Co-authored with Gautham R, and Vinudeep R
I. Introduction
Various interim measures of protection are embedded in Section 9 and Section 17 of the Arbitration and Conciliation Act, 1996 ("Act") for addressing urgent matters when time is of the essence. These interim measures of protection are essential to not only protect and preserve the subject matter of arbitration but also ensure that the arbitral award is not frustrated by a party seeking to dissipate its assets.
For the purposes of granting interim relief, the arbitral proceedings may be divided into four periods – (i) pre-commencement ("pre-commencement period"); (ii) from issuance of notice under Section 21 of the Act to acceptance of mandate by the arbitrator ("pre-acceptance period"); (iii) from acceptance of mandate by the arbitrator to passing the arbitral award ("pendency of arbitral proceedings"); and (iv) from arbitral award to execution of the award ("post-award period").
Relief under Section 9 of the Act can be granted at any stage– from the pre-commencement period to the post-award period. In contrast, relief under Section 17 of the Act can only be sought during the pendency of the arbitral proceedings.
A cursory perusal of Sections 9 and 17 of the Act would show that the nature of relief that can be granted by a Court under Section 9 of the Act or by an arbitral tribunal under Section 17 of the Act are identical. Given the identical nature of reliefs under Sections 9 and 17 of the Act, parties are often faced with a situation where during the pendency of the proceedings under Section 9 of the Act, an arbitral tribunal comes to be constituted and further continuation of the proceedings under Section 9 of the Act is called into question.
This article seeks to answer two main questions: a) What, if any, is the distinction between the scope and enforceability of reliefs under Sections 9 and 17 of the Act; and b) When can a Court exercise its power under Section 9 during the pendency of arbitral proceedings.
II. March of law
a. Position before the 2015 Amendment
After constitution of an arbitral tribunal, the parties to an arbitration agreement are usually put to an election, to either apply for interim relief before the Tribunal under Section 17 of the Act or to continue the proceedings already pending before a Court under Section 9 of the Act1.
Such a choice would be pointless if interim orders issued by the Arbitral Tribunal were toothless or disregarded, as all parties would then opt to go directly to the Court. The Supreme Court in Sundaram Finance Ltd. v. NEPC India Ltd.2 ("Sundaram Finance") and M.D Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd3 ("Army Welfare Housing") observed that orders passed under the erstwhile Section 17 of the Act could not be enforced as orders of the Court. This effectively meant that a party who had suffered an order under the erstwhile Section 17 of the Act could potentially choose to disregard or wilfully disobey the said order, knowing fully well that the Act did not provide for a mechanism for enforcement of such orders as orders of a Court, and therefore there was no risk of contempt or execution proceedings being initiated to enforce such an order.
b. Judicial intervention to address the gap in the enforceability of interim orders
In the absence of an appropriate statutory mechanism to enforce an interim order(s) issued by an arbitral tribunal, the Delhi High Court and later the Supreme Court attempted to resolve the issue by holding that that any individual who fails to comply with an arbitral tribunal's order under Section 17 of the Act would be regarded as having "made any other default" or "guilty of any contempt to the arbitral tribunal during the conduct of the proceedings" under Section 27(5) of the Act. The Delhi High Court4 took a view that the recourse for the aggrieved party would be to petition the arbitral tribunal to submit a representation to the Court, requesting imposition of appropriate sanctions on the erring parties. Upon receipt of such representation, the Court was empowered to treat the defaulting party as if it were in contempt of a Court.
c. Law Commission's recommendations on enhancing the enforceability of interim orders issued by Tribunals under Section 17 of the Act.
The 246th Law Commission under the Chairmanship of Hon'ble Mr. Justice A.P Shah (Retd.) acknowledged the necessity of clothing arbitral tribunals with necessary powers to enforce any interim orders under Section 17 of Act as orders of the Court.. The Law Commission took note of Delhi High Court's decision in Sri Krishnan5 but came to the conclusion that it provided an incomplete and onerous remedy. Therefore, to address the existing lacunae, the Law Commission proposed amendments to Section 17 of the Act to ensure that any interim orders passed by arbitral tribunals were given same status as orders of the Court.
d. Position since 2015
Pursuant to the recommendation of the Law Commission, the Act was amended vide Arbitration and Conciliation (Amendment) Act, 2015 ("2015 Amendment") and Section 17(2) of the Act was inserted. Section 17(2) of the Act deems an order under Section 17 of the Act to be an order of the Court, executable under the provisions of the Code of Civil Procedure, 1908 ("CPC").
