What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?
International Arbitration (3rd edition)
The tribunal can issue interim conservatory orders only when this is specifically agreed by the parties, failing which only the competent court can issue such orders. The tribunal generally has a broad discretion in terms of procedures. The tribunal can order security for interim measures. Security for costs is not common, but in theory it can be ordered. Generally, a claimant must cover its costs. If the respondent does not pay its share of the costs, the claimant must also pay this amount, subject to a claim for recovery in the final award.
Until the arbitral tribunal is constituted, the French courts have the power to order any measures relating to the taking of evidence as well as other provisional or conservatory measures (Article 1449, CCP). The French courts will decline to use these powers only if the parties expressly excluded recourse to these measures or if they are otherwise forbidden in the applicable arbitral rules.
A party seeking a measure to preserve or establish evidence must apply to the President of the Tribunal de grande instance or of the Commercial Court (Tribunal de Commerce), who will rule on the application through expedited proceedings (sur requête or en référé). If the matter is urgent, other provisional or conservatory measures can also be applied for and ordered through expedited proceedings (Article 1449, CCP).
Once the arbitral tribunal is constituted, the power to order conservatory or interim measures shifts to the arbitral tribunal. The arbitral tribunal can order any type of provisional or preliminary measures that it deems appropriate. It can also sanction noncompliance by, for example, making its orders subject to penalties. Under the previous legal framework, the parties could still ask the French courts to order urgent interim measures. By contrast, the 2011 Decree seems to reserve this jurisdiction to the arbitral tribunal. However, the French courts retain exclusive jurisdiction to order conservatory attachments or judicial security, as well as to ensure satisfaction of a future award (Article 1468, CCP). In addition, recourse to a judge may be necessary to enforce any measure ordered by the arbitral tribunal that is not voluntarily complied with.
There are various interim measures that are available in Cyprus and may be applied by our local courts that are regulated by Cap.4, such as safeguarding the subject matter of the arbitration or blocking the amount or the property in dispute.
Law no 101/1987 that regulates International arbitration proceedings empowers the court to issue interim injunctions in aid of the arbitration. Cyprus courts are demonstrating a strong willingness to issue all forms of interim injunctions in aid of upcoming and/or ongoing arbitration proceedings including mareva injunctions and all sorts of freezing injunctions .
According to Section 22 of the Arbitration Act, interim measures cannot be issued by arbitral tribunals, but a court can issue interim measures when the enforcement of the award is threatened, based on a motion filed by either party.
As per the Romanian legislation, prior to or during the arbitral proceedings, the interested party may register a request for the issuance of an interim measure (such as seizure of goods or conservatory measures regarding evidence), either to the arbitral tribunal, or the national court, both having jurisdiction in this respect.
The request for interim measures may raise certain issued in case of an ad-hoc arbitration, where the claimant may be required by the national court to provide additional information regarding the territorial competence of the court.
Interim measures may be granted at the request of each party by courts and arbitral tribunals alike.
Court is entitled to act in accordance with the provisions governing enforcement and security, meaning it has an authority to, among other, order the respondent to refrain from alienating, encumbering or disposing of the assets, to seize respondent’s current assets and financial instruments and place them in court deposit or with the claimant or the third party for safekeeping, to place a freezing order on the respondent’s particular immovable property to prevent him from disposing off of it, to instruct banks to freeze the assets in the accounts of the respondent, to temporarily prohibit the settlement of the debts towards the respondent by his debtors, to instruct the Central securities depository to place a temporary ban on trading with the financial instruments in the ownership of the respondent.
The court may also order the respondent to refrain from damaging the assets, and might order him to take steps to protect and preserve the value of the assets. It could also order the respondent to refrain from performing specified activities that could damage the claimant’s position.
Local courts are entitled to issue the abovementioned interim measures before or during the arbitral proceedings, meaning even before the constitution of the tribunal.
On the other hand, the arbitral tribunal may order an interim measure that it considers necessary in respect of the subject matter of the dispute, unless otherwise agreed by the parties, and may at the same time order the opposing party to provide for an appropriate security.
Unlike court ordered interim measures that are enforced in accordance with the state law on enforcement, the law does not provide a mechanism for the enforcement of interim measures rendered by the arbitral tribunals which limits their effectiveness.
