Case Note & Summary
The High Court of Judicature at Bombay, in its Commercial Division, considered a petition under Section 9 of the Arbitration and Conciliation Act, 1996, filed by Petitioner against Respondent The petitioner sought interlocutory measures to secure USD 269,105.08, the amount awarded in a foreign arbitral award dated March 23, 2020, pending its enforcement. The petitioner had also filed a separate enforcement petition under Sections 47 and 48 of the Act. The respondent opposed the Section 9 petition, arguing that jurisdiction under Section 9 is not available once a petition for enforcement of a foreign award under Part II has been initiated, contending that enforcement and execution are rolled up into one proceeding under Part II, making Section 9 inapplicable to avoid conflicting views. The legal issue centered on whether Section 9 relief can be sought after filing a Part II enforcement petition for a foreign award. The respondent relied on Centrient Pharmaceuticals India Pvt. Ltd. v. Hindustan Antibiotics Ltd., which held that Section 9 proceedings do not lie once execution proceedings for a domestic award have been filed, and argued that this principle extends to foreign awards via Part II petitions. The petitioner countered with Heligo Charters Private Limited v. Aircon Feibars FZE, where a Division Bench addressed interim relief for foreign awards, distinguishing Centrient as involving a domestic award with ongoing execution. The court analyzed Section 9(1), which allows applications 'before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36', and Section 2(2), which extends Section 9 to international commercial arbitration even if the place is outside India, provided the award is enforceable under Part II. The court examined the distinction between Section 36, which governs domestic awards becoming enforceable as decrees after the challenge period expires, and Part II provisions (Sections 46, 47, 48), which require positive recognition for foreign awards to be binding. It reasoned that for foreign awards, 'enforced' in Section 9(1) must be interpreted in light of Part II, not Section 36, and since a foreign award does not automatically become a decree upon filing a Part II petition but requires court recognition, interim protection under Section 9 remains available until such recognition is granted. The court held that the filing of a Part II petition does not bar Section 9 relief, as the award is not yet enforced, and allowed the petition to prevent it from becoming a paper award.
Headnote
A) Arbitration Law - Interim Measures - Section 9 Application for Foreign Awards - Arbitration and Conciliation Act, 1996, Sections 2(2), 9 - Petitioner sought interlocutory measures to secure a foreign arbitral award amount pending enforcement - Respondent contended Section 9 unavailable once Part II enforcement petition filed, arguing enforcement and execution are rolled up - Court held Section 9 applies to foreign awards via Section 2(2) and relief is available until enforcement, distinguishing from domestic awards under Section 36 - Filing of Part II petition does not bar Section 9 as foreign award requires positive recognition to become a decree (Paras 8-16). B) Arbitration Law - Enforcement of Awards - Distinction Between Domestic and Foreign Awards - Arbitration and Conciliation Act, 1996, Sections 36, 46, 47, 48 - Dispute involved interpretation of 'enforced' in Section 9(1) regarding foreign awards - Respondent argued filing of Part II petition akin to execution proceedings, barring Section 9 - Court analyzed Section 36 for domestic awards and Part II provisions for foreign awards - Held that foreign award does not automatically become a decree; it requires recognition under Part II, thus Section 9 relief permissible pending such recognition (Paras 14-17).
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Issue of Consideration: Whether jurisdiction under Section 9 of the Arbitration and Conciliation Act, 1996 is available for interim measures of protection after filing a petition under Part II for enforcement of a foreign arbitral award.
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Final Decision
The High Court allowed the Section 9 petition, holding that interim measures of protection are available under Section 9 for foreign awards pending enforcement, and the filing of a Part II enforcement petition does not bar such relief.