III. Interim reliefs during pendency of arbitral proceedings
Section 9(3) of the Act prohibits the Court from entertaining an application under Section 9 of the Act once an arbitral tribunal has been constituted, unless the Court finds that circumstances exist which may render the relief under Section 17 of the Act inefficacious. Possible scenarios where the remedy under Section 17 of the Act may not be efficacious are as follows:
a. Administrative inefficiency
The Calcutta High Court has held that lethargy shown by an arbitrator in the conduct of arbitral proceedings would render the relief under Section 17 of the Act inefficacious.6 This position of law has also been relied on by the Supreme Court.7
b. Relief against third-party
Whether a Court under Section 9 of the Act has the power grant reliefs again third parties has been a subject matter of much debate. While some High Courts have taken the view that the interim reliefs under Section 9 of the Act can be granted against third parties,8 other High Courts have taken a contrarian view and have held that interim reliefs under Section 9 of the Act ought not to be granted against parties who are not parties to the arbitration agreement itself9. To give complete effect to the legislative intent of protecting the subject matter of the dispute and in order to ensure that a scrupulous party does not defeat the entire process of arbitration by dissipating its assets and rendering an award unenforceable, the power to grant interim reliefs against third parties under Section 9 of the Act, ought to be extended to third parties on a case to case basis.
c. Foreign seated arbitrations
The Delhi High Court in Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd.10 ("Shanghai Single Judge"), Ashwani Minda v. U-Shin Limited11 ("Ashwani Minda") and Raffles Design International India Private Limited & Anr. v. Educomp Professional Education Limited & Ors12 ("Raffles") was confronted with two key legal questions – (a) Does Section 9(3) of the Act restrict interim relief to domestic arbitrations, given its reference to Section 17 of the Act — which applies only to Part I Arbitrations? (b) Does the exception under Section 9(3) of the Act, which allows court intervention when relief from the arbitral tribunal is ineffective, apply only to domestic arbitrations, or does it also extend to foreign-seated arbitrations?
In Shanghai Single Judge, following the law laid down in Ashwani Minda and Raffles, it was held that a petition under Section 9 of the Act would be maintainable, even after an arbitral tribunal is constituted, provided that the parties have not excluded such jurisdiction by agreement, and that the Applicant is able to demonstrate that there is no efficacious interim remedy available before the arbitral tribunal. The Court further held that mere agreement to be bound by certain foreign arbitral procedural rules would not exclude the jurisdiction of the Indian Courts under Section 9 of the Act. The Court noted that, unlike decrees of foreign courts, interim measures granted by foreign-seated arbitral tribunals cannot be enforced in Indian Courts, and when only Indian Courts have natural/personal jurisdiction over the Respondent or its assets, Indian Courts can entertain applications under Section 9 of the Act, as the arbitral tribunal or foreign courts would not be able to provide an efficacious remedy against the person or property of such Respondent. It is to be noted though Shanghai Single Judge held that the application was maintainable, relief was refused on merits.
The position of law on maintainability laid down by Shanghai Single Judge was affirmed on appeal by a Division Bench of the Delhi High Court in Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd.13 ("Shanghai Division Bench"). In Shanghai Division Bench, due to a change in the factual circumstances, question arose as to the maintainability of the application under Section 9 of the Act after an award was passed. The Division Bench clarified that interim measures under Section 9 of the Act can be availed at all stages of the arbitral proceedings till such time the award is realised by the Award Holder. It is noteworthy that the Shanghai Division Bench judgement reversed the Shanghai Single Judge judgement on merits and granted relief to the Applicant. While the Respondents filed an appeal before the Supreme Court, the same came to be withdrawn.14
In effect, the bar under Section 9(3) of the Act does not preclude the parties to foreign seated arbitration to approach Indian courts for interim measures when the remedy before the foreign seated arbitral tribunal is inefficacious, thereby reinforcing the objective of 2015 Amendment.
There are several circumstances which warrant intervention of Indian courts despite arbitration being seated at a foreign jurisdiction, including but not limited to - (a) lack of express provisions under the Act or the CPC to directly enforce interim order passed by foreign seated arbitral15 (b) situs of asset is India16 (c) likeliness of dissipation of assets located in India to render the Award passed by the foreign seated arbitral tribunal ineffective17 (d) laborious process of approaching the Indian courts under Sections 13 and 44A of the CPC to enforce contempt proceedings initiated before foreign courts or foreign seated arbitral. The illustrations mentioned above collectively highlight the practical challenges that arise in protecting the subject matter of arbitration during the pendency of arbitral proceedings. These are circumstances that may render the remedy before the foreign seated arbitral inefficacious and were sought to be addressed by the Shanghai Division Bench judgement.
IV. Proposed amendment under the draft Arbitration and Conciliation (Amendment) Bill, 2024
The Government of India has proposed to amend the Act and has released a draft Arbitration and Conciliation (Amendment) Bill, 2024 ("Draft Bill") inviting comments from stakeholders.18 The Draft Bill seeks to amend Section 9 of the Act and insert Section 9A to the Act.
Sub-section 1 of Section 9 is proposed to be amended to be read as under –
"9. Interim measures, etc., by Court.— (1) A party may, before the commencement arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with the provisions of the Act, apply to a court ..."
