Arbitration In IndiaInterim Reliefs in Arbitration – Section 9 and 17

INTRODUCTION

The Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) constitutes an exhaustive and systematic legislative framework that governs the law relating to domestic and international commercial arbitration in India. The Act delineates the procedural and substantive aspects of arbitration, aiming to ensure the fair, efficient, and speedy resolution of disputes outside the traditional court system.

Sections 9 and 17 of the Act are the foundational legal framework governing the grant of interim measures during arbitration proceedings in India. Section 9 vests the courts with the power to grant interim relief before the commencement of arbitration, during the proceedings, and post-award but prior to enforcement. In contrast, Section 17 confers upon the duly constituted arbitral tribunal the authority to grant interim measures during the arbitral proceedings.

The Arbitration and Conciliation (Amendment) Acts of 2015 and 2019 have significantly reshaped these provisions. They have advanced the autonomy of arbitral tribunals by equating their powers to those of courts, providing enforceability to their interim orders, and curtailing unnecessary judicial intervention after a tribunal is formed. These legislative reforms collectively aim to promote a more expeditious, efficient, and internationally harmonized arbitration process by balancing judicial oversight with party autonomy and procedural efficacy.

SECTION 9: POWER OF COURT TO GRANT INTERIM MEASURES

Section 9 of the Act empowers courts to grant interim relief to protect the interests of parties involved in arbitration proceedings. This provision recognizes the courts’ role in providing urgent protection at critical stages of arbitration to ensure the process remains effective and just.

 Key Aspects and Scope: Stages for Granting Interim Measures:

• Before commencement of arbitral proceedings:The court may intervene to grant interim protection prior to the formal initiation of arbitration.
• During arbitral proceedings:The court retains jurisdiction to grant interim relief while the arbitration is ongoing.
• After the arbitral award but before enforcement:Protection can be granted after an award is made but prior to its enforcement under Section 36 of the Act.

Types of Interim Relief Available:

• Appointment of a guardian for a minor or person of unsound mind for the purposes of the arbitration proceedings.
• Preservation, interim custody, or lawful sale of goods that are the subject matter of the arbitration.
• Securing the disputed monetary amount to prevent its dissipation.
• Authorization for entry upon any land or property in the possession of a party for inspection or other necessary purposes.
• Granting of an interim injunction or the appointment of a receiver.
• Any other interim measure of protection the court deems just and convenient.

Procedural Modifications Introduced by the 2015 Amendment:

• Under Section 9(2):If a court grants interim relief before arbitral proceedings are initiated, the applicant must commence arbitration within ninety days of the court’s order, unless the court grants an extension. This condition prevents indefinite reliance on court-granted protection without advancing the arbitration.
• Under Section 9(3):Once the arbitral tribunal is constituted, the court’s jurisdiction to entertain a Section 9 application is curtailed. The court will intervene only if it is convincingly shown that the remedy available under Section 17 (which empowers the tribunal to grant interim measures) is “inefficacious.” This provision strengthens arbitral autonomy by limiting judicial interference after the tribunal’s constitution.

Hence, Section 9 serves as a vital judicial safeguard designed to preserve the integrity and efficacy of arbitration proceedings by enabling courts to grant timely interim relief. The 2015 Amendment further enhances party autonomy and reduces unnecessary court intervention by delineating clear procedural boundaries on when such relief may be sought from courts versus the arbitral tribunal.

SECTION 17: INTERIM MEASURES BY THE ARBITRAL TRIBUNAL

Section 17 of the Act empowers a duly constituted arbitral tribunal to grant interim measures of protection at any time during the arbitral proceedings but before the final arbitral award is issued. The reliefs available under this provision mirror those under Section 9, emphasizing the tribunal’s pivotal role in preserving the subject matter and rights of the parties. Such interim measures may include, among others:

• Appointing a guardian for a minor or person of unsound mind for the purposes of the arbitration proceedings;
• Preserving, taking interim custody of, or lawfully selling goods that are the subject matter of the arbitration;
• Securing the amount in dispute;
• Granting an interim injunction or appointing a receiver; and
• Any other relief the tribunal deems just, convenient, and necessary to safeguard the arbitration.

