Interim Measures in

Arbitration (Detailed Notes)

Interim measures are temporary protective measures that ensure the effectiveness
of arbitration proceedings. They are essential for preserving rights, preventing
irreparable harm, or maintaining the status quo until the final award is rendered.

📘 Legal Provisions in India

📌 1. Section 9 – Interim Measures by the Court

✅ What it Provides:

Any party may apply to a competent court before or during the arbitral proceedings
or after the award (but before enforcement) for interim measures.

🔹 Types of Measures under Section 9:

Preservation or interim custody of goods that are the subject matter of the
dispute.

Securing the amount in dispute (attachment of property or bank accounts).

Injunctions (restraining orders against specific acts).

Appointment of a receiver or guardian for a minor or person of unsound

mind.

Detention, preservation, or inspection of property or documents.

Interim sale of goods that are perishable or likely to deteriorate.

Other just and convenient reliefs as the court deems fit.

🔎 Key Features of Section 9:

Criteria Description
Before, during, or post-arbitration (until
Timing
enforcement).
Court Involved Principal civil court of original jurisdiction.
Nature Discretionary and equitable remedy.
 Criteria Description
Requirement Arbitration must be initiated within 90 days of a
Post-2015 pre-arbitral Section 9 order.
Binding Court orders are enforceable like any other
Nature judicial order.

Leading Case Law – Section 9:

📍 Sundaram Finance Ltd. v. NEPC India Ltd. (1999) 2 SCC

479

Principle: Even before the commencement of arbitration, a party can

approach the court under Section 9 for protective relief.

Court's Observation: There must be an intention to commence arbitration

soon after seeking Section 9 relief.

📍 Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India

Ltd. (2022)

Held: Section 9 can be used even after the arbitral award if the award is yet
to be enforced and the parties need protection to preserve the subject matter.

📘 2. Section 17 – Interim Measures by

the Arbitral Tribunal
✅ What it Provides:

The arbitral tribunal is empowered to order interim measures at the request of a

party during the arbitral proceedings.

🔹 Types of Measures (Similar to Section 9):

Maintenance of status quo.

Preservation or inspection of property.

Interim custody of disputed assets.

Restraining orders or specific performance directive

Any relief necessary to protect rights under arbitration.

🔎 Key Features of Section 17 (Post-2015 Amendment):

Feature Details
Orders are now enforceable like court
Binding Nature
orders.
Enhanced Tribunal
Tribunal orders are no longer toothless.
Powers
Can grant any interim measure deemed just
Scope
and fair.
Court-like Authority Similar to Section 9 in terms of relief types.

Important Case Law – Section 17:

📍 Alka Chandewar v. Shamshul Ishrar Khan (2017) 16 SCC 11

Issue: Whether violation of Section 17 order is punishable

Held: Yes. The court has inherent powers to penalize disobedience of

tribunal’s interim orders.

📍 Ashwani Minda v. U-Shin Ltd. (2020 Delhi HC)

Interim orders by the tribunal under Section 17 have same status as court
orders and are enforceable through the court.

🧾 Comparative Summary: Section 9 vs.

Section 17
Section 17
Feature Section 9 (Court)
(Tribunal)
Authority Civil court Arbitral tribunal
When Before, during, or after Only during
Invoked arbitration arbitration
As a court decree
Enforcement As a court decree
(post-2015)
Faster (within
Speed Slower (court procedures)
arbitral control)
Overlap Yes, but only if tribunal is not yet
Allowed? constituted or ineffective

⚖️Rationale Behind Interim Measures

Preserve Effectiveness: Prevent frustration of arbitration by actions like asset
disposal.
 Prevent Irreparable Harm: E.g., protecting trade secrets or freezing assets.

Ensure Procedural Fairness: Parties can approach tribunal/court for relief

instead of waiting for final award.

Encouragement to Arbitrate: Parties feel secure when such remedies exist.

📝 Points to Remember for Exam

Always mention both Section 9 and Section 17 together in essay/descriptive
questions.

Highlight the 2015 Amendment, which empowered tribunals by making

Section 17 orders enforceable.

Use case laws like Sundaram Finance, Alka Chandewar, and Essar House to
show application.

