Narendra Sharma, Consultant (Legal)
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.
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 adjudicatory functions;
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;
COMMENTS: 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.
Note: The views expressed are my personal and a view point only.
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