Section 9: Interim Measures by the Court, Before, During and After

In one line

A party can go to court for an urgent protective order connected with an arbitration, even before the arbitration has started and even after the award has been made.

In exam wording: section 9 of the Arbitration and Conciliation Act 1996 permits a party, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced under section 36, to apply to a court for the appointment of a guardian or for an interim measure of protection in respect of the matters specified in the section.

Why an arbitration needs a court at all

An arbitral tribunal has no coercive power. It cannot attach a bank account, and until it exists it cannot do anything, because there is no tribunal until one is appointed. Both gaps are real:

• Before the tribunal exists, a respondent who can see the claim coming may sell the goods, empty the account or encash the bank guarantee.
• After the award, there is a period before enforcement in which assets can disappear.

Section 9 covers both, and section 5's rule that a court may intervene only where the Part provides is precisely why this section had to be written.

Section 9(1): who, when, and for what

Who: a party, defined in section 2(1)(h) as a party to the arbitration agreement.

When: 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. Three windows, and the third is easily forgotten.

For what, and the list is closed except for its last item:

• (i) the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
• (ii) an interim measure of protection in respect of:
• (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
• (b) securing the amount in dispute in the arbitration;
• (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute or as to which any question may arise, and authorising any person to enter upon land or a building in the possession of a party, or authorising samples to be taken, observations made or experiments tried, necessary or expedient for obtaining full information or evidence;
• (d) an interim injunction or the appointment of a receiver;
• (e) such other interim measure of protection as may appear to the Court to be just and convenient.

And the closing words: the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.