Section 9, Section 47, and the foreign award: Justice Sundaresan's intervention in Osterreichischer Lloyd

The petitioner was a Cyprus-based shipping company. It held a foreign arbitral award dated 23 March 2020 in its favour for USD 269,105.08 against an Indian counterparty, Victore Ships Pvt. Ltd. The award had been delivered in arbitral proceedings outside India, governed by the New York Convention, and was a "foreign award" within the meaning of Part II of the Arbitration and Conciliation Act, 1996.

By 2025, the petitioner had moved to enforce the award in India. It filed an enforcement petition under Sections 47 and 48 of the Act before the Bombay High Court. In parallel, it filed a separate petition under Section 9 of the Act, seeking interim measures to secure the awarded amount while enforcement was pending.

The respondent raised a jurisdictional objection. The argument, in form, was that Section 9 read with Section 2(2) of the Act, and read further with the temporal limitation in Section 9(1) ("at any time after the making of an arbitral award but before it is enforced in accordance with Section 36"), did not extend to foreign awards in respect of which an enforcement petition had been filed. Once enforcement was sought under Part II, the argument went, the residual interim relief jurisdiction under Section 9 was no longer available.

On 10 March 2026, Somasekhar Sundaresan J. rejected the objection. The decision is reported as Commercial Arbitration Petition No. 398 of 2025.

The doctrinal problem

The textual difficulty the Bench addressed turns on a small drafting gap. Section 9(1)(ii) confers the power to grant interim measures "before, or during arbitral proceedings or at any time after the making of an arbitral award but before it is enforced in accordance with Section 36." Section 36, however, is in Part I of the Act and deals with enforcement of domestic awards: once the time for setting aside a domestic award under Section 34 has expired, or once the Section 34 challenge has been rejected, the award is enforceable as if it were a decree of the court.

Foreign awards do not engage Section 36. They are enforced under Sections 47 and 48 of Part II. There is no "Section 36 event" in the foreign award enforcement chain.

The temporal limitation in Section 9(1) — "before it is enforced in accordance with Section 36" — therefore presents a textual mismatch when applied to foreign awards. Either the limitation is read as inapplicable to foreign awards (so Section 9 access continues until the foreign award is actually enforced through Part II), or it is read as an absolute bar (so Section 9 access is unavailable in respect of foreign awards once the enforcement petition is filed).

The respondent's contention was the second reading; Sundaresan J. accepted the first.

The holding

The reasoning

Three threads in the judgment.

The structural reading of Section 9(1)

The Bench began with the textual point. Section 9(1)'s reference to Section 36 must be read in light of Section 36's actual scope. Section 36 is a Part I provision dealing with domestic awards; it has no application to foreign awards. The temporal limitation in Section 9(1) — "before it is enforced in accordance with Section 36" — is, therefore, by its own terms, addressed to a domestic-award context.

For foreign awards, the natural temporal reference would be to the actual enforcement of the award through Part II. Until the foreign award is enforced — which in practice means until the enforcement petition has been allowed and execution has begun — the Section 9 jurisdiction continues.

The purposive reading

The second thread is more functional. Section 9 exists to ensure that arbitral awards retain practical value. The interim measures it permits — attachment, securing of amounts in dispute, restraint orders — are the mechanisms that prevent the dissipation of assets during the period between the award and its actual realisation.

The respondent's reading — that the Section 9 access ends with the filing of the enforcement petition — would produce a result inconsistent with that purpose. The enforcement petition is itself a procedure that can take time; in the period during which it is pending, the asset situation can change materially. To say that the Section 9 jurisdiction lapses at the moment the enforcement petition is filed would be to foreclose precisely the kind of interim relief Section 9 was designed to provide.

Consistency with the New York Convention

The third thread engages the broader treaty context. India is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Article III of the Convention requires contracting States to recognise foreign awards as binding and to enforce them in accordance with the rules of procedure of the territory where the award is relied upon. India's enforcement framework is Part II of the 1996 Act.

A reading of Section 9 that disadvantages foreign award-creditors compared to domestic award-creditors — by withdrawing interim relief at the enforcement stage when domestic award-creditors retain that access — would be in tension with the international-comity orientation that the New York Convention asks contracting States to maintain. Sundaresan J.'s reading preserves the parity.

How the judgment travels

For practitioners, three lines of practical implication.

Foreign award-creditors in India should structure enforcement with paired Section 9 relief. The traditional caution — file enforcement, wait for outcome, then consider interim relief — is now structurally outdated. Where there is a risk of asset dissipation during the enforcement period, the petitions should be filed in tandem. The 10 March 2026 ruling confirms that the parallel petitions are not mutually exclusive.

Respondents resisting foreign awards cannot rely on the Section 9 bar argument. The argument that the filing of the enforcement petition extinguishes Section 9 access is, after Osterreichischer Lloyd, doctrinally closed in the Bombay jurisdiction. Other High Courts have, by and large, taken consistent positions; Osterreichischer Lloyd is now the leading authority for the proposition.

The Bench's reading aligns Indian practice with international comity. For foreign counsel advising clients on the prospect of enforcement in India, the present position is now favourable: India's framework is read in a manner that preserves rather than withdraws interim relief during the enforcement period.

What remains unsettled

Two boundary questions remain live.

The Court that has jurisdiction. Section 9 access continues under the judgment, but the question of which Indian court has jurisdiction to grant the Section 9 relief in respect of a foreign award is itself a complex one. The standard answer is the court where the assets are located or where the respondent has presence. Where assets are spread across multiple jurisdictions, the practitioner's strategic choice of forum becomes a non-trivial question.

Coordination with parallel proceedings in the seat jurisdiction. Foreign awards may be the subject of parallel set-aside or annulment proceedings in the seat of arbitration. How Indian Section 9 jurisdiction interacts with those parallel proceedings — particularly where the Indian court is asked to grant interim relief while the seat court is considering annulment — is a question that has not been definitively addressed.

A note on the duration question

The temporal limit on Section 9 access, once the enforcement petition has been filed, is implicit in the judgment. The Bench's reading is that the Section 9 jurisdiction continues until the foreign award is "enforced," meaning the enforcement petition has been allowed and execution has been completed. In practice, that creates a relatively long window of Section 9 availability — but not an indefinite one. Once execution is complete, the interim-relief jurisdiction would no longer be available, because the purpose of that jurisdiction would have been spent.

The bottom line

Osterreichischer Lloyd is a precise judgment with operational consequences for any foreign award-creditor seeking to realise an award in India. The Section 36 temporal limitation in Section 9 does not bar interim relief in respect of foreign awards being enforced under Part II. The filing of an enforcement petition does not extinguish Section 9 access. For the international arbitration bar, the 10 March 2026 ruling brings Indian practice into line with what foreign award-creditors had increasingly expected — and what the New York Convention's comity framework requires.

Verify against the reported judgment. The Bombay High Court decision is leading authority in Indian arbitration practice on the foreign award / Section 9 interface; subsequent decisions of other High Courts have largely followed the same reasoning.