What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

International Arbitration (4th edition)

Argentina Small Flag Argentina

Yes. According to Art. 21 of the LICA and Art. 1655 of the NCCC, local courts may grant interim relief before the constitution of the arbitral tribunal. The available interim measures are provided in the procedural codes (seizure of assets, maintenance of status quo, etc.).

Austria Small Flag Austria

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.

Bulgaria Small Flag Bulgaria

Concerning the interim measures ordered by the arbitral tribunal or the court, ICAA adheres to the original text of Art.17 of the Model Law, adopted in 1985. The provisions of the new Chapter IV A of the Model Law, adopted in 2006, are not implemented in Bulgarian law. In principle, the courts of law are competent to pronounce interim measures. Although, according to Art.21 of ICAA, the arbitral tribunal may order one of the parties to undertake appropriate measures for securing the rights of the other, under Bulgarian law, the provisional measures ordered by an arbitral tribunal seated in Bulgaria may not be enforced. CPC rules on the enforcement of provisional measures are applicable only when the measures are ordered by a court of law.

ICAA does not provide for specific types of provisional measures. Nevertheless, the most effective and most frequently ordered ones – garnishments, real estate liens, etc. may be ordered only by the courts of law and imposed by bailiffs.

Local courts may issue interim measures pending the constriction of Tribunal following the procedure for granting interim relief for security of future claim if so requested by the party. The court would then grant the party a period of time to file its claim before the respective body which may not be longer than one month.

The circumstances under which interim measures are imposed by the national courts are:

  • there is a reasonable possibility the requesting party to succeed on the merits of the case, the determination of the tribunal being based on the relevant written evidence presented;
  • there is a need for a provisional measure to be ordered; and
  • the provisional measure will not result in harm not adequately reparable by compensation for damages.

United States Small Flag United States

While the FAA does not contain specific provisions regarding interim measures, a majority of courts have held that maintaining the status quo is consistent with the FAA’s liberal policy in favor of arbitration and ensures that the arbitration proceedings remain meaningful. See, e.g., Talk Fusion, Inc. v. Ulrich, No. 8:11-CV-1132-T-33, 2011 WL 2681677 (M.D. Fla. June 21, 2011). Thus, most courts retain the authority to grant interim measures to support arbitration. Most arbitral institutional rules also grant tribunals the authority to grant interim relief. The type of interim relief granted varies case-by-case.

Local courts can issue interim measures pending the constitution of the tribunal, known more commonly as “emergency measures.” Many arbitral institutions, including the ICC, ICDR, Singapore International Arbitration Centre (“SIAC”), Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”), and LCIA, have adopted emergency arbitrator procedures that allow parties to obtain urgent relief from the institution before a tribunal is formed. In these circumstances, a sole arbitrator can be appointed by the arbitral institution in order to resolve applications for emergency relief in such cases. Whether such emergency awards rendered by arbitrators are enforceable in U.S. courts varies. For example, arbitrator interim measures have been enforced in some courts where they have been found to finally dispose of a self-contained issue. Island Creek Coal Sales Co. v. City of Gainesville, Fla., 729 F.2d 1046 (6th Cir. 1985); Publicis Comm’n v. True N. Comm’ns, Inc., 206 F.3d 725 (7th Cir. 2000).

Cyprus Small Flag Cyprus

(a)The same interim measures pertinent to court proceedings. Freezing orders, disclosure orders, Chabra orders, Norwich Pharmacal etc.

(b)Yes, if is an international arbitration (provided, that is, that Law 101/87 is applicable) interim measures are available in anticipation of the constitution of the tribunal.

UAE Small Flag UAE

UAE- Federal Jurisdiction
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 - Common Law 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’’.

DIFC-LCIA
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.

ADGM
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

United Kingdom Small Flag United Kingdom

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 the 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.

