Section 9 Arbitration Act: Interim Measures, Section 17, 90-Day Rule, Injunctions, Security & Appeals

By Adv. Govind Bali
Fastrack Legal Solutions LLP

Section 9 of the Arbitration and Conciliation Act, 1996 allows a party to seek court-ordered interim protection before arbitration begins, during arbitral proceedings and, in a limited post-award period, before the award is enforced under Section 36.

The purpose is not to decide the arbitration in advance. It is to prevent the arbitral process from becoming meaningless because property is transferred, evidence disappears, assets are dissipated, contractual rights are irreversibly altered or the eventual award becomes incapable of effective enforcement.

The statutory scheme now creates a clear division: before the tribunal is constituted, Section 9 can be crucial; after constitution, Section 17 before the arbitral tribunal ordinarily becomes the primary interim-remedy forum unless that remedy is not efficacious.

For case-specific assistance, see our Section 9 Arbitration Interim Relief page and broader Dispute Resolution & Arbitration practice.

What Does Section 9 Permit?

Section 9 authorises the court to grant interim measures concerning matters including:

appointment of a guardian for a minor or person of unsound mind for the arbitration;
preservation, interim custody or sale of goods forming the subject matter of arbitration;
securing the amount in dispute;
detention, preservation or inspection of property or things relevant to the dispute;
entry onto land or buildings for inspection or evidence-preservation purposes;
interim injunction;
appointment of a receiver; and
other interim measures that appear just and convenient.

The current statutory text is available on India Code — Section 9.

When Can a Section 9 Application Be Filed?

A party may approach the court:

before commencement of arbitral proceedings;
during arbitral proceedings; subject to Section 9(3); or
after the award but before enforcement under Section 36.

This timing flexibility is one of Section 9’s most important features.

Section 9 Before Arbitration Begins

Pre-arbitration Section 9 relief is often used where urgent protection is required before a tribunal can realistically be constituted.

Examples can include:

threatened transfer of the disputed asset;
termination of critical access or licences;
disposal of inventory;
removal of equipment;
destruction of records;
withdrawal of funds;
creation of third-party rights;
urgent preservation of confidential information.

The applicant should still demonstrate a genuine arbitration agreement and a real intention to commence arbitration rather than use Section 9 as a substitute for an ordinary civil suit.

The 90-Day Rule Under Section 9(2)

Where the court grants an interim measure before commencement of arbitration, Section 9(2) requires the arbitral proceedings to commence within 90 days from the date of the order, unless the court determines a further period.

This rule prevents a party from obtaining interim protection and then indefinitely avoiding the arbitration for which the protection was granted.

A Section 9 order should therefore immediately trigger an arbitration calendar:

Section 9 order → calculate 90 days → invoke/commence arbitration properly → preserve proof of commencement.

What Counts as Commencement of Arbitration?

Section 21 of the Arbitration Act governs commencement of arbitral proceedings unless the parties have agreed otherwise. In a typical ad hoc arbitration, careful attention should be paid to when the request to refer the dispute to arbitration is received by the respondent.

Institutional rules can contain their own procedural mechanics. The arbitration clause and chosen rules should therefore be reviewed before calculating the commencement step.

What Happens After the Tribunal Is Constituted?

Section 9(3) substantially reduces court intervention after constitution of the arbitral tribunal.

Once the tribunal is constituted, the court shall not ordinarily entertain a Section 9 application unless it finds that circumstances exist which may render the remedy under Section 17 ineffective or inefficacious.

This reflects the statutory preference that the arbitral tribunal itself handle interim measures once it is capable of doing so.

ArcelorMittal v. Essar Bulk Terminal: Meaning of Section 9(3)

In Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., the Supreme Court examined the effect of tribunal constitution on a pending Section 9 application.

The Court held, in substance, that once the tribunal is constituted, a court should not newly take up a Section 9 application for consideration unless the Section 17 remedy is inefficacious. However, where the Section 9 application has already been entertained and the court has applied its mind to it, constitution of the tribunal does not automatically require the court to abandon the proceeding and send the parties back to the tribunal.

The judgment also recognises that there may be practical circumstances in which Section 17 is temporarily ineffective—for example, where the tribunal is not functional or cannot provide urgent protection in time.

Read the judgment: Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd..

Section 17: Interim Measures by the Arbitral Tribunal

Section 17 gives an arbitral tribunal broad interim powers during arbitral proceedings. The available categories closely mirror those under Section 9.