Mention Kompetenz-Kompetenz if discussing jurisdiction during interim

relief stages.

⚖️Jurisdictional Issues in
Arbitration (Detailed Notes)
Jurisdictional issues in arbitration refer to disputes related to whether the arbitral
tribunal has the authority (jurisdiction) to hear and decide a particular case. These
issues may arise due to procedural, substantive, or contractual objections and are
governed under the Arbitration and Conciliation Act, 1996 (as amended).

📘 Relevant Provisions of Law

🔹 Section 16 – Competence of Arbitral Tribunal to
Rule on its Jurisdiction (Kompetenz-Kompetenz)

This section empowers the arbitral tribunal to decide

On its own jurisdiction,

On objections to the existence or validity of the arbitration agreement.

📜 Kompetenz-Kompetenz Principle: An arbitral

tribunal has the competence to rule on its own
competence.
🧠 Key Features of Section 16
Feature Explanation
Self- Tribunal can decide if it has the power to hear the
determination case.
Objections A party can challenge jurisdiction before or during
allowed arbitration.
Arbitration clause is treated as independent of the
Severability
main contract.
Time-bound Jurisdictional objection must be raised not later
objection than the submission of the statement of defence.
No direct appeal; party must wait and challenge
Appeal jurisdictional ruling only under Section 34 (after
final award).

🔍 Types of Jurisdictional Issues

1. Invalid Arbitration Agreement

Agreement is not in writing (violates Section 7).

Not signed by parties.

Contains vague arbitration clauses.

2. Non-Arbitrable Subject Matter

Matters like criminal offenses, matrimonial disputes, insolvency, etc., are non-
arbitrable.

3. Improper Appointment of Arbitrators

Arbitrator not appointed as per the agreed procedure (Section 11 issues).

Conflict of interest or bias.

4. Jurisdictional Overreach

Tribunal decides matters beyond the scope of the arbitration agreement.

5. Territorial or Subject-Matter Jurisdiction

Arbitration clause may restrict disputes to be resolved in a particular

seat/jurisdiction.

A dispute outside this may cause conflict.

 Key Case Laws on Jurisdictional Issues
📍 Kvaerner Cementation India Ltd. v. Bajranglal
Agarwal (2012) 5 SCC 214

Held: The arbitral tribunal alone is competent to decide on its jurisdiction

(Section 16).

Courts cannot entertain jurisdictional objections at the pre-arbitration

stage.

📍 Booz Allen & Hamilton Inc. v. SBI Home Finance

Ltd. (2011) 5 SCC 532

Principle: Laid down the test for arbitrability of disputes.

Non-arbitrable matters include: criminal cases, guardianship, tenancy under

special laws, etc

📍 Swiss Timing Ltd. v. Commonwealth Games 2010

Organizing Committee (2014)

Reinforced minimal court interference in arbitrator's jurisdiction.

Even issues like fraud can be decided by arbitrators unless extremely complex.

📍 Lion Engineering Consultants v. State of MP (2018)

16 SCC 758

Objections to jurisdiction must be raised before or along with the

Statement of Defence

If delayed, the party waives its right to object under Section 4.

🧾 Doctrine of Separability (Part of

Section 16)
The arbitration clause is considered independent from
the main contract.

Even if the main contract is void, the arbitration agreement may survive.

This ensures arbitration proceedings are not halted due to challenges to the
contract's validity.
📍 Case Law: ONGC v. Saw Pipes Ltd. (2003)

The court recognized the separability of arbitration clauses from the main
contract.

📚 Practical Examples of Jurisdictional

Issues
Scenario Jurisdictional Issue
One party claims the contract Tribunal can still decide – doctrine
is forged of separability
Agreement signed by agents, Tribunal must assess validity of
not parties authority
Issue relates to criminal breach
Likely non-arbitrable
of trust
Arbitration clause says “only May raise territorial jurisdiction
courts in Delhi” issue

📘 Relationship with Section 11 –

Appointment of Arbitrator
Section 11(6A) (before deletion): Courts could examine only the existence of
the arbitration agreement, not arbitrability or jurisdiction.

