THE AUTHOR:
Prasanth Raju, Advocate & Counsel at the Bombay High Court and Supreme Court of India
Introduction
Can a foreign award-creditor seek interim protection under Section 9 of India’s Arbitration and Conciliation Act, 1996 (“the Act”) after filing a petition to enforce the award under Part II? On 10 March 2026, Justice Somasekhar Sundaresan of the Bombay High Court answered this question definitively in Osterreichischer Lloyd Seereederei (Cyprus) Ltd. v. Victore Ships Pvt. Ltd. (Commercial Arbitration Petition No. 398 of 2025): yes, and the filing of the enforcement petition does not extinguish that access. The petitioner held a foreign arbitral award for USD 269,105.08 and simultaneously pursued recognition under Sections 47–48 and interim security under Section 9. The respondent argued that the two could not coexist. The Court disagreed.
The ruling is significant not only for what it permits, but for how precisely it defines the window—and what lies outside it. Understanding the judgment requires grasping a structural quirk at the heart of the Act: Section 9 was designed for domestic awards, later extended to foreign awards, but never updated to reflect the fundamentally different process by which a foreign award becomes an executable decree in India. That gap, and the Court’s navigation of it, is the subject of this article.
The Structural Puzzle: A Domestic Clock on a Foreign Award
Section 9(1) authorises interim measures “at any time after the making of the arbitral award but before it is enforced in accordance with section 36.” The temporal ceiling references Section 36, a provision that applies exclusively to domestic awards. Under Section 36, once the challenge window under Section 34 expires without a challenge being filed—or once a challenge is rejected—the domestic award automatically acquires the status of a decree enforceable under the Code of Civil Procedure. Part II of the Act contains no equivalent automatic mechanism.
Section 9 was extended to foreign-seated arbitrations by the proviso to Section 2(2), inserted by the 2015 Amendment. Parliament extended the provision but left its Section 36 temporal reference entirely undisturbed. This mismatch is not an oversight: the 246th Law Commission Report (2014) that recommended the extension explicitly identified the problem it was solving—a foreign award-creditor with Indian assets in play had no efficacious remedy while the debtor dissipated those assets during the recognition process, because foreign tribunal orders are not directly enforceable in India as decrees.
The respondent in Victore Ships attempted to turn this mismatch to its advantage, arguing that the Section 36 reference in Section 9, read alongside the ‘rolled-up’ character of Part II proceedings, meant Section 9 jurisdiction ended the moment the enforcement petition was filed. Justice Sundaresan rejected this reasoning, requiring a careful analysis of the distinct legal states a foreign award passes through before it can be executed.
The Three Legal States of a Foreign Award
The doctrinal core of the judgment is the identification of three legally distinct states through which a foreign award passes under the Act. Understanding these states is essential to appreciating where Section 9 fits.
State 1 — The Award Is Made. The foreign arbitral tribunal renders its award. The award is final and binding between the parties under the law of the seat. In India, however, it has no independent legal force at this stage.
State 2 — Binding but Not Executable (Section 46). Under Section 46, any foreign award enforceable under Chapter I of Part II is “treated as binding for all purposes” and may be relied upon by any party by way of defence or set-off in Indian legal proceedings. It is binding, but not yet a decree. It cannot be executed. To become executable, it must pass through the gatekeeping process under Sections 47 and 48.
State 3 — Executable Decree (Section 49). Only when the Part II Court is satisfied that the award is enforceable under Chapter I—having considered the evidence under Section 47 and the objections under Section 48—does Section 49 operate: “the award shall be deemed to be a decree of that Court.” At this point, and only this point, the award acquires decree-status and execution may proceed under the CPC.
Section 9 operates in State 2. It exists to protect the award-creditor during the gap between the award becoming binding and it becoming executable. That gap can span years.
A domestic award under Section 36 moves automatically from State 1 to State 3 once the Section 34 challenge window closes—State 2 is effectively instantaneous or non-existent. For a foreign award, State 2 is a prolonged and vulnerable phase. The Section 36 temporal reference in Section 9(1) is therefore simply inapplicable to foreign awards: there is no Section 36 event in the foreign award enforcement chain.
The Bombay High Court’s Reasoning
The respondent’s argument rested on two planks. First, relying on Supreme Court observations in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2001) 6 SCC 356 and LMJ International Ltd. v. Sleepwell Industries Company Ltd., 2019) 5 SCC 302, that Part II proceedings ‘roll up’ recognition and execution into a single petition, it contended that filing the Part II petition was equivalent to filing for execution, which it claimed should bar Section 9 by analogy to the domestic position. Second, it relied on Centrient Pharmaceuticals India Pvt. Ltd. v. Hindustan Antibiotics Ltd., 2019 SCC OnLine Bom 1614, which held that Section 9 cannot be invoked after execution of a domestic award has been filed.
Justice Sundaresan dismantled both planks with structural precision. On Fuerst Day Lawson and LMJ International: those observations concerned the procedural mechanism of Part II—that recognition and subsequent execution proceed within a single petition rather than requiring two separate proceedings. They said nothing about when Section 9 jurisdiction ends. A Part II petition begins as a recognition petition and becomes an execution petition only upon the Section 49 declaration. The two are sequential, not simultaneous.
On Centrient: the Court confined rather than overruled it. Centrient addressed a domestic award under Section 36, where decree-status arises automatically, and where the award-creditor had in fact initiated execution. It addressed Phase 2 in the three-state framework. It says nothing about Phase 1 of a foreign award, where the State 2 gap has not yet been bridged.
