भारत में आपातकालीन मध्यस्थता: न्यायालय‑ट्रिब्यूनल के बीच चुनौतियां और संभावनाएं

The India Digital ADR Summit 2026 organised by the School of Law, Forensic Justice and Policy Studies, National Forensic Sciences University (NFSU), Gandhinagar, through the International Digital Dispute Resolution Centre (IDDRC), held a panel discussion on the topic “Emergency Arbitration & Interim Relief: Court-Tribunal Interface”. The esteemed panelists explored the need for emergency relief, landmark cases, judicial activism forming the majority of arbitration framework, and future of emergency arbitration in India.

The panel was moderated by Ms. Vishrutyi Sahni, Partner, JSA Advocates and Solicitors, Delhi, and consisted of Mr. Saurabh Soparkar, Senior Advocate, Gujarat High Court; Mr. Manmeet Singh, Partner, Cyril Amarchand Mangaldas; and Mr. Jan Kunstyr, Legal Director in Sherrads’ Solicitors Dispute Resolution Team, United Kingdom.

[In the picture from left to right: Mr. Jan Kunstyr, Mr. Manmeet Singh, Mr. Saurabh Soparkar, and Ms. Vishrutyi Sahni]

Kickstarting the session, Ms. Vishrutyi Sahni remarked that the simple problem of what remedy a party can take to seek urgent protection no longer had a simple answer. The question was no longer about jurisdiction alone but also about speed, enforceability, urgency, natural justice, and commercial effectiveness.

She set the stage with a hypothetical scenario: a client at 6 PM on a Friday, facing the imminent dissipation of ₹350 Crores from a counterparty’s account over the weekend. The client has four realistic choices: seek an institutional emergency arbitration, file an application under Section 9 of the Arbitration and Conciliation Act, 1996 (the Act), before an Indian Court, approach the court at the seat of arbitration, or pursue two routes at once. The central proposition was: Has emergency arbitration genuinely reduced the court’s burden, or has it merely added another layer to an already complex process?

The Friday Evening Crisis

Regarding the scenario posed by Ms. Sahni, Mr. Manmeet Singh stated that in such a scenario, an application under Section 17 (before a tribunal) was effectively “ruled out” due to the time required to constitute a tribunal. He stated that if a party has access to a preliminary protection order wherein they can get an ex parte order within 48 hours, then emergency arbitration should be the first course of conduct. Along with that, the party can also file a Section 9 application. However, by the time the Section 9 application gets listed, even after urgent listing, the money would have dissipated. Thus, Section 9 by itself might not be an efficacious remedy in this case.

The best circumstance, he opined, would be if the party is able to obtain a preliminary protection order that allows it to act ex parte and allows the emergency arbitrator to be appointed within 24 hours, who will deliver the order within 24 hours.

Responding to whether a Section 9 would be useful in the scenario posed by Ms. Sahni and what would be the extent of the court’s injunction, Mr. Saurabh Soparkar offered a contrasting, albeit nuanced, perspective, beginning with the stark reality that over 90% of arbitrations in India are ad hoc, where the choice of an emergency arbitrator is simply not available.

Even in institutional arbitration, he argued that the efficacy of an emergency arbitrator hinges on whether, under the emergency arbitration rules, the emergency arbitrator is mandated to issue notice to the other side. If so, the element of surprise is lost, and exercising this option would be futile. Another consideration would be how quickly and efficiently the arbitration centre can appoint an emergency arbitrator, as well as how quick and efficient the arbitrator is. He contrasted this with the court’s accessibility. Courts are available even beyond working hours in case of an emergency, and a Section 9 remedy would be available procedurally.

However, Mr. Soparkar argued that the one advantage of emergency arbitration would be that the arbitrator would be specialized in commercial law or the field of law at hand, unlike the judge who would be a generalist. Thus, he underscored that the choice between the court route and the emergency arbitration route was a nuanced one.

Regarding the scope of powers of a Court under a section 9 proceeding, he referred to the Supreme Court’s judgments in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125, and Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corpn., (2007) 6 SCC 798, wherein the argument before the Court was that Section 9 proceedings are not in any way fettered by the rules of procedure and while passing order under Section 9, the Court may not have to consider the Civil Procedure Code, 1908. The Court refused this argument and held that the procedural laws will have to be taken into consideration.

