This article is originally published by Global Arbitration Review in the Asia Pacific Arbitration Review, 2027 at Between deference and re-litigation: Indian courts and foreign-seated interim measures.

In summary

Indian law provides no direct mechanism for recognition or enforcement of interim measures issued by foreign-seated arbitral tribunals or emergency arbitrators. Consequently, parties are constrained to invoke section 9 as an indirect route to obtain relief similar to that granted by a foreign tribunal. This article identifies the divergent judicial approaches towards the degree of deference to be given to an existing foreign interim order as well as the level of scrutiny to be undertaken when parties invoke section 9 to obtain a similar relief. It identifies two distinct approaches: a de novo approach, requiring a fresh consideration of interim relief and a deferential approach, which accords deference to foreign interim orders while preserving the court’s ability to conduct a broad merits review. The article argues that the deferential approach better aligns with party autonomy and legislative intent. Additionally, it presents section 27(5) as a viable alternative for indirect recognition and enforcement, though this route remains largely untested.

Discussion points

• In the absence of a direct route for recognition and enforcement of interim orders issued by foreign-seated arbitral tribunals or emergency arbitrators under the Arbitration and Conciliation Act, 1996, parties primarily rely on section 9 to seek analogous interim relief from Indian courts.
• Indian Courts have adopted divergent approaches on the extent of scrutiny permissible under section 9 when interim reliefs have already been granted by a foreign-seated arbitral tribunal or emergency arbitrator.
• A deferential approach to interim orders issued by foreign-seated arbitral tribunals or emergency arbitrators better reflects party autonomy and legislative intent underlying section 9.
• Section 27(5) may offer a viable alternative route for enforcement of foreign-seated interim orders, though its applicability remains untested.
• Legislative adoption of provisions analogous to articles 17H and 17I of the UNCITRAL Model Law would provide the most comprehensive solution, enabling direct judicial recognition and enforcement of foreign-seated interim measures.

Referenced in this article

• Amazon.com NV Investment Holdings LLC v Future Retail Ltd
• Raffles Design International India (P) Ltd v Educomp Professional Education Ltd
• Ashwani Minda v U-Shin Ltd
• Ashok Kumar Goel v Ebixcash Ltd
• Sri Krishan v Anand
• Alka Chandewar v Shamsul Ishrar Khan
• UNCITRAL Model Law on International Commercial Arbitration, 1985 (with amendments as adopted in 2006)
• UNCITRAL, Possible Uniform Rules on Interim Measures of Protection (U.N. Doc. A/CN.9/WG.II/WP.108, 2000)
• Arbitration and Conciliation Act, 1996
• UNCITRAL, Report of Working Group II (Arbitration), Thirty-Second Session, U.N. Doc. A/CN.9/468 (2000)

Introduction

An arbitral tribunal’s power to grant interim measures to protect the subject-matter of arbitration has been well-recognised and largely uncontested. With the recent advances of institutional arbitration, this power is increasingly being exercised by emergency arbitrators, who are accorded with the same status as that of an arbitral tribunal in most prominent jurisdictions. ​​However, since arbitrators ordinarily do not have coercive powers, enforceability of tribunal-ordered provisional measures has always posed a challenge. Indeed, the question of recognition and enforcement of interim measures ordered by an arbitral tribunal or emergency arbitrator is far from settled.

In India, this issue has largely been settled in the context of India-seated arbitrations through the introduction of section 17(2) by way of the Arbitration and Conciliation (Amendment) Act, 2015 (2015 Amendment). Interim orders issued by an arbitral tribunal or emergency arbitrator seated in India are now deemed to be orders of a civil court and can be enforced as such. Nonetheless, there remains serious uncertainty as to the recognition and enforcement of interim measures ordered by arbitral tribunal and emergency arbitrators in foreign-seated arbitrations (foreign interim orders).

