Latest News
Interim measures in Arbitration : A comparison between India and United Kingdom
Interim measures in Arbitration : A Comparison between India and United Kingdom
Interim measures in India
- Interim relief by arbital tribunal
Under 17(1) of the Arbitration and Conciliation Act ,1996
A party may , during the arbitral proceedings , apply to the arbitral tribunal -
For the appointment of a guardian for a minor or a person of unsound mind for the purpose of arbrital proceedings or
For an interim measures of protection in respect of the any following matters , namely
a )the preservance , interim custody or sale of any good which are subject matter of the arbitration agreement ;
b) Securing the amount in dispute in the Arbitration ;
c) the detention, preservance or inspection of any property or thing which is a subject matter of dispute in Arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party , or authorising any samples to be taken or any observation to be made , or experiment to be tried , which may be necessary or expedient for the purpose of obtaining full information or evidence ;
d) interim injunction or the appointment of a receiver ;
e ) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient , and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of and in relation to any proceeding before it .
Enforceability of interim reliefs granted by the tribunal
An interim order is enforceable in accordance with the provision of the CPC and the order passed by the tribunal is treated like the order of the court .
Interim reliefs by the court
Section 9 states the interim measures that can be passed by the court before or during the arbitral proceedings or at any time after the making of arbrital award but before it is enforced , on the application made by the party .
The interim measures are same of section 9 as mentioned under section 17 (1) of this act.
Where an interim order is passed before the commencement of arbital proceedings should commence within 90 days or such time as the court may determine.
Jurisdiction of the court in regard to arbitral tribunal
Once the arbital tribunal has been constituted , the court shall not entertain an application .
Interim measures in United Kingdom
Interim reliefs by arbital tribunal
Section 38 of the Arbitration Act , 1996 states the general powers exerciseable by the tribunal . The parties are free to agree on the powers exerciseable by the arbital tribunal for the purposes of and in relation to the proceedings .
Unless otherwise agreed by the parties the tribunal has the following powers :
Security for the costs ; given direction in relation to any property which forms a part of the proceedings --
a) inspection , photographing , preservation , custody or detention of the property by the tribunal , an. expert or a party , or
b) ordering that samples be taken from , or any observation be made of or experiment conducted upon the property .
Directs that a party or witness shall be examined on oath or affirmation.
Directs a party for the preservation of any evidence in his custody or control.
Enforceability of interim reliefs granted by the tribunal
If an orders are passed under Section 38 of the Arbitration Act 1996 then they will be not deemed order of the court. But if the orders are passed under section 39 of the Act then those orders are deemed orders of the court .
Interim relief by the Court
Under Section 44 , unless an agreement to the contrary exists among the parties , the court can exercise it's powers regarding :
a) the taking of evidence of witnesses
b) the preservation of evidence
c) making orders relating to property which forms a part of the proceedings --
- For the inspection , photographing , preservation, custody or detention of the property, or
- Ordering sample be taken from , or any observation be made of or experiment conducted upon the property; and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration.
d) the sale of goods the subject of the proceedings.
e) the granting of an interim injunction or the appointment of a receiver.
If the case is one of urgency , the court may , on the application of a party or proposed party to the arbitral proceedings make orders necessary for the preservation of assets or evidence.
Otherwise the court should act only on an application of a party made either with the permission of the tribunal or the agreement in writing of the other parties.
The leave of the court is required to file an appeal from a decision of the court under this section .
Jurisdiction of the court in regard to arbital tribunal
The court can only take power only if the arbital tribunal has no power or is unable to act effectively for the time being . The order made by arbital tribunal will supersede over the order made by the court.
Conclusion
The interim measures of Indian Arbitration Act is almost same as of United Kingdom Arbitration Act due to which there would be eveness in the consideration of application of interim relief at international level.
- Interim measures in India
- Interim measures in United Kingdom
- Conclusion
