- How the applicant will suffer irreparable harm must be explained
Irreparable harm is when the harm done by not granting a relief cannot be reversed. To take an example of a bank guarantee being invoked, if an injunction is not granted at the correct time, the same cannot be reversed by the Court/Tribunal.
- Emphasize the urgency of the relief, say what will be lost if it is not granted
The application needs to convey how important it is to receive an injunction against the opponent, in a chance of him destroying or destructing the relief asked for. Depending on the facts of the case and the relief asked for, the prayer drafted should be able to give a sense of urgency. The prayer must convey how acting on the application later would defeat the purpose of the application altogether.
For example, you want a stay against a bank guarantee being invoked because the terms of the contract are under dispute. Assume that the bank guarantee can be invoked at any time now by the other side. If the stay is not granted immediately and the bank guarantee is invoked, your side would have already lost money and you cannot recover it through arbitration.
As you may have noticed, the three elements of the balance of convenience, urgency, and irreparable harm can be overlapping, but it is recommended to separately include those in your drafting.
- Be clear about the interim relief you are praying for
You need to identify which interim reliefs would satisfy the intent of the party and claim the relief accordingly. For example, should a certain amount be deposited in the tribunal? Should an injunction be granted to prevent the other party from taking specific actions, such as invoking a bank guarantee or transferring shares? If so, which actions should be prohibited? If you can quantify the amount, you can also request the same to be deposited with the tribunal.
Take your client into confidence about the reliefs you intend to claim and discuss which relief would be commercially suitable to fulfill the intention of the client in protecting the subject matter of the dispute.
- Reliefs that also affect the third parties should be carefully asked for
Certain injunctions or specific performance asked for under a Section 17 application might interfere with the functioning of other related parties and might affect the third parties that are not parties to the dispute or the arbitration. Hence, an approach to either include the parties to the dispute for the time being or taking them into consideration must be followed. Such reliefs that can affect the third parties have a high chance of not being granted. Hence, these reliefs should be carefully worded or alternative means should be devised as a legal strategy.
The above-mentioned details should be taken into consideration while drafting an interim relief application. Section 17 of the Arbitration and Conciliation Act, 1996 has empowered the Tribunal to consider every kind of situation asking for urgent relief. There have also been times when bank guarantees were on the verge of invocation and Section 17 relief was granted over email by the arbitral tribunal. Such instances are welcome respites from the never-ending, ongoing legal battles that once Section 9 applications provided.
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.