Interim Measures in Arbitration: Role of Courts and Tribunals
Introduction
Arbitration was conceived as a mechanism to resolve commercial disputes swiftly, privately, and with minimal judicial interference. Yet disputes rarely wait patiently for a tribunal to be constituted. Assets may be dissipated, evidence destroyed, contracts breached irreparably, or a status quo altered — all before an arbitral tribunal even comes into existence. It is this urgent, protective function that interim measures serve. They preserve the subject matter of the dispute, secure the eventual award, and ensure that arbitration does not become an empty victory.
The law relating to interim measures in arbitration occupies a unique space at the intersection of party autonomy and judicial oversight. On one hand, arbitration derives its legitimacy from the parties’ agreement to resolve disputes outside the court system. On the other, courts retain — and must retain — certain residual powers to protect the integrity of the arbitral process, particularly at moments when the tribunal cannot yet act. This article examines the evolving framework governing interim relief, the respective competencies of courts and tribunals, and the tensions and complementarities between the two under Indian and international arbitration law.
Understanding Interim Measures: Purpose and Scope
Interim measures, also called interim reliefs or provisional measures, are temporary orders granted to preserve rights, assets, or evidence pending final adjudication of a dispute. They typically include orders for:
Preservation of goods or property forming the subject matter of the dispute
Injunctions restraining a party from dealing with assets or taking specific actions
Appointment of a receiver
Security for costs or for the amount in dispute
Interim custody or sale of perishable goods
Preservation of evidence
The underlying rationale is straightforward: an arbitral award, however sound, is worthless if by the time it is rendered, the assets to satisfy it have vanished or the subject matter of the dispute has been irreversibly altered. Interim measures thus function as a bridge — safeguarding the efficacy of the final award throughout the life of the arbitral proceeding, including the vulnerable period before a tribunal is even constituted.
The Statutory Framework in India
The Arbitration and Conciliation Act, 1996 (as amended in 2015 and 2019) draws heavily from the UNCITRAL Model Law and provides a dual-track mechanism for interim relief — one through courts under Section 9, and the other through arbitral tribunals under Section 17.
Section 9: Court-Ordered Interim Measures
Section 9 empowers a party to approach a court for interim measures either before the commencement of arbitral proceedings, during the proceedings, or after the making of the arbitral award but before its enforcement. This provision recognises a critical practical reality: at the pre-arbitral stage, when no tribunal exists, only a court can grant urgent protective relief. Without such a safety valve, a party facing imminent asset dissipation or evidence destruction would have no recourse until the tribunal was formed — by which time the damage may already be done.
The 2015 Amendment introduced a significant check on this power through Section 9(3), which provides that once an arbitral tribunal has been constituted, the court shall not entertain an application under Section 9(1) unless it finds that circumstances exist which may render the remedy under Section 17 inefficacious. This amendment was a direct legislative response to the tendency of parties to bypass tribunals and approach courts even after arbitration had commenced, undermining the tribunal’s authority and causing delay. The effect is to make Section 17 the primary route for interim relief once a tribunal is in place, with Section 9 reserved for the pre-arbitral vacuum or genuine cases of inefficacy.
Section 17: Tribunal-Ordered Interim Measures
Section 17, as substantially strengthened by the 2015 Amendment, empowers arbitral tribunals to grant the same range of interim measures that a court could grant under Section 9. Crucially, the amendment also provided that an order of the tribunal under Section 17 “shall be deemed to be an order of the Court” and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as a court order. This was a watershed change. Previously, tribunal orders under Section 17 lacked independent enforceability, and a party had to approach a court separately to enforce them — a cumbersome detour that diluted the tribunal’s authority and often nullified the urgency of the relief.
By granting Section 17 orders the same enforceability as court orders, the legislature sought to make tribunals genuinely competent and self-sufficient forums for interim protection, thereby reducing unnecessary recourse to courts and reinforcing the principle of minimal judicial intervention that underlies the Act (as expressed in Section 5).
Judicial Interpretation: Calibrating the Balance
Indian courts have played a significant role in shaping the contours of this dual framework.
In Firm Ashok Traders v. Gurumukh Das Saluja (2004), the Supreme Court clarified that an application under Section 9 is maintainable even by a person claiming to be a party to an arbitration agreement, and that such proceedings are independent of the arbitral proceedings themselves, though ancillary to them.
The Bombay High Court’s decision in Nimbus Communications Ltd. v. Board of Control for Cricket in India (2012) addressed the extent of a court’s power under Section 9 to grant interim measures in aid of foreign-seated arbitrations, an issue of considerable importance to India’s engagement with international commercial arbitration.
