India has long been described as a rising arbitration hub. Judicial pronouncements and policy reforms in the last decade have attempted to carve out a pro-arbitration identity. However, one important aspect remains unresolved: Can foreign-seated interim measures, such as orders by emergency arbitrators, be directly enforced in India?
Until now, the absence of a statutory mechanism has led parties into a procedural maze. But the Draft Arbitration and Conciliation (Amendment) Bill, 2024, released by the Ministry of Law & Justice for public consultation, signals a long-awaited resolution. It proposes an enforcement framework that could finally bring India in line with leading arbitral jurisdictions such as Singapore and Hong Kong.
This post critically examines the current position in Indian law, the challenges posed by foreign-seated interim measures, and how the 2024 Bill proposes a potential breakthrough.
The Enforcement Gap: A Practical Problem
Under the current framework of the Arbitration and Conciliation Act, 1996, Section 17(2) provides that interim measures granted by arbitral tribunals seated in India are enforceable “as if they were orders of the Court.” However, the Rafles judgment clarified that this provision does not extend to foreign- seated arbitrations.
This distinction matters. In global commercial contracts, it is common for parties to choose a foreign seat while maintaining significant assets in India. In such cases, even if an emergency arbitrator issues an interim injunction (such as a freezing order), there is no express route to enforce it directly in Indian courts.
While Indian courts have developed a workaround using Section 9 of the Act, this requires the applicant to initiate a new proceeding in India, which causes delays, additional costs, and uncertainty.
Comparative Perspective: Hong Kong and Singapore
Hong Kong has already adopted a clear mechanism. Section 61 of its Arbitration Ordinance (modelled on Article 17H of the UNCITRAL Model Law) permits the enforcement of interim measures issued in or
outside Hong Kong, subject to leave of the court. Section 22A further extends this recognition to emergency arbitration awards.
Singapore takes an even broader approach. Section 27(1) of its International Arbitration Act defines “arbitral award” to include interim orders or directions related to matters under Section 12(1)(c) to (i), including interim injunctions. Thus, foreign-seated interim orders may be enforced as awards, sidestepping the enforceability gap altogether.
These jurisdictions demonstrate how legislative clarity can offer certainty and reduce reliance on judicial patchwork.
Judicial Interpretation in India: Progress but Not Precision
In India, courts have attempted to fill the legislative vacuum through creative interpretation.
In Amazon v. Future Retail, the Supreme Court upheld the binding nature of emergency arbitrator orders under the SIAC Rules, treating them as valid interim orders under Section 17—but only because the seat was in India.
In Raffes Design International India Pvt. Ltd. v. Educomp, the Delhi High Court emphasized that even if emergency arbitration awards are not enforceable per se, Indian courts can grant fresh interim relief under Section 9, referencing the foreign-seated measure for guidance.
Similarly, in Ashwani Minda v. U-Shin Ltd. (2020), a Singapore-seated emergency arbitrator issued a freezing order, which was later converted into a decree by Singaporean courts. The Delhi High Court considered the order while deciding a Section 9 application and granted relief, not by direct enforcement, but by independent adjudication.
While these cases reflect a sympathetic judicial approach, they also highlight the inefficiencies and risks of relying solely on discretionary relief.
Barriers to Direct Enforcement: New York Convention and CPC
The question may arise, why not enforce such interim measures as foreign awards under the New York Convention (NYC)?
The answer lies in the definition of “award.” The NYC does not define the term, leaving interpretation to national courts. In ICC v. Indian Petrochemicals Corp. Ltd., the Indian Supreme Court held that only
decisions that finally determine part or all of the dispute qualify as “awards.” Interim measures, which are procedural or temporary, fall short.
A similar issue arises under Section 13 of the Civil Procedure Code, which deems foreign judgments conclusive only if they are decided “on the merits.” Most interim measures are not. In Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius), the Bombay High Court held that foreign interim orders do not qualify as enforceable judgments under section 13 of the CPC.
As a result, neither the NYC nor the CPC offers a reliable route to direct enforcement.
The Workaround: Section 9 and the Proviso to Section 2(2)
Until now, parties have relied on Section 9 of the A&C Act, which allows Indian courts to grant interim measures before, during, or after arbitral proceedings. The proviso to Section 2(2) extends this benefit to international commercial arbitrations seated outside India, unless the parties agree otherwise.
This workaround is not without value. As seen in Raffes and Ashwani Minda, parties can present a foreign-seated interim order as persuasive evidence and seek fresh relief from Indian courts. But this still means a new proceeding must be initiated, which is time-consuming and inefficient, especially when urgent relief is sought.
The Draft Arbitration Bill, 2024: A Clear Legislative Path
The Draft Arbitration and Conciliation (Amendment) Bill, 2024, proposes two major changes that could transform this landscape.
First, the introduction of Section 9A, Emergency Arbitrators. This provision empowers arbitral institutions to appoint emergency arbitrators and states that their orders will be enforceable in the same manner as orders under Section 17. Importantly, this brings emergency arbitration within the statutory framework, which was previously only recognised through judicial interpretation.
Second, an amendment to the Proviso of Section 2(2). The new proviso makes it explicit that Sections 9 and 9A would apply even when the seat is outside India, unless the parties agree otherwise.
Together, these provisions would mean that a party can directly enforce an emergency arbitrator’s order or interim measure from a foreign-seated arbitration in Indian courts, without filing a fresh application under Section 9.
This legislative clarity would bring India closer to the standard set by the UNCITRAL Model Law, particularly Articles 17H and 17I, which govern the recognition and enforcement of interim measures, along with grounds for refusal.
Looking Forward: A Real Pro-Arbitration Shift?
If enacted in its current form, the 2024 Bill would eliminate the procedural bottlenecks that currently force parties to re-litigate foreign-seated interim relief in Indian courts. It would also signal to the international business community that India is ready to play by globally accepted rules, offering both procedural efficiency and legal certainty.
To be clear, the proposal does not foreclose judicial scrutiny. Section 37(2)(b) continues to provide a right of appeal against interim measure enforcement. But the key shift is in reducing the friction faced by parties seeking urgent relief involving Indian assets.
India’s cautious legislative approach to arbitration has sometimes limited its ability to match jurisdictions like Singapore and Hong Kong. But with this draft amendment, India has an opportunity to bridge a long-standing gap in enforcement and make its arbitration regime truly cross-border and contemporary.
*Akshat Garg, an India-qualified Advocate enrolled with the Bar Council of Delhi and an IMI-qualified mediator.