Urgency and enforceability: Strategic choices for emergency interim relief in India-related Arbitrations

The EA regime in India

Section 17(2) of the (Indian) Arbitration and Conciliation Act, 1996 (Act) allows for the enforcement of interim orders of India-seated tribunals in the same manner as an order of an Indian court. In Amazon, the Indian Supreme Court held that emergency awards issued by India-seated tribunals could be enforced under Section 17(2) on the basis that an emergency arbitrator was covered by the definition of arbitral tribunal in Section 17.

However, interim orders in foreign-seated arbitrations are not similarly enforceable. This is because the Act (while based on the Model Law) does not incorporate Article 17H(1) of the Model Law (as amended in 2006) which allows interim measures to be enforced "irrespective of the country in which it was issued". Indian courts have therefore held that emergency awards in foreign-seated arbitrations cannot currently be enforced under the Act (see Raffles Design v Educomp (2016 Del HC)). 

The draft 2024 Amendment Bill adopts the Supreme Court's formulation in Amazon and maintains the distinction between India-seated and foreign-seated emergency awards. It expressly provides for the enforcement of emergency awards in India-seated arbitrations (under proposed Section 9A read with Section 17(2) of the Act) but does not provide for the enforcement of emergency awards in foreign-seated arbitrations. This tracks the recent development in the UK where orders issued in English-seated EA proceedings can be enforced by an application made to a English court under Section 42(2) of the (English) Arbitration Act 1996 (as amended in 2025) if the party against whom an emergency arbitrator has issued a peremptory order (under Section 41A) fails to voluntarily comply with the same. 

To overcome the problem of enforceability within the framework of Indian law as it stands, two workarounds have been attempted, with little success. 

• First, parties have attempted to enforce a foreign-seated EA decision as a "foreign award" under Section 44 of the Act read with the New York Convention. However, a foreign award can be enforced only if it is final and binding. Emergency awards are generally interim in nature and can usually be modified or vacated by the arbitral tribunal including in its final award and therefore may not qualify as final and binding awards enforceable under the New York Convention. This was the position adopted by the Expert Committee Report dated 7 February 2024 (2024 Report) which concluded that there is a "qualitative difference" between emergency orders and final awards and recommended that emergency arbitrator decisions should not be treated as awards, nor be subject to the same enforcement or challenge regime. 
• Second, it has been suggested that parties could seek enforcement of emergency awards in foreign-seated arbitrations by using Section 27(5) of the Act which provides that non-compliance with a tribunal’s order (in the context of witness or other evidence compelled through a court assisted process) can be treated as contempt of court. After the 2015 amendment to the Act, Section 27(5) also applies to foreign-seated arbitrations (under Section 2(2) of the Act) unless parties expressly contract otherwise. Therefore, failure to comply with EA decisions of foreign seated tribunals could constitute contempt under Section 27(5). However, there are two problems with this route as well: (1) at least one court has rejected the argument that non-compliance of an EA decision of a foreign-seated arbitration could constitute contempt of an Indian court (Raffles Design v. Educomp, Delhi High Court 2016); (2) further, this remedy is inherently limited in scope since it can only be invoked after a party has already violated the EA decision. 

For these reasons, uncertainty as to the enforceability of EA decision issued by foreign-seated tribunals has remained a problem for parties in India-related arbitrations. 

The indirect route: The decision in Ebixcash

In a recent decision, the Bombay High Court in Ashok Goel v Ebixcash (2024) held that parties could apply to enforce indirectly a foreign-seated EA decision using Section 9 (interim relief clause) of the Act. The Ebixcash court held that while the court retains ultimate discretion on whether to grant the relief under Section 9, absent any "dispute and/or grievance" on the EA proceedings or EA decision, Section 9 courts could accept the EA decision and indirectly enforce it by granting identical reliefs under Section 9. In this case, Ebixcash was directed to furnish a bank guarantee to Goel by a Singapore-seated EA. When it failed to do so, Goel sought the same relief from Indian courts under Section 9 of the Act. Goel sought this relief while relying on the EA order and in the alternative, on the basis of the court's independent findings on the merits of the case.

The court found that it ought to award interim relief to Goel on both counts. The court held that since the parties had "agreed to arbitration under the SIAC Rules… [they] would… be bound by the EA Decision" particularly since "no dispute and/or grievance has been raised… qua either the EA Decision and/or the fairness of procedure of the Emergency Arbitrator" and "the EA Decision… is well reasoned, detailed and rendered after an extensive hearing given to Parties". The court ruled that "it is such an approach that will support arbitration and ensure its effectiveness… once a party agrees to institutional rules, such as the SIAC Rules, and participates in an emergency arbitration proceeding, it cannot later claim that the Emergency Arbitrator's ruling is non-binding or invalid… is bound by the Emergency Arbitrator's award and must comply with it immediately". The court then proceeded to give interim relief on its own independent findings on merits. The decision was upheld on appeal as the only way to "secure the ends of justice and to preserve the sanctity of the arbitral process".

The decision in Ebixcash marks an important development in that it recognises that parties can approach Indian courts to indirectly 'enforce' emergency awards issued by foreign tribunals. Although not an entirely new approach – parties have used Section 9 as a route to seek indirect enforcement of interim orders of foreign tribunals by seeking similar or the same measures from Indian courts - its application to emergency awards and the recognition that parties have an obligation to comply with them cements an important, developing trend in this regard.