The Arbitration Law prescribes two types of interim measures: (1) Article 28 allows the parties concerned to apply for property preservation such as freezing assets, withholding the revenue and sealing up properties; and (2) Article 46 allows the preservation of evidence where the evidence may be destroyed or lost or difficult to obtain at a later time.
Apart from that, Article 101 of the Civil Procedure Law allows a party to apply for behavior preservation injunction.
Under Article 81 and Article 101 of the Civil Procedure Law, in case of emergency and irreparable harm a party may apply for preservation measures before instituting a lawsuit or applying for arbitration.
a. According to section 17 of the Danish Arbitration Act 2005, the arbitral tribunal can impose such interim measures on a party, as the arbitral tribunal finds necessary given the nature of the dispute. The nature of the interim measures is not mentioned.
Moreover, the courts may impose certain interim measures as well, such as the interim seizure of assets and order of prohibition, see section 9 of the Danish Arbitration Act 2005. Such interim measures are available even during arbitral proceedings.
Interim measures may be issued by both local courts and the arbitral tribunal.
The court may order any type of interim measure available under the law, at any time, before or after the arbitration proceeding is initiated. If a party requests an interim measure before an arbitration proceeding is initiated, however, the court will give the party no longer than two weeks to commence the proceeding, or the interim measure will lapse. Interim measure proceedings before a state court can be conducted ex parte.
Unless otherwise agreed by the parties, the arbitral tribunal, upon motion of a party that has substantiated its claim, may order such interim measures as it deems proper. It may, however, make enforcement of the interim measure conditional upon security provided by the party requesting interim relief.
There are no limitations under the law on the types of interim measures that may be ordered by the tribunal. There are certain limitations that arise in practice, however. An arbitral tribunal may not order interim measures that interfere with the activities of courts or other state institutions (e.g. a stay of judicial execution proceedings), which would be available from a court. Also, because the law does not govern the effect of interim measures ordered by a tribunal that are not enforceable by execution (such as an injunctive relief), there is an area of legal dispute that makes it impracticable for the parties to seek an interim relief of this type from the arbitral tribunal.
Disputing parties in Swiss arbitration proceedings can, just as in ordinary state court litigation, benefit from the entire array of interim relief available under Swiss domestic law.
Pursuant to art. 262 CPC any interim measure suitable to prevent the imminent harm may be ordered. In particular, an injunction, an order to remedy an unlawful situation, an order to a register authority or to a third party, performance in kind, and the payment of a sum of money in the cases provided by law may be applied for by arbitrating parties.
In contrast to interim relief from state courts, in case of interim relief requested from the arbitral tribunal, even interim relief not known under Swiss law may theoretically be granted.
Swiss law allows for an arbitral tribunal to grant interim relief unless the parties to an arbitration agreement agreed otherwise (art. 183 para 1 PILA and art. 374 para 1 CPC). State courts' assistance in connection with interim relief is, however, of critical importance based on the following grounds:
a. If not complied with voluntarily by the relevant party, interim relief issued by an arbitral tribunal requires the involvement of the state courts to be enforced.
b. The arbitral tribunal has no competence and thus no basis to issue binding and enforceable orders against third parties, e.g. banks in case of freezing orders, since the latter will normally not be part of the arbitration agreement.
c. As interim relief is generally connected with matters of urgency it will often need to be given ex parte, without hearing the counterparty. In contrast to state courts and unless the specific applicable institutional rules of the arbitration expressly provides otherwise (as the Swiss Rules do – in contrast to e.g. the ICC Rules), arbitral tribunals are likely not grant interim relief ex parte, but only once the counterparty is heard.
In order for an arbitral tribunal to be able to grant interim relief, it must be established and in a position to deal with the motion for interim relief. Various institutional arbitration rules (including the Swiss Rules and the ICC Rules) provide for the possibility to call on a so called emergency arbitrator to grant interim relief even before the arbitral tribunal has been formally established in accordance with the applicable institutional rules.
State courts can be called on to grant interim relief before constitution of the arbitral tribunal. If the requested relief is granted, the party submitting the motion will be required to commence arbitral proceedings within 10 days following receipt of the court’s order for interim relief.
UAE - Federal
Prior to the introduction of the UAE Arbitration Law, a party would apply to the UAE Courts for a precautionary attachment of movable property, pursuant to Article 252 of the UAE CPC, to secure its debt.
