Bombay High Court reaffirms Section 9 as a safeguard for foreign-seated arbitrations

I. Introduction

Two recent decisions of the Bombay High Court confirm that Section 9 of the Arbitration and Conciliation Act, 1996 (“A&C Act”) remains a robust remedy for parties to foreign-seated arbitrations. The first is Malaney Trading & Services LLP v. Uzer Makina VE Kalip Sanayi A.S., 2026 SCC OnLine Bom 5045. The second is Norvic Shipping Asia Pte Ltd. v. Zigma International, Bombay High Court Order dated 2 July 2026 in Comm. Arb. Pet. (L) No. 15734 of 2026. In both cases, the Court exercised jurisdiction under Section 9 despite a foreign seat of arbitration. In fact, in Malaney, the Court did so despite an existing arbitral tribunal and a partial award already on record.

Both decisions rest on a common rationale: For a foreign arbitral award to be enforced in India, it needs to be recognized under Part II of the A&C Act. A foreign tribunal’s interim relief cannot be directly enforced in India as well. Section 17 of the A&C Act gives an arbitral tribunal the power to grant interim relief to the parties. However, under Section 2(2), Section 17 is not one of the provisions that is applicable to Part II of the A&C Act, meaning, that foreign interim orders are not enforceable as orders passed by a court. This issue stems from the fact that the Indian law demands “finality”. Interim reliefs passed by foreign seated tribunal, could be amended and modified, therefore, argued that they have not reached finality, and by extension are not recognised or enforceable under Part II.

An India-seated tribunal’s order under Section 17, by contrast, operates as an order of the Court and is enforceable under the Code of Civil Procedure, 1908 (“CPC”), and non-compliance can invite contempt or enforcement actions.

Section 9 therefore serves a distinct function. It gives the domestic courts of India the power to grant interim reliefs. By doing so, it preserves the subject-matter and subsequent reliefs of a foreign-seated arbitration until the corresponding final award becomes enforceable in India.

This article sets out the facts of each case separately and then addresses the legal issues and the Court’s reasoning together, as the two decisions raise overlapping questions of principle.

II. Factual Background

A. Malaney Trading & Services LLP v. Uzer Makina

Malaney entered into an Agency Agreement with Uzer Makina, a Turkish tyre manufacturer, on 8 February 2017. The agreement entitled Malaney to commission on Uzer Makina’s Indian business. Disputes arose, and the parties referred them to arbitration before the Netherlands Arbitration Institute (“NAI”). The tribunal issued a Partial Award on 16 February 2024, awarding various sums to Malaney. Malaney impleaded CEAT and MRF, two Indian tyre manufacturers that used Uzer Makina’s technology, as respondents, since both companies made payments to Uzer Makina.

On 4 May 2022, the Section 9 Court directed MRF to give Malaney ten days’ prior notice before paying Uzer Makina. MRF issued such a notice in November 2023, but addressed it to Uzer Ithalat, a near-wholly owned subsidiary of Uzer Makina, rather than to Uzer Makina itself. MRF then challenged the December 2023 restraint order. MRF argued that the order applied only to Uzer Makina and not to a separate legal entity such as Uzer Ithalat. The tribunal issued its Award shortly afterwards, and Malaney impleaded Uzer Ithalat as a respondent.

During discovery in the arbitration, Malaney discovered that MRF had imported a hydraulic tyre-curing press for EUR 1.54 million and had made several payments to Uzer Makina and Uzer Ithalat after the restraint orders took effect. In its December 2024 order, the Court found that Uzer Ithalat functioned as an alter ego and near-wholly owned subsidiary of Uzer Makina and treated it accordingly. The Court directed MRF to deposit EUR 803,905 with the Court. By November 2025, it emerged that MRF had in fact remitted EUR 5.16 million in total, of which it had deposited only EUR 805,805 with the Court. Sundaresan, J. took up this discrepancy for final determination.

The Court considered three issues:

1. Whether the choice of institutional rules that provide for emergency and interlocutory relief amounts to an implied ouster of the application Section 9 for interim relief, i.e, whether the choice of such rules constitute an ‘agreement to the contrary’ for the exclusion of Section 9 under Section 2(2) of the A&C?
2. Whether Section 9 relief remains available despite the constitution of the arbitral tribunal and the issuance of a partial award?
3. What interlocutory measures and what quantum of security were fit and proper, given the parties’ history of avoiding the Court’s interim orders?

B. Norvic Shipping Asia Pte Ltd. v. Zigma International

Norvic and Zigma entered into a Repayment Schedule Agreement on 9 January 2025. The agreement provided for payment of a demurrage liability of USD 215,310.01 in instalments, with an acceleration clause that triggered the full liability on default. Zigma failed to pay the first instalment when it fell due on 15 January 2025. Zigma sought additional time in correspondence but never disputed the underlying liability.