Post-2015, courts have generally been cautious about entertaining Section 9 applications once a tribunal is constituted, giving effect to the legislative intent behind Section 9(3). However, courts have also recognised that “inefficacious” is a factual determination — where a tribunal lacks the power to grant relief against a non-signatory third party, for instance, or where the urgency is such that even the short time needed to approach the tribunal would defeat the purpose of the relief, courts have stepped in notwithstanding Section 9(3).
The Supreme Court’s decision in Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd. (2021) further clarified that once a Section 17 application is filed and an order passed, a subsequent Section 9 application on the same subject matter is generally not maintainable, reinforcing the primacy of the tribunal once seized of the matter, while also affirming that appellate remedies against Section 17 orders lie under Section 37, not through fresh Section 9 proceedings.
Emergency Arbitration: A Hybrid Innovation
A significant gap in the statutory scheme concerns the period between the invocation of arbitration and the formal constitution of the tribunal — often several weeks under institutional rules. International arbitral institutions have responded to this gap through emergency arbitrator provisions, which allow parties to obtain urgent interim relief from a specially appointed emergency arbitrator even before the main tribunal is formed.
The enforceability of emergency arbitrator orders under Indian law long remained contested, since the 1996 Act does not expressly recognise the concept. The Delhi High Court’s ruling in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. (2021) was pivotal in this regard, with the Supreme Court affirming that orders passed by an emergency arbitrator under institutional rules (in that case, the SIAC Rules) can be enforced under Section 17(2) of the Act, treating the emergency arbitrator as part of the tribunal machinery contemplated by the statute. This judicial recognition has considerably strengthened the practical utility of emergency arbitration for parties operating under institutional arbitration clauses, though the 2019 Amendment’s proposal to formally recognise emergency arbitration in the statute itself remains, as yet, not fully implemented.
Comparative Perspectives
The Indian framework mirrors, to a considerable extent, the approach taken under the UNCITRAL Model Law on International Commercial Arbitration, particularly following its 2006 revisions, which introduced a detailed regime for tribunal-ordered interim measures and their cross-border enforcement. Jurisdictions such as Singapore and Hong Kong, both leading arbitration hubs, have similarly empowered courts to act in support of arbitration — including foreign-seated arbitration — while maintaining a policy of restraint once a tribunal has been constituted, reflecting the internationally accepted principle that court intervention should be supportive rather than supervisory.
The English Arbitration Act, 1996, likewise permits courts to grant interim relief but generally requires that the tribunal be unable to act effectively, or that urgency justifies bypassing the tribunal — a formulation conceptually similar to India’s “inefficacious” standard.
Challenges and the Way Forward
Despite the maturation of this framework, certain difficulties persist. First, the enforcement of Section 17 orders, while nominally equated with court orders, can still encounter practical friction, particularly where the order involves complex proprietary or third-party interests. Second, the interim relief regime for foreign-seated arbitrations under Section 9 (applicable via Section 2(2) proviso) continues to generate litigation regarding its precise scope. Third, formal statutory recognition of emergency arbitration — rather than reliance on judicial interpretation alone — would considerably enhance certainty for parties and counsel structuring dispute resolution clauses.
Going forward, a calibrated approach that preserves the tribunal’s primacy while retaining courts as a genuine safety net for extraordinary situations appears to be the most coherent path. This requires continued judicial discipline in applying the “inefficacious” threshold under Section 9(3), timely constitution of tribunals to reduce the pre-arbitral vacuum, and legislative clarity on emergency arbitration.
Conclusion
The interplay between courts and tribunals in granting interim measures reflects arbitration’s broader philosophical balancing act — the desire for party autonomy and finality, tempered by the practical necessity of judicial support at critical junctures. India’s post-2015 framework, reinforced by judicial pronouncements such as Amazon v. Future Retail and Arcelor Mittal, has moved decisively toward strengthening tribunals as the primary forum for interim relief, while preserving courts as a residual safeguard. As India continues to position itself as a arbitration-friendly jurisdiction, the continued refinement of this framework — through both legislative reform and judicial consistency — will be essential to ensuring that interim measures fulfil their core purpose: protecting the object of arbitration without undermining its process.
Endnotes
Arbitration and Conciliation Act, No. 26 of 1996, §§ 2(2), 5, 9, 17, 34, 37 (India).
Code of Civil Procedure, No. 5 of 1908 (India).
UNCITRAL, UNCITRAL Model Law on International Commercial Arbitration arts. 17–17J (2006).
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 3.
Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155.
Nimbus Communications Ltd. v. Board of Control for Cricket in India, 2012 SCC OnLine Bom 483.
Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712.
Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209.
Arbitration Act 1996, c. 23 (U.K.).
Singapore International Arbitration Centre, SIAC Rules (7th ed. 2025), sch. 1 (Emergency Arbitrator Procedure).
Gary B. Born, International Commercial Arbitration (3d ed. 2021).
Avtar Singh, Law of Arbitration and Conciliation (Eastern Book Company, latest ed.).
