Summary: The Bombay High Court, in Osterreichischer Lloyd v. Victore Ships, has held that a party seeking to enforce a foreign arbitral award in India does not lose its right to seek interim protective relief under Section 9 of the Arbitration and Conciliation Act, 1996, merely by filing a petition for recognition and enforcement under Part II. Such relief remains available at least until the award is recognised as an enforceable decree under Section 49. This ruling strengthens the hand of award-creditors seeking to prevent dissipation of assets while enforcement is pending. It also reaffirms India’s pro-enforcement stance towards foreign awards. However, the judgement leaves open the more difficult question of whether Section 9 relief continues to be available even after the award is recognised as a decree, during the execution stage. High Courts remain divided on it and may require clarification from the Supreme Court.
Introduction
Winning a foreign arbitral award is only half the battle won. The harder half is recovering the awarded sum before the award-debtor dissipates or conceals its assets. Enforcement of a foreign award in India is not instantaneous. It involves a judicial examination of the award’s validity under Section 48 of Part II (Enforcement of Certain Foreign Awards) of the Arbitration and Conciliation Act, 1996 (“the Act”), during which an unscrupulous award-debtor may render any eventual enforcement hollow.
In Osterreichischer Lloyd v. Victore Ships,[i] the Bombay High Court adopted a holistic reading of the Act. While giving due regard to the legislative intent, it held that the filing of a petition under Part II of the Act does not extinguish a party’s right to seek interim protection under Section 9 of the Act.
Dispute Background
The Petitioner filed a Section 9 petition seeking interim measure to secure the award amount pending enforcement of a foreign arbitral award. Simultaneously, the Petitioner also filed a petition under Sections 47 and 48 of the Act, seeking enforcement and execution of the said foreign award.
The Respondent primarily relied on Centrient Pharmaceuticals India Pvt. Ltd. v. Hindustan Antibiotics Ltd.,[ii] to argue that since enforcement and execution under Part II of the Act are rolled into a single petition, and such petition partakes the character of execution proceedings, a Section 9 petition would be barred as soon as the enforcement petition is filed.
On the other hand, the Petitioner relied on Heligo Charters Private Limited v. Aircon Feibars FZE,[iii] a previous Bombay High Court decision, upholding the applicability of Section 9 to foreign awards. Distinguishing Centrient (Supra) on facts, the Respondent contended that unlike a domestic award, a foreign award does not automatically become an executable decree and must first be recognised as enforceable. Accordingly, merely filing a petition under Part II does not bar a Section 9 petition until such recognition is obtained.
Bombay High Court’s Decision
The Bombay High Court held that a Section 9 petition is maintainable for foreign awards, provided the Court has not issued an order under Section 49 recognising the award as enforceable in the form of a decree.
The Court noted the wordings of Section 9, which read as: “A party may … at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a court”, and observed that, while, by virtue of Section 2(2), the applicability of Section 9 stands extended to foreign awards as well, the said language cannot be applied verbatim to foreign awards.
The Bombay High Court’s decision rested on the inherent distinction between the enforcement schemes for domestic and foreign awards. For domestic awards, Section 36 provides an automatic triggering point at which the award becomes enforceable as a decree, either upon expiry of the limitation period for a Section 34 challenge, upon dismissal of such challenge, or where the Court does not stay the award. Absent intervention by a Section 34 court, a domestic award automatically attains the status of a decree.
The position is materially different for foreign awards. A foreign award does not automatically become enforceable. It attains the status of an enforceable decree only when the Court, after considering objections under Section 48 and being satisfied with the requirements of Section 47, declares the award enforceable under Section 49. Therefore, even though recognition and enforcement are sought through a single petition under Part II, the filing of such petition does not by itself render the foreign award enforceable. The stages of seeking recognition and obtaining enforcement are sequential, not simultaneous.
Accordingly, in view of this distinction, the High Court held that Section 9 relief remains available for foreign awards at least until such awards are recognised as enforceable decrees under Section 49. Mere filing of a petition seeking recognition and enforcement does not disentitle a party from seeking such relief.
