Section 17: Interim Measures by the Tribunal, and How They Are Enforced

In one line

The arbitral tribunal can make the same kind of urgent protective orders a court can, and since 2015 those orders are enforceable as if a court had made them.

In exam wording: section 17 of the Arbitration and Conciliation Act 1996 empowers a party, during the arbitral proceedings, to apply to the arbitral tribunal for the appointment of a guardian or for an interim measure of protection, and sub-section (2) deems any such order to be an order of the Court, enforceable under the Code of Civil Procedure 1908 as if it were one.

Why this section was nearly useless before 2015

Read the old section 17 and it looked adequate: the tribunal could order interim measures. The problem was what happened when a party ignored the order.

A tribunal has no power to punish. It cannot commit for contempt and it cannot execute. So an interim order was, in practice, a request. A respondent who wanted to sell the goods sold them, and the claimant's only real answer was to go to court under section 9 instead, which is exactly what parties did.

The 2015 amendment fixed it in two moves: it rewrote sub-section (1) to give the tribunal the same list of powers as a court has under section 9, and it added sub-section (2), which makes the order enforceable as a court order. Sub-section (2) is the whole reform.

Section 17(1): the powers, which mirror section 9

A party may, during the arbitral proceedings, apply to the arbitral tribunal:

• (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
• (ii) for 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, with power to authorise entry upon land or a building in a party's possession, and the taking of samples, making of observations or trying of experiments 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 arbitral tribunal to be just and convenient.

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

Compare that list with section 9(1) in chapter 260 and it is the same list, word for word, with "the Court" replaced by "the arbitral tribunal". That symmetry is deliberate: Parliament wanted the tribunal to be a real substitute, not a lesser forum.