Post-deletion (2019 Amendment): Courts now allowed to go deeper and

examine prima facie arbitrability at Section 11 stage.

🔔 Still, once tribunal is constituted, all jurisdictional

challenges must go through Section 16.

🧠 Summary for Exams

Focus on Section 16 (Kompetenz-Kompetenz + Separability).

Jurisdictional issues must be timely raised.

Include cases: Booz Allen, Kvaerner Cementation, Swiss Timing.

Mention that non-arbitrable disputes fall outside the tribunal's domain.

 Understand the court vs. tribunal roles in jurisdiction objections.

ARBITRAL AWARD (Detailed

Notes for Law of Arbitration –
India)

📘 1. Meaning of Arbitral Award

An arbitral award is the final decision made by the arbitral tribunal that resolves
the dispute submitted to arbitration. It has the same legal status as a court judgment
and is binding and enforceable on the parties.

📝 The arbitral award is the culmination of arbitration

proceedings, resolving all or part of the issues referred
to arbitration.

📜 2. Legal Provisions – Arbitration &

Conciliation Act, 1996
Section Subject
Section Definition of an "arbitral award" (includes interim,
2(1)(c) partial, and final awards)
Section 31 Form and contents of the arbitral award
Section 32 Termination of arbitral proceedings
Section 33 Correction and interpretation of award
Section 34 Application for setting aside an arbitral award
Section 35 Finality of the award
Section 36 Enforcement of arbitral awards

🔹 3. Types of Arbitral Awards

Type Explanation
Resolves all issues in dispute. Ends
Final Award
proceedings.
Decides some, but not all, issues. Tribunal
Interim Award
continues with other matters.
 Type Explanation
Similar to interim, but used where disputes
Partial Award
are severable.
Additional Award Addresses claims presented but not ruled
(Sec. 33(4)) upon in the original award.
Based on mutual settlement between parties.
Consent Award
Has same legal force.

🧾 4. Essential Elements of a Valid

Arbitral Award (Section 31)
An arbitral award must:

✅ Be in writing and signed by the arbitrators.

✅ State the reasons for the decision (unless waived by parties).
✅ Specify the date and place of arbitration.
✅ Be delivered to each party.
✅ Include interest and costs, if applicable.

💰 5. Interest and Costs in Award (Section

31(7))
Interest: Tribunal may grant pre-award and post-award interest.

Costs: Tribunal can direct one party to pay the costs of arbitration (including
legal fees, tribunal fees, etc.).

📌 Case Law: Hyder Consulting v. State of Orissa (2015)

➡ Supreme Court held that arbitrators can grant interest on interest (compound
interest), unless prohibited by the contract.

📚 6. Finality and Binding Nature

🔸 Section 35 – Final and Binding

Once the award is made, it is final and binding on the parties.

🔸 Section 36 – Enforcement

Enforceable like a decree of the civil court, unless challenged under Section
34.
🔄 7. Correction, Interpretation, and
Additional Award (Section 33)
A party may request:

Correction of clerical errors,

Interpretation of specific parts of the award,

Additional award for claims not addressed.

📌 Must be requested within 30 days of receipt of award.

⚖️8. Grounds for Challenge (Linked to

Sec. 34)
While discussing awards, remember:

Awards may be set aside under Section 34 for reasons such as:

Incapacity of a party,

Invalid arbitration agreement,

Lack of proper notice,

Award beyond the scope of arbitration,

Conflict with public policy.

9. Key Case Laws on Arbitral Award

📍 ONGC v. Saw Pipes Ltd. (2003) 5 SCC 705

Introduced the concept of “public policy of India” as a ground to set aside an

award under Section 34.

Expanded the scope by including “patent illegality” in domestic awards.

📍 Ssangyong Engineering v. NHAI (2019)

Clarified what constitutes patent illegality and public policy violations.

 Narrowed the scope for interference with arbitral awards.

📍 McDermott International v. Burn Standard Co.

(2006)

Held that courts cannot correct errors in arbitral awards. At most, they can
set aside the award.