At present, there is no direct route for recognition and enforcement of foreign interim orders under the Arbitration and Conciliation Act, 1996 (Indian Arbitration Act). Consequently, parties predominantly resort to filing a petition under section 9 of the Indian Arbitration Act (section 9) to seek interim relief that is identical or at least similar to the relief already granted by the foreign-seated tribunal or emergency arbitrator. Courts have recognised section 9 as an indirect route for enforcement of interim measures underlying foreign interim orders.

This article first analyses the existing jurisprudence on indirect enforcement of foreign interim orders by Indian courts under section 9. In doing so, it highlights the divergent approaches taken by different high courts on degree of deference to be given to an existing foreign interim order as well as the level of scrutiny to be undertaken under section 9 for granting similar reliefs. The article proposes that the courts must adopt a deferential approach – ie, give substantial deference to the existing foreign interim orders.

The article further postulates that section 27(5) of the Indian Arbitration Act may present a viable alternative to a section 9 petition, enabling parties to indirectly secure compliance with foreign interim orders. Ultimately, the most desirable solution to address this legislative vacuum is the introduction of a provision in the Indian Arbitration Act authorising judicial enforcement of foreign interim orders.

Lack of direct route for recognition and enforcement of interim orders granted in foreign-seated arbitrations

The UNCITRAL Model Law on International Commercial Arbitration, 1985 (UNCITRAL Model Law) did not contain any provision authorising judicial enforcement (whether by courts at the seat or outside) of tribunal-ordered interim measures.^[1] The Indian Arbitration Act largely adopted the UNCITRAL Model Law as it stood in 1985.

The lacunae was addressed through the 2006 amendment to the UNCITRAL Model Law, which introduced articles 17H and 17I expressly permitting judicial recognition and enforcement of tribunal-issued interim orders.^[2] Both these provisions were consciously made seat-agnostic to reflect the underlying agreement of States to facilitate recognition and enforcement of interim orders issued by an arbitral tribunal in an international commercial arbitration irrespective of where the award was made.^[3]

Article 17H states that tribunal-issued interim measures shall be recognised as binding and shall be enforceable by the competent court, irrespective of the country in which it was issued. Article 17H is subject to article 17I which sets out the scope of review available to the court enforcing such interim measures.

The grounds on which recognition and enforcement of tribunal-ordered interim measures may be refused include:

• grounds set out in article 36(1)(a)(i), (ii), (iii) or (iv);^[4]
• non-compliance with the arbitral tribunal’s order for provision of security in connection with the interim measures issued by the tribunal;
• termination or suspension of interim measure by the tribunal, or where so empowered, by the court of the state in which the arbitration takes place or under the law of which that interim measure was granted;
• grounds set out in article 36(1)(b)(i) or (ii);^[5]
• incompatibility of interim measure with powers conferred upon the court unless the court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures to facilitate its enforcement without modifying the substance.

Clearly, article 17I is modelled after article 36 and article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.^[6] While article 17I introduces additional grounds beyond article 36 and article V, it continues to embody the principle of minimal judicial interference and finality of orders issued by an arbitral tribunal.

In this spirit, article 17I permits limited judicial review on specified grounds, which do not extend to a review of the underlying merits of the dispute. In fact, article 17I (2) expressly bars the court where recognition or enforcement is sought from undertaking a review of the substance of the interim measure.

In India, a similar need was felt in the context of enforcement of interim orders issued by a tribunal seated in India.^[7] To address this legislative gap, the Arbitration and Conciliation (Amendment) Act, 2015 (2015 Amendment) introduced a deeming provision under section 17(2). Pursuant to this, an interim order issued by a tribunal seated in India is deemed to be an order of the court and is enforceable as such under the Civil Procedure Code, 1908 (CPC).

Unfortunately, at present, there is no statutory provision for judicial recognition and enforcement of foreign interim orders. There exists no provision similar to article 17H and 17I of the UNCITRAL Model Law in the Indian Arbitration Act. There is, thus, lack of a direct route for recognition and enforcement of foreign interim orders.

