Enforceability of Orders Under Section 17 of the Arbitration and Conciliation Act, 1996: A Reply

(2016) 5 Supreme Court Cases J-16

Posted: 12 Jul 2016

Date Written: May 24, 2015

Abstract

Mr. Vikas Singh and Ms. Nandadevi Deka had written an article in (2015) 4 SCC (J) 12 which dealt with the enforceability of orders of interim measures of protection passed by the arbitral tribunal under Section 17 of the Arbitration and Conciliation Act, 1996 (“1996 Act”). The substance of the argument in the paper is that the Supreme Court and the High Courts have ignored the possibility of enforceability of interim orders by the tribunal under Section 17 through Section 27(5) of the 1996 Act. This paper disputes the arguments made by the learned authors and contends that Section 27(5) cannot be applied to the situation pointed out by them. The origins of Section 27(5) can be traced to the regulations of British India’s Governor General and Council enacted in the late eighteenth century and this provision has been there in the statute book since then in a scenario where the arbitral tribunal was not empowered to pass interim orders. The fact that the legislature has retained a virtually identical provision in Section 27(5), that too under the heading “Court assistance in taking evidence”, amply indicates that it could not have intended that Section 27(5) would apply to defiance to a tribunal’s order under Section 17. The paper concludes by arguing that the changes made in Section 17 by the Arbitration and Conciliation (Amendment) Ordinance, 2015 is a better solution to the problem of non-enforceability of interim measures ordered by the arbitral tribunal.

Note: Subsequent to the submission of the paper for publication, amendments have been brought to the 1996 Act making orders of the arbitral tribunal under Section 17 enforceable.

Keywords: Interim measures, enforceability, Arbitration and Conciliation Act 1996, Legal History

JEL Classification: K40, K41

Suggested Citation

Srinivasan, Badrinath, Enforceability of Orders Under Section 17 of the Arbitration and Conciliation Act, 1996: A Reply (May 24, 2015). (2016) 5 Supreme Court Cases J-16, Available at SSRN: https://ssrn.com/abstract=2800946

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