This blog is written by S Abhipsha Dash and Vishnu Sharma, who are third- year students at Symbiosis Law School, Pune.

1. Introduction:

In arbitration, parties voluntarily submit themselves to dispute resolution through the appointment of an arbitral tribunal. However, what if waiting till the constitution of the arbitral tribunal may lead to irreparable and serious harm to the parties? Under such circumstances, the parties had no other option than to knock on the doors of the courts, under Section 9 of the Arbitration and Conciliation Act, 1996 (“A&C Act”), to avail interim relief. In such a context, the Arbitration and Conciliation (Amendment) Bill, 2024 (“Amendment Bill”) has brought a tectonic shift by proposing to introduce emergency arbitration under Section 9A of the A&C Act, 1996. Emergency Arbitration grants parties an option to avail interim relief from an arbitrator appointed under urgent circumstances before the constitution of the arbitral tribunal. While Section 9A empowers the arbitral institutions to provide procedural rules for the appointment of an emergency arbitrator (“EA”), concerns lie regarding the non-subsistence of party autonomy in such appointment.

This article seeks to explore the procedure for appointment of EA in India and advocates for reformation in a manner which protects party autonomy during such appointment. Firstly, it commences with an in-depth analysis of the procedural rules provided by different arbitral institutions governing the appointment of EA. Here, the author has spotlighted a critical omission under Section 9A, as it fails to delineate procedures for emergency arbitration, leading to a non-diverged and inconsistent approach. Secondly, it highlights the existing challenges and shortcomings emerging out of laws and the non-recognition of party autonomy in the appointment of EA. Thirdly, it analyses the existing judicial pronouncements on the maintenance of party autonomy, specifically in light of the issue regarding its maintenance during the appointment of an EA. Lastly, it concludes by undertaking a comparative analysis and providing specific recommendations.

1. Emergency Arbitration and Procedure For Emergency Arbitrator’s Appointment in India: Disentangling The Disjunction:

Recently, the Amendment Bill has aimed to provide recognition to emergency arbitration in India. It is pertinent to note that, while adopting a similar approach as laid down in the English Arbitration Bill, 2025, Section 9A of the Amendment Bill merely recognises the appointment of EA without delineating the procedures for the same. To fill this void, several arbitral institutions have provided procedures for the appointment of an EA. Here, the author argues that this is a critical omission considering the procedural non-uniformity which it has brought into the realm of emergency arbitration in India, especially the appointment of EA. In arguendo, even upon construing it as a deliberative legislative choice, such omission defeats the very purpose of emergency arbitration, as firstly, it can cause unintended procedural and operational delays, and secondly, it may also lead to forum shopping. The rules discussed below show the diverged approach followed by different arbitral institutions towards the appointment of EA.

For instance, Rule 19.2 of the Mumbai Centre for International Arbitration (“MCIA”) Rules, 2025, provides for the appointment of an EA within one business day of receipt of the application by the Registrar and payment of the requisite fees. Under Rule 19.3, it provides for disclosure relating to any justifiable doubts as to impartiality by the prospective EA and allows a party to challenge such appointment within one business day of the communication by the Registrar. Further, Rule 14.4 and 14.5 of the Delhi International Arbitration Centre (“DIAC”) Rules, 2023, provide for the appointment of the EA within two days of filing the application and disclosure relating to existing impartiality or bias prior to accepting the appointment, respectively. A challenge to the appointment can also be filed by parties within one business day under Rule 14.5 of the DIAC Rules, 2023.

Thereby, Articles 2 and 3 of Schedule 1, International Arbitration and Mediation Centre Rules (“IAMC”) also provide for the appointment of EA within 3 days of the date of receipt of the application and challenge to such appointment within 3 days, respectively. However, Rule 57(b)(d) of the Indian Council of Arbitration Rules increases the duration of appointment of the EA to 7 days and also does not provide for any specific provision regarding challenge to the appointment of the emergency arbitration.

Here, it becomes clear that, alongside the non-subsistence of party autonomy, which shall be discussed in the subsequent section, instant laws bring considerable variance in the practice for the appointment of EA. For instance, while it takes only one day for the appointment of an EA under the MCIA Rules, under the IAMC Rules, parties have to wait for three long days to get the appointment done. It is even more concerning to note that while DIAC and MCIA allow parties to challenge EA’s appointment, IAMC Rules do not even recognise that..  

1. Existing Shortcomings and Challenges: Fault Lines Beneath Urgency

In light of the above discussion, it becomes apparent that neither Section 9A nor any rules of arbitral institutions provide for the participation of parties in the appointment proceedings of EA. While the parties can only make an application for emergency arbitration to arbitral institutions, the ultimate discretion regarding appointment rests with the Chairperson or Registrar. It is undeniable that, as emergency arbitration is an urgent mode of dispute resolution, unilateral appointment of EA is required to ensure expediency. However, not granting recognition to any appointment of an EA based on party agreement raises serious questions regarding the violation of party autonomy. While the party autonomy is exercised at the stage of consenting to institutional rules, it is crucial to note that, more than freedom, it is a compulsion to which the parties are subject, particularly when they have no other option but to resort to Indian arbitral institutions as mandated by Section 9A. Additionally, not even a single arbitral institution’s rules provide parties an option to make nomination-based appointments or a change in selection criteria even under special and exceptional circumstances.

