Scope of Power to Grant Interim Measures Against Third Parties Under the Arbitration and Conciliation Act, 1996

(2011) Practical Lawyer November S-15

13 Pages Posted: 16 May 2012 Last revised: 14 Mar 2013

Date Written: November 1, 2011

Abstract

Two adjudicatory authorities possess the power to grant interim orders under the Arbitration and Conciliation Act, 1996 - the court and the arbitral tribunal. The Court has been given the power under Section 9 of the Act to pass interim orders in relation to arbitral proceedings. Section 17 of the Act gives the arbitral tribunal the power to order interim measures in respect of the subject matter of the dispute. The power of the court or the tribunal to grant interim measures in respect of the parties to the arbitral proceedings is a non-issue. The more problematic issue is the power of the said adjudicatory authorities to grant interim measures under the Act in respect of non-signatories to the arbitration agreement. In that, the power of arbitral tribunal to grant interim measures vis-à-vis non-signatories to the arbitration agreement is relatively less contentious. However, the power to pass an order for interim measures against third parties is a controversial matter. In the absence of any binding decision of the Supreme Court of India on this point, seeking orders from the court against third parties for whatsoever reason is like walking on a tight-rope blindfolded. The court may decide one way or the other. This short paper critically analyses the law on the power of a court to order interim measures to be taken by a third party and argues that the court possesses the power under Section 9 to pass interim orders even against third parties.

Keywords: interim measures, arbitration and conciliation act, 1996, Section 9, third parties, UNCITRAL model law

JEL Classification: K10, K30, K33, K39, K41, J52

Suggested Citation

Srinivasan, Badrinath, Scope of Power to Grant Interim Measures Against Third Parties Under the Arbitration and Conciliation Act, 1996 (November 1, 2011). (2011) Practical Lawyer November S-15. Available at SSRN: https://ssrn.com/abstract=2060776 or http://dx.doi.org/10.2139/ssrn.2060776

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