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

The window, and what the 2019 amendment removed

This is a small change with real consequences and it is easy to miss.

The 2015 version let a party apply "during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36". Those closing words were omitted by Act 33 of 2019 with effect from 30 August 2019.

So the position now is:

• Section 17 runs during the arbitral proceedings only.
• Section 9 runs before, during, and after the award until enforcement.

That makes sense once stated: after the award the tribunal is functus officio, meaning it has discharged its office and has no further authority, so asking it for orders is asking a body that no longer exists. The post-award window belongs to the court, and section 9 keeps it.

Section 17(2): the enforcement provision

Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure 1908, in the same manner as if it were an order of the Court.

Take it apart.

"Deemed to be an order of the Court for all purposes." Not merely enforceable: deemed to be a court's order. So the machinery for disobeying a court order becomes available.

"Enforceable under the Code of Civil Procedure 1908 in the same manner as if it were an order of the Court." So an injunction granted by a tribunal is enforced the way a court's injunction is, including under the provisions of the Code dealing with disobedience.

"Subject to any orders passed in an appeal under section 37." An order under section 17 is appealable, under section 37(2)(b), which chapter 420 works through. So the deemed status is subject to what the appellate court does.

What section 17 changed in practice, with section 9(3)

Read section 17(2) together with section 9(3), also inserted in 2015: once the tribunal is constituted, the Court shall not entertain a section 9 application unless it finds that circumstances exist which may not render the remedy under section 17 efficacious.

The two provisions are one reform. Section 17(2) makes the tribunal's order effective; section 9(3) then directs parties to the tribunal because that remedy is now efficacious. Take away section 17(2) and section 9(3) would be sending parties to a forum whose orders nobody need obey.

Emergency arbitrators

An emergency arbitrator is appointed under institutional rules, within days of a request, to grant urgent relief before the tribunal proper is constituted. The Act does not use the expression, which raises the question whether an emergency arbitrator's order is an order "of the arbitral tribunal" under section 17 and so carries sub-section (2)'s enforceability.

That question came before the Supreme Court in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd, decided 6 August 2021.

That judgment is in the queue in authorities/cases.json and has not been read for facts and holding. This book does not state what it decided. Know the question, know the case, and read it before writing its ratio.

A worked example

An arbitration between two logistics companies is under way; the tribunal of three was constituted two months ago. The claimant learns that the respondent is about to transfer its only warehouse to a related company.

Where does it apply? To the tribunal, under section 17. Section 9(3) means a court will not entertain a section 9 application now unless satisfied that the section 17 remedy may not be efficacious, and here it plainly is: the tribunal exists and can sit at short notice.

What can it ask for? An injunction restraining the transfer under section 17(1)(ii)(d), or an order securing the amount in dispute under clause (b), or a receiver under clause (d).

The tribunal grants an injunction and the respondent transfers the warehouse anyway. What now? Section 17(2). The order is deemed to be an order of the Court for all purposes and is enforceable under the Code of Civil Procedure as if a court had made it, so the claimant proceeds against the respondent for disobedience of a court order rather than being left with a paper victory.

Can the respondent appeal? Yes, under section 37(2)(b), which allows an appeal from an order of the tribunal granting or refusing an interim measure under section 17. Section 17(2) is expressly subject to orders in such an appeal.

The award is later made, and the respondent starts selling other assets before execution. Section 17 is no longer available: the closing words allowing a post-award application were omitted in 2019, and the tribunal is functus officio. The claimant goes to court under section 9, which runs until the award is enforced under section 36.

What beginners get wrong

Section 17 is not available after the award. Those words were omitted in 2019. Section 9 covers that period.

Section 17(2) is not merely a statement that the order is binding. It deems the order to be an order of the Court for all purposes and makes it enforceable under the Code of Civil Procedure.

Section 9 is not simply cut off once the tribunal exists. Section 9(3) is a test, not an absolute bar.

The tribunal's list of powers is not narrower than the court's. Since 2015 it is the same list.

A section 17 order is appealable, under section 37(2)(b).

Quick revision

• 17(1): during the arbitral proceedings, a party may apply to the tribunal for a guardian, or for interim protection as to (a) preservation, interim custody or sale of goods, (b) securing the amount in dispute, (c) detention, preservation or inspection with powers of entry, sampling and experiment, (d) injunction or receiver, (e) any other measure just and convenient. The tribunal has the same power as the court.
• The post-award window was omitted by Act 33 of 2019 w.e.f. 30 August 2019, so section 17 now runs during the proceedings only.
• 17(2): an order is deemed an order of the Court for all purposes and is enforceable under the Code of Civil Procedure 1908, subject to any orders in an appeal under section 37(2)(b).
• Read with section 9(3): once the tribunal is constituted, the court will not entertain a section 9 application unless the section 17 remedy may not be efficacious.
• Amazon v. Future Retail (6 August 2021) concerns emergency arbitrators. Unread here; do not state its ratio.

Test yourself

1. Can a party apply to the tribunal for interim measures after the award has been made? No. The words permitting an application after the award and before enforcement were omitted by Act 33 of 2019 with effect from 30 August 2019, and the tribunal is functus officio once the award is made. Section 9 covers that period instead.

2. What makes a section 17 order worth having? Section 17(2), which deems any order issued under the section to be an order of the Court for all purposes and makes it enforceable under the Code of Civil Procedure 1908 in the same manner as an order of the Court, subject to any orders in an appeal under section 37.

3. How do sections 9(3) and 17(2) work together? They are one reform. Section 17(2) makes the tribunal's interim orders effective, and section 9(3) then bars a court from entertaining a section 9 application once the tribunal is constituted unless the section 17 remedy may not be efficacious.

4. Are the tribunal's powers under section 17 narrower than the court's under section 9? No. Since the 2015 amendment the list is identical, and the closing words give the tribunal the same power to make orders as the court has in proceedings before it. The differences are in timing and in enforcement, not in the measures available.

5. Is an order under section 17 appealable? Yes, under section 37(2)(b), which provides an appeal from an order of the arbitral tribunal granting or refusing an interim measure under section 17, and section 17(2) is expressly subject to any orders passed in such an appeal.