Emergency Arbitration, in simple terms, is a concept that provides for a quick and cost-effective resolution of a matter by an arbitrator without first approaching the tribunal. The idea was introduced by the International Chamber of Commerce (ICC) Rules and Appendix V in 2012. However, it is still a budding concept in the Indian legal system.

As per ICC, Emergency Arbitration is an efficient procedure for parties to seek urgent relief by reaching out for a short-term solution. It is less intensive and complex as compared to the constitution of an arbitral tribunal. Many arbitrational institutions such as HKIAC (Hong Kong International Arbitration Centre) and LCIA (London Court of International Arbitration) have enforced provisions to spread the emergency arbitration mechanism. Rules such as SCC Rules (2017), SIAC Investment Rules (2017), and CIETAC International Investment Arbitration Rules (2017) play an important role in the growth and extension of this mechanism to the masses.

Essential Requirements for Initiation  

At the International level, provisions for Emergency Arbitrator are laid in Article 29 of the ICC Rules and Appendix V. The provision states that to initiate an emergency arbitration under the ICC International Court of Arbitration, the following conditions must be fulfilled:

• The parties must be the signatories to the arbitration agreement (or their successors), on which such emergency arbitration is initiated.
• The parties must comply wholly with provisions for Emergency Arbitration.
• An application is required to be duly made to the Secretary of the ICC International Court of Arbitration for initiating emergency arbitration to get interim relief.

Roles & Functions

There is an upsurge in demand for such urgent arbitral relief in  light of the fast-paced industrialization, advanced technological developments, globalization, and privatization. Thus, specific roles & functions need to be allocated to such ‘Emergency Arbitrators’ to maintain the effectiveness of arbitral processes. Some of such rules and functions are:

• The Emergency Arbitrator shall construct a schedule within 2 business days for fast and effective disposal of the matter.
• The Arbitrator shall ensure that efficient means and tools are used to smoothen out the process. The telephonic conferences and written submissions can be an alternative to a formal hearing.
• The Arbitrator ensures a reasonable opportunity for submission. Generally, due to the paucity of time, decisions are made based on the evaluation of documents and written submissions.
• The Arbitrator shall have a fixed time to resolve the matter as per their respective regulatory mandate. Generally, such a period extends over eight to ten days.
• The Emergency Arbitrator has the power to order interim relief that can include asset freezing orders, prohibitive & mandatory injunctions, orders for preservation and inspection of evidence, orders to avoid misuse of intellectual property, etc. However, such orders are interim and are subject to review at a later stage.

Emergency Arbitration in the Indian Context

The Law Commission’s 246^th Report, 2014 proposed an amendment to the Arbitration and Conciliation Act, 1996. The said amendment aimed to conform Indian statutes with the institutional rules such as ICC Rules and SIAC Rules to give statutory recognition to the appointment procedure of emergency arbitrators. However, such a recommendation was never implemented by the legislature in statutory form even after multiple amendments in the 1996 Act.

Recently, the Hon’ble Supreme Court in the case of Amazon NV Investment Holdings LLC v. Future Retail Ltd. & Ors. (2021 SCC OnLine SC 557), held that although no statutory backing has been given to the law commission proposition, yet it forms an integrated part of the interpretation of the respective statute. Further, the Srikrishna Committee report was also considered by the Hon’ble Supreme Court, which further stated that a provision providing a statutory basis for emergency arbitration can be interpreted with its ground in Section 17(2) of the Arbitration & Conciliation Act,1996. Section 17(2) provides for provision for urgent relief or award by the Indian Arbitration Institutions.

Consequently, several state rules & regulations have been developed from time to time to keep up with the innovative mechanisms. The Apex Court judgement acted as an impetus to the enforcement of such vast improvement in the field of arbitration.