Protective Preliminary Orders under the SIAC Rules 2025: Key Strategic Considerations for India-related Disputes

The Singapore International Arbitration Centre (SIAC) has introduced a critical update to its emergency arbitration (EA) mechanism. Under the SIAC Rules 2025, which applies to arbitrations commencing 1 January 2025 unless otherwise agreed, parties can 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).

Timeline for issuance of PPOs under the SIAC Rules 2025

A PPO application can be filed along with a request for appointment of an emergency arbitrator without serving a notice of arbitration (provided such notice is filed within seven days). PPOs may be issued ex parte within 48 hours of the request but will lapse within three days if the respondent is not notified. Respondents must then be given an opportunity to present their case ‘at the earliest practicable time’. A PPO may be modified or revoked in the final order issued by the emergency arbitrator (EA Order), which is typically within 14 days of their appointment.

Implications for parties involved in India-related disputes

Indian parties have been among the most frequent users of SIAC, accounting for the highest number of EA applications filed–both by them (35) and against them (91)—since the introduction of the EA mechanism by SIAC in 2010. However, the EA mechanism is not statutorily recognised under Indian law and has only been endorsed through case law.

In Amazon NV Investment Holding LLC v Future Retail Ltd. [2021] 4 S.C.R. 771 (Amazon) (previously discussed on OBLB here), the Indian Supreme Court, examined whether an EA Order issued in an India-seated arbitration applying the then prevailing SIAC Rules 2016 could be enforced in India. The Court interpreted section 17 of the Arbitration and Conciliation Act, 1996 (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 recognised as a form of interim measure issued by arbitral tribunals and enforceable as an order of an Indian court (paragraph 41 of Amazon). However, unlike orders issued by arbitral tribunals, EA Orders cannot be appealed before a court and may only be revisited by the regular tribunal (paragraph 71 of Amazon).

There is currently no statutory mechanism to directly enforce EA Orders issued in foreign-seated arbitrations. In such cases, parties seek mirror 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 (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 view of the above, it is useful to assess the risks associated with PPOs in India-related disputes, some of which may also be relevant to other jurisdictions. We examine some of these risks below.

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, that consent must necessarily yield to the mandatory laws of the seat. This hierarchy of norms is recognised 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 institutional rules. Under section 18 of the Indian Arbitration Act, arbitral tribunals must ensure that parties are treated equally and provided a ‘full’ opportunity to be heard at all stages of the arbitral proceedings. The Indian Supreme Court has recognised this provision as ‘mandatory and non-derogable’ in Union of India v. Vedanta Ltd, (2020) 10 SCC 1 (paragraph 121). Additionally, section 24(2) of the Indian Arbitration Act requires arbitral tribunals to give ‘sufficient advance notice’ to parties of oral hearings.

In Godrej Properties Ltd. v. Goldbricks Infrastructure Pvt. Ltd., 2021 SCC OnLine Bom 3448 (Godrej Properties), the Bombay High Court set aside an arbitral interim order that was issued without hearing either party. The Bombay High Court found that unlike courts, which may issue ex parte ad interim orders in certain exceptional circumstances under the (Indian) Code of Civil Procedure, 1908, arbitral tribunals (who lack such authority) are bound by the procedural guarantees in sections 18 and 24 (paragraph 14 of Godrej Properties). Therefore, while a PPO may theoretically be contested in an inter partes hearing ‘at the earliest practicable time’, 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 hearing the respondent.

Perceived tension with the interpretative framework under section 17

The second challenge to PPOs concerns the legal foundation on which EA Orders have been legitimised under Indian law. In Amazon, the interpretation 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 (commencing arbitral proceedings), were valid under Indian law. There is no requirement to serve a notice of arbitration at the time of filing 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, the question of whether parties truly consented to an ex parte EA mechanism at the time of contracting also warrants consideration. Applicability provisions under the SIAC Rules 2025 (rule 1.5) and the SIAC Model Clause for Arbitration confirm that absent an express contrary choice, 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 relevant given that 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 had no opportunity to opt out of at the time of contracting.

Conclusion

The recognition of PPOs in modern institutional rules is a progressive development, and parties are likely to comply voluntarily to preserve credibility in subsequent proceedings. However, where enforcement becomes imperative or relief is sought against third-parties, it may be advantageous to apply for court-ordered interim measures. Until emergency arbitration is statutorily recognised 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.

Shahezad Kazi is a Partner at S&R Associates, India.

Gladwin Issac is an Associate at S&R Associates, India.

This post is an abridged version of a publication by S&R Associates, that can be accessed here. It is intended solely for a general discussion of issues, not for solicitation of work, and, in any event, should not be construed as legal advice. The authors thank Niti Dixit (Partner, S&R Associates) for comments on a previous version of this post.