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This chapter is from AAA Handbook on International Arbitration & ADR.

JurisNet, LLC 2010 www.arbitrationlaw.com

CHAPTER 8
ARBITRAL INTERIM MEASURES:
FACT OR FICTION?
Raymond J. Werbicki

I. Introduction
The practical importance of interim measures of protection is well
understood by litigation and arbitration practitioners alike. From, and in
some cases even before, the outset of court or arbitration proceedings,
problems may arise that can have a major, at times determinative, effect
on the final outcome. A classic example is when existing evidence that
would influence the result may be destroyed or lost. Another example
is when there is a risk that identifiable assets that could satisfy a claim
may be placed out of reach and therefore will not be available if the
claim were to succeed.
In all civilized countries, courts have developed detailed procedures
under which parties to their proceedings may apply for, and in
appropriate circumstances, obtain a variety of interim measures. For
example, in England, a party to an action in the courts may obtain
interim measures, including orders to freeze assets, require interim
payments, search and seize property in the hands of a party, preserve
documents and other forms of evidence, restrain or compel particular
acts or conduct by a party, or provide security for costs. Such orders may
be enforced against persons within the territorial jurisdiction of the court,
by proceedings for attachment or contempt.1
At first sight, the ability of parties to a commercial arbitration to
obtain interim measures from the arbitral tribunal might not appear to
pose any particular problem. For example, parties who agree to arbitrate
under the International Arbitration Rules of the American Arbitration

Raymond J. Werbicki is an international arbitration partner in the London office of


the law firm Steptoe & Johnson.
1
English Civ. Proc. Rules, Pt. 25 and Rules of the Supreme Court Order 45.
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Association (AAA international rules) have the benefit of Article 21,


which authorizes the tribunal, at a partys request, to take whatever
interim measures it deems necessary, including injunctive relief and
measures for the protection or conservation of property. Article 21 also
states that a request for interim measures from a court shall not be
deemed incompatible with the agreement to arbitrate or a waiver of the
right to arbitrate. On the face of it, this would seem to provide the best
of both worlds: an option to obtain virtually any interim remedy from
either an arbitral tribunal or a court. But does it?
International arbitration practitioners are all too aware that the
availability of arbitral interim measures is not nearly so simple. The
conundrum is this: In certain circumstances, an arbitral tribunals ability
to grant interim measures may be limited. If that is the case, a party to an
international arbitration will have to seek interim measures in a national
court that it may have wished to avoid when it agreed to arbitration.
Further, if that happens, the court may decline to grant the measure
requested, either because it concludes that seeking judicial interim relief
is incompatible with the arbitration agreement or that it is undesirable for
the court to interfere in the arbitration process.2
The problem is not merely academic. In a 2002 survey of
international arbitrators by the Global Center for Dispute Resolution
Research, 64 respondents identified 50 separate arbitration cases in
which interim relief was sought either to restrain or stay an activity,
order specific performance, or provide security for costs.3 These figures
are consistent with earlier reports to the United Nations Commission on
International Trade Law (UNCITRAL), which indicated that parties are
seeking interim measures in an increasing number of cases.4 The
availability of arbitral interim measures is not a subject that can safely be
ignored.

See McCreary Tire & Rubber Co v. Seat SpA, 501 F.2d 1032; Channel Tunnel
Group v. Balfour Beatty [1993] AC 334 (HL); NCC International AB v. Alliance
Concrete Singapore Pte Ltd [2008] 5 LRC 187 (Singapore CA).
3
See Mark Appel, Emergency and Interim Relief in International Arbitration, ADR
Currents, vol. 7, no. 1 (Mar.-May 2002), p. 1.
4
Report of the U. N. Secretary-General, Settlement of Commercial Disputes,
A/CN.9/WG.II/WP.108 (Jan. 2000), at 104.
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II. Limitations
What may limit or prevent an arbitral tribunal from granting interim
measures? The answers most frequently given to this question are:
Interim measures may be urgently needed before the tribunal has
been formed.
Although the arbitrators may have the knowledge and expertise
required to decide the substantive issues in dispute, they may not
consider it part of their function or within their area of
competence to issue emergency or provisional orders.
Arbitral orders granting interim measures may be difficult to
enforce.
To be effective, interim measures may require the involvement
of third parties over whom the arbitrators do not have
jurisdiction.
The tribunals jurisdiction to grant interim measures may be
limited by the governing law of the arbitration.

