WHEN COURTS ENTER ARBITRATION

Understanding the Role of Courts Before, During and After Arbitration

A practical legal guide for businesses, founders and commercial enterprises

 

Introduction

Businesses often choose arbitration to keep disputes private and efficient. Yet courts do not disappear once an arbitration clause is signed. They continue to play a limited but important role at specific stages.

In India, that role is deliberately narrow. Section 5 of the Arbitration and Conciliation Act, 1996 (the “Act”) provides that, in matters governed by Part I, no judicial authority shall intervene except where the Act so provides. This article explains when courts do step in, and what they can and cannot do.

 

 What is Court Intervention in Arbitration?

Court intervention means a court stepping into a dispute the parties have agreed to arbitrate. Courts do not re-decide the merits. They support the process and supervise it at four stages:

• Before arbitration: urgent protective orders and appointment of an arbitrator.
• Lawsuit despite an arbitration clause: referring to the parties to arbitration (Section 8).
• During arbitration: limited help, such as evidence or extending time.
• After the award: challenge, enforcement and appeals (Sections 34, 36 and 37).

In simple terms: the arbitrator decides the dispute; the court helps the process work and keeps it within the law.

 

Section 9 – Interim Relief by Court

Section 9 allows a party to ask a court for temporary protective orders that preserve the subject matter of the dispute. It can be used before the arbitration begins, during it, or after the award but before enforcement.

• 90-day rule: if relief is granted before arbitration starts, arbitration must begin within 90 days of the order, or such further time as the court allows.
• Post-award relief: in Home Care Retail Marts v. Haresh N. Sanghavi (2026 INSC 415), the Supreme Court held that any party, including the losing party, may seek Section 9 relief after the award. The losing party must show a rare and compelling case.

 

Section 11 – Appointment of Arbitrator

If parties cannot agree on an arbitrator, or one side refuses to participate, Section 11 allows an application to the High Court (or the Supreme Court in international commercial arbitration). The Act expects such applications to be decided expeditiously, with an endeavour to do so within 60 days.

The court’s role here is limited. Generally, it checks only whether an arbitration agreement exists on the face of the record, leaving deeper questions to the tribunal. The Supreme Court reaffirmed this in its seven-judge decision in In Re: Interplay between Arbitration Agreements and the Indian Stamp Act (2023).

 

Section 17 – Interim Relief by Tribunal

Once formed, the arbitral tribunal can itself order interim measures, such as preserving property or securing the amount in dispute. Since the 2015 amendment, these orders are enforceable as if they were court orders. In Amazon.com NV Investment Holdings v. Future Retail (2021), the Supreme Court held that an emergency arbitrator’s order in an India-seated arbitration can be enforced under the Act.

 

Section 9 vs Section 17

• Who decides: Section 9, the court; Section 17, the tribunal.
• When: Section 9 is available before, during or after arbitration; Section 17 mainly while proceedings are pending.
• Key restriction: once the tribunal is constituted, Section 9(3) bars the court from entertaining an application unless the Section 17 remedy may not be efficacious.

In simple terms: the court is the first stop before a tribunal exists; the tribunal is the first stop afterwards.

 

 When Can a Party Approach the Court?

• Urgent protection: Section 9.
• Appointing an arbitrator: Section 11.
• Referring to arbitration: Section 8, no later than the date of the first statement on the substance of the dispute.
• Court assistance: evidence (Section 27), extension of time for the award (Section 29A) or termination of an arbitrator’s mandate (Section 14).
• Challenging the award: Section 34, generally within three months of receiving it, extended up to 30 days for sufficient cause.

 

Types of Interim Relief

Section 9 lists the main categories of interim protection:

• Goods: interim custody, preservation or sale.
• Money: securing the amount in dispute.
• Property: detention, preservation or inspection.

Legal Insight | When Courts Enter Arbitration

• Injunctions and receivers: restraining a party or appointing a receiver.
• Other: any measure that is just and convenient.

The applicant generally must show a prima facie case, balance of convenience and risk of irreparable harm. Under Essar House v. Arcelormittal Nippon Steel India (2022), the court is guided by, but not strictly bound by, the Code of Civil Procedure.

 

What Happens After the Tribunal Is Constituted?

The centre of gravity shifts to the arbitrators. Interim requests should ordinarily go to the tribunal under Section 17, and jurisdictional objections are decided by the tribunal under Section 16. Courts step in only for limited support, such as extending time under Section 29A, and again after the award under Sections 34 and 36.

Practical implication for businesses: going to court while the tribunal is already seized of the matter may lead to rejection, adding cost and delay.

 

Powers of the Arbitral Tribunal

• Jurisdiction: rule on its own jurisdiction (Section 16).
• Interim measures: protect a party’s position (Section 17).
• Procedure: not bound by the Code of Civil Procedure or the Evidence Act (Section 19).
• Award: decide the merits and award interest and costs (Sections 31 and 31A).

 

Practical Examples

Simplified, illustrative scenarios:

• Before arbitration: A supplier fears a buyer is about to transfer assets to avoid a large claim. With no tribunal yet, it seeks a Section 9 order and must start arbitration within 90 days.
• No agreement on arbitrator: One company refuses to nominate an arbitrator. The other applies under Section 11.
• Lawsuit despite a clause: A customer sues on a contract with an arbitration clause. The supplier applies under Section 8 before its first statement on the substance, and the parties are referred to arbitration.
• Tribunal already in place: A party fears disputed stock will be sold. It applies to the tribunal under Section 17, going to court only if that route would be ineffective.

 

Conclusion

Courts and arbitration are partners, not rivals. The tribunal decides the dispute, while courts provide targeted support within the limits set by the Act. For businesses, the key is knowing which forum to approach and when. A clear arbitration clause and early legal advice can prevent avoidable delays.

“In arbitration, the tribunal decides the dispute, and the court ensures that the process remains fair and effective.”

 

Frequently Asked Questions

 

 

 

 

References

1. Arbitration and Conciliation Act, 1996.
2. Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, 2026 INSC 415 (Supreme Court of India, April 2026).
3. Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. (Supreme Court of India, 2021).
4. Essar House Pvt. Ltd. v. Arcelormittal Nippon Steel India Ltd. (2022) 20 SCC 178.
5. In Re: Interplay between Arbitration Agreements and the Indian Stamp Act, 1899 (Supreme Court of India, 2023).
6. Judgment link: https://www.verdictum.in/supreme-court/home-care-retail-marts-pvt-ltd-v-haresh-n-sanghavi-2026-insc-415-unsuccessful-party-to-arbitration-agreement-1612773