Interim Reliefs in Arbitral

Proceedings
Section 9 & Section 17- The
Arbitration and Conciliation Act, 1996
Compiled by- Asst. Prof. Anjali Bhatt
• Arbitration is a form of alternative dispute resolution is a technique for the
resolution of disputes outside the courts,
• Where the parties to an dispute refer it to one or more person
• By those decisions they agree to be bound.

“It is a resolution technique in which a third party reviews the evidence in the case and
imposes decision that is legally binding for both sides and enforceable. Arbitration is
often used for the resolution of commercial disputes, particularly in the context of
international commercial transaction .”
• The Act provides autonomy to the parties in various matters and has reduced the
intervention of court to the minimum.
• However, the courts can intervene to give effect to various matters as permitted by
the Act. One such situation is to grant interim measures of protection as
contemplated by Section 9.
Interim measures, etc. by Court.—
1. A party may, before or during arbitral proceedings or at any time after the making of the
arbitral award but before it is enforced in accordance with Section 36, apply to a Court:—
i. for the appointment of a guardian for a minor or a person of unsound mind for the purposes
of arbitral proceedings; or
ii. for an interim measure of protection in respect of any of the following matters, namely:—
a) the preservation, interim custody or sale of any goods which are the subject-matter of
the arbitration agreement;
b) securing the amount in dispute in the arbitration;
c) the detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute in arbitration, or as to which any question may arise therein
and authorizing for any of the aforesaid purposes any person to enter upon any land or
building in the possession of any party, or authorizing any samples to be taken or any
observation to be made, or experiment to be tried,
which may be necessary or expedient for the purpose of obtaining full information or
evidence;
d) interim injunction or the appointment of a receiver;
e) such other interim measure of protection as may appear to the Court to be just
and convenient, and the Court shall have the same power for making orders as
it has for the purpose of, and in relation to, any proceedings before it.

2. [Where, before the commencement of the arbitral proceedings, a court passes

an order for any interim measure of protection under sub-section (1), the arbitral
proceedings shall be commenced within a period of ninety days from the date of
such order or within such further time as the court may determine.

3. Once the arbitral tribunal has been constituted, the court shall not entertain an
application under sub-section (1), unless the court finds that circumstances exist
which may not render the remedy provided under Section 17 efficacious.]
Amendment to Section 9 (Interim
Measures): 2015
• The Amendment Act 2015 has introduced certain changes to the provisions on
interim reliefs with respect to kind of reliefs available and the time-frame for
seeking such reliefs before courts, i.e., if an order of interim relief has been
granted by a court prior to the constitution of the arbitral tribunal, parties are
required to initiate arbitral proceedings within a period of ninety days.
• The amended section envisages that if the Court passes an interim measure of
protection under the section before commencement of arbitral proceedings, then
the arbitral proceedings shall have to commence within a period of 90 days from
the date of such order or within such time as the Court may determine.
• Also, that the Court shall not entertain any application under section 9 unless it
finds that circumstances exist which may not render the remedy under Section 17
efficacious.
• Once arbitral proceedings have commenced, the parties would have to seek
interim reliefs before the arbitral tribunal. A court would ordinarily not entertain
a petition for interim reliefs in such a situation unless the party is able to prove
the existence of circumstances that make a relief granted by an arbitral tribunal
inefficacious.

• After an award has been rendered by the arbitral tribunal, the successful party
may also choose to approach courts for interim reliefs to secure and safeguard
the effectiveness of the arbitral award prior to its enforcement.
Who can apply for interim measures
• Section 9 uses the term ‘A party’ which has been defined under Section 2(1)(h) of
The Act, where “party” means a party to an arbitration agreement.
• Therefore, the qualification which the person invoking jurisdiction of the Court
under Section 9 must possess is of being a ‘party’ to an arbitration agreement, A
person not party to an arbitration agreement cannot enter the Court for
protection under Section 9
• Any party to the arbitration agreement can make an application for interim
measures in the course of the arbitral proceedings.
• However, after making of the arbitral award, only a successful party which is
entitled to seek the enforcement of the award can apply to the court under
Section 9 for protection in terms of Section 9 (ii) of the Act.
 Which court to apply?
• The ‘court’ as defined in Section 2(1)(e) of the Act can either be a district court or
a High Court having ‘original jurisdiction’, which would have the jurisdiction to
decide the subject matter of the arbitration as if the same were the subject
matter of a civil suit.
• In case of an international commercial arbitration, i.e., an arbitration relating to a
commercial dispute where at least one of the parties is non-Indian, only a High
Court of a state in India will have powers under the Act.
• Section 9 continues to state that a party may ‘before… arbitral proceedings…
apply to court’, however in order to give full effect to the words “before or during
arbitral proceedings” occurring in Section 9 the courts have held that it would not
be necessary that a notice invoking the arbitration clause must be issued to the
opposite party before an application under Section 9 is filed.
• The issuance of a notice may, in a given case, be sufficient to establish the
manifest intention to have the dispute referred to arbitral tribunal, but a situation
may so demand that a party may choose to apply under Section 9 for an interim
measure even before issuing a notice contemplated by Section 21 of the said Act.
• If an application is so made the Court will first have to be satisfied that there
exists a valid arbitration agreement and the applicant intends to take the dispute
to arbitration.
Power to Grant Anton Piller Order
• Anton Piller Order is an ex-parte interlocutory mandatory order, which orders the
defendant to allow the plaintiff to enter his premises for the purpose of searching
for, inspecting and seizing property or documents infringing the plaintiff rights.
• However, such orders are passed by a court with circumspection because powers
are of considerable magnitude.
Power to Grant Mareva Injunction
• A Mareva injunction is a type of court order used in England and the United
Kingdom. It is a type of interlocutory relief designed to freeze the assets of a
defendant, in appropriate circumstances, pending determination of a plaintiff's
claim.
• The value of power to grant Mareva injunction is to prevent a third party from
disposing of any asset or removing it from the jurisdiction of the court so as to
defeat the claim of the plaintiff.
• The court has power to pass orders of attachment of property before award for
securing the amount where the same is subject matter of dispute.
• The content of the power would be same as the power exercised by the court
under order 38 Rule 5 of the Code of Civil Procedure wherein appropriate cases
the court can order attachment of the assets of a party to survive till judgement is
passed in the matter .”
 Circumstances preventing court from granting
interim relief

