Report No. 246
Amendment of Section 17
11. In section 17
(i) In sub-section (1), delete the words "Unless otherwise agreed by the parties," and add words "A party may, during", after the words "the arbitral" delete the words "tribunal may," add the words "proceedings or", after the word "at" delete the words "the request of a party, order a party to take", and after the word "any" add words "time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to the arbitral tribunal for an" and after the words "interim measure of protection" delete the words "as the arbitral tribunal may consider necessary" and after the words "in respect of" add the words "any of the following matters, namely:-"
(ii) In sub-section (1), insert sub-clause "(a)the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;"
(iii) In sub-section (1), after sub-clause "(a)", insert sub-clause "(b)securing the amount in dispute in the arbitration;"
(iv) In sub-section (1), after sub-clause "(b)", insert sub-clause "(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;"
(v) In sub-section (1), after sub-clause "(c)", insert sub-clause "(d) interim injunction or the appointment of a receiver;"
(vi) In sub-section (1), after sub-clause "(d)", insert sub-clause "(e) such other interim measure of protection as may appear to the Arbitral Tribunal to be just and convenient, and 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. "
[Note: This is to provide the arbitral tribunal the same powers as a civil court in relation to grant of interim measures. When this provision is read in conjunction with section 9(2), parties will by default be forced to approach the Arbitral Tribunal for interim relief once the Tribunal has been constituted. The Arbitral Tribunal would continue to have powers to grant interim relief post-award. This regime would decrease the burden on Courts. Further, this would also be in tune with the spirit of the UNCITRAL Model Law as amended in 2006.]
(vii) delete words In sub-section (2) and add the words "(2) Subject to any orders passed in 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."
[Note: This is to ensure the effective enforcement of interim measures that may be ordered by an arbitral tribunal.]