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

International Arbitration

Austria Small Flag Austria

Under Austrian law, both domestic district courts as well as arbitral tribunals have jurisdiction to grant interim measures to support the arbitral proceedings. The parties can exclude a tribunal’s jurisdiction on interim measures. The district courts have sole jurisdiction to order the execution of interim measures. The domestic courts can issue and enforce interim measures pending the constitution of the arbitral tribunal. Interim measures issued by the arbitral tribunal are only available against parties to the arbitration.

Since Austrian law does not provide for a definition of interim measures, in principle, the arbitral tribunal may order any interim measure as long as the endangered party can demonstrate an irreparable harm or a significant impediment of the claim (section 593 ACCP). However, in order to enforce these measures through Austrian courts, the interim measures selected to the parties must be comparable to those granted in national litigation. Such measures encompass taking money or chattel into the court’s custody; prohibition to dispose of or pledge chattel; prohibition vis-à-vis a third party to dispose of the debtor’s claims; administration of immovable property etc.

Austrian law allows for the enforcement of interim measures granted by foreign tribunals irrespective of enforcement treaties or reciprocity. It is necessary, however, that either the ordered measure corresponds to nationally available measures or that a request is raised to apply that measure which closest approximates the granted measure.

France Small Flag France

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 the support judge may be necessary to force execution of any measure ordered by the arbitral tribunal that is not voluntarily complied with.

Portugal Small Flag Portugal

The Arbitration Act fully provides for interim measures, adopting the extended section of the UNCITRAL Model Law, as reviewed in 2006. The Act provides that an arbitral tribunal can grant interim measures it deems necessary in relation to the subject matter of the dispute. Three requirements must be fulfilled: a serious probability that the requesting party will succeed on the merits; sufficient evidence of the risk of harm of his or her rights; and that the harm resulting from the interim measure does not substantially outweigh the damage the requesting party wishes to avoid by the measure.

Although arbitral courts have the power to grant interim measures they cannot enforce them. Enforcement can only be sought at a State court.

State courts also have the power to issue interim measures regarding pending arbitration proceedings, in the same terms as they may do so in relation to proceedings before State courts.

Romania Small Flag Romania

During the arbitration proceedings the arbitral tribunal may grant, at the parties’ request, protective measures and interim relief, as well as acknowledge matters of fact. This provision is similar both in the Civil Procedure Code and in the rules of the main arbitration institution, however, neither defines, except for protective measures, what types of relief can be awarded on a provisional basis. However, taking into account the general civil procedure rules, as an interim remedy, the interested party may apply for freezing measures on goods, provisional measures or conservatory measures regarding evidence (acknowledgement of matters of fact, that is).

The local tribunal whose jurisdiction covers the seat of the arbitration may grant protective measures and interim relief, at the parties’ request, before or during the arbitral proceedings. Since a similar order for protective measures or interim relief issued by the arbitral tribunal is not enforceable under Romanian law, the courts play a significant role in obtaining such measures and are preferred by the parties for the reason that the courts issue enforceable decisions.

Sweden Small Flag Sweden

A tribunal may grant interim measures to (i) maintain or restore the status quo pending determination of the dispute, (ii) take action that would prevent, or refrain from taking action that is likely to cause current imminent harm or prejudice to the arbitral process, (iii) provide means or preserving assets out of which a subsequent award may be satisfied or (iv) preserve evidence that may be relevant and material to the resolution of the dispute. However, the tribunal’s decision on interim measures is not enforceable.

A court can grant interim measures prior to or during the arbitration proceedings, including sequestration of assets.

UAE Small Flag UAE

The CPC does not expressly provide that an arbitral tribunal has the power to order interim measures. Accordingly, UAE courts have allowed such orders only where the parties have specifically agreed to bestow that power on the tribunal in the arbitration agreement, terms of reference or arbitration rules. Under the DIAC and ADCCAC Rules, the tribunal has the power to order interim or conservatory measures.

UAE courts have broader powers to grant interim relief to the parties in support of arbitral proceedings. For example, UAE courts can issue orders for the preservation of evidence or attachment of assets prior to the commencement or during the course of an arbitral proceeding.

DIFC and ADGM-seated tribunals are authorised to grant interim relief as they may deem necessary. This power extends to including security for costs and orders to preserve goods or evidence. The DIFC Arbitration Law provides that seeking interim relief before or during arbitral proceedings is not incompatible with an arbitration agreement, although this is restricted by Article 25 of the DIFC-LCIA Rules. While the ADGM Regulations include the same statement, Article 29(2) provides that the ADGM Court of First Instance should not intervene unless the tribunal or arbitration institution is not empowered or is unable to act.

