Introduction
Emergency arbitration (‘EA’) was designed to overcome one of arbitration’s most constant structural shortcomings: the lack of effective interim protection for the ‘twilight period’ preceding the constitution of the arbitral tribunal. By empowering parties to obtain urgent relief within a few days, EA promised to retain commercial value, avoid irreparable harm and strengthen arbitration as a credible alternative to litigation in court.[i]
By January 2026, however, the centre of debate in India is no longer on the legitimacy of emergency arbitration. Judicial recognition after the landmark decision in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. and the proposed statutory approval of the mechanism, in the Arbitration and Conciliation (Amendment) Bill, 2025, have to a great extent resolved the threshold issue of legality.[ii] The more uncomfortable questioning now faced by commercial parties is whether emergency arbitration is always useful.
Parties in some situations continue to seek Indian courts under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”), claiming overlapping interim issues that have already been decided by the emergency arbitrator, even after receiving relief through institutional arbitration.
While there have been signs of restraint from courts in recent years, there is a risk that this practice will weaken the effectiveness of EA by creating a duplication of procedure. The result is not rejection of emergency arbitration, but a persistence of a “finality gap” which, if left unresolved, can undermine its commercial utility.
Institutional Maturity and Legislative Admission
Emergency arbitration is a sign of a high level of institutional maturity today. Leading arbitral institutions, such as the SIAC, MCIA and LCIA, require the speedy appointment of emergency arbitrators as well as compressed time frames for interim decisions. Recent changes in institutional rules, like the rules on 2025 SIAC Rules[iii] which provided for protective preliminary orders, demonstrate a growing institutional willingness to put great responsibility in the hands of emergency arbitrators.
India’s legislative trajectory also reflects this institutional confidence. In order to give emergency arbitrators statutory recognition, the Arbitration and Conciliation (Amendment) Bill, 2025 suggests adding Section 9A. The Bill’s approach shows a persistent commitment to bolstering a framework of limited judicial intervention and strengthening arbitral mechanisms, even if it is still pending enactment.[iv]
Nevertheless, even while the proposed revision gives emergency arbitrator orders the status of Section 17 intermediate measures, making them enforceable as court decisions, this statutory recognition does not effectively remove the use of Section 9. Importantly, emergency orders are still not enforceable as decrees in foreign-seated arbitrations, therefore parties must request similar “mirror orders” under Section 9 to ensure compliance in India. The enforcement process under Section 17(2) is frequently slower than requesting a new, coercive order from the High Court, even in domestic arbitrations, especially when third-party compliance is necessary. As a result, despite the term “enforceability,” parties are forced to return to the courts, where judges can revisit the merits rather than just uphold the emergency ruling due to the lack of a clear standard of review.[v]
Judicial Recognition and the Limits of Post Emergency Review
The decision of the Supreme Court in the case of Amazon v. Future Retail was a watershed in recognising the enforceability of emergency arbitrator orders in India – seated arbitrations under section 17(2) of the Act. The judgment affirmed that emergency arbitrators are not strangers to the arbitral process but work as part of the institutional architecture of the process.[vi]
Subsequent practice, however, demonstrates the limits to recognition in the absence of a settled standard of deference. In case of foreign-seated arbitrations, emergency arbitrator orders are not enforceable as such and the parties have to seek recourse under Section 9 of the Act.[vii]
Even in India-seated arbitrations, courts have been compelled to revisit the merits of interim requests where parties argue that the emergency remedy is inefficacious, thereby subjecting the emergency arbitrator’s findings to a fresh judicial determination of the balance of convenience and irreparable harm.[viii]
This kind of posture is not indicative of a homogenised judicial approach, but rather of a variability in the engagement. In so far as there is no clarity on the doctrinal level, emergency arbitrator orders may be relegated to the role of persuasive inputs, rather than the role of determinative interim measures.
As can be seen from selected Section 9 proceedings during the late 2025, courts have on occasion reviewed material already reviewed by the emergency arbitrator.[ix] While recent jurisprudence has clarified various procedural aspects of Section 9 relief, the courts have not yet articulated a unified standard for judicial deference to previous emergency orders. This doctrinal vacuum has led to uneven outcomes, thereby undermining predictability for commercial actors.
The Commercial Costs of Procedural Overlap
The consequences of such overlap are highly commercial, in a very acute way. Emergency arbitration, is not an inexpensive exercise. Parties interact with international institutions, pay expedited fees and organise legal teams precisely in order to avoid the delays and publicity of court fees. Where interim issues are re-opened later without any clear criteria for intervention, there is a risk that the process will impose what may fairly be called a litigation premium on parties who have already spent money on emergency relief.
This duplication has also the benefit of producing incentives for strategic behaviour. Parties unhappy with an emergency order may view Section 9 proceedings as a chance to refocus their case instead of as an extraordinary safeguard. While this is far from the prevailing trend, the persistence of the trend highlights the importance of doctrinal clarity.[x] Such results are at one with the general trajectory of Indian arbitration jurisprudence, which has expressed consistent concern and warning to courts against taking upon themselves the role of an appellate court vis-a-vis arbitration decision-making.
Judicial Restraint and Interim stage
There is an acceptance in the more recent Supreme Court jurisprudence of the finality of arbitrations and the limitation of judicial interference. Whether in the limitation of modification of arbitral awards (Gayatri Balasamy v. ISG Novasoft, 2025) reinforcing a pro-enforcement approach towards foreign awards, or maintaining tribunal autonomy [xi]in procedural matters, the Court has repeatedly emphasised that there is a line the courts must not cross, that of becoming substitute adjudicators.