The Court’s most important structural observation was this: when Parliament inserted the proviso to Section 2(2) in 2015 to extend Section 9 to foreign awards, it did not impose any Part II equivalent of the Section 36 temporal limit. It knew Section 36 would be inapplicable to foreign awards and chose not to supply a substitute cut-off. In those circumstances, one cannot lightly imply a restriction that Parliament deliberately chose not to enact. This is confirmed by Section 48(3), which expressly empowers the Part II Court to order security for the award-creditor when adjourning enforcement decisions pending foreign challenge proceedings—recognizing that protective measures are integral to, not inconsistent with, the Part II recognition phase.
The Limits of Section 9 in This Context
The judgment’s affirmation of jurisdiction should not obscure the significant constraints on Section 9 in the foreign award context. Three limits deserve particular attention.
The Temporal Limit
Section 9 jurisdiction operates in State 2—from the date of the foreign award until the Part II Court makes the Section 49 declaration. Once the award becomes a decree, the Part II Court’s powers under Order XXI CPC absorb the Section 9 Court’s protective function. Section 9 becomes structurally redundant—not expressly closed, but practically superseded by the executing court’s own arsenal of attachment and garnishment orders.
The Functional Limit
Section 9 is protective and conservatory. It cannot validate, accelerate, or substitute for recognition. Even where a Section 9 Court directs deposit and prohibits alienation—as ordered against Victore Ships—the Part II Court may still refuse enforcement on Section 48 grounds: public policy, non-arbitrability, fraud, or the award having been suspended at the seat. Section 9 secures a potential outcome, not a guaranteed one. Critically, it cannot be used as backdoor execution: its purpose is to preserve the status quo, not to force payment in advance of recognition.
The Evidentiary Threshold
Section 9 relief is discretionary. A direction to deposit the full awarded amount is not a matter of course; it requires demonstrable, imminent risk of asset dissipation. The irreparable harm and balance of convenience prongs impose real constraints. A well-resourced respondent may argue that monetary compensation will ultimately suffice, defeating the irreparability requirement. Courts have consistently treated drastic security orders as exceptional, not routine, even where the underlying award is uncontested.
A fourth structural gap remains unaddressed by the judgment: there is no mechanism in Indian law to directly enforce an interim order or conservatory measure made by a foreign emergency arbitrator. Unlike Singapore, where the High Court confirmed in CVG v CVH [2022] SGHC 249 that foreign emergency awards are in principle enforceable as ‘foreign awards’ under the International Arbitration Act, an Indian award-creditor holding such an order must file a fresh Section 9 petition and relitigate the merits of urgency from scratch. The Draft Arbitration and Conciliation (Amendment) Bill, 2024 (not yet enacted) proposes a new Section 9A for emergency arbitrators but critically excludes the enforceability mechanism (proposed Section 9A(3)) from the foreign-seated framework, leaving this gap intact even under the proposed reforms.
Comparative Arbitration Practice
Article 17J of the 2006 UNCITRAL Model Law amendments provides that a court has the same power to issue interim measures in relation to arbitration proceedings irrespective of whether the place of arbitration is within its territory. India’s extension of Section 9 to foreign awards operationalises this principle. England’s Section 44 of the Arbitration Act 1996 grants courts similar support powers, with Section 44(5) requiring urgency as a prerequisite when the tribunal could otherwise act—a subsidiarity principle India has adopted for domestic proceedings in Section 9(3), but not yet extended to the foreign award context. Singapore goes furthest, having developed a direct enforcement route for foreign emergency awards. India’s Section 9 workaround achieves the same practical outcome in most cases, but at greater cost—in speed, efficiency, and fidelity to the parties’ original institutional choice.
Why the Judgment Matters
The Victore Ships judgment does three things of lasting practical value. First, it settles creditor strategy in India: a foreign award-creditor facing an uncooperative debtor with Indian assets should file the Section 9 petition promptly after the award and frame relief as security—deposit, attachment, asset disclosure—rather than broad injunctive relief. The Section 9 petition is a bridge instrument, to be maintained through the recognition phase and superseded, not abandoned, upon Section 49 recognition.
Second, it prevents the recognition process from being weaponised. The judgment closes the argument that a debtor can extinguish protective jurisdiction simply by forcing or delaying the filing of a Part II petition. An award-debtor who dissipates Indian assets during the months or years that the recognition process takes cannot shelter behind procedural timing.
Third, it aligns India with the pro-enforcement philosophy of the New York Convention. Article VI of the Convention expressly contemplates court-ordered security during the recognition phase. The Victore Ships judgment gives that commitment real effect.
An award-creditor who wins a foreign arbitration and watches its award become unenforceable through asset dissipation during the recognition process is not a victor—it holds an expensive piece of paper. Section 9, within its proper limits, ensures that does not happen.
The structural gap that remains—direct enforceability of foreign emergency awards—requires legislative action, not further judicial inference. Until it is addressed, India’s ambition to be a first-choice enforcement destination for international arbitration will have a visible asterisk.
ABOUT THE AUTHOR
Prasanth Raju, Advocate & Counsel, Bombay High Court and Supreme Court of India. Prasanth Raju practises commercial litigation and arbitration before the Bombay High Court (since 2022) and the Supreme Court of India (since 2023). He is a Member of the Chartered Institute of Arbitrators (“MCIArb“) and an affiliate of the Mumbai Centre for International Arbitration. He holds an LLB from Government Law College, Mumbai, an MBA (Strategy & Finance) from IIM Bangalore, and a degree in Electrical & Electronics Engineering. Before law, he spent over twelve years in technology, venture capital, and business strategy. He is a Contributing Author for Oxford University Business Law Blog and LexisNexis UK.
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