III. Formation of the Tribunal


Under Article 6 of the AAA international rules, the parties have 45
days from the commencement of the arbitration to designate arbitrators
or a procedure for appointing them, failing which they may be appointed
by the AAA case administrator. As noted above, in some cases, interim
measures may be needed before the arbitrators are appointed. The AAA
has addressed this need by making available Optional Rules for
Emergency Measures of Protection and, since May 1, 2006, emergency
measures under Article 37 of the AAA international rules. Under these
rules, a special arbitrator can be quickly appointed by the administrator
for the purpose of hearing a request for interim relief before the tribunal
is formed. To take advantage of the Optional Rules, the parties were
specifically required to incorporate them into their agreement to arbitrate.
It was not enough simply to agree to the AAA international rules because
the AAA Optional Rules were entirely separate. However, for
agreements to arbitrate under the AAA international rules entered into on
or after May 1, 2006, Article 37 is available to the parties, unless they
agree otherwise.5
5

The International Chamber of Commerce (ICC) addresses this need for early relief
in a broadly similar way in its optional Rules for a Pre-arbitral Reference Procedure. The
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If included in the parties agreement to arbitrate, these rules will


cover a number of situations in which interim relief may be required, but
not all. They will not help in cases in which the need for interim relief is
absolutely immediate, as at least a few days will be required to appoint
an arbitrator, establish a schedule and obtain submissions from the
parties. Nor will they be of assistance when the application is made
without notice to the other party, as both the Optional Rules and Article
37 require that notice be given to all parties.

IV. The Arbitrators Function


Whether or not it is an arbitrators function to issue interim measures
was addressed in The Kostas Melas.6 Mr. Justice Goff stated that
arbitrators did not have power to order one party to pay a sum to another
in an interim award that does not decide any matters in dispute. This
statement has been interpreted as a finding that under earlier English
Arbitration Acts, it was not an arbitrators function to make temporary or
provisional financial arrangements between the parties to an arbitration.7
Critics of this view ask: If an arbitrator has jurisdiction to issue a final
award affecting the financial arrangements between the parties, why
should the arbitrators function not include the ability to make interim
arrangements designed to ensure that the final award is just and
effective? Surely the parties and arbitral institutions can choose
arbitrators who have the necessary expertise to make appropriate interim
orders, whether by agreeing procedures like the AAA Optional Rules or
Article 37 or by agreeing to appoint arbitrators with particular
qualifications.

V. Enforceability Issues
Whether enforceability is a limitation on the effectiveness of an
interim measure ordered by an arbitral tribunal depends mainly on the
mechanisms for enforcement available (1) in the arbitration process
London Court of International Arbitration addresses this need, although somewhat
differently, allowing a party to apply for an expedited formation of an arbitral tribunal in
a case of exceptional urgency. LCIA Arbitration Rules art. 9.
6
[1981] 1 Lloyds Rep 18.
7
See Departmental Advisory Committee on Arbitration Law, Report on the
Arbitration Bill (DAC Report) 201 (Feb. 1996).
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itself, (2) under the procedural law of the arbitration, and (3) in national
courts having jurisdiction over the party against whom the interim
measure is to be enforced or that partys assets.
The enforceability of arbitral interim measures was considered by
UNCITRAL to be of sufficient importance to justify consideration by a
Working Group on Arbitration composed of all 39 state members.8 The
Working Group initially identified three types of interim measures: (a)
measures aimed at facilitating the conduct of arbitral proceedings, (b)
measures to avoid loss or damage and preserve the status quo until the
dispute is resolved, and (c) measures to facilitate later enforcement of the
award.
The Working Group considered that the need for an enforcement
mechanism is greatest for measures to facilitate later enforcement of the
award, such as orders freezing or attaching assets or orders to provide
security. It considered that a mechanism to enforce interim measures to
preserve the status quo (including orders regulating contractual
performance during the arbitration) was needed to lesser extent. There
was even less of a need for enforcement support for measures aimed at
facilitating the arbitration, since the tribunal normally has the ability to
regulate compliance with such measures by means of its final decision on
arbitration costs.9
The UNCITRAL Working Groups review led to extensive revisions
to Article 17 of the UNCITRAL Model Law on International
Commercial Arbitration which, in its unrevised form, was substantially
similar to Article 21 of the AAA international rules referred to above.
The revisions, which were adopted on 7 July 2006, require courts in
countries that adopt the Model Law to enforce interim measures of
protection ordered by arbitral tribunals, except in specified
circumstances, such as where the arbitration agreement is invalid or the
measure is contrary to public policy.10
The English Arbitration Act 1996 provides mechanisms supporting
enforcement of orders, directions and awards of the arbitral tribunal. For
example, if a party fails to comply with a directive from the tribunal,
where the seat of the arbitration is in England, the Act authorizes the
8

See Report of the U.N. Secretary- General, supra n. 4.