The Court further noted that this position is consistent with the legislative intent underlying the proviso to Section 2(2), as the legislature, while extending Section 9 to foreign awards, did not introduce any time limit akin to the Section 36 reference for domestic awards. Considering this conscious legislative choice, no implied restriction on the operation of Section 9 can be inferred or presumed.
Similarly, on the issue of concurrent jurisdiction, the High Court held that there is no statutory bar against a Section 9 petition being maintained alongside proceedings under Part II of the Act. It was held that in the absence of any such prohibition in the statutory scheme, it would be impermissible to read one into the Act.
A Pro-Enforcement Ruling with Unresolved Questions
The judgement is a significant win for foreign award holders and reinforces India’s pro-enforcement approach to arbitral awards. The ruling has equipped award-creditors with an effective mechanism to prevent dissipation of assets and ensure that the award does not become a mere paper award pending recognition and enforcement proceedings.
From a practitioner’s perspective, the message is straightforward: where an award debtor has assets in India but is unlikely to cooperate, move an application under Section 9 as soon as the award is made. They can seek immediate protective relief, including freezing orders, disclosure of assets, and directions for deposit of monies.
A notable aspect of the judgement is the Court’s nuanced analysis of the enforcement process under Part II through three distinct stages: (i) where the award has been made but no petition under Part II has yet been filed; (ii) where a petition has been filed but the award has not yet been recognised as enforceable; and (iii) where the award has been recognised as enforceable and execution proceedings have commenced. Whilst the Court has expressly clarified that Section 9 relief would be available during Stages I and II, the position at Stage III remains unclear.
The High Court did not directly address the availability of Section 9 post-recognition and pending execution, i.e., during Stage III. One possible explanation, though not expressly stated in the judgement, is that once the award attains the status of a decree, the powers of the Part II Court and the executing court under Order XXI of the CPC sufficiently absorb the protective functions ordinarily performed by a Section 9 court, thereby rendering Section 9 structurally redundant.
However, Section 9 contains no express limitation confining its operation only till recognition. The term used is “enforced”. The Court appears to have assumed that “enforced” equals “executable” rather than “executed”, consequently limiting its scope to recognition as an enforceable decree.
Other High Courts have, however, interpreted the term differently. In B.M. Insulation (P) Ltd. v. Vardeep Petro Chemical (P) Ltd.,[iv] the Full Bench of the Madras High Court held that “enforced” means until the award stands fully satisfied, not merely the stage at which it becomes enforceable. Although rendered in the context of a domestic award, the reasoning indicates that Section 9 relief would remain available even during Stage III of foreign award enforcement.
A similar approach has been taken by the Delhi High Court in Shanghai Electric Group Co. Ltd. v. Reliance Infrastructure Ltd.,[v] wherein the court, in the context of a foreign award, held that the term “enforced”, used in the past tense, and would mean till the award is fully satisfied.
Interpreting “enforced” to mean until the award stands fully satisfied is more consonant with both legislative intent and the plain text of the provision. As the Bombay High Court rightly noted in Osterreichischer Lloyd (supra), the legislature imposed no time limit on the availability of Section 9 relief for foreign awards, and none ought to be implied.
Conclusion
What remains to be seen is how the Bombay High Court, or the Supreme Court in subsequent cases address this issue. The central question is whether the term “enforced” under Section 9 should be understood to mean “enforceable”, “under execution”, or “fully executed and satisfied”. The answer will determine the true outer boundary of the court’s power to grant interim protection under Section 9 in aid of foreign award enforcement.
[i] 2026 SCC OnLine Bom 1868
[ii] 2019 SCC OnLine Bom 1614
[iii] 2018 SCC OnLine Bom 1388,
[iv] Arb Appln No. 374 of 2025 (Order dated 21.01.2026)
[v] 2024 SCC OnLine Del 1606
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