Many cases have burdened the Indian judicial system , which in turn puts a lot of friction on the courts, resulting in many pending and unresolved issues. Hence the Alternate Conflict Resolution area has acquired significant significance.
Arbitration has proved to be a very effective tool for more effective and expedient arbitration of contractual and other conflicts. The primary justification for arbitration extension is the flexibility open to the parties in matters such as the collection of relevant legislation and the location and venue of choice. The primary focus in arbitration is on the parties’ independence. The parties usually have the right to negotiate on the protocol to be followed throughout the arbitration of disputes.
The 1996 Arbitration and Conciliation Act (hereinafter referred to as Act) is the legislation regulating the arbitration area in India that was adopted on the basis of the United Nations Commission on International Trade Law ( UNCITRAL), sometimes refers to as the Model Law. It is found several times where the sides attempt to use delaying tactics in order to prolong the trial or to deplete the funds of the opposing party.
That may cancel the impact of the arbitrator ‘s final relief or award. Therefore, in order to prevent these circumstances and to protect the interests of the parties, the transitional provisions are given for the Act.
The interim measures can be sought by the parties in the following conditions:
1.Before arbitral hearings begin,
2. In disciplinary hearings,
3. After the reward is issued by the arbitral tribunal just before the reward is enforced.
The parties seek limited judicial interference in the arbitration process to ensure the issues are settled easily. Thus, the Act relies on limited judicial interference. With the latest changes adopted in 2015 in the Act, the Arbitral Tribunal has strong powers to award the temporary reliefs.
Interim Relief Provided Under Section 9
The Act allows for temporary interventions by the courts under section 9, and by the arbitral tribunal under section 17. Parts 9 and 17 of the Act are dependent on Sections 9 and 17 of the Model Legislation, respectively.
While section 9 of the Act is based on Article 9 of the Model Law, it includes, in addition to the possibility of seeking protection before and after the arbitral hearings, an alternative opportunity for seeking temporary relief after the reward has been issued by the arbitral tribunal (until the award is executed).
The 2015 provision in the Act provided for certain amendments, such that if any provisional order was issued by the court until the arbitral tribunal was created, the parties are expected to begin the arbitration tribunal within 90 days. The parties have to contact the arbitral tribunal for requesting temporary relief until the arbitral proceedings begin. In general, a motion for temporary relief would not be permitted by the courts until the tribunal has been appointed unless the party shows that the relief provided by the arbitral tribunal is ineffectual.
Where to apply under section 9 ?
Under section 2(I)(e) of the Act, a court can, except in international commercial arbitration, be a Principal Civil Court with initial jurisdiction in a province, and even a High Court exercising its initial general civil jurisdiction. Such a court may be a Supreme Court with an ordinary initial legal jurisdiction over international commercial arbitration.
If one of the parties belongs to a country other than India, an arbitration case shall be termed as international commercial arbitration. An international commercial arbitration group can be an entity, a corporate body, or a foreign world government.
In the case of Bharat Aluminum Company v. Kaiser Aluminium, the question of jurisdiction was presented before the Supreme Court where the court claimed that the jurisdiction would be the court of the arbitration place.
The Supreme Court also clarified in Indus Cell Delivery Service Ltd. v. Datawind Technologies Service & Ors that fixing the arbitration seat would preclude jurisdictions.
Reliefs provided under section 9:
1.Appointment for the arbitral tribunal of guardians of minor and citizen of unsound mind,
2. Retention, selling of merchandise and provisional care of the subject matter,
3. Securing disputed number,
4.Topic detention and review,
5.Interim warrant and receiver appointment;
6.Any other step the court deems to be just and easy.
It is evident from the discussion above that the provisions of section 9 of the Act are of great significance and are an important resource in arbitration proceedings. While the Indian government, courts and parties are trying to reduce the propensity to pursue recourse to Section 9 after the tribunal has been established, it will take some time until the remedy under Section 17 becomes absolutely efficacious. Until now, the broad authority under Section 9 has been utilised with great care and with India developing as an arbitration-friendly jurisdiction, our courts’ cautious approach to granting injunctive justice will go a long way in this endeavor.