Section 9 and Section 17 Compared

Both provisions grant interim protection, and since 2015 they confer the same powers. The difference is who exercises them and when. Section 9 is the court's power, available before the arbitration begins, while it is on foot and after the award until enforcement. Section 17 is the tribunal's power, exercisable while it has seisin of the reference, and since the insertion of sub-section (2) its orders are enforceable as orders of the court. The scheme after 2015 is that the tribunal is the ordinary forum and the court the exceptional one.

Which forum to approach in each situation, and how either order is enforced

1. The Same Powers, Different Hands

Section 17(1) confers on the tribunal the same powers as Section 9(1) confers on the court: the appointment of a guardian, the preservation, interim custody or sale of goods, securing the amount in dispute, the detention, preservation or inspection of property, an interim injunction or a receiver, and any other measure just and convenient. The closing words of each provision state that the forum shall have the same power for making orders as the court has for the purpose of, and in relation to, any proceedings before it.

2. The Comparison

Basis	Section 9	Section 17
Forum	The court as defined in Section 2(1)(e)	The arbitral tribunal
Window	Before the arbitration, during it, and after the award until enforcement under Section 36	During the arbitral proceedings; in practice until the mandate ends with the award under Section 32
Availability once the tribunal exists	Only where the court finds that the remedy under Section 17 would not be efficacious, Section 9(3)	The ordinary forum
Persons bound	Parties, and third parties such as banks and custodians where the law permits	Only the parties to the reference
Ex parte relief	Available in a proper case	Not ordinarily, because Section 18 requires each party to be heard
Condition on the applicant	Section 9(2): arbitration must commence within ninety days of an order made before commencement	None; the reference is already on foot
Enforcement	As an order of the court in the ordinary way	Deemed an order of the court and enforceable under the Code, Section 17(2)
Appeal	Section 37(1)(b)	Section 37(2)(b)
Foreign seated arbitration	Available under the proviso to Section 2(2) unless excluded	Not available at all

3. Section 9(3) and How It Works

Section 9(3), inserted in 2015, 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 provided under Section 17 efficacious. The provision is the pivot of the present scheme, and its working was settled in Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712.

📖 Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., (2022) 1 SCC 712

Held: The bar in Section 9(3) applies to the entertaining of an application and not to the disposal of one already entertained. Where the court has applied its mind and taken up the application before the tribunal was constituted, it may proceed to decide it. Where it has not, the court should ordinarily relegate the party to the tribunal unless the remedy under Section 17 would not be efficacious.

⚠ What makes the Section 17 remedy inefficacious

The commonest reasons are these: the order must operate against a person who is not a party, such as a bank asked to freeze an account; relief is needed without notice, which the tribunal cannot grant consistently with Section 18; the tribunal cannot be convened in time; or the mandate has ended, which is why the post-award window belongs to Section 9 alone. A party going to the court after the tribunal exists should state the reason in the application itself.

4. The Pre-2015 Position, and Why It Matters

As originally enacted, Section 17 empowered the tribunal to order interim measures but supplied no means of enforcement, and the Supreme Court held that it conferred no power to enforce and none over persons who were not parties. A party faced with disobedience could only invite an adverse inference or apply afresh to the court under Section 9. The Law Commission recommended in its 246th Report that the order be made enforceable, and sub-section (2) gives effect to that by deeming it an order of the court. The reform is what made Section 9(3) possible: the court could be closed off only once the tribunal's orders had teeth.

5. Emergency Relief

Neither provision mentions an emergency arbitrator. In Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 the Supreme Court held that where an arbitration is seated in India and the parties have adopted institutional rules providing for an emergency arbitrator, his order is an order under Section 17(1) and is enforceable under Section 17(2). The reasoning is confined to arbitrations seated in India. For a foreign seated arbitration the Indian remedy is an application under Section 9 through the proviso to Section 2(2), and an order of a foreign emergency arbitrator is not enforceable here under Section 17(2).

6. Related Topics and Provisions

Topic or provision	Connection
Interim Relief in Arbitration: Sections 9 and 17	The two provisions treated at length
Interim Measures by the Arbitral Tribunal: Section 17	Enforcement of the tribunal's orders and its limits
Sections 2(2), 18, 32 and 36, A&C Act, 1996	Territorial reach, fairness, termination of mandate and enforcement
Section 37, A&C Act, 1996	Appeals from orders under both provisions
Order XXXVIII Rule 5 and Order XXXIX, CPC, 1908	The principles that inform attachment and injunction