Section 9 jurisdiction after foreign award: Bombay High Court ruling on interim measures

I. The Jurisdictional Crossroads

The intersection of interim relief and foreign award enforcement has long been a grey area in Indian arbitration jurisprudence. In a landmark judgment delivered on March 10, 2026, in Osterreichischer Lloyd Seereederei (Cyprus) Ltd v. Victore Ships Pvt Ltd (2026:BHC-OS:6178), the Bombay High Court has provided definitive clarity: a petition under Section 9 of the Arbitration and Conciliation Act, 1996, seeking interim measures is maintainable even after the filing of a petition under Part II (Sections 47-49) for enforcement of a foreign award. This exhaustive analysis unpacks the reasoning, statutory interpretation, and practical consequences of this seminal ruling, which protects award-creditors from asset dissipation during the recognition stage.

The judgment, authored by Somasekhar Sundaresan J., addresses a jurisdictional objection that the mere filing of a Part II petition ousts Section 9. By comparing the enforcement mechanism of domestic awards (Section 36) with foreign awards (Sections 46-49), the Court held that until the foreign award is positively declared enforceable under Section 49 and deemed a decree, the interim protection under Section 9 remains fully available. This principle ensures that foreign awards do not become "paper awards" while recognition proceedings drag on.

II. Factual Background: Osterreichischer Lloyd v. Victore Ships

The petitioner, a Cyprus-based shipping company, obtained a foreign arbitral award dated March 23, 2020, for USD 269,105.08 against the respondent, an Indian shipowning company. To secure the award amount pending enforcement, the petitioner filed a Section 9 petition (Commercial Arbitration Petition No. 398 of 2025) seeking interim measures of protection, including a direction to deposit the amount and disclose assets. Simultaneously, it filed Commercial Arbitration Petition No. 403 of 2025 under Sections 47 and 48 for enforcement and execution of the foreign award (the "Enforcement Petition").

The respondent objected to the maintainability of the Section 9 petition, arguing that once proceedings under Part II are initiated which roll up recognition and enforcement into a composite proceeding the court cannot exercise Section 9 jurisdiction. Reliance was placed on Centrient Pharmaceuticals India Pvt Ltd v. Virupaksha Enterprises (a Single Judge decision) and the observations in Fuerst Day Lawson Ltd v. Jindal Exports Ltd and LMJ International Ltd v. Sea Stream Industries Ltd regarding the composite nature of Part II.

III. Statutory Framework: Section 9 and Part II Interface

Section 9(1) of the Act empowers a party to apply for interim measures "before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36." The proviso to Section 2(2), inserted by the 2015 Amendment, extends Section 9 to international commercial arbitrations even if the seat is outside India, provided the award is enforceable under Part II. Thus, Section 9 explicitly applies to foreign awards.

The key question is whether the phrase "but before it is enforced in accordance with section 36" in Section 9(1) imports a temporal limit for foreign awards, given that Section 36 does not apply to them. The Court held that it does not. Instead, one must examine when a foreign award becomes a decree. Under Section 49, a foreign award is deemed a decree only when the court is satisfied that it is enforceable under Chapter I of Part II. Until that positive affirmation, the award is not yet a decree, and the Section 9 jurisdiction remains alive.

IV. Contentions of the Parties

Mr. Vishal Kanade, for the respondent, argued that Part II proceedings roll up recognition and execution into one, and therefore invoking Section 9 would create conflicting views. He relied on Centrient (domestic award execution context) and the composite nature recognised in Fuerst Day Lawson and LMJ International to argue that Section 9 is barred once a Part II petition is filed.

Mr. Counsel, for the petitioner, countered with Heligo Charters Pvt Ltd v. Ferrous Smelter and Manufacturing Co (Division Bench of this Court), which upheld the availability of Section 9 for foreign awards even before enforcement. He submitted that Centrient is distinguishable as it concerned a domestic award where execution proceedings had actually commenced. He emphasised that a foreign award requires recognition first, and until then, interim protection is essential to prevent the award from becoming illusory.

V. Court's Analysis: Section 9 vs Part II

The Court undertook a detailed comparison of Sections 36 (Part I) and 46-49 (Part II). For a domestic award, a decree is automatically conferred upon expiry of the Section 34 challenge period (or upon dismissal of challenge) Section 36. For a foreign award, a positive affirmation by the court under Section 49 is required; only then is it deemed a decree. Until that stage, the award is merely binding under Section 46 but not executable as a decree.

Since Section 9 uses the phrase "but before it is enforced in accordance with section 36," and Section 36 has no application to foreign awards, the temporal limit cannot be imported. Parliament, while extending Section 9 to foreign awards via the 2015 proviso, did not impose any separate time limit. It would be impermissible for courts to read one in.

The Court also rejected the "composite proceedings" argument. The filing of a Part II petition is first and foremost a petition for recognition. Only after the court is satisfied under Section 49 do the proceedings translate into execution. Until then, the Section 9 court retains jurisdiction to protect the award-creditor. Concurrent jurisdiction is not an anomaly; it exists elsewhere in the Act (e.g., Section 9 and Section 17).

