Interim Relief in Arbitration: Section 9 vs Section 17

A dispute under a contract with an arbitration clause rarely waits for the arbitration to begin. Stock is about to be moved, a bank guarantee is about to be invoked, a counterparty is selling its only asset. The party that needs protection must decide quickly where to ask for it. Under the Arbitration and Conciliation Act, 1996, interim relief in arbitration can come from two places: the court under Section 9, or the arbitral tribunal under Section 17. Which one is available, and which one is sensible, depends almost entirely on timing, and in particular on whether the tribunal has been constituted.

The two routes at a glance

Section 9 allows a party to apply to a court for interim measures at three stages: before arbitral proceedings begin, during them, and after the award is made but before it is enforced under Section 36. Section 17 allows a party to apply to the arbitral tribunal for interim measures during the arbitral proceedings.

The menu of relief is essentially the same under both provisions. Since the 2015 amendments, Section 17(1) mirrors Section 9(1). Either forum can order:

• the preservation, interim custody or sale of goods that are the subject matter of the arbitration agreement;
• securing the amount in dispute;
• the detention, preservation or inspection of property that is the subject matter of the dispute, including entry onto land or buildings for that purpose;
• an interim injunction or the appointment of a receiver; and
• any other interim measure of protection that appears just and convenient.

Either forum can also appoint a guardian for a minor or a person of unsound mind for the purposes of the arbitral proceedings.

Before the tribunal exists: Section 9 and the 90-day clock

Until a tribunal is in place, the court is the only forum that can grant interim relief under the Act. That is why most urgent applications, such as freezing a bank guarantee or restraining the transfer of property, are made under Section 9 before or at the same time as the notice invoking arbitration.

Section 9(2), introduced in 2015, attaches a condition. Where the court grants an interim measure before arbitral proceedings have commenced, the arbitral proceedings must commence within ninety days from the date of the order, or within such further time as the court may determine. The purpose is to stop parties from using Section 9 to obtain a long-running injunction while never actually pursuing arbitration.

Two practical points follow:

• Know when arbitration “commences”. Under Section 21, unless the parties agree otherwise, arbitral proceedings commence on the date on which the respondent receives a request for the dispute to be referred to arbitration. Serving a proper notice invoking arbitration is therefore usually enough to satisfy Section 9(2); the tribunal does not need to be constituted within the 90 days.
• Diarise the date. If the period is likely to be missed, ask the court for further time before it expires, not afterwards.

After the tribunal is constituted: the Section 9(3) bar

The 2015 amendments shifted interim relief away from the courts once a tribunal is in place. Section 9(3) provides that once the arbitral tribunal has been constituted, the court shall not entertain an application under Section 9(1) unless it finds that circumstances exist which may not render the remedy under Section 17 efficacious.

In practice, the court now asks why the party is not before the tribunal. Situations where the Section 17 remedy may not be efficacious include cases where relief is needed against a person who is not a party to the arbitration, where the tribunal cannot assemble quickly enough to deal with a genuine emergency, or where the tribunal’s composition is under challenge. Each case turns on its facts, and the burden is on the applicant to show why the tribunal route will not work.

The Arcelor Mittal gloss: what “entertain” means

What happens if a Section 9 application is filed and argued before the tribunal is constituted, but the tribunal comes into existence while the court is still deciding it? The Supreme Court answered this in Arcelor Mittal Nippon Steel India Ltd v. Essar Bulk Terminal Ltd (Supreme Court, 14 September 2021, Civil Appeal No. 5700 of 2021).

The Court held that “entertain” in Section 9(3) means to consider by application of mind to the issues raised; a court entertains an application when it takes the matter up for consideration, and that process continues until judgment is pronounced. In that case the Commercial Court had heard the Section 9 application and reserved judgment before the tribunal was constituted. The Supreme Court held that it was not necessary for the Commercial Court to examine the efficacy of relief under Section 17, because the application had already been entertained.

The Court also recognised that the court retains discretion to direct the parties to approach the tribunal, if necessary after passing a limited order of interim protection, particularly where there has been a long gap between hearings. The bar in Section 9(3) bites only when the application is being entertained, that is, taken up for consideration after the tribunal exists.

Section 17: the tribunal’s power and how its orders are enforced

Before 2015, the tribunal’s interim orders were difficult to enforce, which is why parties went to court even after the tribunal was in place. That changed with the present Section 17(2), which provides: “Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Court.”

A Section 17 order is therefore enforced in the same way as a court’s order, including through the execution machinery of the Code of Civil Procedure. An order granting or refusing an interim measure under Section 17 is appealable to the court under Section 37(2)(b).