Amendments to Section 17: Parity and Enforceability

The legislative landscape of Section 17 has undergone significant refinement, substantially enhancing the tribunal’s powers to grant interim relief.

 Pre-2015 Procedural Deficiency

• Before the Arbitration and Conciliation (Amendment) Act, 2015, interim orders issued by a tribunal under Section 17 lacked statutory backing for enforcement.
• Consequently, parties were compelled to resort to courts under Section 9 to both obtain and enforce such relief.
• This dual reliance caused procedural delays, increased judicial involvement, and weakened the independence and efficiency of arbitration.

The 2015 Amendment – Empowerment and Enforcement

• The 2015 Amendment substantially revised Section 17, giving the arbitral tribunal powers commensurate with those of a court for granting interim relief.
• The scope of relief under Section 17(1) was expressly synchronized with that under Section 9.
• Significantly, Section 17(2) stipulates that an order passed by an arbitral tribunal is deemed to be an order of the court for all purposes and is enforceable under the Code of Civil Procedure, 1908 (“CPC”), in the same manner as a court order.
• This change enabled parties to directly approach competent civil courts to execute tribunal orders, significantly enhancing the effectiveness of arbitral interim relief after the tribunal’s constitution.

The 2019 Amendment – Temporal Boundaries and Jurisdictional Clarification

• The Arbitration and Conciliation (Amendment) Act, 2019 clarified that the arbitral tribunal’s authority to grant interim relief under Section 17 is limited to the period of the arbitral proceedings. This authority ceases upon the issuance of the final award, after which any such relief must be sought from the courts under Section 9.
• This amendment conclusively addressed previous legislative ambiguity regarding the tribunal’s power to grant post-award interim relief.
• Consequently, the tribunal’s authority is strictly confined to the pre-award period, ensuring finality and procedural certainty.

Enforcement and Execution of Section 17 Orders

• The enforcement of interim orders issued under Section 17 is carried out by invoking the execution jurisdiction of civil courts.
• Aggrieved parties may initiate execution proceedings before the appropriate civil court in accordance with the CPC.
• It is imperative to note that the arbitral tribunal itself possesses no direct execution powers.
• Instead, Section 17 orders are imbued with the status of court orders for the purpose of enforcement, empowering judicial authorities to compel compliance and curtail obstruction by non-compliant parties.

In summation, the 2015 and 2019 amendments have fundamentally bolstered the efficacy, enforceability, and temporal clarity of interim relief under Section 17, thereby reinforcing arbitral autonomy and diminishing excessive judicial intervention. These reforms ensure a coherent and streamlined mechanism for interim protection that is consonant with the lifecycle of arbitration proceedings.

AMLEGALS REMARKS

In essence, Sections 9 and 17 of the Arbitration and Conciliation Act, 1996, form the cornerstone of the statutory regime for interim relief in Indian arbitration proceedings. The post-amendment statutory framework establishes a well-balanced dual mechanism, conferring significant protective authority upon both courts and arbitral tribunals, with their orders having near-equivalent enforceability. It requires parties to adopt a strategic approach when determining the appropriate forum for seeking interim measures, considering factors such as urgency, the nature of the relief, and the procedural constraints imposed by the 2015 and 2019 amendments.

This framework reflects contemporary legal drafting conventions found in practitioner-focused analyses, emphasizing legislative refinements related to enforceability, jurisdictional exclusivity, and strict timelines. Such clarity enhances the efficiency and autonomy of the arbitral process while preserving necessary judicial oversight.

Consequently, it is incumbent upon parties in arbitration to acquire a comprehensive understanding of these provisions to effectively invoke and secure timely interim protection, thereby advancing a fair, expeditious, and equitable resolution of disputes.

Team AMLEGALS.

Please reach out to us at rohit.lalwani@amlegals.com in case of any query.