ENFORCEABILITY OF INTERIM AWARDS IN FOREIGN-SEATED ARBITRATIONS: INDIA’S MISSING LINK

This post is authored by Dhyey Bakshi and Ananya Shukla fourth-year and fifth-year B.A. LL.B (Hons.) students respectively at National Law University, Delhi

Introduction

It is now trite to say that Indian courts have moved from expansive public policy review in a §34 review of domestic arbitrations in  Oil & Natural Gas Corporation Ltd v. Saw Pipes Ltd towards a pro-enforcement philosophy as bolstered under a § 48 foreign seated arbitration review in Shri Lal Mahal v. Progetto Grano (2014). By narrowing the scope of judicial interference, and through developments such as the overruling of Oil & Natural Gas Corporation Ltd v. Western Geco International Ltd, the Indian legislature through the 2015 Amendment to the Arbitration and Conciliation Act 1996 (“Arbitration Act”) has attempted to align the Arbitration Act with international standards. § 49 of the Arbitration Act provides for enforcement of foreign awards, subject only to limited exceptions under § 48. However, when we shift our attention from final awards to interim and emergency measures in foreign-seated arbitrations, this pro-enforcement narrative can be called into question.

Current Doctrinal Position under Indian Law

Indian courts have repeatedly indicated that an interim or emergency order rendered in a foreign-seated arbitration is not, by itself, directly enforceable in India. The Calcutta High Court in UpHealth Holdings Inc. v. Glocal Healthcare Systems (P) Ltd. made it clear that a party aided by a foreign interim order must still approach an Indian court and satisfy the independent standards under § 9. The interim order may be considered as a relevant factor, but it does not render an enforceability obligation on the court, nor does it transform, ipso facto, into an executable decree. Similarly, the Delhi High Court in Ashwani Minda v. U-Shin Ltd. (“Ashwini”) held that such awards have no enforceability per se, and that § 9 cannot be used as an appellate mechanism to enforce foreign interim orders. While in Ashwini, the emergency arbitrator rejected the applicants request for interim relief, this judgement re-enforces the Indian judiciaries approach of re-litigating the merits of such applications. After the 2015 amendment, the proviso to § 2(2) makes § 9 available even to international commercial arbitrations seated outside India, unless the parties contract out of it. Read that way, § 9 relief is conceptually available even to international commercial arbitrations seated outside India unless the party’s contract out of it. However, even when available, the court will not “enforce” a foreign emergency order; it will conduct its own assessment of necessity and balance of convenience.

It may be noted that Amazon.com NV Investment Holdings v. Future Retail Ltd. does not alter this landscape because the ruling concerned India seated arbitrations. § 17(2) gives teeth to interim orders of India seated tribunals by making them enforceable as if they were orders of the court. The statute does not extend this enforcement privilege to foreign seated arbitrations. Indian courts have therefore continued to insist on a de novo inquiry under § 9 when relief is sought in India by means of a foreign emergency or interim order. Raffles Design International India v. Educomp Professional Education and Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd illustrate the same method. The tribunal’s order may persuade; it does not lay down an obligation.

Practical Consequences: Autonomy, Predictability, Efficiency

The corollary that runs through this doctrinal position is simple. For foreign seated arbitrations, Indian courts retain a fresh merits-based inquiry at the interim stage. This should trouble a jurisdiction that seeks to be arbitration friendly. Interim protection is not a procedural feature. It is often the fulcrum on which the efficacy of an arbitration turns. If time sensitive measures must be re-litigated in their entirety, party autonomy is diluted while increasing the cost. In some cases, protection becomes illusory once irreversible harm is done. India seated interim orders are executable as court orders while foreign seated interim orders are not. This asymmetry incentivizes tactical seat selection and thus compromises party autonomy in cross-border deals.

A further problem is predictability, which is a pillar of arbitration. When a court undertakes a fresh merits assessment, the outcome may deviate from a tribunal’s interim or emergency order. This differentiation invites award debtors to forum shop for a more favourable interim outcome and it hampers the predictability that commercial parties require. The same dynamic appears in the form of parallel proceedings in international arbitration. The consequence is reduced business efficacy and a dampening of parties’ confidence in arbitration as a reliable mechanism for dispute resolution. This can be substantiated by the fact that parties continue to opt for Singapore as a seat over India, due to the substantial benefits derived from interim enforcement frameworks of Singapore-seated arbitrations.

A brief comparative analysis strengthens this inquiry. The 2006 amendments to the UNCITRAL Model Law, in Articles 17H and 17I, contemplate recognition and enforcement of interim measures subject to limited defences. India is a Model Law jurisdiction but has not incorporated these provisions. § 12A of the Singapore’s International Arbitration Act, 1994 permits recognition and enforcement of emergency and interim relief, including measures linked to foreign seated tribunals, under court supervision and limited grounds of refusal. Part 3A of the Hong Kong Arbitration Ordinance (Cap. 609) follows a similar supervised recognition approach. It is pertinent to note that the Indian framework on foreign awards adopts a limited approach under § 48. As a corollary, it may be argued that a restrained recognition standard for interim measures, that exist to prevent frustration of the arbitral process itself may be unfounded.

A Targeted Legislative Fix: Recognition, not Re-litigation

The path forward is neither radical nor complex. As stated previously, § 17(2) gives weight to interim orders of India seated tribunals by making them enforceable as if they were orders of the court. The statute does not extend this enforcement privilege to foreign seated arbitrations. A possible solution is to extend this privilege to Part II of the Act to foreign seated arbitrations as is the case for § 9. Such a provision would preserve judicial supervision while abandoning the current insistence on rehearing the interim dispute on the merits in every case. Further, it grants larger discretion to courts to enforce awards granted by international tribunals. This would be a significant step towards India being a pro-enforcement jurisdiction. Courts would still refuse recognition on grounds of incapacity, excess of mandate, serious procedural unfairness, or a carefully limited notion of public policy, but they would not invite full scale re-litigation. A foreign interim order can be treated as presumptively persuasive, so that the resisting party bears the practical burden to show why continuation would be unjust. This approach respects party choice, and saves time without surrendering judicial control.

If enforcement of foreign final awards under § 49 may be refused only on the limited grounds in § 48, there is little principled justification for subjecting foreign interim measures to a complete merit rehearing rather than a similar enforcement inquiry. To rephrase, India should replicate within Part II an approach for recognising interim and emergency measures that mirrors the executory treatment given to India seated interim orders under § 17(2), and the restrained review applied to foreign final awards under § 48.

India’s aspiration to function as a genuine arbitration hub will remain incomplete while the law withholds tribunal granted foreign seated interim relief. A focused amendment aligned with international practice and with India’s stated policy would close any existing gap and would guide India towards the very goal it seeks to achieve as a renowned arbitration friendly jurisdiction. The commercial stakes require for immediate action.