🧠 10. Arbitral Award vs Court Judgment –

Comparison
Feature Arbitral Award Court Judgment
Issued by Arbitral Tribunal Civil Court
Binding? Yes Yes
Enforceable as
Yes (Sec. 36) Yes
decree?
Limited (Sec.
Scope of challenge Appeal, revision possible
34)
Timeframe Faster Longer

📝 11. Points to Remember for Exams

Mention Sections 31–36 in any answer on arbitral awards.

Emphasize finality and binding nature under Section 35.

Use ONGC v. Saw Pipes and Ssangyong Engineering for legal principles.

Cover form & content requirements (Sec. 31), especially reasons and interest.

Link to enforcement (Sec. 36) and challenge (Sec. 34) for a complete
understanding.

Setting Aside the Arbitral

Award
(Under the Arbitration and Conciliation Act, 1996 – Section 34)

📘 1. Meaning
“Setting aside” an arbitral award refers to the annulment or invalidation of the
award by a competent court upon the application of a party, on specific legal grounds.
It does not amount to an appeal, but is a limited judicial review of the award’s
validity.

📜 2. Legal Provision – Section 34 of the

Arbitration and Conciliation Act, 1996
🧩 Section 34(1):

A party may apply for setting aside only by an application to the court.

🕒 Time Limit (Section 34(3)):

Application must be made within 3 months from the date of receiving the
award.

Additional 30 days may be granted on sufficient cause (but not beyond that).

No condonation beyond this period.

🚫 3. Grounds for Setting Aside the Award

– Section 34(2)
There are two categories of grounds:

🟡 A. Grounds that a party must prove (Section 34(2)

(a))

The award may be set aside if the applicant proves:

Incapacity of a party (e.g., minor or mentally unsound)

Invalid arbitration agreement (not as per Section 7)

Improper notice or inability to present case

Award deals with matters beyond scope of arbitration

Arbitral procedure not as per agreement, or not in line with the Act
🔴 B. Grounds the court may find on its own (Section
34(2)(b))

Award may be set aside suo motu by the court if:

Dispute is not arbitrable under Indian law

Award is in conflict with the Public Policy of India

➤ What is “Conflict with Public Policy”?

As clarified in Section 34(2)(b)(ii) Explanation 1:

Fraud or corruption in making the award

Violation of confidentiality or admissibility rules under Section 75/81 (in

conciliation)

Contrary to fundamental policy of Indian law

Contrary to basic notions of morality or justice

⚠️4. Patent Illegality – Section 34(2A)

(Domestic Awards only)
“An arbitral award may also be set aside if it is
patently illegal on the face of the award.”

✅ But NOT for:

International Commercial Arbitrations

Mere erroneous application of law or reappreciation of evidence

📌 Meaning:

Apparent illegality, like ignoring statutory provisions

Contradictory reasoning

Award granted without jurisdiction

 5. Key Case Laws
📍 ONGC v. Saw Pipes Ltd. (2003) 5 SCC 705

Landmark case introducing public policy and patent illegality as grounds.

“Public policy” includes “fundamental policy of Indian law.”

📍 Associate Builders v. DDA (2015) 3 SCC 49

Clarified public policy

Violation of natural justice

Fundamental policy of law

Morality or justice

📍 Ssangyong Engineering v. NHAI (2019) 15 SCC 131

Post-2015 amendment case.

Explained that patent illegality applies only to domestic awards.

Courts can intervene only if perversity is evident on the face of the award.

📍 NTPC Ltd. v. M/s. Deconar Services Pvt. Ltd. (2021)

Courts cannot act as appellate forums to correct errors of fact or law.

6. Procedure for Setting Aside

(Section 34)
Filing petition in competent court (commercial court or district court)

Within limitation period (3 months + 30 days)

Court issues notice to other party

Limited hearing — court does not re-examine facts or law

Award may be upheld, modified, or set aside (though modification is rare)

🔑 7. Key Takeaways for Exams
Point Detail
Provision Section 34
Time Limit 3 months + 30 days (max)
Incapacity, invalid agreement, improper notice,
Grounds
public policy, patent illegality
Scope Limited judicial review, no appeal
Domestic vs.
Patent illegality ground only for domestic
International
ONGC v. Saw Pipes, Ssangyong, Associate
Leading Cases
Builders

⚖️Enforcement of Arbitral
Award
(Under Arbitration and Conciliation Act, 1996 – Section 36)

📘 1. What is Enforcement?
Enforcement of an arbitral award means giving the award legal effect, i.e., the
successful party can approach a civil court to execute the award like a decree of the
court if the losing party fails to comply voluntarily.