(emphasis supplied)
It is to be noted that Section 9(3) of the Act is proposed to be deleted. Therefore, under the proposed Section 9, interim relief cannot be granted by Court during the pre-acceptance period and during pendency of arbitral proceedings.
To provide for interim measures during this period, Section 9A is proposed to be inserted to the Act, which reads as under –
"9A. Emergency arbitrators – (1) Arbitral institutions may, for the purpose of grant of interim measures referred to in section 9, provide for appointment of emergency arbitrator prior to the constitution of an arbitral tribunal.
(2) The emergency arbitrator appointed under sub-section (1) shall conduct proceedings in the manner as may be specified by the Council.
(3) Any order passed by an emergency arbitrator under sub-section (2) shall be enforced in the same manner as if it is an order of an arbitral tribunal under sub-section (2) of section 17 of the Act.
(4) An order of the emergency arbitrator may be confirmed, modified, or vacated, in whole or in part, by an order or arbitral award made by the arbitral tribunal."
The proposed amendments to Section 9 and insertion of Section 9A to the Act seek to curtail the Court's powers to entertain applications for interim relief. While Section 9A seeks to introduce emergency arbitrators for grant of interim measures during pre-acceptance period and during the pendency of arbitral proceedings, the implementation of this provision is subject to constitution of the Arbitration Council of India and framing of rules for conduct of such emergency arbitration.
The effect of the proposed amendment is that during the pre-acceptance period and during the pendency of arbitral proceedings, Courts will not have the power to entertain applications under Section 9 of the Act, without exception. Effectively, once the arbitral proceedings have commenced (upon issuance of notice under Section 21 of the Act), till the arbitral tribunal is constituted, the parties will have to seek interim measures before the arbitral tribunal or the emergency arbitrator, as the case may be.
Without a fully functional system in place, deleting Section 9(3) of the Act prematurely may leave parties without any immediate recourse for urgent relief once arbitration proceedings commence. The applicability of the proposed Section 9A (emergency arbitrators) to ad-hoc arbitrations is also a question that remains to be answered.
Until the emergency arbitration process is fully developed and accessible across all arbitral institutions in India, it is essential to retain the Court's power under Section 9 of the Act during the pendency of arbitral proceedings. This will ensure that parties continue to have an effective and timely remedy to protect their rights and the subject matter of arbitration.
V. Conclusion
The framework for interim relief under the Arbitration and Conciliation Act, 1996 has evolved significantly, with the law now recognising the enforceability of interim orders passed by arbitral tribunals as orders of the Court. This has strengthened party autonomy and reduced unnecessary court intervention once an arbitral tribunal is in place.
However, practical issues continue to arise, particularly in cases involving administrative delays, third-party involvement, or foreign-seated arbitrations where relief under Section 17 of the Act is not an effective option. These are not exhaustive circumstances which render Section 17 of the Act inefficacious. Given the facts and circumstances of each case it would fall on the Court to decide as to whether relief under Section 17 of the Act is efficacious when an application under Section 9 is filed during the pendency of the arbitral proceedings, with the protection of the subject matter of arbitration being the foremost question which must guide the Court in its decision making.
Footnotes
1. Alka Chandewar v. Shamshul Ishrar Khan, Civil Appeal No. 8720 of 2017
2. (1999) 2 SCC 479
3. (2004) 9 SCC 619
4. Sri Krishan v. Anand, (2009) 3 Arb LR 447 (Del).
5. Supra note no. 4.
6. Srei Equipment Finance Ltd. (Sefl) v. Ray Infra Services (P) Ltd., 2016 SCC OnLine Cal 6765
7. ArcelorMittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712.
8. Value Advisory Services v. ZTE Corpn., 2009 SCC OnLine Del 1961;MP Space Dynamics (P) Ltd. v. Janardan Chavan, 2021 SCC OnLine Bom 6142; Mohammad Ishaq Bhat v. Tariq Ahmad Sofi, AIR 2010 J&K 56.
9. Shoney Sanilv.Coastal Foundations (P) Ltd., AIR 2006 Kerala 206; Vijay Arvind Jariwala v. Umang Jatin Gandhi, 2022 SCC OnLine Guj 2648; Kris Heavy Engineering v. PNHB LANCO KHEC, 2013 SCC OnLine Mad 1419; Brahmaputra Realtors (P.) Ltd. v. G.G. Transport (P.) Ltd., 2013 SCC OnLine Gau 190.
10. 2022 SCC OnLine Del 2112.
11. 2020 SCC OnLine Del 1648.
12. 2016 SCC OnLine Del 5521.
13. 2024 SCC OnLine Del 1606
14. Reliance Infrastructure Ltd v. Shanghai Electric Group Co Ltd., SLP(C) Diary No. 14788 of 2024 (Order dated July 09, 2024).
15. Law Commission of India, Report No. 246, Amendments to Arbitration and Conciliation Act, 1996.
16. ibid.
17. ibid.
18. Press Release: Press Information Bureau, available at https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=2066081.
Originally published 28 July 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