Singapore Small Flag Singapore

Without prejudice to other powers set out under the IAA and the UNCITRAL Model Law, s 12(1) of the IAA outlines an arbitral tribunal’s ‘powers to make orders or give directions to any party for —

(a) security for costs;

(b) discovery of documents and interrogatories;

(c) giving of evidence by affidavit;

(d) the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;

(e) samples to be taken from, or any observation to be made of or experiment conducted upon, any property which is or forms part of the subject-matter of the dispute;

(f) the preservation and interim custody of any evidence for the purposes of the proceedings;

(g) securing the amount in dispute;

(h) ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and

(i) an interim injunction or any other interim measure’.

For arbitrations governed by Part II of the IAA, s 12A(2) of the IAA (Court-ordered interim measures) provides that ‘the High Court or a Judge thereof shall have the same power of making an order in respect of any of the matters set out in section 12(1)(c) to (i) [above] as it has for the purpose of and in relation to an action or a matter in the court’, subject to the specific provisions of subsections (3) (considerations where the place of arbitration is or is likely to be outside of Singapore), (4) (applications for orders for the preservation of evidence or assets in cases of urgency), (5) (procedure in cases that are not urgent), and (6) (limiting action of the Singapore Courts to cases where the arbitral tribunal has no power or is unable to act effectively). Accordingly, the full scope of potential interim measures anticipated by the above language is within the power of the Singapore Courts.
Art. 9 of the UNCITRAL Model Law further establishes that, in Singapore, ‘[i]t is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure’.
In regard to the issuance of interim measures pending the constitution of the tribunal, s 6(3) of the IAA provides that a court in Singapore may ‘make such interim or supplementary orders as it may think fit in relation to any property which is the subject of the dispute’ where the court has issued a stay of proceedings in favor of arbitration.

South Korea Small Flag South Korea

Parties may seek from the arbitral tribunal under the Arbitration Act (the “Act”) (i) measures to maintain or restore the status quo until the arbitral tribunal renders its award on the merits; (ii) measures to prevent a present or imminent danger or impact on the arbitral proceeding, or prohibition of measures which may result in such danger or impact; (iii) measures to preserve assets subject to the arbitration; and (iv) measures to preserve evidence (Article 18 of the Act). The party applying for interim measure must prove that (i) the magnitude of the irreparable harm expected from the arbitral tribunal’s denial of the application will considerably outweigh the harm the other party would sustain as a result of granting the application; and (ii) it is reasonably possible that the party requesting the interim relief will prevail on the merits (Article 18-2 of the Act). Once the arbitral tribunal has granted the interim measure, the parties may petition a court to recognize the measure and may enforce a writ of execution of the interim measure by petitioning a court to authorize the execution (Article 18-7 of the Act).

Prior to the commencement of an arbitral proceeding or during such proceeding, either party to the arbitration agreement may request a court for interim relief (Article 10 of the Act).

Germany Small Flag Germany

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.

In addition to this, the arbitral tribunal can issue interim measures as well (section 1041 ZPO). However, interim measures by the arbitral tribunal cannot be enforced right away which appears to be a a significant disadvantage compared to interim measures rendered by local courts.

India Small Flag India

There are two interim measures are available under the Arbitration and Conciliation Act, 1996 Firstly by the Court and Secondly by the Arbitration Tribunal.

Interim Measures by the Court has been discussed under Section 9 of the Act which mandate that a party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced. Party can ask the following remedies-

  1. For the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
  2. For the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
  3. Securing the amount in dispute in the arbitration;
  4. The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration,
  5. interim injunction or the appointment of a receiver;
  6. such other interim measure of protection as may appear to the Court to be just and convenient,

Interim measure by the arbitral tribunal has been discussed under section 17 of the arbitration and conciliation act, 1996 wherein party can seek the abovementioned remedies as mentioned in the section 9. The arbitration tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it. That order shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were an order of the Court.

Orders of a tribunal are enforceable under Section 17(2) of the Arbitration Act as if they were an order of a court under the Code of Civil Procedure, 1908. In Alka Chandewar v Shamshul Ishrar Khan (Civil Appeal 8720/2017), the court held that the tribunal in an arbitration is empowered to make a representation to the appropriate court for any action of the parties amounting to contempt, to be tried under the Contempt of Courts Act, 1971, if the parties violate its orders, including any interim orders passed during the course of the proceedings under Section 27(5) of the Arbitration and Conciliation Act, 1996.