See Report of the U.N. Secretary- General, Settlement of Commercial Disputes,
A/CN/WG.III/WP.110 (Sept. 2000), at 78.
10
See UNCITRAL Model Law 1985, as amended 2006, art. 17, Report of the
Working Group on Arbitration, A/CN.9/487 (June 2001), at 64-87 and Note by the
Secretariat, A/CN.9/WG.II-/WP.119 (Jan. 2002), 72-84.
9

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tribunal to issue a peremptory order to the same effect prescribing the


time for compliance. If the party fails to comply with the peremptory
order, the Act gives the tribunal broad powers to issue further directions,
draw adverse inferences, proceed to an award, or make an appropriate
order as to costs of the arbitration.11 Ultimately, unless otherwise agreed
by the parties, the court may issue an order requiring a party to comply
with a peremptory order of the tribunal.12
Thus, when English law is the procedural law of the arbitration, there
should be few, if any, difficulties in enforcing arbitral interim measures
against a party in England. When the party against whom enforcement is
sought is elsewhere, the enforceability of an arbitral interim measure will
depend on the law of the place where enforcement is sought. If the
measure is in the form of an interim award, there is at least an argument
that the award can be enforced under the 1958 United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York Convention) where the requirements of the
Convention are otherwise met. This position is not, however, free from
doubt.13
The English Act also provides the English Court with powers to
support arbitral proceedings where the seat of the arbitration is
elsewhere. In this case, however, the Court may refuse to act if, in its
opinion, the fact that the arbitration is abroad makes it inappropriate to
do so.14

11

English Arbitration Act, 1996 41.


Id., 42.
13
See Albert Jan van den Berg, The 1958 New York Arbitration Convention
Revisited, ASA/IBA Conf., Zurich (28 Jan. 2000); Tijana Kojovic, Court Enforcement
of Arbitral Decisions on Provisional Relief, Journal of Intl Arbitration, vol. 18, no. 5
(2001), pp. 511-532. For contrary views, see Report of the U.N. Secretary-General, supra
n. 9, and David Brynmor Thomas, Interim Relief Pursuant to Institutional Rules under
the English Arbitration Act 1996, Arbitration Intl, vol. 13, no. 4 (1997), p. 405. See
also Ali Yeilirmak, Provisional Measures in Commercial Arbitration, (Kluwer Law Intl
2005) 6-34 to 6-41.
14
English Arbitration Act, 1996 2, 44. See, for example, Mobil Cerro Negro Ltd
v. Petroleos de Venezuela SA [2008] All ER (D) 310.
12

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VI. Involvement of Third Parties


Subject to certain narrow exceptions,15 an arbitral tribunal does not
have authority to make any orders affecting persons who are not parties
to the arbitration. This follows from the fundamental principle that the
jurisdiction of an arbitral tribunal is based on the consent of the parties.
Accordingly, a tribunal may not grant a request for interim measures
when a third party is involved, such as an application to freeze monies in
a partys bank account. Similarly, the tribunal may not grant a request to
compel a third party to produce documents.
In some cases this limitation on the tribunals authority can be
circumvented by dealing with the request in another way. For example,
instead of a freezing order, the tribunal could order the arbitrating
party to pay monies into an escrow account. If documents from a third
party are sought, the tribunal may be able to order an arbitrating party to
request them from the third party.
Ultimately, however, only a court will be in a position to grant an
order requiring a third party to act in a certain way.

VII. Governing Law


International arbitration practitioners are aware of the significance of
the place of arbitration. Where the parties locate the arbitration ought not
to be merely a matter of neutrality or amenities.
Under the New York Convention, the UNCITRAL Model Law, and
the conflict-of-law rules of most countries, the governing law of the
arbitrationthe lex arbitriwill normally be the law of the country in
which the arbitration takes place. The governing law of the arbitration is
of immense importance since it defines the legal requirements according
to which the arbitration is to be conducted, including the division
between arbitral tribunals and courts of powers to grant interim
measures. As a result, the power of arbitrators to order interim measures
can vary substantially from one country to another.
Italy and the Canadian province of Quebec, for example, are at one
extreme. They subscribe to the view that interim measures ought to be
15
See Bernard Hanotiau, Problems Raised by Complex Arbitrations Involving
Multiple Contracts-Parties-Issues, Journal of Intl Arbitration, vol. 18, no. 3 (2001), pp.
251-36; John M. Townsend, Nonsignatories and Arbitration, ADR Currents, vol. 3, no.
3 (Sept. 1998), p. 20.