Notably, through the 2015 Amendment, the legislature introduced a proviso to section 2(2) of the Indian Arbitration Act. This proviso extends the application of sections 9, 27 and 37 to foreign seated arbitrations where the final award would be enforceable under Part-II of the Indian Arbitration Act. Section 9 provides the Indian courts the power to grant an interim relief before or during arbitral proceedings or at any time after the making of the arbitral award. Section 27(5) allows the courts to issue contempt if a party fails to comply with a direction of an arbitral tribunal. As discussed in detail below, section 9 and 27 of the Indian Arbitration Act remain the two indirect routes available to parties to seek recognition and enforcement of foreign interim orders.

Section 9 and foreign interim measures: a predominant route muddled with divergent judicial approaches

No conceptual distinction between emergency arbitrator and arbitral tribunal

In Amazon.com NV Investment Holdings LLC v Future Retail Ltd^[8] (Amazon), the Indian Supreme Court held that an emergency arbitrator’s order constitutes an order under section 17(1) of the Indian Arbitration Act, and is therefore enforceable under section 17(2).^[9] The Court in effect removed any distinction between an emergency award and an interim relief granted by an arbitral tribunal while determining recognition/enforcement of such orders in India. The Supreme Court arrived at this finding by inter alia analysing the following:

• the parties by consenting to institutional rules that provide for emergency arbitration in fact agree to include an emergency award within the definition of award;^[10]
• the functional role and the order of an emergency arbitrator is exactly the same as that of an arbitral tribunal;^[11] and
• arbitration proceedings commence even before the constitution of the main tribunal and include emergency proceedings.^[12]

The analysis by the court on this particular issue appears to be seat-neutral and should equally be applicable to foreign seated arbitrations. The principle that where parties have contractually submitted to institutional rules that provide for emergency arbitration, the orders of an emergency arbitrator gain legitimacy from the parties’ underlying agreement continues to be applicable.

Genesis of the de novo approach under section 9

In the absence of a direct statutory route for judicial recognition and enforcement of foreign interim orders, parties are often constrained to file a separate section 9 seeking identical reliefs as those sought before the tribunal or emergency arbitrator. In such a scenario, the question that arises is deceptively simple: what weight, if any, should an Indian court accord to a prior foreign seated emergency award/arbitral tribunal’s decision^[13] when exercising its independent jurisdiction under section 9?

Indian courts have adopted two identifiable and divergent approaches when confronted with this question.

• De novo approach: this approach treats section 9 as conferring upon Indian courts an independent statutory jurisdiction that must be exercised afresh, wherein courts undertake a fresh assessment of the merits of the case for granting interim relief. Courts generally apply the trinity test for the grant of interim relief in civil cases, involving an assessment of prima facie case, balance of convenience and irreparable harm. This analysis is undertaken without according any meaningful deference to the findings of the emergency arbitrator or the tribunal.
• Deferential approach: this approach acknowledges the court’s independent jurisdiction to determine a section 9 petition but accords meaningful weight to the emergency arbitrator’s reasoning, treating well-reasoned and unchallenged EA decisions as persuasive factors that may substantially inform the section 9 determination.

At present, the co-existence of these divergent approaches reflects the deeper tensions within the Indian arbitration jurisprudence. At the heart of this variance lies the competing considerations of a legislative vacuum for enforcement of foreign interim orders and the underlying principle of party autonomy in arbitration.

HSBC PI Holdings (Mauritius) Ltd v Avitel Post Studioz Ltd^[14] is one of the earliest judgments in which Indian courts addressed section 9 proceedings following an emergency award. The respondent opposed the section 9 petition on the ground of arbitrability of the subject matter and thereby questioned the maintainability of the section 9. In this light, the Bombay High Court concluded that there was no subject matter bar of arbitrability and section 9 held section 9 to be maintainable. However, the High Court did not set out any framework for how courts should treat emergency arbitrator findings when exercising jurisdiction under section 9.