In Jindal ITF Limited v NTPC Limited (OMP [ENF][COMM] 55 of 2018), the Delhi High Court for the first time enforced an interim order passed by a tribunal under Section 17 and accordingly directed the other party to pay the sum ordered by the tribunal as interim relief.

Indonesia Small Flag Indonesia

The Arbitration Law empowers the tribunal to issue interim measures including a security attachment, a deposit of goods with a third party, and the sale of perishable goods. However, in order to enforce the interim measure, the party concerned will need to register the interim measure with the relevant court and seek the court’s assistance to enforce it. In practice, Indonesian courts will not assist with the enforcement of interim measures as they prefer not to intervene in arbitration measures. Likewise, the Arbitration Law does not give local courts the power to issue interim measures before the tribunal is constituted.

Liechtenstein Small Flag Liechtenstein

In general, an arbitral tribunal may award preliminary or interim relief if otherwise the assertion of a claim would be rendered impossible or more difficult, or in case of a threat of an irrecoverable damage unless the parties have agreed otherwise. Preliminary or interim relief will only be granted after the arbitral tribunal will have heard both parties. No preliminary or interim relief will be granted on an ex parte basis. Arbitral tribunals do not have the authority, however, to grant preliminary or interim relief against third parties (“Drittverbote”).

However, an arbitral tribunal has to be constituted before it is in a position to grant interim relief. Up until the time of the arbitral tribunal’s constitution, it is therefore advisable to file applications for granting of interim relief with the court.

Malaysia Small Flag Malaysia

Section 11(1) provides that a party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to:-

  1. Maintain or restore the status quo pending the determination of the dispute;
  2. Take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;
  3. Provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court;
  4. Preserve evidence that may be relevant and material to the resolution of the dispute; or
  5. Provide security for the costs of the dispute.

France Small Flag France

Prior to the constitution of the arbitral tribunal and unless otherwise agreed by the parties, French courts have the power to order provisional or conservatory measures as well as any measures relating to the taking of evidence (FCCP Article 1449).

Any such application for interim relief must be made to the President of the Tribunal de Grande Instance or of the Commercial Court. The application is decided through expedited proceedings based upon an ex parte request (“sur requête” or “en référé”) FCCP Article 1449).

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. Whereas in the past, the parties were free to continue to seek urgent interim relief from French courts after the constitution of the arbitral tribunal, Article 1449 which results from the 2011 Decree provides that French courts may only grant interim relief “as long as the arbitral tribunal has not been constituted.”

However, French courts retain exclusive jurisdiction to order conservatory attachments or judicial security, as well as to ensure satisfaction of a future award (FCCP Article 1468). In addition, recourse to a court may be necessary to enforce any measure ordered by the arbitral tribunal that is not voluntarily complied with.

Egypt Small Flag Egypt

The EAL grants an arbitral tribunal the right to award provisional or interim relief only if the parties have agreed to confer such power upon the arbitral tribunal. (article 24) It is also acknowledged that such power could be conferred upon the arbitral tribunal by agreeing to the application of institutional rules that provide for such default power.

The EAL does not provide a list of the types of relief available to arbitrators, but it is generally accepted that an arbitral tribunal, if the parties so agree, has the discretion to order any type of interim relief or provisional measures that are warranted provided that such relief is available under the applicable law to such relief. Furthermore, under the EAL, arbitral tribunals may award interim relief by issuing an interim award (article 42) which makes it subject to the ordinary procedures for the enforcement and recognition of arbitral awards. Nonetheless, interim awards do not a have res judicata effect.

Alternatively, a party may directly seek to obtain such interim relief directly from the competent court, such that the EAL allows local courts to issue interim and conservatory measures, upon the request of one of the parties, before commencing the arbitration proceedings or during said proceedings. (article 14)

Mexico Small Flag Mexico

According to article 1433 of the Commerce Code, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of any of them, order the adoption of the necessary precautionary measures regarding the object of litigation. The arbitral tribunal may require from either party a sufficient guarantee in relation to those measurements.