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granted only by courts, which are in a position to enforce them, and not
by arbitral tribunals. Article 818 of the Italian Code of Civil Procedure
expressly provides, The arbitrator may not grant attachment or other
interim measures of protection, except if otherwise provided by the
law.16
The Italian approach to interim measures may have the advantage of
clarity. However, the approach is criticized by those who believe that the
parties should be able to choose the rules and procedures under which
their arbitration will be conducted (including rules giving the tribunal full
authority to grant interim measures, as in Article 21 of the AAA
international rules), and that the parties chosen rules and procedures
should be given effect whenever possible.
Switzerland is at the other extreme. Under Swiss law, in the absence
of an agreement to the contrary, the parties are to apply initially to the
arbitral tribunal, rather than to the courts, for provisional or protective
measures. If the tribunal grants an interim measure, and the party
against whom it is directed fails to comply, the tribunal may seek
assistance from a competent court.17
In England and in several other pro-arbitration countries, such as
France, Germany and the United States,18 the power of an arbitral
tribunal to grant interim measures lies between these two extremes.
Under the English Arbitration Act 1996, where England is the seat of
the arbitration:

Unless otherwise agreed by the parties, the arbitral tribunal has


the power to make certain interim orders specified in the Act,
including orders to provide security for costs or to inspect or
preserve property or evidence. (Sections 38, 39);
Parties are free to agree to the powers exercisable by an arbitral
tribunal, including the power to order on a provisional basis any
relief which it would have power to grant in a final award.
(Sections 38, 39);
Interim measures ordered by an arbitral tribunal are enforceable
as peremptory orders, by the tribunal or, after available arbitral

16
See Jan Paulsson (ed.), International Handbook on Commercial Arbitration
(Kluwer Law Intl 2010) (re: Canada, Italy). The words except if otherwise provided by
the law in Article 818 appear to relate only to the arbitrators power to suspend
enforcement of a shareholders resolution under a specific Italian legislative decree.
17
Swiss Private International Law Act 1987, ch. 12, art. 183.
18
See Paulsson, supra n. 16.

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enforcement procedures have been exhausted, by the court.


(Sections 41, 42);
Where the arbitral tribunal has no power or is unable for the time
being to act effectively, the court may grant interim measures
largely on the same basis as in court proceedings. Where the
matter is urgent, a party may apply directly to the court; where
not urgent, the court will act only with the permission of the
arbitral tribunal or the agreement of all parties. (Section 44).
Therefore, the English Arbitration Act 1996 gives the tribunal only
limited authority, in the absence of the parties agreement, to make
interim orders, for example, to order security for costs or require the
inspection or preservation of property. Unlike under the UNCITRAL
Model Law, if the parties wish the tribunal to have broader power to
grant provisional measures, they must provide for such powers in their
arbitration agreement.
Channel Tunnel Case
In a case where there is an arbitration clause, the practical difficulty
is to establish the division of powers, so to speak, with respect to
interim measures. When does one apply to the arbitral tribunal and when
does one apply to the court?
This difficulty is illustrated by Channel Tunnel Group v. Balfour
Beatty,19 a famous English case involving Trans-Manche Link (TML),
the consortium building the Channel Tunnel, and Eurotunnel, the owner.
TML threatened to suspend work on the cooling system after a dispute
arose with Eurotunnel over the sufficiency of payments under a change
order. Under a two-tier dispute resolution clause in the main contract,
disputes between the parties were to be decided by a dispute resolution
board (DRB) within 90 days, following which either side could refer the
matter to arbitration in Belgium under ICC Rules. Article 8.5 of the ICC
Rules (which was very similar to Article 21(3) of the AAA international
rules) provided:
Before the file is transmitted to the arbitrator . . . the parties shall be
at liberty to apply to any competent judicial authority for interim or
conservatory measures, and they shall not by so doing be held to infringe
the agreement to arbitrate or to affect the relevant powers reserved to the
arbitrator.

19

[1993] AC 334 (HL).