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.

New Zealand Small Flag New Zealand

New Zealand has followed the UNCITRAL Model Law, both in providing for court-ordered interim measures in support of an arbitration (article 9 of Schedule 1 of the Act) and for a tribunal-ordered interim measures regime (articles 17 to 17M of Schedule 1). Courts can grant an interim measure on the application of a party pending or even after constitution of the tribunal (article 9(1) of Schedule 1), but have only the same power to order interim measures as do tribunals (article 9(2) of Schedule 1). See Safe Kids in Daily Supervision Limited v McNeill [2012] 1 NZLR 714, Solid Energy New Zealand Ltd v HWE Mining Pty Ltd HC Hamilton CIV 2010-419-000904, 5 August 2010 and Discovery Geo Corporation v STP Energy Pte Limited [2013] 2 NZLR 122.

Malaysia Small Flag Malaysia

Arbitral tribunals are statutorily empowered to grant interim measures. Unless contractually modified, section 19, AA allows a party to apply to an arbitral tribunal for any of an exhaustive list of orders:

  • The provision of security for costs.
  • The discovery of documents and interrogatories.
  • The giving of evidence by affidavit.
  • The preservation, interim custody or sale of any property which is the subject-matter of the dispute.
  • The provision of appropriate security in connection with any of the above measures.

In a KLRCA-administered arbitration, a party in need of emergency interim relief may apply to an emergency arbitrator, whose decision is final, for the necessary relief (Schedule 2, KLRCA Arbitration Rules). However, this procedure is only available prior to the constitution of the arbitral tribunal. There are no restrictions as to the type of interim relief that may be granted by an emergency arbitrator and any interim relief so granted shall cease to be binding if the arbitral tribunal is not constituted within 90 days of the interim order or award; upon the rendering of the final award by the arbitral tribunal; or upon the withdrawal of the final award.

The application may be made concurrently or following the filing of a Notice of Arbitration and must be sent simultaneously to the Director of the KLRCA and other arbitral parties. Schedule 2(1), KLRCA Arbitration Rules sets out the formality and fee requirements of the application. If the application is accepted by the Director of the KLRCA, he shall endeavour to appoint an emergency arbitrator within 2 working days of his receipt of the application. A dissatisfied party may challenge the appointment of the emergency arbitrator.

An emergency arbitrator ceases to have jurisdiction upon the constitution of the arbitral tribunal. Though the decision of the emergency arbitrator is final, it is not binding on the arbitral tribunal which may reconsider, modify or vacate the interim measure granted.
Alternatively, a party may, before or during arbitral proceedings, apply to the High Court under section 11, AA for any interim measure and the High Court may make the following orders for:

  • Security for costs.
  • Discovery of documents and interrogatories.
  • The giving of evidence by affidavit.
  • Appointment of a receiver.
  • Securing the amount in dispute.
  • The preservation, interim custody or sale of any property which is the subject matter of the dispute.
  • Ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party.
  • An interim injunction or any other interim measure.

In an application to the High Court, the High Court will defer to any relevant factual findings of the arbitral tribunal (section 11(2), AA). Given the significant overlap in the powers of arbitral tribunals and courts in respect of interim measures, recent jurisprudence favours less judicial intervention and requires parties to first approach arbitral tribunals for interim measures rather than seeking court intervention from the outset. Malaysian courts will only exercise their jurisdiction to assist rather than stifle arbitration.

United States Small Flag United States

Most institutional rules grant arbitral tribunals the power to order interim measures, often with broad discretion. Such measures can include injunctions, temporary restraining orders, or orders directing the taking of evidence or preservation of evidence or assets. Many institutional rules also provide for security for costs as an interim measure. Although the U.S. Supreme Court has not decided the issue, courts typically enforce interim measures issued in domestic arbitrations.

Although the FAA gives courts the power to order interim measures only in a narrow category of admiralty or maritime disputes, U.S. courts have found that they have the power to order a broad range of interim measures. Courts have issued preliminary injunctions, attachment of property, ex parte temporary restraining orders, and, in limited circumstances, anti-suit injunctions to prevent a party subject to the court’s jurisdiction from pursuing litigation in breach of a valid arbitration agreement. However, courts will usually deny an application for preliminary relief that could have been submitted to, or was rejected by, the arbitrators themselves.

There is some controversy as to whether U.S. courts have the authority to award provisional remedies in aid of international arbitration. The FAA does not expressly provide for such authority, and judicial decisions have been divided on the issue. But a clear trend has emerged in favor of permitting interim measures in cases subject to the New York Convention.