• If the interim relief prayed for u/s 9 would amount to granting final relief
frustrating the arbitration proceedings such a relief cannot be granted by the
court
• While several interim measures of protection can be ordered under section 9, the
section is not meant for interlocutory orders for the production of documents.
• The provision cannot be availed by a party for restraining the other party from
approaching the arbitral tribunal.
“For seeking interim relief u/s 9, subsistence and existence of a valid agreement
and intention of the parties to refer the dispute to arbitration is a pre-condition.”
Is parallel application u/s 9 as well as u/s 17 possible?
• The Court can exercise power under section 9 to grant interim measures even
during the pendency of application under section 17 before the arbitral tribunal.
• Remedy available to a party under section 17 is an additional remedy and is not
in substitution of section 9
 Interim Measures by the Arbitral Tribunal u/s 17 of
the 1996 Act- Before 2015 amendment act
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a
party to take any interim measure of protection as the arbitral tribunal may consider necessary in
respect of the subject-matter of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate security in connection with a
measure ordered under sub-section (1).”

DRAWBACKS OF THE PROVISION

• It was certainly a development from the 1940 Act where no such power was conferred on the
arbitral tribunal.
• “Unless otherwise agreed by the parties”- Sub-section (1) above indicates that the parties may by
agreement exclude the exercise of such a power thereby encouraging the autonomous nature of
ADRs.
• However, even this provision had its shortcomings.
• The power was limited to the extent of reference to the arbitration agreement. 
• Incidentally, the section does not provide for any means of enforceability in the manner a
court’s orders are enforced.
• When the position was challenged, the High Court of Delhi drew attention
towards Section 27 (5) which clearly lays days down that any person in contempt
of the arbitral tribunal during the conduct of the proceedings shall be liable to
punishment from court. (Sri Krishan vs. Anand, (2009) 3 Arb LR 447)
•  However, if the arbitral tribunal applies to the court for contempt of its interim
orders, only then will the court be able to proceed further which in due course
defeats the whole purpose of ADRs.
• The arbitral tribunals don’t have powers to enforce their interim orders on their
own accord and issuance of contempt proceedings by way of application to a
court seemed like a long, unnecessary and cumbersome process to put the
parties through.
Interim Measures by the Arbitral Tribunal u/s 17 of the 1996
Act- After 2015 amendment act
(1) A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it
is enforced in accordance with Section 36, apply to the arbitral tribunal—
1. for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral
proceedings; or
2. for an interim measure of protection in respect of any of the following matters, namely—
• the preservation, interim custody or sale of any goods which are the subject matter of the arbitration
agreement;
• securing the amount in dispute in the arbitration;
• the detention, preservation or inspection of any property or thing which is the subject matter of the
dispute in arbitration, or as to which any question may arise therein and authorising for any of the
aforesaid purposes any person to enter upon any land or building in the possession of any party, or
authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may
be necessary or expedient for the purpose of obtaining full information or evidence;
• interim injunction or the appointment of a receiver;
• such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient,
and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of,
and in relation to, any proceedings before it.
• (2) Subject to any orders passed in an appeal under Section 37, any order issued
by the arbitral tribunal under this section shall be deemed to be an order of the
court for all purposes and shall be enforceable under the Code of Civil Procedure,
1908 (5 of 1908), in the same manner as if it were an order of the court.”
• Alka Chadewar vs. Shamshul Ishrar Khan, (2017) 16 SCC 119-
In Justice Nariman’s words, section 17(2) was introduced as a complete solution to
the problem. Even after the amendment came into effect, certain clarifications
were required to understand its practicability. Various judicial decisions have since
then been announced, some of which are reiterated as follows:
“Non-adherence of orders issued under the section can lead to contempt of orders
and the Tribunals do not have to approach the High Court anymore for enforcing its
orders.” 

Therefore, § 27(5) has now been rendered affectless and the ADR process has
become a tad bit more self-sufficient.
At what stage the court can pass interim
order
• Section 9 is available even before the commencement of the arbitration.
• This is in contrast to the power given to the arbitrators who can exercise the
power u/s 17 only during the currency of the tribunal. Once the mandate of the
arbitral tribunal terminates, Section 17 cannot be pressed into service.
 Appeal against Interim Order- Section 37 in THE
ARBITRATION AND CONCILIATION ACT, 1996
(1) An appeal shall lie from the following orders (and from no others) to the Court
authorised by law to hear appeals from original decrees of the Court passing the
order, namely:—
(a) granting or refusing to grant any measure under section 9

(2) An appeal shall also lie to a Court from an order granting of the arbitral
tribunal.—
(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section,
but nothing in this section shall affect or take away any right to appeal to the
Supreme Court.