Key points
- Section 17 gives the tribunal the same powers to grant interim measures as a court has under Section 9, and its orders are enforceable as court orders.
- An emergency arbitrator's award in an India-seated arbitration is enforceable under Section 17(2) (Amazon.com NV Investment Holdings v. Future Retail, 2021).
- After the tribunal is constituted, courts will decline Section 9 applications unless the Section 17 remedy is not efficacious.
Section 17 powers
The 2015 amendment aligned Section 17 with Section 9: the tribunal can order security for the amount in dispute, preservation of property, injunctions, appointment of a receiver and any other interim measure. Its orders are deemed orders of the court and enforceable under the CPC, so a party who ignores a Section 17 order faces execution and contempt.
Emergency arbitrators
Institutional rules such as those of the Delhi International Arbitration Centre, MCIA and SIAC provide for an emergency arbitrator who can grant urgent relief within days, before the full tribunal is formed. The Act does not mention emergency arbitrators, but in Amazon v. Future Retail the Supreme Court held that where parties agree to institutional rules containing such a mechanism in an India-seated arbitration, the emergency award is an order under Section 17(1) and enforceable under Section 17(2).
Court or tribunal?
The court remains the right forum before the tribunal exists and where an order must bind third parties, for example a bank, or requires coercive machinery the tribunal lacks. Once the tribunal is in place, Section 9(3) directs the court to step back unless the tribunal cannot act effectively.
Appeals
A Section 17 order is appealable under Section 37(2)(b) to the court that would hear appeals from the seat court, giving a single tier of appeal.
Frequently asked questions
Can a tribunal order attachment of bank accounts?
It can direct a party to furnish security or restrain a party from dealing with an account, and the order is enforceable through the court. It cannot itself issue a garnishee order to a bank that is not party to the arbitration.
Are emergency arbitrator orders in foreign-seated arbitrations enforceable in India?
Not directly. A party would need to seek Section 9 relief from an Indian court, which is available in foreign-seated arbitrations unless excluded by agreement.
Related practice area: Commercial Litigation & Arbitration
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.