The explicit articulation of a doctrinal position on this question was first provided by the Delhi High Court in the case of Raffles Design International India Private Limited v Educomp Professional Education Limited^[15] (Raffles), decided in 2016. In Raffles, the petitioners invoked arbitration under the SIAC Rules and obtained an emergency award restraining the respondents from taking actions that would deprive the petitioners of their contractual rights. Despite obtaining this relief, which was also enforced by the Singapore High Court, the petitioners alleged continued violations by the respondents and filed a section 9 petition before the Delhi High Court seeking similar interim protection.

The court in Raffles was solely addressing the question of maintainability of a section 9 petition. After considering the scheme of the Indian Arbitration Act and the SIAC Rules, the court held that a section 9 petition was maintainable even where the parties had previously obtained a favourable emergency award. However, the court proceeded to expound a de novo approach, articulating the power of a section 9 court in making its determination as follows:

105. However, in my view, a party seeking interim measures cannot be precluded from doing so only for the reason that it had obtained a similar order from an arbitral tribunal. Needless to state that the question whether the interim orders should be granted under section 9 of the Act or not would have to be considered by the Courts independent of the orders passed by the arbitral tribunal. Recourse to Section 9 of the Act is not available for the purpose of enforcing the orders of the arbitral tribunal; but that does not mean that the Court cannot independently apply its mind and grant interim relief in cases where it is warranted. (Emphasis Supplied.)

The court justified its rationale and corroborated an entirely independent determination under section 9 by purportedly relying on article 17I(2) of the UNCITRAL Model Law. To this end, the court observed:

It is relevant to note that the provisions under Article 17I(2) of the Model Law, the court enforcing an interim order passed by an Arbitral Tribunal in prescribed form undertakes a review of the substance of interim measure [sic] the Model Law. To that extent, a Court while examining a similar relief under Section 9 of the Act would be unfettered by the findings or the view of the Arbitral Tribunal.^[16]

Pertinently, the court in Raffles ex facie misread article 17I(2) of the UNCITRAL Model Law. A bare reading of the said article states the complete opposite of the conclusion drawn by the court in Raffles. Article 17I(2) states:

[…]The court where recognition or enforcement is sought shall not, in making that determination, undertake a review of the substance of the interim measure.

By inadvertently mis-reading the term “shall not” as “shall”, the court in Raffles laid the theoretical justification to support the proposition that Indian courts are “unfettered” by tribunal findings. This interpretation established the foundational basis for a de novo approach in India, granting legitimacy to the Indian Courts for undertaking a de novo reconsideration of interim relief in section 9 proceedings.

Prior to Raffles, no Indian court decision had articulated the relationship between emergency arbitrator awards and section 9 proceedings or how courts should approach findings rendered by a foreign-seated emergency arbitrator or arbitral tribunal.

Subsequent decisions of Indian courts have either followed the reasoning in Raffles, distinguished it on the facts or attempted to limit its scope. However, Raffles‘ erroneous citation of the Model Law to ground the de novo approach has gone unnoticed.

The Minda effect: bifurcated standard of review

In 2020, the Delhi High Court in Ashwani Minda v U-Shin Ltd (Minda-I)^[17] again had to consider the maintainability of section 9 petition in a case where there was a pre-existing emergency award. The facts in Minda were, however, somewhat peculiar. Unlike Raffles, where the emergency arbitrator had granted interim relief, the emergency arbitrator in Minda had rejected the petitioner’s application seeking interim relief. The petitioner then filed a section 9 petition seeking substantially similar interim relief before the Delhi High Court.

