16 April 2021
On March 18, 2021, in the Amazon-Future Group dispute, at the first instance of the High Court of Delhi, the Emergency Arbitrator was an arbitrator for all purposes under the 1996 Arbitration Arbitration Act (Arbitration Act). An Indian court also ruled that it was valid and enforceable. Against the backdrop of a dispute involving Amazon, the world's largest e-commerce company, and Reliance, one of India's largest companies, the ruling could provide new guidance for emergency arbitration in India.
Emergency Arbitration
Emergency arbitration was first adopted by the International Dispute Resolution Center of the American Arbitration Association in 2006, followed by the Singapore International Arbitration Center in 2010, the International Chamber of Commerce in 2012, and the Hong Kong International Arbitration Center in 2013. .. Over the last few years, many arbitration institutions around the world have included provisions for emergency arbitration in their rules. In general, these rules state that if one of the parties to the arbitration requires urgent provisional relief prior to the formation of the arbitral tribunal, an urgent arbitrator may be appointed to consider the matter. is. The emergency arbitrator's decision is binding on all parties, but may be reviewed by the arbitral tribunal.
Although the Indian Arbitration Law does not explicitly define or provide for "emergency arbitration," various Indian arbitrations include the Indian Arbitration Council, the Delhi International Arbitration Center, the Nani Parkibara Arbitration Center, and the Mumbai International Arbitration Center. The agency has established provisions for emergency arbitration. For clarification, in 2014, the Legal Committee proposed the following amendments to Article 2.1 (d) of the Arbitration Act. -"Article 2.1 (d):" Arbitration Court "means one or more arbitrators, in the case of arbitration conducted under the rules of the institution governing the appointment of emergency arbitrators. Including the emergency arbitrator. "-However, the 2015 amendment to the Arbitration Act did not incorporate the proposal.
The New York Convention only recognizes that the final decision is inherently enforceable, not a tentative decision, and from a verbal approach, an emergency arbitrator in arbitration conducted abroad. There are no specific provisions under Indian law regarding the approval and enforcement of the decisions made by.
Enforcement of emergency awards in India
Part 2 of the Arbitration Act provides for the enforcement of foreign arbitral awards in India. India is a member of the 1958 Convention on the Approval and Enforcement of Foreign Arbitral awards (New York Convention) and the 1927 Convention on the Enforcement of Foreign Arbitral awards (Geneva Convention). Any party wishing to enforce an arbitral award in a Member State of the New York Convention or the Geneva Convention must file a motion in an Indian court to enforce that decision. However, as mentioned above, the question of whether the provisional remedies given by the emergency arbitrator can be enforced under the Convention in a manner similar to the final arbitral award of the arbitral tribunal remains unclear. It was in a state. Therefore, parties in need of urgent interim relief usually file an application with the Indian High Court under Article 9 of the Arbitration Act. If the 2015 amendment to the Arbitration Act does not explicitly or implicitly exclude the application of Article 9 of the Arbitration Act, the parties to foreign international commercial arbitration will also seek interim relief from Indian courts. You can now do it. So far, Indian courts have not implicitly completely ruled out the application of Article 9 of the Arbitration Act simply by choosing a foreign court that has jurisdiction over arbitration, and the parties have been referred to the Indian court. He has expressed the view that provisional measures can be sought.
Each High Court has made important decisions regarding the feasibility of emergency arbitration by Indian courts. The HSBC v Avitel dispute in the Mumbai High Court and the Raffles v Educomp dispute in the Delhi High Court do not allow the enforcement of urgent judgments using Article 9 of the Arbitration Act, and the parties stated that the application under Article 9 was not possible. Must be submitted and the court must seek interim relief. In other words, the application is considered to be independent of the emergency arbitration procedure. This trend has also been followed in the Plus Holdings v Xeitgeist dispute in the Mumbai High Court, which indirectly enforces the emergency arbitrator's decision despite the lack of legislative approval of the emergency arbitrator under the arbitration law. A decision has been made to do so.
Relevance of the Delhi high Court order in Amazon vs Future Group
The Amazon v. Future Group decision is important because it not only legally recognizes emergency arbitrators in domestic arbitration under the Arbitration Act, but also refers to direct enforcement by Indian courts. In the dispute, the definitions of "arbitral tribunal" and "arbitral award" in the Arbitration Act include an emergency arbitrator, who is said to be an arbitrator for all purposes. The court also said that given the breadth of these definitions, there is no need to amend the arbitration law. In addition, the arbitral tribunal has the same authority to make provisional decisions as the court, and based on Article 17, Paragraph 2 of the Arbitration Act, such provisional decisions are made in the same manner as the court's decision. It also states that it can be enforced. The court also imposes penalties for the Future Group's deliberate actions against the judgment of the emergency arbitrator.
However, while the decisions in the HSBC vs. Avitel, Raffles vs. Educomp, and Plus Holdings vs. Xeitgeist disputes deal with the decisions of the emergency arbitrator in foreign arbitration, the Amazon vs. Future Group disputes It should be noted that this is for arbitration in India (New Delhi).
Our thoughts
The ultimate goal of enforcement of an arbitral award, whether provisional or final, is to resolve the dispute by arbitration. The Amazon v. Future Group ruling gives formal legal approval to the decisions of domestic emergency arbitrators and allows their direct enforcement, which may be a turning point in emergency arbitration in India. It can also be seen as a new step towards solidifying India's position as an arbitration-friendly jurisdiction. In the past, Indian courts have denied direct enforcement of provisional decisions by emergency arbitrators, but the Amazon v. Future Group ruling recognizes many of the benefits of emergency arbitration and is the basis of any arbitration mechanism. , Legitimately recognizes the principle of party autonomy.
In addition, on March 22, 2021, the second instance of the High Court of Delhi postponed the decision of Amazon vs. Future Group, but the legality of emergency arbitration under the Arbitration Law has not been examined. The first instance has taken a progressive and welcome approach to arbitration-based dispute resolution in India, minimizing judicial intervention and promoting arbitration-based dispute resolution in India's arbitration law. It is our view that it contributed to the development of India.
For further information, please contact:
Souvik Ganguly, Partner, Acuity Law
al@acuitylaw.co.in
