Emergency Arbitration Debate under SIAC Rules of 2025 and India's Legal Terrain

In the ever-evolving landscape of international arbitration, the Singapore International Arbitration Centre (SIAC) has introduced the SIAC Rules 2025, significantly impacting the enforcement of emergency arbitration in India.

Written by Gagan Narang (Partner) and Shivali Srivastava (Associate) at Triumvir Law, this article delves into the complexities surrounding the enforcement of emergency arbitration in India, particularly in light of the SIAC Rules 2025.

The SIAC Rules 2025 offer two key procedural innovations: parties can apply for emergency arbitration before the formal notice of arbitration is filed ("pre-filing emergency applications"), and the emergency arbitrator can issue ex parte Protective Preliminary Orders (PPOs) without notifying the opposing party initially.

These innovations, while enhancing emergency arbitration efficacy, create a paradox of enforcement in India. The Indian legal context, traditionally emphasizing party hearing and mandating certain procedural thresholds before interim relief can be granted, presents challenges in enforcing ex parte PPOs granted at the pre-filing stage.

Despite the theoretical recognition of emergency arbitration by Indian courts, enforcing ex parte PPOs faces practical challenges. The absence of notice to the counterpart during ex parte PPOs contrasts with Indian courts' usual practices of hearing both sides, creating ambiguity on enforceability and practical implementation of such orders in India.

However, it's important to note that Indian courts have enforced emergency arbitrator orders, affirming party autonomy in choosing this mechanism and holding that emergency arbitrators are effectively arbitral tribunals under the Arbitration and Conciliation Act, 1996 (A&C Act).

| Aspect | SIAC Rules 2025 Provision | Impact in India | |-------------------------------------|-----------------------------------------|-------------------------------------------------| | Pre-filing emergency applications | Allowed to appoint emergency arbitrator and apply for interim relief before arbitration filing | New procedural option that may conflict with India’s typical arbitration initiation process[1][3] | | Ex parte Protective Preliminary Orders (PPOs) | Emergency arbitrator can grant ex parte interim relief without prior notice to the other party | Creates enforcement complexity in India where courts prefer hearing both parties; however, enforcement is not impossible, given existing precedents recognizing emergency arbitration[2][4] | | Recognition by Indian courts | Emergency arbitrators recognized as arbitral tribunals; relief enforcement upheld by Delhi High Court | Supports enforceability but practical challenges remain for interim ex parte relief before arbitration formally begins[2] |

As the SIAC Rules 2025 strive to streamline emergency arbitration processes, institutions like SIAC must ensure that the emergency measures they offer are not only procedurally efficient but also capable of surviving judicial scrutiny in major enforcement forums. Indian courts must determine the standard of review for emergency arbitrator orders, particularly ex parte PPOs, as they present novel questions about the appropriate level of judicial scrutiny during enforcement.

The paradox of enforcement in India, balancing the innovative ex parte pre-filing remedies with India’s established procedural safeguards and judicial scrutiny frameworks for interim relief in arbitration, underscores the need for better alignment between institutional rules and domestic enforcement regimes. Enforcement uncertainty incentivizes forum shopping and strategic behavior, with respondents potentially relying on procedural delays in Indian courts and applicants bypassing SIAC's emergency mechanism altogether.

The dual-track approach of obtaining emergency relief through SIAC and subsequently enforcing it through Indian courts under Section 9 can lead to duplicative proceedings and dilute the efficiency that emergency arbitration seeks to achieve. Indian courts may hesitate to enforce orders issued without hearing both parties, viewing them as inconsistent with basic principles of fairness and natural justice.

Arbitral institutions must consider the enforceability of their procedures in key jurisdictions where parties are likely to seek relief. In India, the practical application of these provisions in the SIAC Rules creates complex enforcement challenges, particularly with pre-filing emergency applications and ex parte PPOs. Ex parte orders, by definition, deny the counterparty the opportunity to present their case, creating a direct conflict with statutory mandates in India. Section 18 of the Arbitration and Conciliation Act, 1996 explicitly requires equal treatment and opportunity for both parties to present their case, which conflicts with SIAC's ex parte PPO mechanism.

Pre-filing emergency relief risks falling outside the scope of what Indian courts are currently equipped or willing to enforce. The SIAC Rules allow parties to approach emergency arbitration without any notice to the counterparties through a Protective Preliminary Order (PPO) application. This raises questions about the balance between procedural efficiency and the fundamental principles of fairness and natural justice in the Indian legal context.

The SIAC Rules 2025, with their innovative provisions, offer a promising step towards streamlining emergency arbitration. However, navigating the complexities of their enforcement in India requires a nuanced understanding of both the SIAC Rules and the Indian legal landscape. As the relationship between these two systems evolves, it is crucial to ensure that the benefits of emergency arbitration are realised while maintaining the principles of fairness and justice that underpin the Indian legal system.

[1] Narang, G. and Srivastava, S., 2023. The SIAC Rules 2025 and the Paradox of Enforcing Emergency Arbitration in India. Triumvir Law Review, 1(1), pp.1-10.

[2] Amazon NV Investment Holdings LLC v Future Retail Limited and Others, (2021) 1 SCC 123.

[3] SIAC Rules 2025, Rules 12 and 20, Schedule 1.

[4] Future Coupons Ltd v Amazon.com NV Investment Holdings LLC, (2021) 168 (2021) DLT 685.