The petitioner sought to rely on Raffles to contend that the court must independently adjudicate a section 9 petition notwithstanding the outcome of proceedings before an emergency arbitrator.^[18] The court in Minda-I, distinguished the de novo approach articulated in Raffles, holding that it was applicable only in scenarios where the emergency arbitrator had granted relief in favour of the petitioner.^[19] In Minda-I, the court suggested complete deference to the emergency award, noting that the emergency arbitrator had rendered a detailed and reasoned order and that it was therefore not open to the petitioner to seek a second bite at the cherry.^[20] Minda-I was upheld by the Division Bench in Ashwani Minda v U-Shin Ltd (Minda-II).^[21]

Interestingly, the court in Minda-I & II, in effect created a bifurcated standard for Indian courts while evaluating emergency awards depending on whether the applicant had succeeded before the emergency arbitrator or not.^[22] In other words, if the emergency arbitrator rendered a favourable order, Indian courts would adopt a de novo approach and undertake a de novo analysis. However, where the emergency arbitrator did not render a favourable order, Indian courts would accord complete deference and decline to grant relief under section 9.

Ultimately, the court in Minda-I held the section 9 petition to be not maintainable on the ground that the parties had excluded the applicability of section 9 and the institutional rules in the instant case did not permit parties to approach courts for interim relief.^[23]

Gateway to deferential approach

In 2021, the Supreme Court of India in Amazon, albeit in the context of an India seated arbitration, settled the position of law that the Indian Arbitration Act grants full autonomy to parties to have their dispute decided in accordance with institutional rules. The Court held that having agreed to institutional rules and obtained an emergency award, no party can subsequently contend that they are no longer bound by the emergency award.

The decision in Amazon marked a shift in jurisprudence and initiated a transition towards the deferential approach by the Indian courts.

The first comprehensive use of the deferential approach appears to have been by the Calcutta High Court in Uphealth Holdings INC v Glocal Healthcare Systems (P) Ltd,^[24] wherein the Court acknowledged that while emergency awards are not directly enforceable, they must be treated as a “supplemental factor”. The Court examined the following factors in determining the weight to be accorded to the emergency award:^[25] (1) the emergency award was reasoned, (2) the emergency award was unchallenged, (3) both parties participated in the emergency proceedings and (4) the emergency award disclosed no illegality or perversity. The court accorded limited recognition to Raffles, noting only that section 9 cannot be utilised to enforce emergency awards directly.

Notably, the court in Uphealth also conducted a very brief analysis on the merits without undertaking any granular examination of the substantive issues. The court did not conduct a substantive re-evaluation of the emergency arbitrator’s reasoning on the merits of the interim relief.^[26] Instead, the emergency arbitrator’s decision appears to have functioned as a substantive foundation, with the court essentially confirming the reliefs already granted.

The Bombay High Court in Ashok Kumar Goel v Ebixcash Limited^[27] (Ebix-I) also implemented the deferential approach explicitly giving deference to the pre-existing emergency award on the basis of party autonomy. This approach was further upheld by the Division Bench Ebix Cash World Money Ltd v Ashok Kumar Goel^[28] (Ebix-II).

In Ebix, the dispute arose from a shareholders agreement governed by the SIAC Rules. The petitioners obtained an emergency arbitrator decision directing the respondents to furnish a bank guarantee of 1.45 billion Indian rupees, which was subsequently confirmed by the Arbitral Tribunal. The respondents failed to comply and the petitioners filed section 9 proceedings.

The Bombay High Court in Ebix I, articulated the principle underlying the deferential approach. It observed that party autonomy is the bedrock of arbitration. Moreover, the Bombay High Court elucidated that the principle underlying section 9 was to support arbitration and not to defeat or permit parties to detract from the very process of arbitration.^[29] In light of these principles and judgment of the Supreme Court in Amazon, the Bombay High Court held that parties having adopted SIAC Rules and having participated in the emergency proceedings cannot later claim that the emergency arbitrator’s ruling is non-binding or invalid.^[30]

The court in Ebix I then proceeded to apply the deferential approach. The court first determined whether the emergency award was well-reasoned and rendered after adequate hearing, and whether the opposing party had raised any challenge to its merits. Where these criteria were satisfied, as they were in the case before the court, the court concluded that there was no basis for rejecting the emergency arbitrator’s findings. Notably, the court also undertook an alternative independent analysis of the merits; however, this analysis was broadly limited to examining (1) the obstructionist conduct of the parties and (2) the fairness of procedure during the emergency proceedings.