The 2019 change: no post-award relief from the tribunal

As originally amended in 2015, Section 17(1) also allowed a party to approach the tribunal after the award was made but before it was enforced. The Arbitration and Conciliation (Amendment) Act, 2019, which came into force on 30 August 2019, deleted those words. The tribunal’s power is now confined to the period during the arbitral proceedings. Once the award is made, interim protection must be sought from the court under Section 9.

In Home Care Retail Marts Pvt Ltd v. Haresh N. Sanghavi (2026 INSC 415, April 2026), the Supreme Court held that even an unsuccessful party in the arbitration may invoke Section 9 at the post-award stage, while cautioning courts to exercise care and circumspection before granting such relief.

Emergency arbitration: where the law stands

Many institutional rules allow an emergency arbitrator to be appointed within days to grant urgent relief before the main tribunal is formed. The 1996 Act itself does not mention emergency arbitrators.

The Supreme Court nonetheless gave effect to emergency arbitration in an India-seated arbitration in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd (Supreme Court, 6 August 2021). The arbitration was governed by the Singapore International Arbitration Centre Rules, which provide for an emergency arbitrator. The Court held that an emergency arbitrator’s order is an order under Section 17(1), enforceable under Section 17(2), and that an order enforcing it under Section 17(2) is not appealable under Section 37.

The Department of Legal Affairs released a draft Arbitration and Conciliation (Amendment) Bill on 18 October 2024 for public consultation. It proposed express recognition of emergency arbitrators through a new Section 9A. As of mid-2026, that draft had not been enacted. Parties who want emergency relief from an arbitrator therefore need to choose institutional rules that provide for it; an ad hoc clause with no such rules leaves Section 9 as the only pre-tribunal route.

Choosing the forum in practice

The choice is often less a matter of preference than of timing and facts. Some working guidelines:

• Genuine urgency, no tribunal yet. File under Section 9, serve the notice invoking arbitration promptly, and track the 90-day period under Section 9(2).
• Tribunal already constituted. Apply under Section 17. Go to court only if a concrete reason shows the tribunal remedy would not be efficacious, and set that reason out clearly in the application.
• Relief needed against a non-party. A tribunal’s authority derives from the arbitration agreement, so a court application may be the more effective route, and this can be a reason to argue that the Section 17 remedy would not be efficacious.
• Application already taken up by the court. Under Arcelor Mittal, the court may decide it even if the tribunal is constituted in the meantime.
• After the award. Only the court can grant interim protection, under Section 9.
• Institutional rules with an emergency arbitrator. These provide a further option before the tribunal is constituted, with enforcement under Section 17(2) following Amazon v. Future Retail.

Whichever forum is chosen, the substantive tests are similar: a prima facie case, the balance of convenience, and irreparable harm if relief is refused. A carefully documented application, with the contract, correspondence and evidence of urgency, matters more than the choice of forum.

Frequently Asked Questions

Can I go to court for interim relief after the arbitral tribunal has been appointed?

Yes, but only in limited cases. Section 9(3) prevents the court from entertaining a Section 9 application after the tribunal is constituted unless circumstances exist which may not render the remedy under Section 17 efficacious. The applicant must show why the tribunal cannot give effective relief.

What happens if arbitration is not started within 90 days of a Section 9 order?

Section 9(2) requires arbitral proceedings to commence within ninety days of a pre-arbitration interim order, or within such further time as the court fixes. The interim order is granted on the footing that arbitration will follow, so the period should be treated as a firm deadline. If more time is needed, the request should be made to the court before the period expires.

Are orders of an arbitral tribunal under Section 17 enforceable?

Yes. Under Section 17(2), an order of the tribunal under Section 17 is deemed to be an order of the court for all purposes and is enforceable under the Code of Civil Procedure, 1908, subject to any order in an appeal under Section 37.

Can the arbitral tribunal grant interim relief after it has made the award?

No. The 2019 amendment, in force from 30 August 2019, deleted the post-award stage from Section 17(1). After the award, interim protection must be sought from the court under Section 9, which remains available until the award is enforced under Section 36.

Does Indian law recognise emergency arbitrators?

The Act does not expressly provide for them, and the draft amendment bill of 2024 proposing a new Section 9A had not been enacted as of mid-2026. However, in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd (2021), the Supreme Court held that an emergency arbitrator’s order under institutional rules in an India-seated arbitration is enforceable under Section 17(2).

This article is for general information and is not legal advice.

This article is for general information only and is not legal advice or an invitation to engage the firm. Laws and judgments change; please obtain specific legal advice before acting.