Singapore Small Flag Singapore

The IAA provides that an arbitral tribunal shall have the power to make any interim measure. IAA, Section 12. The specific powers granted to the arbitral tribunal are to make orders or give directions to any party for:

  • security for costs;
  • discovery of documents and interrogatories;
  • giving of evidence by affidavit;
  • the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;
  • 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;
  • the preservation and interim custody of any evidence for the purposes of the proceedings;
  • securing the amount in dispute;
  • 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
  • an interim injunction or any other interim measure.

In Singapore, the courts also have power to grant the following interim relief:

  • giving of evidence by affidavit;
  • the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;
  • 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;
  • the preservation and interim custody of any evidence for the purposes of the proceedings;
  • securing the amount in dispute;
  • 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
  • an interim injunction or any other interim measure.

The IAA does not, however, provide expressly for the power of the Singapore courts to grant interim orders for security for costs, discovery of documents, or interrogatories. IAA, Section 12A(2).

If the case is one of urgency, the Singapore courts may, prior to the constitution of the arbitral tribunal, grant certain orders that the court thinks are necessary for the purpose of preserving evidence or assets. IAA, Section 12A(4). The court will only grant interim relief prior to the constitution of the arbitral tribunal in non-urgent cases if the application for interim relief is made with the written agreement of the other parties. IAA, Section 12A(5). In all applications for interim relief, the court will exercise its discretion when considering the request by applying the American Cyanamid principles. Namely, it will consider: (i) whether there is a serious issue to be tried; (ii) whether damages would be an adequate remedy if interim relief were not granted; and (iii) where the balance of convenience lies. See, e.g., Da Vinci Collection Pte Ltd v Richemont International SA [2006] 3 SLR(R) 560 (Singapore Court of Appeal).

Singapore law on sovereign immunity prohibits injunctions against a State. Singapore State Immunity Act, Section 15(2). It is, however, possible for the State to waive its immunity against injunctions by way of an express written waiver. Singapore State Immunity Act, Section 15(3).

Brazil Small Flag Brazil

According to the caput of Article 22-A of Law nº 9.307/96, before established the arbitration, the parties may resort to the Judicial Courts to grant prevention or emergency measures. As the sole paragraph of Article 22-A, the effectiveness of the provisional or emergency remedies stops if the interested party does not require the arbitration within thirty (30) days from the effective date of its decision by the Judiciary. According to the caput of Article 22-B of Law nº 9.307/96, instituted the arbitration, it will be up to the arbitrators to maintain, modify or revoke the prevention or emergency remedy issued by the Judiciary. According to the sole paragraph of Article 22-B, if it is already established arbitration, prevention or emergency remedy must be requested directly to the arbitrators.

Canada Small Flag Canada

Tribunals can order interim measures of protection and security for costs. Courts may grant injunctive relief in aid of the arbitration, including freezing assets and anti-suit injunctions.

Panama Small Flag Panama

Under the Panama Arbitration Law, an arbitration tribunal is permitted to award two (2) types of preliminary or interim relief: interim measures and preliminary orders.

In Panama, interim measures are temporary measures that are issued whether in the form of an award or in another form by which, at any time prior to the issuance of the final arbitral award, the arbitration tribunal orders a party 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, current or imminent harm or prejudice to the arbitral process itself;

(c) provide a means of preserving assets from which a subsequent award may be satisfied; or

(d) preserve evidence that may be relevant and material to the resolution of the dispute.
Contrary to interim measures that are issued after the tribunal has heard all interested parties, preliminary orders in Panama are requested and decided ex parte (without notice to any other party). Preliminary orders are orders whereby an arbitration tribunal directs a party not to frustrate the purpose of a requested interim measure. The Panama Arbitration Law provides that preliminary orders shall expire after twenty (20) working days from the date on which they are issued by the arbitration tribunal. However, the arbitration tribunal may issue an interim measure adopting or modifying the preliminary order after the party against whom the preliminary order is directed has been given notice and an opportunity to present its case.

Moreover, local courts may issue interim measures in support of local or foreign arbitration proceedings either pending the constitution of the tribunal or after its constitution.

Spain Small Flag Spain

In Arbitration can be requested and adopted the same interim measures that in any other judicial proceedings.

Local Court can indeed issue interim measures before or after the constitution of the tribunal (art. 11.3 Arbitration Law).

Turkey Small Flag Turkey

Either party is able to request for the interim measure or provisional seizure prior to the arbitral proceeding or during the arbitral proceeding from the court and the court can decide on such interim measure or provisional seizure. According to the Law no. 6100, unless the arbitral tribunal cannot act effectively, the application to the court is subject to the approval of the arbitral tribunal or the written agreement between the parties.

