Ex Parte Interim Relief in International Arbitration — Why?

When the emergency award was passed in Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd.¹, under the Singapore International Arbitration Centre Rules, 2025 (SIAC)² it took three rounds of challenge and a couple of years before the Delhi High Court and the Supreme Court of India for the Supreme Court to finally hold that the emergency arbitrator’s award is akin to an award passed under Section 17³ of the Arbitration and Conciliation Act, 1996⁴ and will be recognised under the Indian laws.

Five years on, the SIAC has come out with another curveball for the courts to tackle. On 1-1-2025, the SIAC notified its seventh edition of its Rules (2025 Rules). Though there are other significant changes from its previous versions, the one rule that has grabbed the eyes of practitioners and will very soon of the courts when they are tested on enforcements, relate to the power of an emergency arbitrator to grant ex parte relief drafted as “preliminary order”. Schedule 1 of the 2025 Rules (read with Rules 12 and 16)⁵ provides that a party requiring an emergency or conservatory relief may file for appointment of an emergency arbitrator even before notifying the other side.

Introduction

The idea of an interim relief is to prevent any irreparable harm. Mostly these harm concern with sale of shares, freezing of assets, dispossession of property, securing the disputed amount, significant company movements, so forth and so on. From the Roman times, to the present, courts have been dealing with such issues.

However, with the advent of arbitration, there has been a constant battle between the righteousness of those elevated and those selected. The first thing any court scrutinising an award looks at is its procedural integrity. In fact, one of the grounds for setting aside of an award under Article 34 of the UNCITRAL Model Law on International Commercial Arbitration⁶ deals with proper notification of arbitration. Article 34 states that an award may be set aside if the party making the application proves that it was not given proper notice of appointment of the arbitrator or of the arbitral proceedings. The question that arises for consideration is that how would an interim relief granted in a very limited time period sustain when an elaborate award over a longer period would not on the same grounds?

Fairness and neutrality — or at least the optics of it

The questions surrounding the provision of preliminary order are not on its efficacy, which only time will tell, but majorly on the optics of it. Yes, optics of justice matter as much as justice itself. It is not the case that a party seeking interim protection does not have avenues, the best ones are local courts with territorial jurisdiction over the subject-matter, followed by any other statutory court exercising direct or indirect jurisdiction. Any such interim relief can be obtained under Article 9 of the UNCITRAL Model Law on International Commercial Arbitration⁷, or other relevant statutes of the land.

It is an undisputed fact that an emergency arbitrator will be in a position to provide faster relief (no later than 14 days) as opposed to national courts. In Starlight Shipping Co. v. Tai Ping Insurance Co. Ltd.⁸, the English High Court while considering the application for urgency under Section 44 of the Arbitration Act, 1996⁹, held:

22. … Urgency, in this context must have reference to the question whether or not arbitrators could reach any decision on the point in any relevant timescale.

If the ex parte provision of the 2025 Rules is observed from this lens, it makes absolute sense to empower the emergency arbitrator to pass such orders. However, orders in absentia are perceived slight differently — as only one side presented the case, asserted relief and obtained it. It is not unusual for parties to suppress material facts in order to gain favourable orders. The only benefit of such orders by courts is that not only the court can correct any wrongdoings or misrepresentations but can also very well take penal actions against the party committing such acts. Whereas, in arbitrations, the Tribunal cannot do anything more than seeking the assistance of a court to enforce non-compliance or contempt. Simply put, the fear of consequence is higher before courts than Arbitral Tribunals.

Procedural parity — the unsettling imbalance

In international arbitration, the cornerstone of due process is the assurance that both parties will have a fair and equal opportunity to present their case. It is enshrined in Article 18 of the UNCITRAL Model Law on International Commercial Arbitration¹⁰ which mandates that “each party shall be given a full opportunity of presenting his case”.

Unlike national courts, falling within the public system of accountability, arbitration is inherently private. The respondents often do not have a clue about the commencement of proceedings, let alone that an interim order has been issued against them. This turns the idea of procedural equality on its head, especially in cross-border disputes where parties may already feel disadvantaged by language, location, logistics, or resources. Onboarding an international law firm to contest against an order passed ex parte in an emergency setup will itself turn out to be a practical difficulty that parties will face. This will only sway the parties to keep away from the 2025 Rules and look for alternatives.

Conclusion

The larger question here is, “can international arbitration afford to mirror the most aggressive judicial tools, without also replicating the institutional check and balances that temper them in the court system?” An order granted in haste, behind closed doors, must carry the burden of unimpeachable integrity. In international arbitration, Caesar’s wife must always remain above suspicion. One ponders over the necessity of a provision like this; is it only to enhance the importance of the emergency arbitrator or is there an end goal that actually serves the purpose? Because the order would mean nothing if it cannot be enforced. Emergency awards themselves have suffered long scrutiny and are still not warmly accepted due to their briefness, add to that absence of the responding party and it sounds like a dish made for disaster. How the provision will be treated, especially by foreign courts, will be revealed over time.

Moreover, what is to be seen is whether other leading institutions like the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC) or the Permanent Court of Arbitration (PCA) will follow suit or steer clear. Due to such enhanced and unpredictable powers of the emergency arbitrator, parties entering into agreements post the notification of the 2025 Rules may even consider opting out of the emergency arbitration provision altogether. Because an award rushed in darkness, even in urgency, carries the risk of never seeing the light.