📜 Once an award becomes final (i.e., not set aside under

Section 34), it is enforceable like a court decree.

📜 2. Legal Provision – Section 36 of the

Act
🔹 Section 36(1):

When the time for making an application to set aside the award under Section
34 has expired, the award shall be enforced as if it were a decree of the court

🔹 Section 36(2):

Mere filing of an application under Section 34 does not make the award
unenforceable, unless a stay is granted by the court.
🔹 Section 36(3):

The court may grant a stay of enforcement of the award subject to

conditions, including providing security.

📌 Introduced by the 2015 Amendment to prevent

delay tactics by simply filing a Section 34 petition.

📍 3. Enforcement = Execution
Under Section 36, enforcement proceeds under the Civil Procedure Code (CPC),
1908, similar to how a civil court decree is executed.

The award holder files an execution petition in the competent civil court.

The court may order

Attachment of property

Recovery of money

Arrest and detention (in rare cases)

🕒 4. Conditions for Enforcement

An award is enforceable only when:

✅ The time limit under Section 34 (3 months + 30 days) has expired

✅ Or, a Section 34 application has been dismissed
✅ And no stay is granted on execution

🌐 5. Enforcement of Domestic vs.

Foreign Awards
Domestic
Feature Foreign Award
Award
Enforced Section 44–52 (NY Convention),
Section 36
Under Section 53–60 (Geneva Convention)
Like a
Yes After recognition
decree?
Conditions Time limits, Reciprocity, public policy
 Domestic
Feature Foreign Award
Award
setting aside
Court Role Execution court First, recognize → then enforce

6. Key Case Laws

📌 Fuerst Day Lawson v. Jindal Exports (2011)

The Supreme Court held that no separate suit is required for enforcement –
execution petition is sufficient.

📌 Kandla Export v. OCI Corporation (2018)

Foreign awards under the New York Convention are not subject to Section
34; they follow Part II of the Act.

📌 Hindustan Construction Co. v. Union of India (2020

Held that automatic stay on awards (before 2015 amendment) was misused
—now, a stay must be granted actively by the court.

💰 7. Role of Interest and Costs in

Enforcement
Section 31(7) provides for interest (pre-award and post-award)

The court enforces the entire amount, including interest and legal cost

🔐 8. Stay of Enforcement
Stay is not automatic.

Must be specifically granted by the court.

Courts usually require deposit of awarded amount or bank guarantee to

grant a stay

✅ 9. Points to Remember for Exams

 Element Key Info
Relevant Section Section 36
Legal Effect Award = Decree of Civil Court
Enforcement Begins
Time for Sec. 34 is over or Sec. 34 is dismissed
When
Stay of Enforcement Requires court order
Fuerst Day Lawson, Hindustan Construction,
Leading Cases
Kandla Export

📝 10. Sample Answer Summary (Exam-

Ready)
Section 36 of the Arbitration and Conciliation Act,
1996 deals with the enforcement of arbitral awards.
Once the time to challenge the award under Section 34
expires or such a challenge is dismissed, the award
becomes enforceable as a civil court decree. The 2015
amendment clarified that mere filing of a Section 34
petition does not grant an automatic stay. The award
holder can initiate execution proceedings under CPC.
Key judgments like Fuerst Day Lawson v. Jindal Exports
and Hindustan Construction Co. v. UOI reinforce the
enforceability of awards and restrict delay tactics by
losing parties.

🌍 Foreign Awards
(Under the Arbitration and Conciliation Act, 1996 – Part II)

📘 1. What is a Foreign Award?

A foreign award is an arbitral award made outside India, in accordance with a
foreign arbitration agreement, under the laws of another country that is a signatory
to a recognized convention (New York or Geneva).

