Enforcing Emergency Arbitral Awards: Global and Indian Perspectives

Abstract

Due to the increasing recognition and significance of emergency arbitration (EA) in the business and trade community in recent decades, almost all major arbitral institutions have introduced emergency arbitration into their arbitration rules. It is to be noted that the arbitral institutions have unilaterally developed these EA mechanisms to facilitate and aid the business or trade community, irrespective of any directive from states or UN-like agencies. As a result, there is some disagreement about whether EA decisions can be legally enforced in state courts. Consequently, a 2015 study by Queen Mary/White & Case found that 79% of respondents considered the enforceability of emergency arbitrator decisions to be the most important factor influencing their choice between State courts and emergency arbitration while seeking urgent relief. While investigating various EA procedures, the authors have discovered that the EA rules evidently lack enforcement mechanisms. In this paper, the authors explain the issue of the enforcement of EA rulings with particular emphasis on India. After examining various ways of enforcing EA decisions, the authors concluded that the ultimate solution, i.e., legislative amendment, is essential both internationally by amending the NY Convention 1958, or UNCITRAL Model Law, and domestically by amending national arbitration laws to remove the legal impediments and to enforce EA decisions in State courts.