Mr. Soparkar further explained that this issue further came for consideration before the Supreme Court in Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel (India) Ltd., (2022) 20 SCC 178, wherein the Supreme Court slightly expanded this by saying that CPC provisions would apply. The principles on which CPC permits or does not permit the Court to grant or refuse relief will apply, but the procedural wrangles or procedural issues should not come in the way of the Court under Section 9 in giving relief. In other words, if a case is made out under Section 9, the Court will grant relief. Therefore, Section 9 relief would be theoretically as wide as Section 17.

He concluded that a Section 9 order, once obtained, can be converted to a Section 17 proceeding and then the rest of the hearing can take place before the arbitrator under Section 17, making it a strategically sound first step.

Considering the response of Mr. Soparkar, Mr. Singh added that traditionally, parties are used to invoking the Section 9 relief, but in the scenario at hand, the Court would be closed on the weekend. Though the registrar could be approached, it was uncertain whether the application would be permitted. On the other hand, access to emergency arbitration provided certainty of recourse, which allowed parties to make a better choice.

In a foreign-seated arbitration, he explained, the party would have to first obtain the emergency order from the emergency arbitrator and then file the Section 9 application. However, in an India-seated arbitration, parties could still consider emergency arbitration, but Section 9 is broad and has its advantages, like the power to issue orders against third parties. Thus, parties could consider using both options.

A Comparative Lens: Mr. Jan Kunstyr

Providing an international perspective from England, Mr. Jan Kunstyr observed that India’s sophisticated jurisprudence on interim measures makes it similar to his home jurisdiction. He distilled the choice of forum into three fact-sensitive questions:

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Who must be bound? If the other party or third party is an entity like a bank, the court is the necessary forum.

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Must they be surprised? If an ex parte order is needed, then in the English system, an emergency arbitrator would have to issue notice, which would defeat the purpose of surprise.

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What if they say no? What are the measures if the relief is denied? This concerns the enforceability and coercive power of the order. For a listed company or big corporate firm, a domestic tribunal order would be respected, but for a different counterparty, the court’s coercive powers might be useful.

In English jurisdiction, he noted, the answer to the Friday hypothetical would almost certainly be to go to Court, as judges are always on duty, though the cost can be very high. However, he agreed with the panel that confidentiality and the expertise of the arbitrator are key advantages of the arbitral process.

Lastly, Mr. Kunstyr concluded by stating that the relief sought ultimately depended on the facts and the kind of relief the party wanted.

The “Third-Party Problem”: A Consensus on the Court’s Unique Jurisdiction

Ms. Sahni posed another hypothetical scenario where the respondent holds few assets, with the valuable assets being held by promoters, holding companies, or banks, i.e., third parties. This was the “third-party problem”.

Mr. Singh stated that in India, unless the third party is a ‘veritable party’ to the arbitration under the group of companies doctrine, an emergency arbitrator or tribunal has no power to pass orders against them. The only remedy for a party seeking access to such assets held by third parties is to move the Court under Section 9. Under Section 9 jurisdiction, the Court has the powers of an ordinary civil court, which can pass orders against the third parties as well, unlike the Court’s powers under Section 17. Since arbitration is a feature of consent, if the third party is not a veritable party, or the third party is completely independent, like a bank or a financial institution, there is no choice but to approach the Court under Section 9. Thus, he stated that depending upon the nature of the third party and other factors like the seat of arbitration, a choice of remedy would be made.

Mr. Soparkar clarified that under Section 17(2) of the Act, arbitral tribunal orders are deemed to be orders of the court and are enforceable. Thus, both Section 9 and Section 17 orders can be enforced. However, while seeking an order against a third party, only a Court exercising its jurisdiction under Section 9 can grant it; an arbitral tribunal under Section 17 can only grant an order against a third party if it falls under the group of companies or is regarded as the same party.

Responding to the hypothetical, he stated that if a bank holds money for the respondent, an injunction against the respondent from dealing with those funds, when served on the bank, would likely be respected. Section 17 order can prevent, by an injunction, the respondent from dealing with the money, and if the copy of that order is served on the bank as a pile of information, no bank would permit the respondent to commit a breach of that order because then they will also be a party to the breach. However, if the money is held by an independent third party like a benami holder, the tribunal is powerless, and Section 9 has to be used.

