Section 9 Of Arbitration And Conciliation Act 1996 Pdf
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- Interim Relief in Foreign-Seated Arbitrations – Efficacious Remedy and Implied Exclusion
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The main objective of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimize the supervisory role of the courts in the arbitral process and to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of the disputes. In furtherance of the aforesaid objective, the Arbitration Act underwent two major amendments in the year and , respectively, in order to bring forth pertinent changes in the arbitration landscape of the country with the sole motive of making India an arbitration friendly nation. This compilation seeks to identify the significant developments in arbitration law by the courts of India after the advent of the COVID pandemic i.
Interim Relief in Foreign-Seated Arbitrations – Efficacious Remedy and Implied Exclusion
U-shin Limited and Ors. In arriving at its decision, the Division Bench held that even when an application for interim relief before Indian courts under Section 9 of the Act in a foreign-seated arbitration is maintainable, such application would not lie after the constitution of the arbitral tribunal, unless it can be proven that there is no efficacious remedy before the tribunal.
On the facts of the case before it, the Division Bench held that there is nothing to show that remedy before the arbitral tribunal is inefficacious and that the arbitral tribunal had been constituted. The Appellants invoked the clause and applied for an emergency measure of protection pursuant to the JCAA rules. During the pendency of the emergency arbitration proceedings, the Appellants also issued a request for arbitration pursuant to the JCAA Rules.
On May 12, , the Single Judge held that the petition under Section 9 was not maintainable for the following reasons: 2. The parties, by agreement had impliedly excluded the applicability of Part I of the Act which includes Section 9 by seating the arbitration in Japan and agreeing to the application of the JCAA Rules;. The JCAA Rules provide a detailed mechanism for seeking interim measures, which the parties agreed to in their arbitration clause;.
The Appellants have already raised the issues before the emergency arbitrator, and it is not open to them to take a second bite at the cherry before Indian courts under Section 9 of the Act. Further, there have been no changes in the circumstances after the EA Order.
The Court cannot sit in appeal over the EA Order. The Appellants argued that Section 17 of the Act does not apply to foreign-seated arbitrations, as interim measures granted by India-seated tribunals alone are automatically enforceable in India under Section 17 2 of the Act, and thus the principle behind in Section 9 3 would not extend to the present case. The Appellants also argued that any order passed by the Tribunal would be unenforceable in India, and thus, the Appellants would be left without any efficacious remedy.
Section 9 3 shows the legislative preference for these principals. While determining the efficaciousness of the remedy, courts should consider whether the tribunal is sufficiently empowered to grant effective interim measures of protection.
The Division Bench refrained from making a finding on whether the availability of a remedy before an emergency arbitrator would impede Indian courts from granting interim relief under Section 9 of the Act. Further, the Division Bench held that it cannot sit in appeal over the EA Order as no such appellate remedy is provided for under the Act.
As noted previously, the Single Judge had held that the parties had impliedly excluded the applicability of Section 9 of the Act by seating the arbitration in Japan and agreeing to the JCAA Rules.
However, the Division Bench did not make a determination on this point and left it open to parties to resolve in subsequent proceedings. After all, once the Tribunal is seized of the matter it is most appropriate for the Tribunal to hear all interim applications. The Division Bench in this judgment has appropriately clarified the extension of the application of this principle to foreign-seated arbitrations as well.
The Division Bench held that the efficacy of the remedy before the arbitral tribunal would depend on the facts and circumstances of each case. In the present case it relied upon the following facts and circumstances to hold that the remedy before the arbitral tribunal was efficacious:. The Tribunal was constituted and had the powers to grant interim measures pursuant to the JCAA Rules, notwithstanding the findings of the emergency arbitrator;.
The Respondents were Japanese entities and the interim reliefs sought were in the nature injunctions against them. The Division Bench also noted that the Respondents made voluntary statements before the Court that they would comply to with any interim measures passed by the Tribunal;. It was the Appellants who first approached the emergency arbitrator under the JCAA Rules, thus, it can be presumed that the Appellants did not have any reservations on the efficacy of the remedy. The efficacy of the remedy also depends on its enforceability.