Article 21 of the UAE Arbitration Law permits the Arbitral Tribunal, subject to meeting certain pre-conditions, to order a wide range of interim and precautionary measures.
The Arbitral Tribunal may order such measures, upon the request of the parties, or upon the Arbitral Tribunal’s own initiative.
These measures can include orders to preserve evidence, assets or property, maintain/restore ‘the status quo pending determination of the dispute’, or to prevent actions which would likely harm or prejudice the arbitration process.
Article 21(4) of the UAE Arbitration Law also provides for a party in favour of which an order has been granted by the Arbitral Tribunal, to enforce that order through the Courts. The party’s ability to do so, is subject to the approval of the Arbitral Tribunal.
Where a matter is raised, which:
falls beyond the Arbitral Tribunal’s scope or involves the submission of forged documents to the Arbitral Tribunal; and
‘criminal measures have been pursued for this or any other claim’,
the Arbitral Tribunal may suspend proceedings (Article 43).
An Arbitral Tribunal will, however, only suspend proceedings where it considers that such issues would affect the outcome of the arbitration.
In such a case, the arbitral proceedings will be stayed until a final decision is issued in this regard.
The DIAC Rules (Article 31) also provide for an Arbitral Tribunal to issue provisional orders or other interim/conservatory measures, including injunctions, at the request of a party.
Interim measures may, however, be at all times subject to the requesting party providing appropriate security.
UAE - Free-zone Jurisdictions
DIFC Arbitration Law
Unless agreed otherwise, an Arbitral Tribunal has the power to order interim measures at the request of a party pursuant to Article 24 of the DIFC Arbitration Law.
With the written permission of the Arbitral Tribunal, the party in whose favour the order was granted may apply to the DIFC Court of First Instance for the enforcement of the order.
The party requesting interim measures may however be liable to ‘any costs or damages caused by the measure to any other party if the Arbitral Tribunal later determines that…the measure should not have been granted’’.
The DIFC-LCIA Arbitration Rules (Article 25) provide that an Arbitral Tribunal may, upon application of any party and ‘after giving all other parties a reasonable opportunity to respond to such application’, apply various interim and conservative measures.
The Arbitral Tribunal is also empowered, subject to the above, to order any claiming party to provide security for legal and arbitration costs.
Unless otherwise agreed by the parties, the Arbitral Tribunal may grant interim measures at the request of a party to the arbitration, pursuant to the ADGM Regulations (Regulation 27).
This request is made on notice to the other party and the Arbitral Tribunal may grant interim measures to:
‘maintain or restore the status quo pending determination of the dispute’;
‘take action’ to prevent or not take such action that ‘is likely to cause, current or imminent harm or prejudice to any party or to the arbitral process itself’;
preserve ‘assets out of which a subsequent award may be satisfied’; or
preserve evidence that may be relevant and material to the resolution of the dispute’. (Regulations 27(2)((a)-(d)).
A party requesting such relief must, however, satisfy the Court that:
“harm”, which cannot be rectified by damages, will be inflicted upon the requesting party, should the interim measure not be ordered;
“harm” to the requesting party, by not granting the interim measure, is greater than that “harm” caused to the party against which the interim measure is to be ordered; and
‘there is a reasonable possibility that the requesting party will succeed on the merits of the claim’.
These interim measures may be modified, suspended or terminated, at the request of a party, or in ‘exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative’.
The Court may further require:
security in connection with the interim measure ordered; and/or
immediate notification should the grounds on which an order was requested or granted change.
The requesting party will further be liable for costs and damages should the Arbitral Tribunal later determine that the interim measure should not have been granted.
These costs and damages may be awarded against the requesting party at any point in the arbitral proceedings
The 1996 Act allows the parties to agree on the powers exercisable by the tribunal for the purposes of and in relation to the proceedings (s.38(1)). If there is no agreement, sections 38 and 44 outline the various interim measures a tribunal and court are permitted to issue, respectively.
Powers are provided to the local courts in s.44 pending the constitution of the tribunal to support the arbitration process, including the preservation of evidence or assets.
Article 22 of the Law of Arbitration states that the competent court may, upon the request of either party, order provisional or precautionary measures prior to commencing arbitration proceedings, or upon request by the arbitration tribunal during arbitration proceedings. Said measures may be revoked in the same way, unless otherwise agreed by the two parties to arbitration.