Local courts are also capable of granting these measures, at the request of any of the parties, prior to arbitration proceedings or during its course, and the local judge has complete discretion to adopt any measures that may deem appropriate. This according to articles 1425 and 1478 of the Commerce Code.

Nigeria Small Flag Nigeria

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; L.A.C. v. Air Atlantic Nigeria Ltd. (2006) 2 NWLR (Pt. 963) 49). 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. Also, section 6(3) of the Lagos Law empowers the court to make interim or supplementary orders as may be necessary when making an order of stay of proceedings and referring a dispute to arbitration.

Norway Small Flag Norway

Provided that the parties have not agreed otherwise and on the request of one of the parties, the tribunal may grant interim measures necessary due to the subject matter of the dispute (eg, preserve evidence substantial to the case). However, interim measures are not subject to enforcement by the ordinary courts.

The parties may request interim measures from the courts before or during arbitral proceedings (ie, security attachments and preliminary injunctions), pursuant to Chapters 32 to 34 of the Dispute Act.

Philippines Small Flag Philippines

Local courts can issue interim measures before, pending, and during the constitution of the arbitral tribunal. (Rule 5.2, Special ADR Rules).

Arbitral tribunals may issue interim measures of protection such as preliminary injunction directed against a party, appointment of receivers, or detention, preservation, inspection of property that is the subject of the arbitration. Further, any such provisional or interim relief may be granted for the following purposes: (a) to prevent irreparable loss or injury; (b) to provide security for the performance of an obligation; (c) to produce or preserve evidence; or (d) to compel any other appropriate acts or omissions. (Art. 4.17, IRR).

Saudi Arabia Small Flag Saudi Arabia

According to Article 23(1) of the Arbitration Law, the parties to the arbitration may agree that the arbitration tribunal shall, pursuant to the request of any party, order any party to take whatever it deems appropriate of temporary or preventative measures required by the nature of the dispute. The arbitration tribunal may oblige the party demanding these arrangements to submit the suitable financial guarantee to implement this procedure.

Pursuant to Article 22(1) of the Arbitration Law, the competent court may order interim or preventative measures upon the request of one of the parties prior to the commencement of the arbitration proceedings, or pursuant to the arbitration tribunal’s request in the course of the arbitration process.

If the arbitration is administered through the SCCA, as per Article 23 of the Arbitration Rules of the SCCA, 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. A party requesting an interim measure must show, inter alia, that harm not adequately reparable by an award of damages is likely to result if the measure is not ordered and that there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

Ecuador Small Flag Ecuador

According with Art. 9 of the LAM, arbitrators may issue precautionary measures in accordance with COGEP or those they deem necessary for each case in order to secure the assets subject to the process or to guarantee the result of the arbitration.

For the execution of the precautionary measures, arbitrators, provided that the parties have stipulated it in the arbitration agreement, shall request the help of judicial, police and administrative officials without having to resort to judges. If this is not provided in the arbitration agreement, any of the parties may request the judges to order the execution of the precautionary measures issued by the arbitral tribunal, without being construed as waiving the arbitration agreement.

However, as the case may be that these measures are needed before the tribunal is constituted or even before the arbitration claim is filed, ordinary judges can issue the measures until the tribunal is constituted. The LAM says nothing against such possibility.

Czech Republic Small Flag Czech Republic

Arbitration tribunals cannot issue interim measures; however, the courts may do so during the arbitration proceedings or before they commence.

Chile Small Flag Chile

There is not a limited list of available interim measures. Nevertheless, the most typical like asset attachment or the prohibition to execute contracts on specific assets are expressly regulated by law.

Both local courts and arbitral tribunals are competent for granting interim measures. However, especially when affecting third parties, they are usually filed before courts. This is so because court-granted interim measures are more easily complied with by third parties.

