INTRODUCTION
On January 1, 2025, the Singapore International Arbitration Centre (“SIAC”) introduced a critical update to its emergency arbitration (“EA”) mechanism. Under the SIAC Rules 2025, parties can now apply to an emergency arbitrator for a provisional ex parte order to prevent counterparties from frustrating the emergency relief requested (“Protective Preliminary Order” or “PPO”). Such an application can be filed without prior notice to the counterparties which serves well in cases where immediate protective orders may be critical such as those involving the imminent dissipation of assets, threat of disclosure of confidential information, or a risk of destruction of property or evidence.
Notably, Indian parties have been among the most frequent users of SIAC and have accounted for the highest number of EA applications filed – both by (35) and against (91) them – since the introduction of the EA mechanism by SIAC in 2010. Against this background, this note examines the Protective Preliminary Orders regime under the SIAC Rules 2025, their practical utility, and the procedural safeguards deployed by SIAC to prevent abuse by parties. We also outline the key strategic implications of PPOs for parties involved in India-related disputes.
TIMELINES FOR ISSUANCE OF PPOS UNDER THE SIAC RULES 2025
Schedule I of the SIAC Rules 2025 allows a party to file, along with its request for appointment of an emergency arbitrator (“EA Application”), an application for a Protective Preliminary Order (“PPO Application”) directing a party “not to frustrate the purpose of the emergency interim or conservatory measure requested”. SIAC Rules 2025 (including the provisions relating to PPOs) apply to arbitrations commenced on or after January 1, 2025, unless otherwise agreed by the parties. Unlike the SIAC Rules 2016, which required a notice of arbitration to be issued before seeking emergency relief, the SIAC Rules 2025 permit a party to request the appointment of an emergency arbitrator without serving a notice of arbitration, provided such notice is filed within 7 days.
The President of the SIAC Court of Arbitration has the discretion to accept a PPO Application. If approved, an emergency arbitrator is appointed within 24 hours and must decide on such application within another 24 hours, ex parte i.e. without notifying and, typically, without hearing, the respondent parties against whom the measures are requested. The emergency arbitrator delivers the PPO to the SIAC Secretariat, which transmits it to all parties. If the applicant fails to provide copies of all case papers and communications to the respondents within 12 hours of the issuance of PPO, the PPO automatically expires within 3 days of its issuance.
Once notified, the respondents must be given an opportunity to present their case “at the earliest practicable time”, with the emergency arbitrator required to promptly rule on any objections to the PPO granted. EA proceedings continue as usual, and the emergency arbitrator may modify or revoke the PPO in the final EA order (the “EA Order”), which must be issued within 14 days of appointment, unless extended by the SIAC Registrar. PPOs automatically expire after 14 days unless incorporated into the EA Order.
ISSUES SURROUNDING THE GRANT OF EX PARTE ARBITRAL INTERIM RELIEF
Historically, ex parte ad interim relief has been the exclusive domain of national courts in most jurisdictions. This is also the case with India where courts are vested with the power under the Indian civil procedure law to grant ex parte ad interim relief. Arbitral tribunals are generally averse to granting measures ex parte, given the consensual nature of the arbitral process and their statutory duty to uphold the parties’ right to be heard and treated equally. While PPOs under the SIAC Rules 2025 may appear to be a relatively new procedural tool, they mirror the 2006 amendments to Article 17 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), which introduced a regime for preliminary orders, authorizing arbitral tribunals to issue provisional ex parte interim orders to prevent frustration of the purpose of the relief requested. However, these provisions have been controversial, and even referred to as a “non-functional appendage” of the Model Law by Gary Born, because while they are binding on parties, they remain statutorily unenforceable by national courts. Their adoption by national legal systems has been inconsistent. Among the world’s leading arbitral seats, Hong Kong remains the only Model Law jurisdiction to incorporate the Model Law provisions on preliminary orders to its national arbitration legislation (see Division 2, Part 6 of the Hong Kong Arbitration Ordinance (Cap 609)). India has not incorporated these provisions into its Arbitration and Conciliation Act, 1996 (the “Indian Arbitration Act”), meaning that arbitral tribunals are not authorized to grant ex parte ad interim reliefs in India-seated arbitrations.
While PPOs serve a key, time-sensitive function in the EA mechanism, preventing irreparable harm before any EA Order can be issued, the key bone of contention surrounding them remains their apparent conflict with the core tenets of arbitration. At first glance, ex parte ad interim relief is fundamentally at odds with an arbitral process premised on mutual consent and procedural fairness. Their enforceability under national legal systems is also debatable for these reasons.