Article 23(1) of the Law of Arbitration provides that the arbitration tribunal shall, upon the request of either party, order either party to take, as it deems fit, any provisional or precautionary measures required by the nature of the dispute. The arbitration tribunal may require the party requesting such measures to provide sufficient financial guarantee for the execution of such measures.
As regards SCCA arbitrations, Article 6(1) of the SCCA Arbitration Rules provides emergency, provisional and precautionary measures, in which a party may apply for emergency relief before the constitution of the tribunal.
After the constitution of a tribunal, Article 23(1) of the SCCA Arbitration Rules provide that at the request of any party, the tribunal may order or award any interim, provisional or precautionary measures it deems necessary, including injunctive relief and measures for the protection or conservation of property. Article 23(2) provides that an interim measure may be for example and without limitation, to:
a) maintain or restore the status quo pending determination of the dispute;
b) take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or, (ii) prejudice to the arbitral process itself;
c) provide a means of preserving assets out of which a subsequent Award may be satisfied; or
d) preserve evidence that may be relevant and material to the resolution of the dispute.
Arbitral tribunals may grant interim relief if requested by one of the parties. The AAA, ICDR, JAMS, CPR, and IACAC rules provide arbitrators with wide latitude to issue interim relief. Arbitral orders granting a wide spectrum of interim relief have been enforced by U.S. courts.
An arbitration agreement does not preclude a court from granting interim relief before or after the commencement of arbitration proceedings. See, e.g., Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 376 (4th Cir. 2012); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir. 1990).
Austrian arbitration law does not contain any limitations on the available types of preliminary or interim measures. Unless otherwise agreed by the parties, arbitral tribunals may, upon application of a party, award preliminary or interim relief in respect of the subject-matter in dispute. Interim relief may only be awarded after giving the other party an opportunity to be heard and under the condition that enforcement of a claim would otherwise be frustrated or if there is danger that one of the parties may suffer irreparable damage.
Local courts may be called upon to grant preliminary or interim relief upon application of a party both before and after constitution of the arbitral tribunal. Preliminary or interim relief granted by a court can only be lifted by the courts and cannot be reversed by an arbitral tribunal.
Interim measures that are available include measures for the conservation of goods or preservation of properties forming the subject-matter of the dispute and for the security of costs (section 13 of the ACA). The High Courts have powers to issue interim measures pending the constitution of an arbitral tribunal. Further, Article 26 of the Rules empowers a court approached by a party to arbitral proceedings to grant interim relief and such a request will not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
Except otherwise agreed by the parties, arbitral tribunals may decree interim measures considered necessary as to the scope of the dispute as long as: a) there is a serious probability of existence of the right invoked by the petitioner and there is a sufficiently justified fear of sustaining damages; and, b) the damages arising to the other party resulting from the determination of the interim measure do not considerably exceed the damages that the petitioner wishes to avoid (arts. 20 (1) and 21 (1) LAV). Arbitral tribunals may also issue preliminary orders without the preliminary hearing of the other party in order to not frustrate the goal of the requested interim measure.
There are also specific interim measures foreseen in the civil procedure law (such as provisional restitution of possession, suspension of corporate deliberations, attachment, suspension of construction works, etc.). Local courts may issue such measures pending the constitution of the arbitral tribunal.
Unless otherwise agreed by the parties, a tribunal may grant such interim relief it considers necessary. Interim measures ordered by a tribunal, however, do not bind third parties and cannot be enforced through bailiffs. In light of that in most cases parties apply to a court to obtain interim measures.
Pending the constitution of the tribunal, a party may request a court or — had the parties so agreed — the arbitral institution to grant interim measures.
Interim measures are available in accordance with and subject to the provisions of Chapter IV of the Model Law. In particular, Article 17 (unless the parties have agreed otherwise) grants power to an arbitrator to grant such interim measures as are set out in Article 17(2) (a) to (d): preserving the status quo, avoiding harm to the arbitral process itself, preservation of assets or evidence. Under section 10 of the Arbitration Act, 2010, the High Court can grant interim measures, either before or during arbitral proceedings, if requested to by a party pursuant to Article 9 of the Model Law.