Unless otherwise agreed, the sole arbitrator or the arbitral tribunal can decide on the interim measure or provisional seizure upon request of the one party by requesting appropriate warranties from the requesting party. According to the Law no. 4686, the sole arbitrator or the arbitral tribunal cannot decide on the interim measures or provisional seizures that will be carried out by the enforcement bodies or the official authorities, besides they cannot decide on such measures which will be bound the third parties. Either party may apply to the court with the request of interim measures or provisional seizures in case the relevant party does not fulfill the award on the interim measure or provisional seizure constituted by the arbitral tribunal. The interim measure or provisional seizure constituted by the court prior to or during the arbitral proceeding will be removed once the award becomes enforceable or the rejection of the arbitral proceeding by the sole arbitrator or the arbitral tribunal.

Germany Small Flag Germany

Even if the parties have agreed to resolve their dispute in arbitration, the parties remain entitled to turn to German state courts to request interim measures. In addition, more and more institutional arbitration rules provide for emergency arbitration proceedings, which take place before the arbitral tribunal in the main proceedings has been constituted. Once the arbitral tribunal in the main proceedings has been constituted, it can also order interim measures at any time during the proceedings.

Arbitral tribunals often order interim measures by way of procedural orders. Such orders are not enforceable. Only arbitral awards will be enforced by a state court. Therefore, if a party needs to enforce an interim measure the arbitral tribunal must render an award instead of a procedural order.

Italy Small Flag Italy

Under Italian law arbitrators are not allowed to issue orders for the seizure of property or other interim measures, unless it is expressly provided for by law. For instance, in the case of corporate arbitration, Article 35(5) of Legislative Decree, 17 January 2003, no. 5, arbitrators can order the suspension of the effect of a shareholders’ resolution. The ordinary Courts are allowed to issue interim measures pending the constitution of the arbitral Tribunal and during the arbitral proceedings.

United Kingdom Small Flag United Kingdom

The tribunal may grant (a) security for costs (section 38(3)), (b) directions in relation to property which is subject of the proceedings (section 38(4)), (c) preservation of any evidence in the custody or control of the parties (section 38(6)).

The courts may exercise powers in support of arbitral proceedings (section 44) in relation to (a) evidence (sections 44(2)(a) & (b)), (b) property (section 44(2)(c)), (c) sale of goods (section 44(2)(d) and (d) interim injunctions or the appointment of a receiver (section 44(2)(e)).

The court is restricted in granting anti-suit injunctions (Allianz SpA v West Tankers Inc, Case C-185/07 [2009] 1 Lloyds Rep 413) against proceedings within the European Union.

Ireland Small Flag Ireland

An arbitral tribunal has the power to grant interim measures in respect of arbitral proceedings unless it was agreed otherwise by the parties. The interim measures that may be granted are: (a) measures to maintain or restore the status quo pending determination of the dispute; (b) measures to prevent current or imminent harm or prejudice to the arbitral process itself; (c) measures to preserve assets out of which a subsequent award may be satisfied; or (d) measures to preserve evidence that may be relevant and material to the resolution of the dispute.

The High Court in Ireland has the power to issue interim measures under Articles 9 and 17J of the UNCITRAL Model Law prior to the commencement of arbitral proceedings in circumstances where the plaintiff is concerned about the possibility of the dissipation of assets or destruction of evidence by the proposed defendant.

Poland Small Flag Poland

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 the 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.

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 the courts or other state institutions (e.g. a stay of judicial execution proceedings), which would be available from the 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 injunctive relief), there is an area of legal dispute that makes it impracticable for the parties to seek interim relief of this type from the arbitral tribunal.

Anti-suit and anti-arbitration injunctions are not available under Polish law.

Cyprus Small Flag Cyprus

Based on Section 9 of the ICA Law, Cypriot Courts will issue preservative measures upon an application of a party to the arbitration, any time before or during the initiation of the arbitral proceedings. Therefore such measures can be issued even before the constitution of the tribunal however evidence thereafter will be required to be presented to the Court which shows that the arbitration proceedings has indeed been initiated. Usually such measures will relate to the preservation of the subject matter of the dispute or to the preservation of evidence.

Under Cap. 4, the Court may issue interim measures related to security for costs, disclosure of documents, the taking of evidence under oath, the preservation or temporary keep or sale of goods which are the subject matter of the arbitration, the securing of the amount of the
dispute, the preservation or inspection of property which is the subject matter of the arbitration, other interim orders or even the appointment of a receiver.

Updated: October 17, 2017