The Indian legislature realized this problem and consequently gave tooth to arbitral tribunals by making their interim orders enforceable as if they are orders of the court in Indian-seated arbitrations. A similar provision is not present for interim reliefs awarded in foreign-seated arbitrations. However, the Division Bench in this case was not affected by potential non-enforceability of the interim measures in India. However, by holding that the efficacy of a remedy would have to be determined on a case by case basis, the Division Bench has left it open to parties in the future to raise an argument that the potential non-enforceability of interim measures in certain situations could the render the remedy by the arbitral tribunal inefficacious.
The move towards giving primacy to the powers of the arbitral tribunal in granting interim relief is promising, however, the enforcement interim reliefs granted in foreign-seated arbitrations is not entirely simplistic. To enforce interim reliefs including emergency arbitrator reliefs granted in foreign-seated arbitrations, parties would be required to file a fresh application under Section 9 of the Act, which may be based on the interim relief granted by the foreign tribunal.
However, the Court may intervene if the arbitrator has proceeded on a wholly mistaken basis, or the exercise of powers by the arbitrator was fatally undermined in some fundamental respect. Unless such an approach is adopted by Indian courts the remedy of seeking an interim relief in a foreign seated arbitration may remain an inefficacious remedy, if such an interim relief were to be enforced in India. In similar vein, orders passed in emergency arbitrations too may also continue to remain ineffective.
The question that has been left open by the Division Bench on the implied exclusion of Section 9 of the Act in foreign seated arbitrations is concerning. Educomp Professional Education Ltd. She focuses on commercial litigation, international arbitration and white-collar crimes. She is a member of Indian Arbitration Forum. Bhavana has a wide array of experience in advising on commercial litigation, international commercial arbitration and investigations. She augments her practice with thought leadership and policy writing on issues pertaining to arbitration and white-collar crime.
She has authored several articles which have been He focuses on commercial litigation, international arbitration and white-collar crimes. Ashish is also a leader in the Corporate Transactions Group and is regularly called upon Mohammad Kamran is a Member of the International Dispute Resolution and Investigations Practice at the multi-skilled, research based international law firm, Nishith Desai Associates www.
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Arbitration and Conciliation is a mode of alternative dispute resolution method. It is very effective and popular method that helps in easy delivery of justice. The person who resolves the dispute between the parties is known as an arbitrator or conciliator whatever the case may be. This article is an analysis of all the amendments made by the Government of India in the Arbitration and Conciliation Act, till now, and how the Arbitration and Conciliation Act, have evolved since the British era. The origin of arbitration may be traced back to the old age system of village panchayats prevalent in ancient India. Decision of panchas taken as they are embodiment of voice of God, hence accepted and obeyed unquestionably.
One of the most sought after remedies under the Arbitration and Conciliation Act,  the Act is the grant of interim relief under Section 9 of the Act which allows the parties to apply to the court for interim relief before or during the arbitral proceedings, or after an award is passed but before it is enforced. The Act accordingly allows the parties, before executing the award, to apply to the court for securing the proceeds of the arbitral award to protect the decretal amount, so that the award debtor cannot evade the obligations under the award and make the realisation of the award illusory. The importance of a post award Section The grant of interim reliefs under Section 9 of the Act, especially in a scenario where the award has been delivered, assumes significance primarily because the Act provides for a statutory period of three months for the award debtor to file a challenge to the award. This created a unique hurdle in the enforcement of the award by the successful award-holder since the mere filing of a Section 34 application would automatically stay the execution of the award, pending the adjudication of the setting aside application. To remedy such an incongruity in law, the Act, as amended in removed the concept of an automatic stay on the execution of awards, pending the adjudication of a setting aside application, and allowed award- holders to forthwith move for the execution of the award, even if a Section 34 application was pending before the court. Under the amended Act, an award debtor has to now necessarily apply for a stay of the execution of the arbitral award by the successful award-holder, through a separate application.
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Know more. Harish Salve, Senior Advocate K. Swami, Advocate, with him for the Appellant;. Chaudhary, R. Karanjawala and Ms M.