Under Section 17(2), subject to an appeal under Section 37, an interim order of the tribunal is deemed to be an order of the court for enforcement purposes and can be enforced under the Code of Civil Procedure as if it were a court order.

See India Code — Section 17.

Section 9 vs Section 17

Section 9	Section 17
Interim measures by Court	Interim measures by arbitral tribunal
Available before arbitration	Available during arbitral proceedings
Can be used before tribunal constitution	Requires functioning tribunal
Post-constitution restricted by Section 9(3)	Primary forum once tribunal is constituted
Order appealable as provided in Section 37	Order also subject to Section 37 appeal

Interim Injunction Under Section 9

An injunction is one of the express statutory remedies. Depending on the contract and dispute, a party may seek restraint against:

transfer of assets;
creation of third-party rights;
disposal of goods;
unauthorised use of confidential information;
breach of exclusivity;
interference with project assets;
alteration of the status of disputed property;
other conduct capable of frustrating arbitration.

But interim relief is discretionary. The application should demonstrate a serious prima facie case, balance of convenience and real risk of irreparable or inadequately compensable prejudice, adapted to the commercial and arbitral context.

Can Section 9 Be Used to Obtain Final Relief?

Ordinarily no.

Section 9 is intended to preserve and protect pending the arbitral adjudication. A request that effectively decides the entire contractual dispute or gives the applicant everything it could obtain in the final award faces a much higher threshold.

The relief should be framed as preservation, protection or security rather than an attempt to bypass the tribunal.

Securing the Amount in Dispute

Section 9 expressly permits an order securing the amount in dispute, but a claimant does not automatically obtain security merely by showing that money is claimed.

A strong application should identify evidence suggesting that, without protection, the eventual award may become ineffective. Relevant facts can include:

asset dissipation;
rapid disposal of business assets;
transfer to related parties;
financial distress;
closure or abandonment of operations;
attempts to defeat creditors;
admissions concerning non-payment combined with asset-risk evidence.

The requested security should also be proportionate to the dispute.

Preservation or Sale of Goods

Where goods are perishable, rapidly depreciating, expensive to store or central to the dispute, Section 9 can permit preservation, custody or sale.

The application should identify:

ownership/contractual interest;
current location;
condition;
risk of deterioration;
storage cost;
proposed custody arrangements;
how sale proceeds should be protected.

Inspection and Evidence Preservation

Section 9 can also support detention, preservation and inspection of property or things relevant to the arbitration.

In construction, infrastructure, manufacturing and technology disputes, urgent inspection may be important before:

a site is altered;
machinery is removed;
goods deteriorate;
technical conditions change;
electronic systems are overwritten;
the evidence necessary for expert analysis disappears.

Appointment of Receiver

Section 9 expressly permits appointment of a receiver. This is an intrusive remedy and should normally be supported by a strong factual case showing why ordinary restraint orders would not adequately protect the subject matter.

Section 9 After the Arbitral Award

Section 9 remains available after the award but only during the statutory window before the award is enforced under Section 36.

This can matter where the award creditor needs urgent protection against dissipation or transfer of assets while enforcement steps are being initiated.

Section 9 should not be confused with enforcement itself. The final award is enforced through the Section 36 framework.

Can a Section 9 Court Decide Whether the Claim Will Ultimately Succeed?

The court must assess whether the applicant has a sufficiently strong interim case, but it should avoid converting the Section 9 hearing into the final arbitration.

The merits assessment is therefore provisional and directed toward the necessity of interim protection.

Does the Arbitration Clause Need to Be Invoked Before Section 9?

Section 9 can be filed before arbitral proceedings commence, so a prior Section 21 notice is not invariably a statutory precondition to filing. However, the applicant should demonstrate the existence of an arbitration agreement and a real intention to arbitrate.

Where there is time, properly invoking arbitration early can strengthen the procedural record and prevent later argument that Section 9 was being used independently of genuine arbitration.

Which Court Has Jurisdiction?

Jurisdiction must be examined from the definition of “Court” in Section 2, the arbitration clause, the juridical seat, the nature of the arbitration, territorial and pecuniary jurisdiction, the Commercial Courts framework where applicable, and Section 42 where it applies.

The choice of court should never be based simply on where one party happens to maintain an office.

