Emergency Arbitrator in International Arbitration and Indian Law

 By: Ravi Shankar
International Arbitration has become the most effective dispute resolution because of various reasons including Global enforceability, Decision by domain experts, less time consuming and less cost. But among the above said reasons the main reason is the enforceability of international arbitral awards in about 100 countries without any problem. This kind of an enforceability has become possible because of the New York Convention on Recognition & Enforcement of Foreign Arbitration awards since it ratified about 140 countries all over the world, assuring enforcement of foreign arbitral awards.

Emergency Arbitrator: One of the issues faced by parties is the interim protection. Because there will be a gap between request for appointment of arbitrator and the formation of tribunal. Arbitrators can pass any award, only after the formation of the tribunal. But the parties may have an emergency before formation of the arbitral tribunal and he will be left with an option to approach the Court in the seat of arbitration. But the court interim order cannot be enforced like an arbitration award because New York Convention supports only arbitral awards. Hence Emergency arbitrator is appointed in international arbitration proceedings by arbitral institutions to handle emergencies. An Emergency arbitrator is appointed by the Arbitral Institution within 24 hours on receipt of the application and orders are passed within 2 or 3 days.

Indian Legal status of an Emergency Arbitrator: Indian Arbitration & Conciliation Act,1996 which is the arbitral legislation of the country does not provide any specific provision recognising or derecognising the emergency arbitrator. Even though the Law Commission of India recommended for the same the 2015 Arbitration & Conciliation (Amendment) Act, did not include it. Hence there is a question with regard to issuance of an emergency arbitral award in an international arbitration seated in India and the enforceability of an emergency arbitrator award in India against Indian Parties.

International Arbitrations seated in India are administered by both Indian and International arbitral institutions like ICC, SIAC, LCIA etc., Since their Rules provide for Emergency arbitrators, parties may file applications seeking interim awards. As long as those emergency arbitral awards are against the foreign parties and the countries of those parties recognise the emergency arbitrator award, it will not be a problem since India is a signatory of New York Convention.

But When it comes to enforcement in India, a doubt is raised by the lawyers providing arbitration services in India, Whether Emergency Arbitrator award is an enforceable award since arbitrator was not appointed as per terms of the arbitration clause. But the amended Arbitration Act recognises enforcement of interim awards and the parties have agreed to the authority of emergency arbitrator by adopting the Arbitral Institution Rules. Hence Emergency arbitrator award is enforceable in India as per the Amended Act.
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