Emergency
Arbitration is rather a new development in the field of Arbitration. International Centre for Dispute Resolution first introduced
it in 2006 & major Arbitral Institutions have adopted it in their rules.
The Law
Commission of India in its 246th Report[1]
had recommended its incorporation in the 2015 amendment of the Arbitration and
Conciliation Act, 1996. However, the act was amended without incorporating Emergency
Arbitration specifically into the Act[2].
There are other provisions to address the requirement of interim relief, but
without recognizing an emergency arbitrator as such, which supposedly is a
global trend. Sadly, the only reason the law commission provided for
incorporation of Emergency Arbitrator was to recognize SIAC Rules which had
them incorporated. The Law commission totally missed the challenges such a
provision might entail in practice, specially enforcement.
Closely
comparable to injunctive relief, Emergency Arbitration, or more prominently
appointment of Emergency Arbitrator (before the actual appointment of Arbitral
Tribunal), requires the Arbitral Institution (mostly through its Registrar) to
be satisfied of two conditions to be demonstrated by applicant-
1)
Irreparable Damage if interim relief not granted; &
2) The
applicant must show that he/ she may likely succeed on merits on such a relief.
Once the
Emergency Arbitrator is appointed, he may or may not grant the relief &
after that he/ she becomes functus
officio. While Functioning, the Emergency Arbitrator enjoys all the powers
of the Arbitrator, limited only by the interim relief sought & once the
Arbitral Tribunal starts functioning, it may continue with/ modify or supersede
the interim relief/ award.
Since India’s
Arbitration Act is modeled on New York Convention, only final awards are
enforceable in India. It is not obligatory on India or any other signatory of
New York Convention to enforce the awards/ relief granted by an emergency Arbitrator.
The Emergency Arbitration, howsoever novel it might seem, does not take care of
this lacunae in international understanding of Arbitration law & its
functioning. Of Course, the recently amended law does provide for interim
relief, but it has its limitations as well. As of today, the foreign seated
emergency arbitrations are not enforceable in India. It raises quite a few
questions as to how the jurisprudence around this niche field may develop. One
also needs to ponder, if the enforcement of emergency arbitration is executed
in such a haste (even before the arbitral tribunal is formed) that a
domestically obtained decree from a traditional court is put to shame; are we
really being fair to the poor litigants of India who repose great faith in
Traditional Courts and in the process become mute spectator to the
disproportionate resources being devoted to International commercial disputes?
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