The court did not independently re-evaluate the entirety of the evidence to satisfy itself de novo of the trinity test for the grant of interim relief in India.^[31] Though the court also conducted a nominally “independent” assessment of the interim relief criteria, this analysis was brief and drew heavily upon the respondents’ failure to challenge the EA’s substantive reasoning and their prior admissions of liability.^[32] The approach adopted effectively treated the EA decision as presumptively valid, requiring the opposing party to raise specific objections to displace its findings.

The Division Bench in Ebix-II upheld the decision in Ebix-I and re-affirmed the principle laid down in Amazon.^[33] A Special Leave Petition bearing SLP(C) No. 14153-14154/2025 was thereafter filed against Ebix-II, which was dismissed by the Supreme Court.

Despite a shift to the deferential approach by the Indian courts, the dictum of Raffles continues to affect the arbitration jurisprudence. Recently, the Delhi High Court, by its decision dated 06 January 2026 in the case of JLT Energy 9 SAS v Hindustan Cleanenergy Limited^[34] (JLT), relied on the de novo approach propounded in Raffles and declined to consider or even engage with the pre-existing emergency award in its entirety.^[35] Significantly, the courts in both Raffles and Minda did not have occasion to apply the de novo approach in practice. JLT marks the first decision where the Delhi High Court has actually applied this approach.

At present, there remains uncertainty as to which approach a court will follow when determining a section 9 application in the presence of a pre-existing emergency award. Nevertheless, a comprehensive review of the jurisprudence suggests that courts are more inclined towards the deferential approach. JLT effectively remains the only case in which a court has implemented a de novo approach. An appeal against JLT before the Division Bench of the Delhi High Court is pending as at the writing of this article.

Which approach is preferable?

The principle of party autonomy is foundational to international arbitration. This principle is clearly crystallised in the Indian Arbitration Act. In particular, the proviso to section 2 of the Indian Arbitration Act permits parties to exclude the application of sections 9, 27, and 37 in a foreign-seated arbitration. The legislative scheme thus contemplates that parties may, by express agreement, opt out of Indian court intervention entirely.

The corollary of this permissive exclusion is equally significant. In cases where parties do not explicitly exclude these provisions, the remedies under sections 9, 27 and 37 remain available. This statutory design reflects a deliberate legislative choice to respect party intention where parties have not affirmatively excluded Indian court jurisdiction, they are presumed to have preserved recourse to such remedies as a supplementary safeguard.

Additionally, as clarified in Amazon, an important facet of party autonomy is the parties’ choice of institutional rules. Institutional rules often contain detailed provisions regarding the availability and procedure for obtaining interim relief, including through emergency arbitrator mechanisms. When parties select a particular set of institutional rules, they are understood to have adopted the dispute resolution architecture embedded within those rules.

An important exercise of party autonomy is also parties’ choice of seat of arbitration. The seat of an arbitration determines the procedural and substantive framework governing the arbitration. It also confers supervisory jurisdiction upon the courts of that legal system. The choice of seat court often informs the standard for granting provisional relief in an arbitration, as tribunals frequently look to the procedural norms of the seat jurisdiction for guidance on matters such as urgency, irreparable harm and balance of convenience.

Significantly, this demonstrates that when parties select a particular seat, they do so with an understanding that the legal standards and supervisory framework of that jurisdiction will exercise considerable influence over the arbitral process.

