It is a prevalent belief that section 17 of the Arbitration and
Conciliation Act, 1996 (‘the Act’) does not confer any power on the
Arbitral tribunal to enforce its order for interim measure of
protection, nor does it provide for judicial enforcement of any such
interim order passed by the Arbitral tribunal. Consequently, it appears
that section 17 of the Act is redundant; however, this could not have
been the legislative intent. Therefore, I have made some research and
humbly submit my views as follows.
Sections 17 and 35 of the Act are quoted below for ready reference.
“17. Interim measures ordered by Arbitral Tribunal.—(1)
Unless otherwise agreed by the parties, the arbitral tribunal may, at
the request of a party, order a party to take any interim measure of
protection as the arbitral tribunal may consider necessary in respect of
the subject-matter of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate
security in connection with a measure ordered under sub-section (1).”
“35. Finality of arbitral awards.—Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.”
Further, sections 19, 21 and 188 of the Indian Penal Code, 1860 (‘IPC’) are quoted below for ready reference.
The word "Judge" denotes not only every person who is officially
designated as a Judge, but also every person who is empowered by law to
give, in any legal proceeding, civil or criminal, a definitive judgment,
or a judgment which, if not appealed against, would be definitive, or a
judgment which if confirmed by some other authority, would be
definitive, or who is one of a body of persons, which body of persons is
empowered by law to give such a judgment.
21. "Public Servant"
The words "public servant” denote a person falling under any of the descriptions hereinafter following; namely:-
Third- Every judge including any person empowered by law to discharge,
whether by himself or as a member of any body of persons, any
188. Disobedience to order duly promulgated by public servant.-
Whoever, knowing that, by an order promulgated by a public servant
lawfully empowered to promulgate such order, he is directed to abstain
from a certain act, or to take certain order with certain property in
his possession or under his management, disobeys such direction, shall,
if such disobedience causes or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury, to any person
lawfully employed, be punished with simple imprisonment for a term which
may extend to one month or with fine which may extend to two hundred
rupees, or with both;
In view of aforesaid, the Arbitrator is a Judge u/s 19 of IPC, hence a
public servant u/s 21 of IPC. Consequently, disobedience to order duly
promulgated by the Arbitrator to take any interim measure of protection
u/s 17 of the Act is an offence punishable u/s 188 of IPC.
Therefore, a party to an arbitration agreement is bound to comply with
an order by the Arbitrator to take any interim measure of protection u/s
17 of the Act. Nevertheless, in the event of disobedience to an order
of interim measure u/s 17 of the Act, an aggrieved party may file a
complaint u/s 188 of IPC before a Court. (END)
Note: The views expressed are my personal and a view point only.