This is especially important where the contract specifies both:

a seat of arbitration; and
a separate exclusive-jurisdiction clause.

The clauses must be read together in light of the current arbitration jurisprudence.

Commercial Court and Section 9

Where the underlying arbitration concerns a commercial dispute of the requisite specified value, the Commercial Courts Act can affect the forum and procedural treatment of a Section 9 application.

For the broader commercial-court framework, see our Commercial Suit in India guide.

Section 37 Appeal

Section 37 provides the statutory appeal route for specified arbitration orders, including an order granting or refusing a measure under Section 9 and an order granting or refusing an interim measure under Section 17.

An unsuccessful party should therefore examine Section 37 promptly rather than assume that an ordinary civil appeal structure applies.

Documents for a Strong Section 9 Application

Executed contract and arbitration clause.
Amendments and relevant schedules.
Notice of breach.
Section 21 invocation where issued.
Correspondence demonstrating dispute.
Documents proving threatened prejudice.
Asset/property records.
Financial evidence where security is sought.
Photographs, emails, technical records or access logs where relevant.
Proposed arbitration timeline.
Draft precise interim prayers.

Section 9 Drafting Strategy

A strong application should answer six questions quickly:

What is the arbitration agreement?
What dispute has arisen?
What exactly is threatened?
Why can the harm not wait for the final award?
Why is the requested measure proportionate?
What will happen next in arbitration?

Judges should not have to reconstruct urgency from hundreds of pages of correspondence.

Common Mistakes in Section 9 Proceedings

Seeking final contractual relief disguised as an interim prayer.
No clear arbitration agreement.
Vague allegation that assets “may be disposed of” without evidence.
Seeking security for the full claim automatically.
Ignoring the 90-day commencement requirement after a pre-arbitration order.
Continuing in court after tribunal constitution without addressing Section 9(3).
Ignoring Section 17.
Filing before the wrong court.
Drafting prayers broader than the contractual dispute.
Failing to establish urgency through dates and documents.

Section 9 Decision Tree

Is there a valid arbitration agreement?
If no, Section 9 is ordinarily unavailable as an arbitration remedy.

Has the tribunal been constituted?
If no, Section 9 may be the immediate court remedy.

Did the court grant pre-arbitration relief?
Commence arbitration within 90 days or further time allowed.

Tribunal already constituted?
Use Section 17 unless the Section 17 remedy is not efficacious or the Section 9 matter had already been entertained in the sense explained by the Supreme Court.

Interim order adverse?
Examine Section 37 appeal promptly.

Frequently Asked Questions

Can Section 9 be filed before arbitration starts?

Yes. Section 9 expressly permits an application before commencement of arbitral proceedings.

How soon must arbitration start after a pre-arbitration Section 9 order?

Ordinarily within 90 days from the interim order, unless the court determines a further period.

Can Section 9 be filed after the tribunal is constituted?

Section 9(3) restricts court intervention after tribunal constitution unless circumstances render the Section 17 remedy inefficacious.

Can the tribunal grant an injunction?

Yes. Section 17 gives the tribunal broad interim-measure powers, including interim injunctions.

Is a Section 17 order enforceable?

Yes. Subject to Section 37 appeal, Section 17(2) treats the order as a court order for enforcement under the CPC.

Can Section 9 secure a money claim?

Potentially, but security is discretionary and normally requires a factual basis showing the need to preserve the efficacy of arbitration.

Can Section 9 be used after the award?

Yes, during the statutory period after the award and before enforcement under Section 36.

Can a Section 9 order be appealed?

Section 37 provides an appeal from an order granting or refusing a measure under Section 9.

Key Takeaways

Section 9 is most effective when it is used as a precise preservation remedy rather than a substitute for arbitration.

The practical sequence is:

Arbitration agreement → identify urgent threat → choose correct court → seek proportionate protection → commence arbitration within 90 days where Section 9(2) applies → move interim disputes to Section 17 after tribunal constitution → use Section 37 where an appeal lies.

The central post-2015 principle is that the arbitral tribunal should become the primary interim-relief forum once it is constituted and capable of giving effective relief.

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Disclaimer

This article is for general legal awareness and educational purposes only. It is not intended as advertisement or solicitation and does not constitute advice for a particular arbitration. Jurisdiction, seat, urgency, interim relief, security and the interaction between Sections 9 and 17 depend upon the arbitration agreement and individual facts.

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