PROCEDURAL SAFEGUARDS TO PREVENT ABUSE OF PPOS BY PARTIES
The SIAC Rules 2025 incorporate several safeguards to prevent the misuse of PPOs. First, while PPOs are issued ex parte, they are strictly provisional in nature, automatically expiring 14 days after issuance unless incorporated into an EA Order. This safeguard ensures that any restrictions imposed on a respondent remain proportionate, time-bound, and subject to challenge during the subsequent phase of the EA proceedings, preventing any undue constraints from being placed on the remedial rights of respondents.
Secondly, the temporary deferral of a respondent’s right to be heard during the ex parte phase of the proceedings is promptly remedied by an inter partes phase. This phase commences no later than 12 hours after the SIAC Secretariat’s transmission of the PPO, when respondents are provided with all case papers and communications in respect of that order. Full disclosure at the earliest practicable time not only enhances transparency, but also allows respondents to contest a PPO at the earliest practicable opportunity, ensuring that any relief granted under the PPO without their knowledge can be promptly reviewed by the emergency arbitrator.
Lastly, the mere existence of a remedy does not guarantee that emergency arbitrators will readily grant a PPO. While the SIAC Rules 2025 do not provide any guidance on the criteria to be applied while assessing a PPO Application, emergency arbitrators will likely apply the same exacting standards that generally apply to any other request for urgent ad interim and ex parte relief. Besides, emergency arbitrators will be expected to assess any tangible risk of a respondent frustrating the requested measure upon being notified at the outset.
IMPLICATIONS FOR PARTIES INVOLVED IN INDIA-RELATED DISPUTES
Despite its prevailing use by Indian parties in recent years, the EA mechanism is yet to gain statutory recognition under Indian law. The Draft Arbitration and Conciliation (Amendment) Bill, 2024 proposed by the Indian Government, which is currently at the public consultations stage, proposes a framework for emergency arbitration and the enforcement of resulting EA Orders in India-seated arbitrations.
At present, however, the enforceability of EA Orders under Indian law primarily rests on judicial interpretation, with the Supreme Court of India’s (the “Indian Supreme Court”) ruling in Amazon NV Investment Holding LLC v. Future Retail Ltd., [2021] 4 S.C.R. 771 (“Amazon”) being the leading authority on this issue. In Amazon, the Court examined whether an EA Order issued in an India-seated arbitration applying the extant SIAC Rules 2016 could be enforced in India. The Indian Supreme Court interpreted Section 17 of the Indian Arbitration Act, which grants arbitral tribunals the power to issue interim measures in India-seated arbitrations, to include EA Orders within its ambit. EA Orders issued in India-seated arbitrations are recognized as a form of interim measure issued by arbitral tribunals and enforceable as an order of an Indian court (see paragraph 41 of Amazon). However, unlike orders issued by arbitral tribunals which can be appealed before a court under Section 37 of the Indian Arbitration Act, recourse against an EA Order in an India-seated arbitration would only lie before a regular tribunal constituted under the rules of the relevant arbitral institution (see paragraph 71 of Amazon).
However, there is currently no statutory mechanism in place to enforce EA Orders issued in foreign-seated arbitrations in India. The beneficiary of an EA Order is, therefore, required to adopt the “duplicative approach”, as in the cases of HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd., 2014 SCC OnLine Bom 102 and Raffles Design International India (P) Ltd. v. Educomp Professional Education Ltd., 2016 SCC OnLine Del 5521. In other words, they must apply for interim relief before the appropriate court in India under Section 9 of the Indian Arbitration Act (the provision for availing court-ordered interim relief) and request an order in the same terms as those granted by the emergency arbitrator, which may or may not be forthcoming.
In view of the above, it is useful to carefully assess the risks associated with PPOs in India-related disputes, some of which may also be relevant to other jurisdictions.
Potential conflict with the mandatory laws at the seat
Firstly, while parties are free to consent to the availability of ex parte arbitral interim measures (whether expressly or by adopting institutional rules that provide for such measures), that consent must necessarily yield to the mandatory laws of the seat of arbitration. This hierarchy of norms is recognized under Rule 1.6 of the SIAC Rules 2025, which states that non-derogable provisions of the law of the seat take precedence over any conflicting provisions of the institutional rules. Under Section 18 of the Indian Arbitration Act, arbitral tribunals are required to ensure equal treatment of the parties and must afford them “full” opportunity to be heard at all stages of arbitral proceedings, including during proceedings for urgent interim relief. The Indian Supreme Court has recognized this provision as “mandatory and non-derogable” in Union of India v. Vedanta Ltd, (2020) 10 SCC 1 (see paragraph 121). Additionally, Section 24(2) of the Indian Arbitration Act stipulates that where the arbitral tribunal decides to hold oral hearings, parties must be given “sufficient advance notice” of such hearing.
