Interim measures of protection in aid of foreign-seated arbitrations: Judicial Misadventures and Legal Uncertainty

- Muskan Agarwal and Amitanshu Saxena

Interim measures of protection are important in an arbitral procedure to preserve the rights of the parties to a dispute. These become of particular relevance when the parties seek them in a country that is beyond the place of arbitration. The Arbitration & Conciliation Act, 1996, by virtue of proviso to Section 2(2), empowers parties to a foreign seated arbitration to seek interim reliefs from Indian Courts. However, the law provides that parties can contract out of such provision. To determine parties’ intention, when there is no express clause or an agreement to that effect, a principle of implied exclusion is used, which usually works to the disadvantage of parties to foreign-seated arbitration. The authors undertake an examination of Indian case laws to show that the judicial task of deciphering such implied intent through an arbitration clause, particularly in cases relating to interim relief, is anchored in a mistaken understanding of the objective of the Arbitration & Conciliation Act. Legal practice concerning the grant of interim reliefs in foreign arbitrations in common law jurisdictions of England and Singapore is also examined. Further, the authors deal with the underlying issues regarding enforcement of emergency arbitrators’ orders in India and then conclude with suggestions.