A foreign award binds the loser from the day it is made, but cannot be executed in India until a court declares it enforceable. That gap can last years. Two decisions in 2026 settled that interim protection is available throughout it, and to whom. This note explains the position and what to do with it.
The gap
Section 9 of the Arbitration Act lets a party ask a court for interim protection before or during an arbitration, and after the award until it is enforced.[1] Since 2015, Section 9 has applied to arbitrations seated abroad unless the parties agreed otherwise,[2] and the Supreme Court has confirmed that even two Indian parties who chose a foreign seat can use it.[3]
The problem is timing. Section 9 ends when an award is “enforced in accordance with Section 36”. Section 36 governs domestic awards. A foreign award never goes through Section 36. It goes through Part II: it is binding from the moment it is made,[4] the court examines the grounds for refusing enforcement,[5] and only when satisfied does it treat the award as a decree.[6] Between those two points the award is binding but cannot be executed. That is when a losing party with Indian assets has every reason to move them.
Bombay High Court, March 2026
In Osterreichischer Lloyd v. Victore Ships, a shipping company held a foreign award for about USD 269,000, had filed to enforce it in Bombay, and asked for security under Section 9 at the same time. The respondent argued that once the enforcement petition was filed, Section 9 was no longer available, because Part II treats recognition and execution as one proceeding.[7] The Court disagreed. Recognition and execution may be one petition, but the petition only becomes an execution when the court declares the award enforceable. Until then it is a
[1] Arbitration and Conciliation Act, 1996 (“the Act”), s. 9(1).
[2] Act, s. 2(2), proviso, inserted by the Arbitration and Conciliation (Amendment) Act, 2015.
[3] PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd., (2021) 7 SCC 1.
[4] Act, s. 46.
[5] Act, ss. 47 and 48.
[6] Act, s. 49.
[7] Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356; LMJ International Ltd. v. Sleepwell Industries Co. Ltd., (2019) 5 SCC 302.
recognition proceeding, and nothing in the Act cuts off Section 9 during it. The Court pointed out that Part II itself allows the enforcing court to order security when it adjourns a decision, which shows protective orders belong to the recognition stage. Section 9 remains available at least until the award is declared enforceable.[1]
Supreme Court, April 2026
In Home Care Retail Marts v. Haresh N. Sanghavi the question was whether the party that lost the arbitration can use Section 9 after the award. Several High Courts had said no: post-award protection exists to protect the winner’s fruits, and the loser has none. The Supreme Court held that any party may apply. The Act says “a party”, without qualification. Section 9 protects the subject matter; Section 36 governs enforceability; they are different things. And a losing party may yet succeed on challenge, so it may need protection too. The Court set a higher bar for the loser: relief only in rare and compelling cases to prevent irreparable harm.[2]
That was a domestic award. But the reasoning rests on the words of Section 9, which apply to foreign-seated arbitrations without change. Together, the two decisions mean that during the recognition of a foreign award, Section 9 is available to the winner as of right and to the loser on a strong showing.
The limits
Section 9 does not speed up enforcement. It secures the possibility of it. The enforcing court can still refuse enforcement after security has been ordered. A deposit order cannot be used to get paid before recognition.
Relief is not automatic. The applicant must show a real risk that the respondent will dissipate assets. The Supreme Court has said a Section 9 court is not bound by the strict rules for attachment before judgment and can act on a strong possibility of dissipation,[3] but an unchallenged award is not, by itself, enough. Bring evidence of the respondent’s assets, of transactions suggesting dissipation, and of the absence of other security.
Once the award is declared enforceable, the executing court’s own powers take over. Whether Section 9 technically survives after that point is unsettled. Assume it does not, and seek execution relief from the moment the decree is declared.
If you hold the award
File the Section 9 petition with, or before, the enforcement petition, in the same High Court.[4] Ask for security: disclosure of assets on affidavit, restraint on selling identified assets, a deposit or bank guarantee. Plead the recognition gap and cite both 2026 decisions. Lead evidence of
[8] Osterreichischer Lloyd Seereederei (Cyprus) Ltd. v. Victore Ships Pvt. Ltd., Commercial Arbitration Petition No. 398 of 2025, Bombay High Court, 10 March 2026 (Sundaresan J.).
[9] Home Care Retail Marts Pvt. Ltd. v. Haresh N. Sanghavi, 2026 INSC 415 (24 April 2026), overruling Dirk India Pvt. Ltd. v. Maharashtra State Electricity Generation Co. Ltd., 2013 SCC OnLine Bom 481.
[10] Essar House Pvt. Ltd. v. Arcelor Mittal Nippon Steel India Ltd., 2022 SCC OnLine SC 1219.
[11] Act, s. 2(1)(e)(ii) and Explanation to s. 47; Commercial Courts Act, 2015, s. 10.
dissipation risk, not just the award. Keep the Section 9 order alive through recognition and convert it into execution relief when the decree is declared. Remember that you have twelve years to enforce a foreign award,[1] but a creditor who waits will struggle to argue that protection is urgent.
If you are resisting the award
Home Care Retail Marts gives you a tool most High Courts previously denied. If you have a real challenge pending at the seat, or a substantial ground for refusing enforcement, you can ask for Section 9 relief to preserve your position, for example to stop the creditor enforcing a bank guarantee. The bar is high. Show the challenge has genuine prospects, that irreparable harm follows without relief, and that what you ask preserves the outcome rather than pre-empts it. A request that is really a stay of enforcement will be refused; that is a matter for the enforcing court, on terms as to security.[2]
Drafting
Section 9 applies to foreign-seated arbitrations unless the parties agreed otherwise. A general exclusion of Part I of the Act, common in foreign-seated contracts drafted after 2012, may be read as such an agreement. If you expect to enforce against Indian assets, preserve Section 9 expressly. If you expect to be the debtor, consider the reverse. Draft with the recognition gap in mind, because that is where the clause will be tested.
The open question
What “enforced” means at the outer edge of Section 9 for a foreign award: declared enforceable, under execution, or paid. The Bombay High Court said Section 9 lasts “at least” until the declaration. The Supreme Court did not need to reach Part II. Until it is decided, a creditor should assume Section 9 ends at the declaration and move to execution relief then, and a debtor should assume any protective order it holds will need to be re-sought from the executing court.
This note is published for general information. It states the position as understood on the date shown and is not legal advice. It does not create a lawyer–client relationship and is not an invitation to engage the firm.
[12] Government of India v. Vedanta Ltd., (2020) 10 SCC 1 (Limitation Act, 1963, Art. 136).
[13] Act, s. 48(3).
