Interim (Provisional) Measures In International Commercial Arbitration: A Legal Study
Ms. Bhavana Balaji Badalapure, LL.M., Department of Law, Shri. Navalmal Firodia Law College, Pune
ABSTRACT
International commercial arbitration provides an effective mechanism for resolving disputes arising from cross-border commercial transactions. However, the arbitration process may take considerable time before a final award is delivered. During this period, there may be a risk that a party may dispose of assets, destroy evidence, transfer property, or take other actions which may affect the effectiveness of the final arbitral award. Interim or provisional measures are therefore important to preserve the rights and interests of the parties until the dispute is finally decided.
The legal framework relating to interim measures in international commercial arbitration operates through both courts and arbitral tribunals. In India, Sections 9 and 17 of the Arbitration and Conciliation Act, 1996 provide the principal statutory framework for interim protection. Section 9 enables a party to approach the court for interim measures, while Section 17 provides similar powers to the arbitral tribunal. The 2015 amendment strengthened the tribunal's power by making orders under Section 17 enforceable in the same manner as orders of the court. The UNCITRAL Model Law also provides an important international framework for interim measures and recognises the need for effective judicial assistance in arbitration.
The article examines the meaning, importance and different forms of interim measures in international commercial arbitration. It analyses the powers of courts and arbitral tribunals, the relationship between Sections 9 and 17, relevant judicial decisions and the development of emergency arbitration in India. The decision of the Supreme Court in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. is particularly significant because it recognised the enforceability of an emergency arbitrator's order within the Indian arbitration framework. The article also examines practical challenges such as enforcement, jurisdictional issues, delay, interference by courts and the need for effective protection of assets and evidence.
The study concludes that interim measures are an essential part of an effective arbitration system. A balanced approach between judicial support and arbitral autonomy is necessary to ensure that interim protection does not defeat the objectives of speed, efficiency and party autonomy in international commercial arbitration.
Keywords: Arbitral Tribunal, Emergency Arbitration, International Commercial Arbitration, Interim Measures, Provisional Measures, Section 9, Section 17, UNCITRAL Model Law.