Before the constitution of the arbitral tribunal, interim issues can be only granted by national courts –unless otherwise stated by the applicable arbitration rules– subject to the review of the arbitral tribunal upon its constitution.

Canada Small Flag Canada

Subject to the arbitration agreement, an arbitral tribunal’s power to order interim relief is generally broad and discretionary, although binding only on the parties to the dispute. For international arbitrations, the tribunal will typically consider the following factors:

a. whether the tribunal has prima facie jurisdiction over the dispute;

b. whether the request for relief is urgent and cannot await a determination on the merits;

c. whether the relief sought is necessary to prevent imminent harm that is not compensable by money or that may prejudice the arbitral process before the merits of the dispute are resolved;

d. whether the balance of convenience favours the granting of the order; and

e. whether the applicant has established a reasonable possibility of success on the merits.

For domestic arbitrations, tribunals will typically follow the legal test for injunctive relief set out by the Supreme Court of Canada in RJR Macdonald Inc. v. Canada (Attorney General) ([1994] 1 S.C.R. 311). The factors considered are:

a. Is there a serious question to be tried?

b. Would the applicant suffer irreparable harm (meaning not compensable in money) if the application is refused?

c. Does the balance of convenience favour the granting of the interlocutory relief?

Local courts respect arbitration agreements and accordingly, are keen to facilitate the arbitral process, even before the constitution of the tribunal. As such, they will grant interim measures pending the constitution of the arbitral tribunal. Since arbitral tribunals lack the coercive power to enforce their own interim orders, courts will often assist as contemplated by the arbitration acts throughout Canada. The types of relief that can be obtained in court include detention, preservation and inspection of property, interim injunctions and receivers, security for costs and stays of court proceedings in favour of arbitration. Parties may also seek interim relief against third parties in court as the arbitral tribunal has no jurisdiction over third parties.

In Ontario and British Columbia, courts are required to enforce interim awards in international arbitrations if a party makes such an application. There are limited exceptions to this.

Switzerland Small Flag Switzerland

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:

• 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.

• 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.

• 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.

Greece Small Flag Greece

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.

Turkey Small Flag Turkey

Preliminary injunction and attachment can be sought from the local courts prior constitution of the tribunal or during the arbitral proceeding.

Canada Small Flag Canada

Subject to the arbitration agreement, an arbitral tribunal’s power to order interim relief is generally broad and discretionary, although binding only on the parties to the dispute. For international arbitrations, the tribunal will typically consider the following factors:

a. whether the tribunal has prima facie jurisdiction over the dispute;

b. whether the request for relief is urgent and cannot await a determination on the merits;

c. whether the relief sought is necessary to prevent imminent harm that is not compensable by money or that may prejudice the arbitral process before the merits of the dispute are resolved;

d. whether the balance of convenience favours the granting of the order; and

e. whether the applicant has established a reasonable possibility of success on the merits.

For domestic arbitrations, tribunals will typically follow the legal test for injunctive relief set out by the Supreme Court of Canada in RJR Macdonald Inc. v. Canada (Attorney General) ([1994] 1 S.C.R. 311). The factors considered are:

a. Is there a serious question to be tried?

b. Would the applicant suffer irreparable harm (meaning not compensable in money) if the application is refused?

c. Does the balance of convenience favour the granting of the interlocutory relief?
Local courts respect arbitration agreements and accordingly, are keen to facilitate the arbitral process, even before the constitution of the tribunal. As such, they will grant interim measures pending the constitution of the arbitral tribunal. Since arbitral tribunals lack the coercive power to enforce their own interim orders, courts will often assist as contemplated by the arbitration acts throughout Canada. The types of relief that can be obtained in court include detention, preservation and inspection of property, interim injunctions and receivers, security for costs and stays of court proceedings in favour of arbitration. Parties may also seek interim relief against third parties in court as the arbitral tribunal has no jurisdiction over third parties.

In Ontario and British Columbia, courts are required to enforce interim awards in international arbitrations if a party makes such an application. There are limited exceptions to this.

Updated: November 7, 2019