2.5.1 Overview of Interim Measures
Interim measures are provisional remedies granted to preserve the status quo, protect evidence, or prevent irreparable harm pending final resolution of the dispute. The Arbitration Act provides two parallel tracks: court relief under Section 9 and tribunal relief under Section 17.
Purpose of Interim Measures
- Status Quo Preservation: Prevent parties from altering facts during proceedings
- Asset Protection: Prevent dissipation of assets that may be needed to satisfy award
- Evidence Preservation: Protect documents or evidence from destruction
- Prevent Irreparable Harm: Stop actions that cannot be undone or compensated
- Business Continuity: Allow ongoing commercial relationships to continue
| Section 9 (Court) | Section 17 (Tribunal) |
|---|---|
| Available before, during, or after arbitration | Only during arbitration proceedings |
| Court has inherent powers beyond listed measures | Powers equivalent to court under Section 9 |
| Third parties can be bound | Only parties to arbitration bound |
| Enforcement through court execution machinery | Enforceable as court order (post-2015) |
| Limited role once tribunal constituted | Primary route after tribunal constituted |
2.5.2 Section 9 - Court-Ordered Interim Measures
Types of Relief Available
Section 9 empowers courts to grant:
- Appointment of Guardian: For minors or persons of unsound mind
- Preservation Measures: Preservation, interim custody, sale of goods subject matter of arbitration
- Amount Security: Securing the amount in dispute
- Detention/Preservation/Inspection: Of property or documents
- Interim Injunction: Any other interim measure as court deems just and convenient
Timing of Section 9 Applications
- Before Arbitration: Party must commence arbitration within 90 days of court order
- During Arbitration: Limited role - only in circumstances where tribunal remedy is inefficacious
- After Award: To protect subject matter pending enforcement
Section 9(3) introduced a significant limitation: once tribunal is constituted, court shall not entertain Section 9 application unless circumstances exist that may not render Section 17 remedy efficacious. This promotes tribunal primacy for interim relief.
Test for Granting Interim Relief
Courts apply established principles for interim injunctions:
- Prima Facie Case: Applicant must show arguable case on merits
- Balance of Convenience: Hardship to applicant if denied vs. hardship to respondent if granted
- Irreparable Harm: Damages would not be adequate remedy
- Clean Hands: Applicant must not have engaged in inequitable conduct
2.5.3 Section 17 - Tribunal-Ordered Interim Measures
Powers of Tribunal (Post-2015 Amendment)
Section 17 empowers the tribunal to grant same interim measures as court under Section 9:
- Preservation of subject matter
- Security for amount in dispute
- Detention, preservation, inspection of property
- Interim injunction
- Any other interim measure deemed necessary
Enforceability - Section 17(2)
The 2015 Amendment added a crucial provision: Section 17 orders shall be deemed to be orders of court and enforceable under the Code of Civil Procedure as if issued by court.
When seeking enforcement of a Section 17 order, file execution petition before the court that would have jurisdiction over the arbitration. Treat it as enforcement of a court order under CPC Order 21.
Section 17 Procedure
- Application to tribunal (written, with supporting evidence)
- Notice to other party (unless ex parte relief justified)
- Hearing (can be on documents or oral)
- Order with reasons (may include conditions/security)
- Review/modification by tribunal if circumstances change
2.5.4 Emergency Arbitration
When is Emergency Arbitration Needed?
Emergency arbitration addresses the gap between dispute arising and tribunal constitution - often 4-8 weeks. It's needed when:
- Urgent relief required before tribunal can be formed
- Party prefers arbitral forum over court
- Seat is in different jurisdiction from where assets located
- Court relief may be slower or less suitable
Institutional Rules
Major institutions offer emergency arbitration procedures:
| Institution | Timeline | Key Features |
|---|---|---|
| ICC | 15 days for order | Emergency arbitrator appointed within 2 days |
| SIAC | 14 days for order | EA appointed within 1 day; interim order within 5 days |
| LCIA | 14 days for order | EA appointed within 3 days |
| MCIA | 14 days for order | EA appointed within 2 days |
Status under Indian Law
The 2015 Amendment did not expressly provide for emergency arbitration, but Section 17(1) refers to "arbitral tribunal" which some argue includes emergency arbitrators. The 2019 Amendment sought to clarify by including emergency arbitrator orders within Section 17's scope.
Enforcement of emergency arbitrator orders in India remains evolving. For urgent relief with certain enforcement, Section 9 court application may still be preferable in some situations, particularly where assets are in India.
2.5.5 Practical Considerations
Choosing Between Section 9 and Section 17
| Consider | Section 9 | Section 17 |
|---|---|---|
| Before tribunal constituted | Primary option | Not available |
| Third parties involved | Better option - can bind third parties | Only binds arbitration parties |
| Urgency | Court processes may be slower | Tribunal may be more responsive |
| Seat outside India | Indian court available for India-located assets | Tribunal order may need enforcement |
| Confidentiality concern | Court proceedings may be public | Arbitration confidentiality maintained |
Best Practices for Interim Relief Applications
- Act promptly - delay undermines urgency argument
- Provide full and frank disclosure - especially for ex parte relief
- Offer undertaking as to damages
- Draft orders precisely - vague orders are difficult to enforce
- Consider security requirements
- Plan for enforcement challenges
Key Takeaways
- Section 9 provides court-ordered interim relief; Section 17 provides tribunal-ordered relief
- Post-2015, court role is limited once tribunal is constituted - Section 17 is primary
- Section 17 orders are now enforceable as court orders under CPC
- Pre-arbitration relief under Section 9 requires commencing arbitration within 90 days
- Emergency arbitration fills the gap before tribunal constitution
- Major institutions (ICC, SIAC, LCIA, MCIA) offer emergency arbitrator procedures
- Choose forum based on timing, third parties, urgency, and enforcement considerations
- Standard injunction tests apply: prima facie case, balance of convenience, irreparable harm