This is one of the strongest features of the Indian arbitration regime, and it is frequently the difference between a meaningful award and a worthless one.
Section 9: court-ordered interim measures
A party may apply to the court before, or during arbitral proceedings, or at any time after the making of the award but before it is enforced, for measures including:
- Preservation, interim custody or sale of goods that are the subject matter of the dispute
- Securing the amount in dispute
- Detention, preservation or inspection of property, including authorising entry onto land
- Interim injunctions and the appointment of a receiver
The court applies broadly the principles it would apply to an injunction: a prima facie case, balance of convenience, and irreparable injury.
The section also covers the appointment of a guardian for a minor or a person of unsound mind, and ends with a residuary limb covering any other interim measure that appears to the court to be just and convenient. The court has the same power to make orders as in any proceeding before it, so this is the familiar civil machinery rather than something special to arbitration. Where what you want is security for the amount in dispute, expect the discipline the court applies to attachment before judgment: you must show the other side is about to dispose of or remove property with the object of obstructing or delaying enforcement, not merely that you are worried about recovery. Our note on interim relief under Section 9 of the Arbitration Act works through each limb.
Where it is filed, and what you file
For a Bengaluru seated domestic arbitration the application ordinarily goes to the City Civil Court at Bengaluru, or to the Commercial Court where the dispute is a commercial dispute of the specified value. Choose deliberately, because Section 42 provides that once an application under Part I has been made in a court, that court alone has jurisdiction over the arbitral proceedings and over every later application, including the eventual challenge to the award.
The application itself is short. What decides it is the affidavit and the annexures: the contract with the clause, the correspondence showing the dispute, and documents evidencing the risk, such as a sale deed, a board resolution, a public notice, a bank statement or a registry search. Add a memo explaining the urgency if you seek an order before notice, and be ready to say why the relief cannot wait for the tribunal.
Where a court grants an interim measure before the commencement of arbitral proceedings, the arbitration must be commenced within 90 days of the order, or such further time as the court allows. Obtaining the injunction and then sitting on it is how parties lose it.
| Stage | Provision | Who grants it | Enforcement |
|---|---|---|---|
| Before the tribunal is constituted | Section 9 | The court at the seat | As a court order |
| After constitution | Section 17 | The tribunal | As if it were a court order |
| Institutional, pre-constitution | Emergency arbitrator | The institution's appointee | Depends on the rules and the seat |
| Appeal | Section 37 | The appellate court | Against orders under 9 and 17 |
Section 17: once the tribunal exists
After the tribunal is constituted, it has substantially the same powers as the court, and an order under Section 17 is enforceable as if it were an order of the court. Section 9(3) provides that the court shall not entertain a Section 9 application once the tribunal is constituted, unless it finds that circumstances exist which may not render the Section 17 remedy efficacious. So in the ordinary case, go to the tribunal.
Emergency arbitrators
Institutional rules commonly provide for an emergency arbitrator before the full tribunal is formed. In Amazon v. Future Retail (2021) the Supreme Court held that an emergency arbitrator's award in an India-seated arbitration under institutional rules is an order under Section 17 and is enforceable. The position for foreign-seated emergency awards is less settled.
Appeals, and what happens to the order afterwards
An order granting or refusing a measure under Section 9 is appealable under Section 37, as is an order of the tribunal granting or refusing an interim measure under Section 17. There is no second appeal from an order passed in such an appeal, although the right to move the Supreme Court is untouched. An order under Section 17 is subject to any orders made in a Section 37 appeal, and otherwise is deemed to be an order of the court and is enforceable under the Code of Civil Procedure in the same manner as if the court had made it, which is what makes disobedience worth pursuing rather than merely complaining about.
Practical advice
Move early and go in with documents. These applications succeed on evidence of a real risk of dissipation, such as a sudden transfer of assets, closure of a business, or removal of stock, not on assertion.
Then keep the relief alive. Diarise the ninety day period for commencing the arbitration, serve the Section 21 invocation notice well inside it, and file the application to appoint an arbitrator without waiting for the last week. Comply strictly with any undertaking or security the court imposes as the price of the order, because an applicant in breach of its own undertaking rarely keeps the injunction. If the other side has meanwhile complied, or the risk has passed, say so; interim orders that are kept alive after they have served their purpose attract costs.
Keep the object of the exercise in view. Interim relief is not the case; it is what makes the eventual arbitral award worth having, by ensuring there is something left to execute against when it comes. That is also the reason to ask for security for the amount in dispute rather than only for an injunction where the real risk is that the money will be gone. Our note on emergency arbitration and how far it is enforceable in India covers the alternative route where the institutional rules provide one and the timetable is measured in days rather than weeks.