Key points
- Section 9 allows a court to grant interim measures before arbitration commences, during it, or after the award but before enforcement.
- If relief is granted before arbitration begins, proceedings must be commenced within 90 days of the order.
- Once the tribunal is constituted, the court will not entertain a Section 9 application unless the Section 17 remedy is not efficacious.
What Section 9 covers
The court can appoint a guardian for a minor party, order preservation, custody or sale of goods that are the subject of the dispute, secure the amount in dispute, order inspection or preservation of property or evidence, grant interim injunctions, appoint a receiver, and make any other interim order it considers just. In practice the commonest orders are injunctions restraining invocation of bank guarantees, encashment of security, alienation of property, and directions to furnish security for the claim.
The test
Courts apply the same three-part test as for a civil injunction: a prima facie case, balance of convenience and irreparable injury, informed by the principles of the CPC but not bound by its rigidity. For attachment-type relief, the applicant must show that the respondent is likely to dissipate assets to defeat the award.
Timing
Before the tribunal is constituted, Section 9 is the only route. After constitution, Section 9(3) directs the court not to entertain an application unless circumstances make the Section 17 remedy before the tribunal inefficacious, for example where the tribunal cannot sit urgently or the order needs to bind third parties such as banks.
Which court
The court with jurisdiction over the seat of arbitration, or where the seat is not designated, the court that would have jurisdiction over the subject matter. For international commercial arbitration, only the High Court.
Frequently asked questions
Can a Section 9 order be appealed?
Yes, under Section 37(1)(b), to the court authorised to hear appeals from the original decrees of the court passing the order; for a Single Judge of the Delhi High Court, to a Division Bench.
Do I need to have invoked arbitration before filing under Section 9?
No, but the court expects a genuine intention to arbitrate, and the arbitration must be commenced within 90 days of the interim order or such further time as the court allows.
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.