Further, Indian courts have also in effect used the principle of party autonomy to interpret section 9 of the Indian Arbitration Act. The interpretation of section 9 has evolved to reflect a legislative preference for resolution of interim relief applications by arbitral tribunals, with court intervention serving as a mere supportive function. Pertinently, the Delhi High Court in Minda-II, noted the following:

• section 9(3) manifests a legislative preference that the grant of interim measures ought to be considered by the arbitral tribunal, once constituted, rather than by the courts; and
• a section 9 would not lie after the constitution of the arbitral tribunal, unless the order of the tribunal lacks efficacy.^[36]

This understanding of section 9(3) has also been accepted by the Division Bench of Delhi High Court in Shanghai Electric Group Co Ltd v Reliance Infrastructure Ltd.^[37] Pertinently, this interpretation of section 9(3) of the Indian Arbitration Act has also been accepted by the Supreme Court of India as well.^[38]

The aforementioned interpretation of section 9 in cases of an existing foreign seated tribunal is significant for two reasons: first, it established that the legislative scheme envisions the arbitral tribunal as the primary forum for granting interim relief once it is in a position to act; and second, a party seeking recourse to section 9 after constitution of the tribunal must demonstrate that the tribunal’s order is incapable of achieving its intended protective purpose.

Legal scholars like Gary Born have also recognised that even after obtaining a foreign interim order, parties are often constrained to approach local courts (non-seat courts) to obtain effective onshore provisional relief to prevent potentially irreparable harm.^[39]

The principles of party autonomy and legislative intent underlying section 9, as discussed above, provide a strong doctrinal justification for the deferential approach. By according appropriate deference to the tribunal’s assessment while preserving the court’s capacity to undertake a broad alternative analysis of the merits of the section 9, the deferential approach strikes an appropriate equilibrium between two complementary objectives – respecting party choices in foreign-seated arbitrations and fulfilling the residual, supportive function that section 9 is designed to serve.

A de novo analysis by courts under the de novo approach unjustifiably: (1) compels parties to re-agitate the entire case, which is antithetical to the core principle underlying section 9, namely to decongest courts in India and respect party autonomy; (2) undermines party autonomy by disregarding party chosen factors such as institutional rules and seat, which affect the standard for the grant of interim relief as well as the supervisory jurisdiction over the arbitral tribunal; and (3) increases the risk of contradictory decisions on the same factual record, which not only creates legal uncertainty for the parties by permitting non-seat courts to reach conclusions incompatible with those of the tribunal applying its chosen procedural framework.

In light of the above analysis, the deferential approach is much more desirable.

At this juncture, it is important to clarify that courts in India should depart from the approach taken in Minda-II, which suggested a bifurcated application of the de novo and deferential approaches. The bifurcated approach contemplates applying different standards of scrutiny depending on whether the emergency arbitrator granted or refused the requested relief. There does not appear to be any principled basis for adopting differing approaches depending on the outcome of emergency proceedings. The standard of scrutiny that courts undertake for foreign interim orders must be independent of the actual outcome of the case.

To hold otherwise would introduce an element of arbitrariness into the judicial review process: the same tribunal, applying the same legal standards to the same factual matrix, would be subject to greater or lesser deference depending solely on whether it ruled for or against the applicant. Such an approach lacks doctrinal coherence and fails to provide parties with predictable guidance as to the treatment interim relief applications will receive upon subsequent recourse to Indian courts.

The case for section 27(5): the road not (yet) taken

Another alternative route for enforcement of foreign interim orders in India is through section 27(5) of the Indian Arbitration Act.

Section 27(5) makes any person “making any other default … or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings” liable to similar penalties and punishments as would incur for similar offences in ordinary suits tried before the court. This includes initiation of contempt proceedings under the Contempt of Courts Act, 1971 (Contempt Act) or holding the person liable for wilful disobedience under Order 39 Rule 2A of the CPC, upon representation by the Tribunal.

While arguably section 27 is restricted to court assistance for taking evidence, courts in India have extended the application of section 27(5) to interim measures ordered by a tribunal.^[40] This was in the context of India-seated arbitrations at the time prior to the introduction of section 17(2) through the 2015 Amendment. Section 27(5) was interpreted so as to provide a legislative basis for enforcing tribunal-ordered interim measures, in the absence of a provision for direct judicial enforcement.

