Interim Measures by Court and Arbitral Tribunal: Section 9 and 17

Arbitration has emerged as a preferred dispute resolution mechanism in commercial and contractual disputes due to its flexibility, confidentiality, and time efficiency. However, even arbitration is not immune from delays, procedural hurdles, or tactical conduct by parties that may frustrate the enforcement of eventual arbitral awards. In such situations, the absence of immediate protective remedies can render the arbitral process ineffective.

To address this concern, the Arbitration and Conciliation Act, 1996 provides for interim measures that may be granted either by courts or by arbitral tribunals at different stages of the arbitral process. These interim measures aim to preserve the subject-matter of the dispute, secure the amount in controversy, and prevent irreparable harm pending final adjudication.

Interim measures are governed primarily by Section 9 (interim measures by courts) and Section 17 (interim measures by arbitral tribunals) of the Act. Over the years, legislative amendments and judicial interpretation have clarified the scope, purpose, and limits of these provisions. This article examines the legal framework governing interim measures by courts and arbitral tribunals, along with emerging judicial trends in India.

Concept and Purpose of Interim Measures in Arbitration

Interim measures are temporary protective remedies granted during the pendency of arbitral proceedings or even before their commencement. Their primary purpose is to ensure that the arbitral proceedings do not become futile or meaningless.

Interim reliefs generally serve the following objectives:

• Preservation of the subject-matter of the dispute
• Protection against dissipation or alienation of assets
• Securing the amount in dispute
• Preventing irreparable harm pending arbitration
• Ensuring enforceability of the final arbitral award

Courts and arbitral tribunals generally apply well-established principles while granting interim reliefs, namely:

• Existence of a prima facie case
• Balance of convenience in favour of the applicant
• Likelihood of irreparable harm if relief is not granted

These principles ensure that interim measures are granted cautiously and only when genuinely necessary.

Interim Measures by Court under Section 9 of the Act

Scope of Section 9

Section 9 of the Arbitration and Conciliation Act empowers courts to grant interim measures before, during, or after arbitral proceedings but before enforcement of the arbitral award.

A party to an arbitration agreement may approach the court:

• Before the commencement of arbitration
• During the pendency of arbitral proceedings
• After the arbitral award is passed but before its enforcement under Section 36

This provision ensures that judicial protection is available when the arbitral tribunal is not in a position to grant effective relief.

Types of Interim Reliefs under Section 9

Section 9(1)(ii) provides an illustrative list of interim measures that may be granted by courts. These include:

• Appointment of a guardian for a minor or person of unsound mind
• Preservation, interim custody, or sale of goods forming part of the dispute
• Securing the amount in dispute in arbitration
• Detention, preservation, or inspection of property or documents
• Grant of interim injunctions or appointment of receivers
• Any other interim measure deemed just and convenient by the court

The provision grants wide discretionary powers to courts to mould relief based on the facts and circumstances of each case.

Jurisdiction of Courts under Section 9

The jurisdiction to entertain an application under Section 9 lies with the court that would have jurisdiction over the subject-matter of the dispute if it were the subject of a civil suit.

In domestic arbitrations, applications may lie before the appropriate District Court or High Court. In cases of international commercial arbitration, only the High Court has jurisdiction.

Following the 2015 Amendment, parties to a foreign-seated arbitration may also approach Indian courts under Section 9 unless the applicability of Part I of the Act has been expressly or impliedly excluded.

Section 9(3): Restriction on Court’s Jurisdiction

Section 9(3) introduces an important limitation on the court’s power. Once an arbitral tribunal has been constituted, courts are generally barred from entertaining applications under Section 9 unless the court finds that the remedy available under Section 17 is ineffective.

This provision reflects the legislative intent to minimise judicial interference and promote arbitral autonomy. However, Section 9(3) does not completely oust the court’s jurisdiction. Courts may still intervene where circumstances make relief from the arbitral tribunal impractical or ineffective.

Interim Measures by Arbitral Tribunal under Section 17 of the Act

Evolution of Section 17

Section 17 empowers the arbitral tribunal to grant interim measures during the pendency of arbitration. Prior to the 2015 Amendment, orders passed by arbitral tribunals under Section 17 lacked enforceability, which led parties to prefer approaching courts under Section 9.

The 2015 Amendment significantly strengthened Section 17 by:

• Expanding the scope of interim measures
• Equating the powers of arbitral tribunals with those of courts under Section 9
• Making tribunal-granted interim measures enforceable as court orders

This marked a shift towards greater tribunal autonomy.

Types of Interim Reliefs under Section 17

The nature of interim reliefs that may be granted under Section 17 mirrors those available under Section 9. These include:

• Preservation or interim custody of goods
• Securing the amount in dispute
• Interim injunctions and appointment of receivers
• Protection or inspection of property or documents

However, the arbitral tribunal’s jurisdiction is limited to parties to the arbitration agreement. It cannot issue directions against third parties.

Enforceability of Section 17 Orders

Post-2015, interim orders passed by arbitral tribunals under Section 17 are deemed to be orders of the court and are enforceable in the same manner.

Non-compliance with such orders may attract consequences similar to disobedience of court orders, thereby addressing earlier concerns regarding lack of enforceability.

Appeals against Interim Orders

Appeals against interim measures are governed by Section 37 of the Act.

• Orders granting or refusing interim relief under Section 9 are appealable under Section 37(1)(b)
• Orders granting or refusing interim relief under Section 17 are appealable under Section 37(2)(b)

The appellate mechanism ensures judicial oversight while maintaining the efficiency of the arbitral process.

Judicial Approach to Powers under Sections 9 and 17

Indian courts have consistently held that, post-2015 Amendment, the powers of arbitral tribunals under Section 17 are substantially on par with those of courts under Section 9.

Judicial precedents emphasise that courts should refrain from entertaining Section 9 applications once an arbitral tribunal is constituted, unless exceptional circumstances exist. This approach strengthens arbitration as a self-contained dispute resolution mechanism.

Application of CPC Principles to Interim Measures

Although the Code of Civil Procedure, 1908 does not strictly apply to arbitration proceedings, courts have often drawn guidance from principles underlying Orders 38 and 39 CPC while granting interim reliefs.

Indian courts have clarified that:

• CPC provisions are not binding on courts exercising powers under Section 9
• Courts may adopt CPC principles as guiding factors, not rigid rules
• Procedural technicalities should not defeat substantive justice in arbitration

This balanced approach prevents misuse of interim measures while ensuring fairness.

Securing the Amount in Dispute

One of the most significant interim reliefs sought in arbitration is securing the amount in dispute. Courts have held that the purpose of such relief is to prevent the arbitration from becoming nugatory.

Judicial decisions indicate that actual proof of asset dissipation is not always mandatory. A strong likelihood of diminution of assets may justify interim protection, provided the basic principles of prima facie case and balance of convenience are satisfied.

Interim Measures and Foreign-Seated Arbitrations

Interim orders passed by arbitral tribunals seated outside India are not directly enforceable in India under Section 17. In such cases, parties must approach Indian courts under Section 9, unless its applicability has been excluded by agreement.

This position underscores the continuing relevance of Section 9 in international commercial arbitration involving Indian assets.

Conclusion

Interim measures form an indispensable part of the arbitration framework in India. Sections 9 and 17 of the Arbitration and Conciliation Act, 1996 collectively ensure that parties are afforded adequate protection at every stage of the arbitral process.

Legislative amendments, particularly the 2015 Amendment, have significantly reduced judicial intervention by strengthening the powers and enforceability of arbitral tribunal orders. At the same time, courts continue to play a crucial role in situations where tribunal remedies may be ineffective.