Norvic invoked arbitration under the LMAA Rules by notice dated 27 March 2026. Zigma then claimed, for the first time, that the parties had already resolved the dispute. Zigma separately asserted a pledge or adjustment claim through a broker, Bulk Commodities (“Bulkcom”). Zigma supported neither claim with documentation. Bulkcom then issued its own notice to Zigma, asserting an independent claim and directing Zigma to pay Bulkcom instead of Norvic.

Norvic applied for broad Section 9 relief. Norvic sought injunctions against bank accounts and property, disclosure of assets, appointment of a receiver, and a deposit or bank guarantee for the claimed amount. Zigma resisted the application, relying on Essar House (P) Ltd. v. ArcelorMittal Nippon Steel (India) Ltd., (2022) 20 SCC 178. Zigma argued that it had no intention to dissipate assets, that it had other creditors, that it had claimed an oral set-off, and that its financial distress was not dishonest.

The Court considered three issues:

1. Whether Section 9 relief securing the claim can be granted absent a pleaded or proved intent to dissipate assets, and what the “strong possibility of diminution of assets” standard requires?
2. Whether the Section 9 petition remained maintainable after the constitution of the LMAA Tribunal and the inherent powers of the Court to grant interim reliefs under Section 9(3) remain?
3. Whether the drastic remedies sought, including appointment of a receiver and blanket attachment, were proportionate to the facts?

III. Legal Analysis

Although Malaney and Norvic arise from different commercial relationships, the Court addressed closely related questions of law in both cases.

A. Institutional Emergency-Relief Rules do not automatically oust Section 9

In Malaney, the Court held that an institution’s framework for emergency or interlocutory relief does not automatically exclude Section 9 jurisdiction. Section 9 yields only to an “agreement to the contrary” under the proviso to Section 2(2) of the A&C Act, and the ouster must be express or necessarily implied. The Court declined to infer an ouster merely because the chosen institution’s rules address interim measures, unless those rules expressly bar recourse to any other mechanism for interim relief.

The Court distinguished Ashwani Minda v. U-Shin Ltd., 2020 SCC OnLine Del 1648, on which counsel for the Respondent relied. In Ashwani Minda, it was observed that approaching the courts under Section 9 after receiving an adverse foreign emergency arbitral award amounts to taking a second bite of the cherry. In the same matter, the single judge found that selection of institutional rules providing for interim relief amounts to an ouster of Section 9. In Malaney, by contrast, no interlocutory proceedings had taken place before the NAI at all. The parties had approached the Section 9 Court as early as May 2022 without objection, and the jurisdictional challenge came only at a later stage. The Court also noted that the Delhi High Court’s Division Bench had left this precise question of law pending on appeal.

B. Section 9 remains available despite a constituted tribunal

Both decisions confirm that a functioning arbitral tribunal does not, by itself, close the door to Section 9 relief and the restriction under Section 9(3) is not absolute. In Malaney, the Court acknowledged that it would ordinarily decline to continue exercising Section 9 jurisdiction once a tribunal capable of granting interim relief is constituted. On the facts, however, the Section 9 Court had already granted interlocutory relief, and a judicial finding confirmed that a party had violated that relief. MRF paid, and Uzer Makina (through Uzer Ithalat) received the payment, with full knowledge of the restraint orders. This conduct demonstrated a genuine threat to the fruits of the arbitration and justified continued Section 9 protection pending the final hearing of the enforcement proceedings.

The Court grounded this conclusion in a structural distinction between domestic and foreign awards. A domestic award becomes a decree of an Indian court once the period for challenge under Section 34 of the A&C Act lapses. A foreign award under Part II of the A&C Act, however, requires recognition and enforcement before a party can execute it. Similarly, a Section 17 order of an India Seated tribunal would be enforceable as an order of a Civil Court under the CPC, while an order of a foreign-seated arbitral tribunal would not be similarly enforced due to issues surrounding finality, recognition and subsequent enforcement.

Norvic reaches the same conclusion by a different route. The Court held that in an India-seated arbitration, Section 9(3) bars relief under Section 9(1) after the constitution of a tribunal only where Section 17 offers an efficient alternative remedy. The provision does not divest the Court of jurisdiction; it asks whether the alternative remedy is effective, not merely whether it exists. Because the LMAA Tribunal sat in London, its interim orders would not bind Zigma’s assets in India in the way a Section 17 order from an India-seated tribunal would. The Court relied on the Delhi High Court’s reasoning in Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd., 2024 SCC OnLine Del 1606, and held that Section 17 could not function as an effective remedy where the relevant assets sat in India and the foreign tribunal’s interim order remained unenforceable in India. The Section 9(3) bar therefore did not apply, and the Court rejected Zigma’s submission that the Tribunal should decide the interim application instead.