Further, despite being an expedited mode of arbitration, Section 9A(3) mandatorily grants recognition to the order of an EA as an order of an arbitral tribunal under Section 17(2) of the Act. While Section 17(3) of the Act provides that an order of EA may be confirmed, modified or vacated by an order or award of an arbitral tribunal, it is not clearly a mandate and merely rests on the discretion of the arbitral tribunal. Hence, it is safe to reach two conclusions at this juncture: firstly, that EA’s order has the same effect as that of an arbitral tribunal if not modified or vacated, and secondly, it continues to have the same effect till the time it is modified or vacated by an arbitral tribunal. In both cases, EA’s order holds the same effect as that of an arbitral tribunal, except for a difference in the duration of its enforcement in the two situations. Even in the latter condition, it is pertinent to note that in the case of fast-paced businesses, parties may already be affected by an EA’s order by the time the arbitral tribunal modifies or vacates it. This may clearly run contrary to the parties’ intention and the flexibility of arbitration as a mode of dispute resolution. Thus, the author argues that for the purpose of this analysis, it is safe to consider both the arbitral tribunal and the EA on an equal footing, especially from the standpoint of the effect that the orders of both authorities hold.

Alongside, Section 11(3) provides for the appointment of an arbitrator based on the procedure agreed by the parties, especially taking into account the above-established proposition regarding equal footing of orders of EA and arbitral tribunal. This creates doubts as to whether the appointment of EA will be subject to Section 11(3), particularly when the order  of EA is accorded the same recognition as the order of an arbitral tribunal, under Section 9A (3). If it is assumed that such a provision will be applicable, it leads to further uncertainty as Section 9A devolves power to make rules on the arbitral institutions, and no such rules provide recognition to any appointment of EA based on party agreement, even under exceptional circumstances. On the other hand, if it is assumed that Section 9A will not be subject to Section 11, it leads to the possibility of one party pursuing emergency arbitration unilaterally without the will of the other.. Further, in the absence of the participation of parties at levels of appointment, there is a possibility of arbitral institutions pursuing unilateral appointments contrary to the will of parties. While the provision for disclosure by EA relating to any possibility of impartiality and bias exists, failure to recognise party-agreement-based appointments limits party autonomy, as the same extends to the freedom to appoint an arbitrator.

1. Judicial Approach On Protection Of Party Autonomy And Its Exigency In Emergency Arbitration-

As the appointment of an arbitrator marks the first step towards arbitral proceedings, securing party autonomy at this stage is exceedingly crucial. It becomes relevant at a juncture when the Apex Court of the country has explicitly recognised party autonomy as an integral part of the arbitration mechanism in the case of PASL Wind Solutions Private Limited v. G.E. Power Conversion. Further, in Centrotrade Minerals v Hindustan Copper Limited, the Supreme Court has also held that the exercise of party autonomy is the Grund norm and the backbone of arbitration. Additionally, in Central Organisation of Railway Electrification v. ECI-SPI, the Court recognised the consent and active participation of both parties as essential for the appointment of the arbitrator, reinforcing the importance of mutual party-based agreement. In this case, the Court held that even if an arbitration agreement permits one party to appoint the arbitrator, such an appointment is not only procedurally unfair but also legally ineligible under Section 12(5) read with the Seventh Schedule of the Act.

While appointing an EA, the absence of party autonomy typically vests absolute powers solely in the hands of arbitral institutions. This renders such an appointment not only unilateral but also ineligible, as it denies the other party any role in the constitution of the arbitral forum. When the award of such an arbitrator is granted binding force under Section 17(2), the failure to ensure party autonomy at the stage of appointment undermines the validity of the entire process, making it incompatible with the standards laid down in the above case. In such a context, providing recognition to party-based nomination or agreement for appointment of arbitrator is necessary to give effect to the very purpose behind emergency arbitration, which is based on the façade of freedom of parties to get interim relief without being subject to the doldrums of court-based litigation.  

• Way Forward–

At this juncture, it becomes pertinent to draw inspiration from the appointment procedure of EA enshrined under the London Court of International Arbitration (“LCIA”) Rules, 2020. While providing for the appointment of an arbitrator by the LCIA Court under Article 9B (9.6), the LCIA Rule mandatorily subjects such provision to Article 5.7 and 5.9. Article 5.7 provides for the appointment of an arbitrator by the LCIA Court while taking into account- “any written agreement or joint nomination by the parties or nomination by the other candidates or arbitrators”. Further, while appointing an arbitrator, Article 5.9 also obligates the LCIA Court to take into account any particular method or selection criteria agreed by way of writing between the parties. It clearly shows that Article 9B (9.6), read with Articles 5.7 and 5.9, while mandating the exclusive authority of the LCIA Court regarding appointment, does not erase the principle of party autonomy, but rather incorporates it within a well-controlled institutional framework.

Thus, the need of the hour is to bring clarity to the conundrum between party autonomy and appointment of arbitrators prior to granting statutory recognition to emergency arbitration. The Amendment Bill needs to settle this by granting recognition to party-based nominations for the appointment of the EA, thereby protecting party autonomy within the circumscribing limits of institutional authority. While providing for an absolute party-based appointment may lead to delay and complications in the path of efficient and urgent relief, not granting any recognition to party autonomy during appointment is bound to do more harm, as the award of EA is also final and binding upon the parties, unless modified or vacated by an arbitral tribunal. Hence, a balanced approach needs to be followed by subjecting the institution-based appointment to party-based nominations under certain circumstances.

This can be effectively done in a four-pronged manner, firstly, by bringing uniformity in procedures regarding appointment of EA, secondly, by incorporating an additional clause, which provide for party-based nominations or change in selection criteria subject to change in circumstances, thirdly, to ensure expediency, such party-based nomination must only be allowed in exceptional and special circumstances, fourthly, parties must be allowed to apply to the Registrar/Chairperson regarding appointment of EA owing to exceptional circumstances and, finally, Registrar/Chairperson must be empowered to decide upon such application within a time-bound manner.