In Sri Krishan v Anand,^[41] the Delhi High Court observed that the legislative intent behind section 17 appears to be to make the arbitral tribunal a complete forum not only for finally adjudicating the disputes between the parties but to also order interim measures. Therefore, if parties are required to file a section 9 to give effect to interim reliefs obtained under section 17, the same would render section 17 otiose and redundant.

This reasoning was followed by the Supreme Court in Alka Chandewar v Shamsul Ishrar Khan.^[42] The Supreme Court recognised that “the entire object of providing that a party may approach the Arbitral Tribunal instead of the Court for interim reliefs would be stultified if interim orders passed by such Tribunal are toothless”.

Importantly, section 27(5) has now been extended to foreign-seated arbitrations through the proviso to section 2(2) introduced by way of the 2015 Amendment.^[43] In the absence of a direct route for enforcement, section 27(5) may be used as an indirect mechanism for parties to ensure compliance with foreign interim orders. There is no reason why the rationale employed by the Delhi High Court in Sri Krishan and the Supreme Court in Alka Chandewar cannot be extended to foreign interim orders that similarly lack direct statutory recognition and enforcement.

This question has, however, not been comprehensively tested by an Indian court till date. The only decision that has a passing reference to the applicability of section 27(5) in the context of foreign-seated arbitrations is Raffles.^[44] The Delhi High Court found that the earlier decisions that extended section 27(5) to orders passed under section 17 had no applicability to that case. The Court further observed that “[c]learly, a person guilty of not following the interim orders of the arbitral tribunal in Singapore cannot be proceeded for the contempt under Section 27 of the Act”. However, this observation is not supported by any further reasoning by the Court and is contrary to the plain language of section 2(2).

In the event a party wishes to take the section 27(5) route to ensure compliance with the foreign interim order, it will be required to approach the arbitral tribunal requesting it to make a representation to the Indian courts to initiate appropriate proceedings for default or contempt of the tribunal’s order. Prior to making such a representation, the tribunal would be required to be satisfied that the counterparty is indeed in default or contempt of its orders. Once the tribunal makes such a representation, Indian courts would be competent to deal with the guilty party under the Contempt Act or Order 39 Rule 2A of the CPC.

Till date, there is no reported decision involving invocation of section 27(5) by a foreign-seated arbitral tribunal for compliance with its interim orders. If and when Indian courts have the occasion to decide upon the applicability of section 27(5) to foreign interim orders in light of amended section 2(2), they will be also required to grapple with concerns of recognition and enforceability of foreign interim orders. It, therefore, remains to be seen whether Indian courts would allow initiation of contempt proceedings for breach of a foreign interim order under section 27(5).

What next?

In view of the divergent approaches taken by the Indian courts while determining the section 9 petition, the desirable stop gap solution would be for the courts to apply the deferential approach.

The most desirable solution, however, would be introduction of a statutory provision for direct judicial recognition and enforcement of foreign interim orders. This could be similar to article 17H and 17I of the UNCITRAL Model Law or a sui generis provision, which balances the principle of minimal judicial intervention with sovereign powers of Indian courts. Born notes that while article 17H is a welcome insertion, article 17I is not ideally drafted.^[45] For instance, article 17I refers to a court that is “so empowered” at the state where “the arbitration takes place” to terminate or suspend the interim measure. This lends unnecessary ambiguity and could result in potential confusion as to seat and venue of arbitration. In the event a similar clause is adopted in India, these ambiguities can be avoided through clear drafting to make it consistent with other provisions of the Act, including section 20.

Legislative intervention, however, can be hard to occasion except for water-shed moments. In these circumstances, as the law currently stands, the alternatives available to a party are to seek indirect enforcement of a foreign interim order either through section 9 or by requesting the foreign-seated tribunal to make reference to Indian courts under section 27(5) of the Indian Arbitration Act. The latter is an unprecedented approach that will present unique questions before Indian courts when the occasion arises.

Endnotes