In Godrej Properties Ltd. v. Goldbricks Infrastructure Pvt. Ltd., 2021 SCC OnLine Bom 3448 (“Godrej Properties”), the Bombay High Court relied on these provisions to set aside an interim order granted by an ad hoc tribunal in an India-seated arbitration, that was admittedly issued without hearing any of the parties, including the party that filed such request. The Bombay High Court clarified that unlike courts, which may issue ex parte ad interim orders in certain limited and exceptional circumstances under the (Indian) Code of Civil Procedure, 1908, arbitral tribunals (who lack such authority under Indian law) must necessarily comply with the mandatory procedural safeguards set forth in Sections 18 and 24 (see paragraph 14 of Godrej Properties). Therefore, while a PPO may theoretically be contested in an inter partes hearing “at the earliest practicable time” following its issuance, it remains debatable whether this accelerated process is compatible with the mandatory requirements of a “full” opportunity to be heard under Indian law, given that the initial relief is granted without affording the affected party any opportunity to present its case.
Perceived tension with the interpretative framework under Section 17
The second challenge to PPOs concerns the legal foundation on which EA Orders have been legitimized under Indian law. In Amazon, the Indian Supreme Court’s interpretation of an EA Order centred on the phrase “during the arbitral proceedings” under Section 17, where it held that EA Orders, which were issued subsequent to the filing of a notice of arbitration (which marks the commencement of arbitral proceedings) were valid under Indian law. Unlike the extant SIAC Rules 2016, there is no requirement to serve a notice of arbitration at the time of filing of a PPO Application under the SIAC Rules 2025. Consequently, PPOs issued in India-seated arbitrations may not strictly qualify as arbitral interim measures issued under Section 17.
Broad form consent to the enhanced EA mechanism
Finally, aside from the limitations on party autonomy imposed by mandatory laws and concerns relating to the measures falling within the interpretative framework of Section 17, the question of whether parties truly consented to an ex parte EA mechanism at the time of agreeing to arbitration also warrants consideration. The applicability provisions under the SIAC Rules 2025 (Rule 1.5) and the SIAC Model Clause for Arbitration (as of 9 December 2024) confirm that absent an express choice by the parties to the contrary, the version of the rules in force at the commencement of arbitration (rather than those in force at the time of contracting) governs those proceedings. This interpretation is consistent with international arbitral practice and has been affirmed by the Singapore High Court in Cars & Cars v. Volkswagen AG and Another, [2010] 1 SLR 625 and AQZ v. ARA, [2015] 1 SGHC 49. Accordingly, one may argue that parties’ consent to the application of institutional rules was predicated on the restrictive EA mechanism as it existed at the time of such consent. This is particularly relevant given that the earlier versions of the SIAC Rules (including the 2010, 2013 and 2016 versions) did not provide for ex parte ad interim relief under the EA Mechanism. As a result, parties who agreed to arbitrate under the SIAC Rules prior to January 1, 2025, may find themselves subject to provisions that they neither contemplated, nor had an opportunity to opt out of, at the time of contracting.
CONCLUSION
The recognition of PPOs in modern institutional rules is a progressive development, ensuring the continued efficacy of emergency relief mechanisms when commercial exigencies necessitate immediate action. One may argue that the concerns identified above are overstated, as bona fide litigants will, in most cases, voluntarily comply with PPOs, much like they do with regular EA Orders, given their strategic interest in gaining the emergency arbitrator’s confidence in the subsequent inter partes phase of the EA proceedings. Indeed, parties involved in high-stakes disputes are likely to prioritize credibility over any short-term tactical gains from defying a PPO, making voluntary compliance the more strategic choice. In any event, the temporary nature of the measure and the respondent’s ability to seek a prompt reconsideration of the PPO reduces the necessity to commence a formal enforcement action before courts. Notwithstanding the above, in circumstances where an enforcement action becomes imperative or where any interim relief is sought against third-parties, it may be more advantageous to apply for court-ordered interim measures under Section 9 of the Indian Arbitration Act. Consequently, until emergency arbitration is statutorily recognized under Indian law, businesses seeking emergency relief in India-related disputes should adopt a nuanced approach when considering the option of applying for PPOs, balancing institutional EA mechanisms with court-based legal remedies.
This insight has been authored by Shahezad Kazi (Partner) and Gladwin Issac (Associate). They can be reached on skazi@snrlaw.in and gissac@snrlaw.in, respectively, for any questions. This insight is intended only as a general discussion of issues and is not intended for any solicitation of work. It should not be regarded as legal advice and no legal or business decision should be based on its content.© 2025 S&R Associates