moved before the Delhi High Court seeking the exact same relief. The court dismissed the petition and held that the applicant cannot use Section 9 as an appellate mechanism to challenge an EA’s refusal to grant relief).

[9] Arbitration and Conciliation Act, 1996, § 9 (India).

[10] The Arbitration and Conciliation (Amendment) Bill, 2024, § 9A (India) (Statutory recognition to emergency arbitration. It allows the arbitral institutions to appoint an emergency arbitrator before the constitution of the formal tribunal to grant interim measures).

[11] Id. (9A. Emergency arbitrators – (1) Arbitral institutions may, for the purpose of grant of interim measures referred to in section 9, provide for appointment of emergency arbitrator prior to the constitution of an arbitral tribunal.).

[12] UNCITRAL Arbitration Rules art. 26 (2021).

[13] Id. (9A(2):The emergency arbitrator appointed under sub- section (1) shall conduct proceedings in the manner as may be specified by the Council.).

[14] The Arbitration and Conciliation (Amendment) Bill, 2024, § 2(2) (Draft) (India); "Provided that subject to an agreement to the contrary, the provisions of section 9, sub-section (2) of section 9A, section 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to an arbitration, even if the seat of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognized under the provisions of Part II of this Act." It explicitly recognizes that foreign seated emergency Arbitration is also covered under the Act.

[15] The Arbitration and Conciliation (Amendment) Bill, 2024, § 9A(3) (India); An order passed by an emergency arbitrator will be enforced like an interim order of an arbitral tribunal under Section 17(2).

[16] UNCITRAL Model Law on International Commercial Arbitration art. 17 H, 17 I (2006) (17H obligates the Court to recognize and enforce interim measures issued by a tribunal irrespective of the Country where it was issued. 17I lists down a very narrow and exhaustive list of grounds upon which the Court may refuse to enforce them. UNCITRAL is the core legal body of the UN in the field of International Trade Law. The UNCITRAL Model Law on International Commercial Arbitration 1985, amended 2006 is the template for arbitration statutes in over 85 jurisdictions globally).

[17] Id.

[18] Expert Comm. on Arb. Law, Report of the Expert Committee to Examine the Working of the Arbitration Law and Recommend Reforms in the Arbitration and Conciliation Act 1996 (Feb. 7, 2024) (Chaired by Dr. T.K. Viswanathan) (The Committee recommended the insertion of Section 12B to grant statutory recognition to EA and stated that their orders be enforceable in the same manner as an order of a tribunal under Section 17(2)).

[19] Enforcement of a foreign order in India directly may be difficult since the Indian Code of Civil Procedure may not recognize foreign remedies given in the EA. Here, instead of restarting the whole process, the Domestic Court may look at the substantive intent of the foreign EA's order (e.g. preventing dissipation of assets) and enforce it as per its Indian equivalent (e.g. Order XXXVIII, Rule 5 of the CPC).

[20] UNCITRAL Model Law on International Commercial Arbitration art. 17 I(b)(1) of the UNCITRAL Model Law. (“The interim measure is incompatible with the powers conferred upon the court unless the court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance”); see also Arbitration Act 1996, sch 1 art 17M(1)(b)(i) (N.Z.) (The Section empowers the Court to reformulate the interim measure to “the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing the interim measure and without modifying the substance”); Commercial Arbitration Act 2011 (SA) s 17I(1)(b)(i) (Austl.) (permitting reformulation where a measure is incompatible with the Court’s powers, provided such adaptation occurs “without modifying its substance").

[21] Int’l Chamber of Com. [ICC], Arbitration Rules art. 29 (2021) (Based in Paris, the ICC is the oldest and most globally recognized arbitral institution, frequently selected for high-value cross-border infrastructure and energy disputes. Article 29.2 states that EA provisions are applicable to the dispute unless the parties have explicitly withdrawn the same, hence acting as a bar on parties from withdrawing from EA after choosing ICC Rules).