The Amazon Conundrum

The panel then dissected the Supreme Court’s landmark judgment in Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209, which held that an emergency arbitrator’s order could be treated as a Section 17 order.

Mr. Singh noted that this jurisprudence applies only to India-seated arbitrations. In a foreign-seated arbitration like Amazon (which was seated in Singapore), a party must file a fresh Section 9 application in India to establish that it is entitled to take the protection order and enforce the emergency award. The prevalent view, he said, is for the Indian court to conduct a de novo determination wherein the Section 9 application will be determined on its own merits. However, he suggested that a legislative amendment would be better to settle the legal position in this regard.

Mr. Kunstyr was asked if the requirement of reconducting a Section 9 proceeding after receiving an arbitration award makes India an unattractive seat. He disagreed, stating that parties would have to approach the jurisdiction where the assets are, and it was not a question of choice. Instead, he highlighted that India might be more attractive than other jurisdictions due to its ‘group of companies’ doctrine, which is not recognised in English law.

Regarding the group of companies doctrine, Mr. Singh added that the doctrine was being taken to the other extreme where parties are seeking to disregard corporate will altogether. In arbitrations, holding companies are being sought to be impeded as a matter of routine, and non-parties are being dragged through arbitration.

Adding to the discussion, Mr. Soparkar referred to Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105, wherein the Supreme Court held that even though Section 9 was not made applicable to international commercial arbitration, Section 9 would still apply, although this decision was later reversed. He explained that Section 9, 27, and 37 were made applicable to foreign-seated international commercial arbitrations via a proviso to Section 2(2), but Section 17 was not. Therefore, the argument that a party must choose emergency arbitration (a Section 17 equivalent) over Section 9 is flawed.

Judicial Activism vs. Legislative Power

Regarding the issue that the most significant developments in Indian arbitration law were coming from courts, not the statute books, the panellists engage in an analytical conversation.

Mr. Singh attributed this to the Supreme Court’s reading down of Section 11 jurisdiction and reducing it to a “touch and feel” test, which naturally pushes all complex jurisdictional issues to the tribunal itself, as seen in the ASF Buildtech (P) Ltd. v. Shapoorji Pallonji & Co. (P) Ltd., (2025) 9 SCC 76. He opined that the natural consequence of limiting the Section 11 application to the existence of an arbitral agreement was that all other issues would be adjudicated upon by the arbitral tribunal. Ms. Sahni highlighted that this change was jurisprudence and not legislative rules.

Answering whether the jurisprudence-heavy arbitration law of India was a competitive edge from an international perspective, Mr. Kunstyr agreed that it could be a competitive edge if the courts have a unified stance on the issues.

Regarding the need for statutory recognition of emergency arbitration, Mr. Soparkar answered in the positive and framed such judicial activism as a necessary response to legislative delay. He expressed hope for the Arbitration and Conciliation (Amendment) Bill, 2024, which proposes a new Section 9A to expressly recognise emergency arbitration and promotes institutional arbitration.

The 2030 Vision: What will be vs. What should be

In a surprise rapid-fire round, the panellists were asked to predict the state of emergency arbitration in India by 2030 in two sentences: one for what they want it to be, and one for what they think it will be.

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Justice Bhargav D. Karia, Judge, Gujarat High Court (from the audience): He stated that a new Section 9A must be included in the proviso to Section 2(2) to give enforceability to emergency awards. Furthermore, he opined that by 2030 ad hoc arbitration would no longer exist.

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Mr. Soparkar: He suggested that the Court should have power to pass an ex parte order under a Section 9A emergency arbitration. He also argued that institutional arbitration must be promoted extensively.

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Mr. Singh: Agreeing with Justice Karia and Mr. Soparkar, he stated that with legislative interventions, the emergency arbitration provision would become the default choice by 2030.

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Mr. Jan: He opined that by 2030, there would be no need for court intervention as parties would have smart contracts, and the amount of money would be escrowed on the blockchain, which would make enforcement instantaneous. He expressed confidence in India’s potential as a tech powerhouse to achieve this.

The session concluded with the hope that by 2030, the system will provide a swift, enforceable, and secure remedy for those facing the all-too-common Friday evening crisis.

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