🧾 Definition:
As per Section 44 (New York Convention) and Section
53 (Geneva Convention), a foreign award is an award
made in pursuance of a written arbitration agreement,
in a territory other than India, in a country that is a
reciprocating territory as notified by the Central
Government.
🧩 2. Legal Framework for Foreign
Awards in India
India has adopted two international conventions through the Arbitration and
Conciliation Act, 1996:

Convention Part of Act Sections

New York Convention Sections 44 to
Part II, Chapter I
(1958) 52
Geneva Convention Part II, Chapter Sections 53 to
(1927) II 60

⚖️India prefers enforcement under the New York

Convention, which is more widely accepted and used
globally.

🌐 3. New York Convention Awards

(Section 44–52)
✅ Conditions for Enforcement (Section 44):

Award must arise from a commercial dispute.

Made in a country that is a reciprocating territory (notified by Indian

government).

Based on a written arbitration agreement.

📥 Enforcement Procedure:

Party must apply to a High Court under Section 47, submittin

Original award

Original arbitration agreement

Evidence to show the award is a foreign award

❌ 4. Grounds for Refusal of Enforcement

– Section 48
The court may refuse enforcement only on limited grounds:

A. Grounds to be proved by the opposing party:

Parties under incapacity / invalid arbitration agreement

Improper notice / inability to present case

Award beyond scope of arbitration

Arbitral procedure not as per agreement or foreign law

Award is not binding or set aside/suspended in the seat country

B. Grounds the court can consider suo motu:

Subject matter not arbitrable under Indian law

Enforcement is contrary to the public policy of India

🧠 Explanation: “Public policy” (as per 2015 amendment):

Fraud or corruption

Contravention of fundamental policy of Indian law

Conflict with basic notions of morality or justice

🔄 5. Enforcement Process (Section 49)

If the High Court is satisfied that the award is enforceable (i.e., not hit by
Section 48), it shall be deemed a decree of the court

No need for separate suit—execution can start directly.

🧭 6. Geneva Convention Awards (Section

53–60)
Applicable only if:

The country is not a NY Convention country, but is under the Geneva

Convention.

Award made under a reciprocating territory, notified by India.

 🧾 Conditions similar to NY Convention, but rarely
invoked in modern practice.

7. Key Case Laws

📌 Renusagar Power Co. v. General Electric Co. (1994)

Landmark case on enforcement of foreign awards.

“Public policy” = narrowly construed (e.g., only fraud, corruption, or Indian

law violation)

📌 Shri Lal Mahal Ltd. v. Progetto Grano Spa (2013)

Reinforced limited judicial review in enforcement.

Domestic and foreign awards treated differently; no patent illegality review

for foreign awards.

📌 Venture Global Engg. v. Satyam Computer (2008)

Clarified interaction between enforcement and setting aside proceedings in

foreign jurisdiction.

📌 8. Difference: Foreign vs Domestic

Award
Domestic
Feature Foreign Award
Award
Part of Act Part I Part II
Enforced
Section 36 Sections 44–52 (NY) / 53–60 (Geneva)
under
Not applicable in India – challenge must
Challenged by Section 34
be in seat country
Court Civil Court High Court
Recognition
No Yes, prior to enforcement
needed

✅ 9. Summary Table for Quick Revision

Concept Detail
Definition Award made outside India in a notified country
 Concept Detail
under an arbitration agreement
Legal Basis Section 44 (NYC), Section 53 (Geneva)
Enforcement
High Court
Court
Written agreement, reciprocating territory,
Pre-requisites
commercial nature
Refusal Section 48: incapacity, improper procedure, public
Grounds policy, etc.
Effect Deemed as a decree of High Court (Sec. 49)
Leading Cases Renusagar, Lal Mahal, Venture Global

📌 Sample Exam Answer Intro:

A foreign award, as defined under Section 44 of the
Arbitration and Conciliation Act, 1996, is an award
arising from a commercial arbitration conducted
outside India in a country notified as a reciprocating
territory. The award can be enforced in India upon
fulfilling conditions under Section 47 and is deemed a
decree under Section 49. Enforcement can be refused
only on limited grounds such as incapacity, improper
procedure, or violation of public policy under Section
48. Key judgments like Renusagar and Lal Mahal
highlight the Indian judiciary’s pro-arbitration stance
with limited judicial intervention.