These decisions underline that the philosophical orientation of the judiciary is in favour of restraint and not intervention. The difficulty in the emergency stage is not contradiction, but agreement. Interim relief by its very essence demands speed and dispatch. Where judicial engagement does not vary according to guiding standards, the effectiveness of emergency arbitration may depend less on principle than on forum. If the courts are willing to put their trust in arbitral tribunals when it comes to final determinations, it follows that there must be a similar level of trust in the emergency mechanisms operating in the same institutional framework.
Towards a Coherent Standard of Deference
If emergency arbitration is to have any continued relevance in 2026, judicial engagement must continue to move in the direction of principles. The solution is not to get rid of court oversight, but to define the contours of its court oversight. Judicial review of emergency arbitrator orders would benefit from greater focus on the jurisdictional review at the threshold, combined with restraint on the merits absent manifest illegality apparent on the face of the order.
Crucially, within Section 9(3) of the Act, there is already a statutory anchor. The provision requires a court not to admit an application for interim measures if the remedy afforded by the arbitral tribunal is inefficacious. Where an emergency arbitrator has granted relief, consistent application of this requirement would ensure that section 9 complements rather than eclipses emergency arbitration. Such an approach would not require legislative overhaul, but consolidation of principles which already are emerging in recent jurisprudence.[xii] Comparable jurisdictions such as Singapore and England adopt restrained approaches of intervention by the courts following emergency relief, both to reinforce interim finality and to retain supervisory safeguards. Alignment with these practices would further increase the predictability for the parties dealing with India – seated arbitrations.
Conclusion
Emergency arbitration in India is at a juncture. Institutional combination and legislative intent have brought it into recognition of its legitimacy but the residual uncertainty of judicial engagement continues to impact on its effectiveness. The ongoing scope for de novo judicial review risks hollowing out emergency arbitration by converting urgency into redundancy. If India’s aspirations to position itself as a global arbitration hub is to be realised, courts will have to transition from the substitute adjudicator role to the role of a supportive enforcer at the interim stage. Emergency arbitration is not, and cannot survive as a credible mechanism if it does not provide not only speed, but meaningful interim finality. The challenge in 2026 is no longer whether emergency arbitration exists, but whether or not the legal system is ready to allow it to work.
[i] SIAC, SIAC Rules 2025 (7th edn) sch 1 (Emergency Arbitrator Procedure)<https://siac.org.sg/siac-rules-2025> accessed 29 January 2026.
[ii] Amazon.com NV Investment Holdings LLC v Future Retail Ltd, Civil Appeal Nos 4492–4497 of 2021 (Supreme Court of India, 6 August 2021) ¶ 42, ¶¶ 56–57 <https://api.sci.gov.in/supremecourt/2021/3947/3947_2021_32_1501_29084_Judgement_06-Aug-2021.pdf> accessed 29 January 2026.
[iii] SIAC, SIAC Rules 2025 (7th edn); LCIA, LCIA Arbitration Rules 2020, art 9B (Emergency Arbitrator) <https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx> accessed 29 January 2026; MCIA, MCIA Rules 2016, sch II (Emergency Arbitrator) <https://mcia.org.in/mcia-rules-2016.php> accessed 29 January 2026.
[iv]Draft Arbitration and Conciliation (Amendment) Bill 2024–25 (India) (proposed s 9A) <https://www.scobserver.in/wp-content/uploads/2025/02/2024-Draft-Arbitration-Amendment-Bill.pdf> accessed 29 January 2026.
[v] Ministry of Law and Justice, Draft Arbitration and Conciliation (Amendment) Bill 2024–25 (India) (proposing statutory recognition of emergency arbitrators — draft s 9A) <https://www.scobserver.in/wp-content/uploads/2025/02/2024-Draft-Arbitration-Amendment-Bill.pdf> accessed 29 January 2026.
[vi] Amazon.com NV Investment Holdings LLC v Future Retail Ltd (n 2) ¶ 42.
[vii] Arbitration and Conciliation Act 1996, ss 9, 17(2).
[viii] Ashwani Minda v U-Shin Ltd (2020) SCC OnLine Del 721, ¶ 61.
[ix] National Highways Authority of India v CFM Asset Reconstruction Pvt Ltd (2025) SCC OnLine Del 4112, ¶ 18.
[x] Parineeta Goswami, ‘Emergency Arbitration Procedures’ (2024) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4759923> accessed 29 January 2026.
[xi] Gayatri Balasamy v ISG Novasoft Technologies Ltd, Civil Appeal No 20788 of 2021 (Supreme Court of India, 30 April 2025) ¶ 96 <https://api.sci.gov.in/supremecourt/2021/20788/20788_2021_1_1501_61506_Judgement_30-Apr-2025.pdf> accessed 29 January 2026.
[xii] SCC Arbitration Institute, Emergency Arbitrator Decisions Rendered 2015–2016: Practice Note (Dec 2024) <https://sccarbitrationinstitute.se/wp-content/uploads/2024/12/ea-practice-note-emergency-arbitrator-decisions-rendered-2015-2016.pdf> accessed 29 January 2026.
Author(s)
Nitya Verma
Student at Indian Institute of Management Rohtak (IIM Rohtak)