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Efficient Drafting for Interim relief Part 1
Drafting
Coming to how to draft a concise and appropriate Section 17 application that shall grant you the relief your client is looking for. There are certain necessary pointers one must consider while drafting such an application:
- The application should include only a concise summary of the relevant facts to the said application
An interim application should not become another way to put in all claims as under the Statement of Claim. It should also not become another way to repeat all the facts of the case. Consider it understood that the Tribunal has a basic understanding of the case. In fact, in most international arbitration disputes where the facts are complicated, they only provide a reference of the facts from the Statement of Claim. In such a situation, the application can always state a line requesting the arbitral tribunal to take “the Claim statement be read as part and parcel of the application filed under Section 17 of the Act”. Only mention the relevant facts related to the relief you are asking for and a summary of the dispute.
- Do not ask for the final relief in an interim relief application
In cases where the dispute has the final relief of taking control over goods or in most infrastructure arbitrations, a common mistake made is the disguise of a final relief under an interim relief application. The final relief is to take over the goods and mid-proceedings, under the threat of losing the goods/machinery; some parties ask for receiver appointments or control over the machinery pending arbitration. Such an approach is looked down upon. A better way is to ask for a security amount worth the goods/machinery in the interim relief application than to ask for the concerned disputed products itself.
- Do not ask for procedural reliefs under Section 17applications
There are certain procedural delays or mishaps that keep happening in arbitration proceedings and the same can be dealt with in a procedural hearing. For example, reliefs related to extension of time or production of documents by the other side must not be asked for under an interim relief application. For such reliefs, separate applications must be made.
As under Section 9, a prima facie case must be made
A prima facie case means that the Tribunal on reading your application (without reading the other side’s response) must be clear about your case on the face of it and that your interim relief claimed is appropriate to the case. It need not refer to the other side’s defense. The relevant facts and the logic behind your case should be placed so well that an apparent problem faced by you, requiring granting of the relief should be visible.
A prima facie case can be judged by reading only the bare facts of the case alleged by you. The facts of the case itself should clear the present scenario and the need for granting the relief. Every time that a party needs to provide unnecessary reasoning to prove their stance, is when a prima facie case has not been made.
- Balance of convenience must be portrayed effectively
Balance of convenience implies that it can cause greater harm to the party if the relief is not granted, in comparison to the inconvenience caused to the other side by granting the interim relief. It must be represented clearly in the application of interim relief under Section 17 of the Arbitration and Conciliation Act, 1996.
For example, in a dispute on ownership of shares between the two sides, the Court can grant a temporary stay on any share transfers till the dispute is finally decided. This will not cause significant harm to a party, except for a limited period it cannot transfer its shares. However, if the stay is not granted, the shares can be transferred even when there is a pending dispute. If later the court determines that the party transferring the shares did not have ownership in the first place, it may not be feasible to reverse the transactions later or cause tremendous inconvenience to everyone, including the third parties. Hence, balance of convenience in this case lies in favour of granting the injunction.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
- Drafting tips for Interim relief
- Do not ask for the final relief in an interim relief application
- The application should include only a concise summary of the relevant facts to the said application
