Interim relief serves as a significant safeguard in the arbitration process, ensuring that assets are protected and the final award remains meaningful rather than a “useless victory”. Without these urgent measures, parties might waste assets, change contracts, or tamper with evidence while the tribunal is being formed, leaving the winning party with a hollow win. Within the Indian legal framework, this protection is primarily governed by Section 9 and Section 17 of the Arbitration and Conciliation Act, 1996. While both sections aim to maintain the status quo and prevent irreparable harm, they operate at different stages of the dispute and carry distinct procedural implications that every practitioner must understand.
Section 9: The Court’s Power to Protect
Prior to the 2015 amendment to the Arbitration and Conciliation Act, 1996, Section 9 of the Act conferred the liberty to approach a court of law for interim reliefs at any stage before the commencement of arbitral proceedings, during their pendency, or even after the issuance of the arbitral award, provided that such application was made before the enforcement of the award.
These measures are broad and include maintaining the status quo, securing disputed amounts, and protecting property or property rights. Historically, Indian courts have been flexible in granting such relief, recognising their essential role in the arbitration process. However, the process can be slow, public, and might overlap with tribunal oversight once it starts. To address this, the 2015 Amendment added Section 9(3), which prevents courts from hearing applications after a tribunal is formed unless the court believes the tribunal’s own remedy under Section 17 would be ineffective. This shift effectively moves the primary power for interim relief from the judiciary to the arbitral tribunal.
Section 17: Empowering the Arbitral Tribunal
In contrast to the judicial oversight of Section 9, Section 17 allows arbitral tribunals to order the same interim measures as a court. Before the 2015 reforms, these orders were considered “weak” because they lacked direct enforcement power and required separate court intervention. Previously, tribunals had to rely on Section 27(5) to seek court assistance for contempt if their orders were ignored. This changed drastically with the addition of Section 17(2), which mandates that tribunal orders are now enforceable in the same manner as court orders under the Code of Civil Procedure, 1908. This alignment with the UNCITRAL Model Law has given tribunals real power to safeguard the arbitration process independently.
Distinguishing the Two Pillars of Interim Relief
While Section 9 and Section 17 offer similar types of relief and use similar legal tests, they are fundamentally different in their source of authority and timing. Relief from courts under Section 9 is derived from statutory authority, whereas tribunal relief under Section 17 became equally enforceable after the 2015 amendment. The primary difference lies in their availability: Section 9 can be invoked before any tribunal even exists, whereas Section 17 requires a fully constituted tribunal. Furthermore, Section 9 is now seen as a “backup” used only if the tribunal’s remedy under Section 17 might not be effective. While court-led relief is public, tribunal-led relief is confidential and typically quicker, though enforcing it in foreign-seated cases remains a point of legal uncertainty.
The main issue is how to classify emergency orders. Under the Act, an ‘award’ usually means a final decision on rights. Emergency orders are temporary, can be reviewed by the main tribunal, and aim to keep things as they are. This makes them different from final awards. If treated as awards, they could be enforced under the New York Convention through Part II of the Act. But most countries, including India, see them as interim measures. This is why foreign-seated emergency awards cannot be enforced under Part II, which covers final awards.
Landmark Judicial Precedents
The interpretation of these sections has been heavily influenced by landmark cases that define the boundaries of enforcement. In Alka Chandewar vs. Shamshul Ishrar Khan (2017) 16 SCC 119, the Supreme Court highlighted the historical limitations of Section 17, noting that tribunals previously had to ask courts to decide on penalties or punishments for ignored orders. A pivotal moment arrived with the case of Amazon.com NV Investment Holdings LLC v. Future Retail Ltd, (2022) 1 SCC 209, where the Supreme Court held that the term ‘arbitral tribunal’ in Section 2(1)(d) includes emergency arbitrators if parties agree to institutional rules that allow for them. This ruling confirmed that orders from emergency arbitrators in India-seated arbitrations fall under Section 17(1) and are enforceable under Section 17(2). Additionally, in the case of Ashwani Minda v. U-Shin Ltd., (2020) SCC OnLine Del 721, the court denied a Section 9 application after the applicant failed to get relief from an emergency arbitrator, stressing that a party cannot take a ‘second bite at the cherry’.
The Availability of Section 9 Relief After Tribunal Constitution
An important subsidiary issue is the availability of Section 9 relief once an emergency arbitrator has been approached or a tribunal has been constituted. The courts have developed a nuanced approach in this regard. After the tribunal is formed, the 2015 Amendment added a condition to Section 9(1) stating that the court will not hear an application under this section unless it finds that the remedy under Section 17 might not be effective. This confirms the tribunal’s primary role. Once the tribunal exists, the court’s power under Section 9 becomes a backup, used only if the tribunal’s remedy doesn’t work. Following an emergency arbitrator’s order, courts generally respect the process chosen by the parties. If an emergency arbitrator has issued an order, courts are usually reluctant to allow a Section 9 application for the same relief unless exceptional reasons show the emergency process failed.
Impact on Awards and Enforcement
The classification of interim relief, whether as an “order” or an “award”, remains a central challenge. Under the Act, an ‘award’ usually refers to a final decision on rights, whereas emergency orders are temporary and subject to review by the main tribunal. This is why foreign-seated emergency awards cannot currently be enforced under Part II of the Act, which covers final awards. To resolve this, the proposed Arbitration and Conciliation (Amendment) Bill, 2024, introduces Section 9A, which would formally recognise emergency arbitration and allow the enforcement of emergency awards from foreign-seated arbitrations. If passed, this would bring India in line with leading international arbitration hubs and demonstrate a commitment to effective interim protection across borders.
Conclusion
India has made rapid progress in the global arbitration landscape, evolving from a period of uncertainty to significant legal modernisation, through the 2024 policy recommendations. The ultimate goal is to create a more flexible, efficient, and globally recognised system that places India at the forefront of arbitration innovation. By combining clear statutory laws, mature judicial precedents, and national consistency, India is positioning itself to set new global standards for the enforcement of emergency arbitration and interim relief. India is no longer just aiming to match international best practices but is ready to lead the next stage of development in the field of dispute resolution.
Author: Shantanu Garg, Senior Associate
Co-author: Vanshika Gupta, Intern