C. The threshold for interim relief

Malaney and Norvic apply the same underlying concern, i.e., protecting the eventual award from becoming illusory, through different evidentiary lenses. In Malaney, the Court relied on demonstrated “threat perception”: a party had already violated a prior restraint order, and the Court treated that violation as concrete evidence that further protection was necessary.

Norvic addresses the threshold more directly, applying Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel (India) Ltd., (2022) 20 SCC 178. The Court held that Section 9 operates more broadly than Order XXXVIII Rule 5 of the CPC. An applicant need not plead or prove a dishonest transfer or concealment of assets. An applicant must instead show a “strong possibility of diminution of assets”, a standard that requires more than mere suspicion but falls short of absolute proof. The Court explained that diminution can occur without wrongful intent, through losses, encumbrances, or transferred receivables, and that the absence of fraud does not remove the case from Section 9’s reach. On the facts, Zigma’s failure to pay even the first instalment, its months of unfulfilled assurances, its post-invocation shift to a series of undocumented defences, and the emergence of Bulkcom’s rival claim over the same funds together satisfied the standard. The Court concluded that Zigma’s asset position would likely deteriorate before an award could be enforced, even without proof of fraudulent dissipation, and that the balance of convenience favoured protective relief.

D. Proportionality of relief

In both cases, the Court calibrated relief to the facts rather than granting every remedy sought. In Malaney, the Court rejected Malaney's original valuation of the fixed security at EUR 1.2 million, because Uzer Makina had admitted that the value of the Award at EUR 1.53 million.The Court directed Uzer Makina to deposit the shortfall between the amount already before the Court and the fixed sum, and directed that further payments to Uzer Makina or its affiliates pass through the Court until that sum was reached.

In Norvic, the Court declined to grant the full suite of relief sought, despite finding a prima facie case in Norvic’s favour. The Court denied the request for a receiver and for blanket attachment as disproportionate on the facts, while granting Norvic liberty to renew those requests if circumstances changed. The Court instead directed Zigma to secure the claim of USD 262,837.98 plus GBP 9,400, with interest within four weeks, by deposit or unconditional bank guarantee, and restrained dealings with Zigma’s assets to that extent pending compliance. The Court also directed disclosure of Zigma’s assets and encumbrances, permitted Zigma to continue ordinary-course business, and clarified that the Arbitral Tribunal would not be bound by the Court’s prima facie findings.

IV. Conclusion and Industry Implications

Malaney and Norvic together lay down a clear approach. They establish that the constitution of a tribunal, domestic or foreign-seated, or the existence of an alternative institutional interim relief provision does not extinguish the Court’s jurisdiction under Section 9. Both rulings rest on the same doctrinal foundation: domestic awards enjoy presumed enforceability, while foreign awards require recognition under Part II of the A&C Act, and foreign tribunals’ interim orders are not directly enforceable over Indian-situated assets. Section 9 exists precisely to fill that gap.

These decisions offer three practical lessons for businesses and counsel structuring or litigating cross-border commercial transactions, regardless of the nature of the agreements so involved:

• A party seeking to oust Section 9 in a foreign-seated arbitration needs an express and clear agreement to the contrary. The mere selection of an institution that offers emergency or interim arbitration will rarely suffice.
• A party’s failure to comply with an Indian court’s interim orders, or a shift in defense after arbitration commences, will likely support, rather than undermine, further Section 9 intervention against that party or its affiliates.
• Courts will continue to calibrate relief to the facts. Extraordinary measures such as receivers or blanket attachment remain available in stronger cases, and courts will anchor security to figures already on record, such as an award amount a party has admitted or the sum claimed in the petition.

These decisions also carry a cost for Indian counterparties of foreign principals. In Malaney, CEAT and MRF were Indian firms with no independent stake in the underlying agency dispute. Both firms nonetheless had to navigate notice requirements, restraint orders, and ultimately a court-ordered deposit direction, simply because they transacted business with a foreign licensor. Indian parties that enter licensing, distribution, or similar agreements with foreign counterparties exposed to cross-border disputes should build indemnity and prompt-notice obligations into their contracts. Absent such protections, they risk becoming entangled in a foreign arbitration to which they are not formally party to. Both decisions confirm that Indian courts do not treat Section 9 as a residual remedy available only after a foreign tribunal denies emergency relief. Courts treat Section 9 as an independent and parallel remedy, one that foreign claimants and respondents with assets or payment flows in India should consider as a first resort, not a last one.

This article was authored by Prathiti Mulinti, Shreyank Nandiwada and Chitransh Vijayvergia