Unless otherwise agreed between the parties, an arbitral tribunal has the power to order the parties to undertake certain measures, such as preserving assets or the production of evidence. An order to this effect, however, is not enforceable. Failure to comply with an order made by the tribunal, may influence on the assessment of the evidence. The parties may ask the ordinary courts to issue an order for interim relief. Such court order will be enforceable.
The arbitral tribunal may request the ordinary courts to take depositions from witnesses and to make an order for the production of documentary evidence. The arbitrators have the right to attend the court hearing when the witnesses are examined, and they may ask questions.
German law does not provide for specific interim measures pending the constitution of the tribunal. section 1033 ZPO merely clarifies that the parties, by entering into the arbitration agreement, do not exclude their right to apply to state courts for an interim relief before, during or even after the arbitral proceedings. Parties can therefore request courts to take interim measures in accordance with their competence laid down in section 919 ZPO, such as attachment orders (sections 916-934 ZPO) and interim injunctions (sections 935-945) ZPO).
Courts in Germany will not issue anti-suit injunctions.
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.
A party to the arbitration may request Croatian national courts to issue interim measures before or during the arbitral proceedings, thus regardless of whether the arbitral tribunal has been constituted or not.
Even though Article 17 of the ICAL allows the arbitral tribunals to grant interim measures upon parties’ request, there is a lack of regulation regarding the types of preliminary relief available, since Chile has not yet subscribed the 2006 Model Law modifications. Furthermore, the arbitral tribunals lack of the compulsory power necessary to enforce those interim measures, therefore, parties have to recur to local courts in search of preliminary relief, in accordance to Article 9 of the ICAL.
Local courts may also grant interim measures while the constitution of the arbitral tribunal is still pending. When the interim relief is granted by a local court, the CCP shall apply.
Section 14 of R.A. 876 empowers the arbitrators to issue subpoenas duces tecum and subpoenas ad testificandum. R.A. 876 also authorizes the arbitral tribunal and the local courts to grant interim relief to the parties regardless if the arbitration is presently conducted or still being instituted. Further, the arbitral tribunal and the local courts have concurrent powers to grant interim relief without any qualification.
Section 28 of R.A. 9285 allows the Regional Trial Court to grant interim or provisional relief, including preliminary injunction, to the parties in an arbitration even prior to the constitution of the arbitral tribunal.
Rule 5.6 of the Special ADR Rules enumerates the types of interim reliefs that may be granted:
a.) Preliminary injunction directed against a party to arbitration;
b.) Preliminary attachment against property or garnishment of funds in the custody of a bank or a third person;
c.) Appointment of a receiver;
d.) Detention, preservation, delivery or inspection of property; or,
e.) Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal, which the latter cannot enforce effectively.
In domestic arbitration, arbitral tribunals are prohibited from granting interim or conservative measures of any kind pursuant to article 889 para. 1 GrCCP. Hence the parties to the arbitration agreement must pursue State Court litigation in order to seek interim relief.
In international commercial arbitral proceedings having their seat in Greece, article 17 L. 2735/1999 provides that, unless otherwise agreed by the parties, the arbitral tribunal upon request may grant the interim measures that it deems necessary in relation to the subject matter of the dispute. The arbitral tribunal is not obliged to order only the specific interim or conservative measures which are explicitly provided for under the respective provisions of the GrCCP. As already noted (see answer to Question 4) the authority of the arbitral tribunal to grant interim relief is seriously impeded by the fact that the interim or conservative measures granted must be implemented – enforced by virtue of a State Court decision on a second stage upon request. This means that compliance with the measures ordered by the arbitral tribunal at the first stage i.e. prior to State Court intervention is essentially voluntary. That being said, the parties to the arbitral proceedings for obvious reasons tend to comply with the ordered measures.
Article 17 must be read in conjunction with article 9 L. 2735/1999 which provides that the arbitration agreement does not prohibit the parties from resorting to State Courts and request interim relief before or during arbitral proceedings. As already noted above (see answer to Question 1) article 9 is applicable to any and all international commercial arbitral proceedings regardless of the place of arbitration. In light of the above, in international commercial arbitral proceedings both the arbitral tribunals as well as State Courts are vested with the authority to grant interim relief. According to the prevailing view, any conflict between the two jurisdictions shall be resolved in favor of the forum in which the request for interim relief was firstly filed. Said authority of State Courts is obviously of essence, given the absence of emergency arbitrator provisions in Greek law, at the phase while the constitution of the arbitral tribunal is still pending.