VI. Comparative Table: Domestic Award vs Foreign Award Enforcement

Aspect	Domestic Award (Part I)	Foreign Award (Part II)
Decree status	Automatic upon expiry of Section 34 period or rejection of challenge (Section 36)	Only after court satisfaction under Section 49 positive affirmation
Enforcement trigger	Filing of execution under CPC after decree status	Composite petition under Sections 47-49; becomes decree only after Section 49 order
Interim relief after award	Section 9 available until decree status (i.e., until Section 34 period expires and no stay granted)	Section 9 available until Section 49 satisfaction (positive affirmation)
Challenge / refusal grounds	Section 34 (fraud, corruption, public policy, etc.)	Section 48 (award not binding, set aside abroad, public policy, etc.)
Effect of pending challenge abroad	Not applicable	Section 48(3) court may adjourn and order security (parallel to Section 9 power)

VII. Heligo Charters and the Division Bench Precedent

The Court relied on the Division Bench judgment in Heligo Charters Pvt Ltd v. Ferrous Smelter and Manufacturing Co, which had already upheld the applicability of Section 9 to foreign awards and rejected the contention that interim measures cannot be sought after the award is made. The Division Bench had clarified that Section 9 is available until the award is enforced. The present judgment extends that logic: the mere filing of a Part II petition does not constitute "enforcement" enforcement occurs only after recognition under Section 49.

VIII. Centrient Distinguished: Domestic Execution Analogy Rejected

The respondent's heavy reliance on Centrient was misplaced. Centrient dealt with a domestic award where execution proceedings had actually commenced under Section 36. In that context, the court held that once execution is levied, Section 9 cannot be used to bypass the execution process. However, for foreign awards, until Section 49 satisfaction, there is no execution; there is only an application for recognition. Hence, Centrient has no application.

IX. Concurrent Jurisdiction: No Ouster by Part II Filing

The Court observed that there is no statutory provision excluding Section 9 after a Part II petition is filed. If Parliament intended to impose such a bar, it would have done so explicitly. The concurrent jurisdiction of the Section 9 court and the Part II court (which may be the same or different) is not problematic. In fact, Section 9(3) already regulates concurrent jurisdiction with the arbitral tribunal under Section 17, directing the court to defer unless the tribunal's remedy is inefficacious. No similar provision exists for Part II, indicating that the legislature did not intend to oust Section 9.

X. Practical Implications for Award Creditors

The judgment is a significant victory for holders of foreign awards. It enables them to approach the court for interim relief immediately after filing the enforcement petition, without waiting for the Section 49 declaration. This is crucial to prevent dissipation of assets by award-debtors during the recognition stage, which can take months or years. Creditors can now seek freezing orders, asset disclosure, and deposit directions at the outset.

Strategically, claimants should file a Section 9 petition concurrently with the Part II enforcement petition, as done in this case. The court will entertain it and may grant protective orders, as it did here. The judgment also clarifies that the Section 9 court can order asset disclosure and freezing even if the award is not yet a decree, provided there is a risk of dissipation.

XI. The Interim Order: Deposit, Asset Disclosure and Freezing

Having rejected the jurisdiction objection, the Court proceeded to grant substantial interim relief to the petitioner:

• Direction to deposit USD 269,105.08 (INR equivalent at current rate) with the Registry within four weeks.
• Pending deposit, prohibition on selling, disposing, alienating, or encumbering any movable or immovable property of the respondent, except to generate funds for the deposit.
• Disclosure on affidavit within two weeks of all assets, including bank accounts, assets sold in the last two years, list of creditors and debtors, pending legal proceedings (including winding-up), and details of encumbrances (mortgage/charge lenders).

The Court also expedited the hearing of the Part II enforcement petition, listing it within two weeks.

XII. Admiralty Parallel: Ship Arrest and Territorial Presence

Although the case arose from a shipping dispute, the Court drew a parallel with admiralty jurisdiction principles. Under the Admiralty Act, 2017, Section 5 requires the vessel to be "within its jurisdiction" (i.e., within Indian territorial waters) at the time of filing the suit. This presence requirement ensures the court has control over the res. Similarly, in arbitration, the Section 9 court's jurisdiction over assets exists only if the respondent or its assets are within India. The judgment reinforces that territorial nexus is key to effective interim relief whether it be ship arrest or asset freezing.

The Admiralty Act analogy also highlights the importance of timing: just as admiralty jurisdiction attaches only when the vessel arrives, Section 9 jurisdiction attaches as long as the award has not yet become a decree. Once the foreign award is recognised under Section 49, it becomes a decree and thereafter execution proceedings under CPC take over. Until then, Section 9 remains the primary tool for asset preservation.

XIII. Strengthening Arbitration Remedies

The Bombay High Court's judgment in Osterreichischer Lloyd v. Victore Ships is a landmark clarification of the interplay between interim relief and foreign award enforcement. By holding that Section 9 remains available until the award is positively declared enforceable under Section 49, the Court has closed a potential loophole that could have left award-creditors exposed to asset dissipation during the recognition phase. The reasoning is grounded in a meticulous comparison of the statutory schemes of Part I and Part II, respect for legislative intent, and a purposive approach to protecting the efficacy of arbitration.

For maritime and arbitration practitioners, this judgment provides a clear roadmap: file a Section 9 petition alongside the Part II enforcement petition, seek asset disclosure and freezing orders, and obtain security for the award. The court's willingness to grant such relief including deposit directions and comprehensive asset disclosure demonstrates robust protection for foreign award holders. The judgment also serves as a reminder of the synergy between admiralty and arbitration law in preserving assets pending final adjudication.

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