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Eurotunnel applied to the English High Court for an interim


injunction to restrain TML from carrying out its threat to suspend the
work. TML responded with a cross-application to stay Eurotunnels
action pending arbitration. After the case was heard in the High Court, it
was appealed twice, first to the Court of Appeal, then to the House of
Lords. The case was decided differently by each court. The High Court
refused to stay the action pending arbitration and indicated that it would
be inclined to grant an injunction if TML gave notice to suspend the
work. The Court of Appeal found that it was without jurisdiction to grant
an injunction, given that the parties had chosen arbitration under the
dispute resolution clause. The House of Lords decided that although the
court had jurisdiction to grant interim measures, it would not be
appropriate to exercise that jurisdiction since doing so could pre-empt the
ultimate decision by the DRB or the arbitrators. The House of Lords
concluded its decision with the following statement:
Notwithstanding that the court can and should in the right case
provide reinforcement for the arbitral process by granting interim relief I
am quite satisfied that this is not such a case, and that to order an
injunction here would be to act contrary both to the general tenor of the
construction contract and to the spirit of international arbitration.
It is clear that in 1993, when the Channel Tunnel case was decided,
the House of Lords did not consider this to be an appropriate case to
grant interim relief, primarily because if interim relief were granted,
there would be little left for the arbitrators to decide.20 Unfortunately, the
courts reasons provide little guidance as to when it would grant interim
relief when there is an agreement to arbitrate.

20

Id. at 366-68.
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VIII. Arbitral Interim Measures: Fact or Fiction?


As matters presently stand, whether arbitral interim measures are a
matter of fact or fiction depends, to a large extent, on the governing law
of the arbitration. The governing law in most cases will depend on where
the arbitration takes place.
As indicated above, in Italy and other places that have a similar
legislative regime, an arbitral tribunals ability to order interim measures
is largely a fiction. This is so even when the parties have incorporated
rules that expressly authorize the arbitrators to do so, like the AAA
international rules. The law trumps the agreement.
Since the revisions to the UNCITRAL Model Law effective 7 July
2006, where the Model Law applies:

21
22

The arbitral tribunal may grant interim measures, so long as


certain specific conditions are met and the parties do not agree
otherwise.21
A court can order arbitral interim measures.22
Interim measures (but not preliminary orders made without
notice) ordered by an arbitral tribunal may be enforced by a

Revised Model Law, arts. 17(1), 17A, 17B.


Id., art. 17J
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competent court, irrespective of the country in which the


measure was issued.23
When English law governs the arbitration, it is a fact that arbitrators
can require a party to provide security for costs or make available
property or evidence for preservation or inspection. However, beyond
these types of interim orders, the division of powers between courts and
arbitral tribunals to order interim measures is not clear and can still lead
to practical difficulties such as those experienced in the Channel Tunnel
case.
Section 44(5) of the Arbitration Act 1996 provides helpful guidance
as to this division of powers:
In any case the court shall act only if or to the extent that the
arbitral tribunal and any arbitral or other institution or person
vested by the parties with the power in that regard, has no power
or is unable for the time being to act effectively.
This section seems to provide a sensible, workable guide for parties
to determine whether an interim remedy should be sought from the
tribunal or the court. Interim measures are to be obtained from the
arbitral tribunal, unless it is unable to grant them effectively, for example
because of limitations such as those described in the earlier sections of
this chapter. However, Section 39 of the Act, which requires the parties
to agree to give the tribunal authority to grant relief on a provisional
basis, seems to blur what may otherwise have seemed clear. Section 39
raises the following questions:
1. When is relief on a provisional basis for purposes of
Section 39? The Report of the Departmental Advisory
Committee on Arbitration Law (DAC) on the 1996 Act
refers to temporary arrangements, which are subject to
reversal when the underlying merits are finally decided by
the tribunal.24 This description is very similar to the
definition of interim measure of protection adopted by the
UNCITRAL Working Group, which is any temporary
measure ordered by the arbitral tribunal pending the issuance
of the award by which the dispute is finally decided. The
23
24

Id., arts. 17C(5), 17H.


DAC Report, supra n. 7, at 202.
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DAC description, therefore, could be applied to many, if not


most, interim measures.25 If interpreted in this way, arbitral
tribunals will have relatively little power to order interim
measures in the absence of the parties agreement.
2. When will the parties be held to have agreed that the
tribunal shall have the power to grant a provisional measure
for the purposes of Section 39? Would parties who
incorporated the AAA international rules into their
arbitration agreement be considered to have agreed to grant
the arbitrators the authority to order provisional measures by
reason of Article 21 and, since May 1, 2006, Article 37 of
those rules? Are the phrases whatever interim measures [the
tribunal] deems necessary in Article 21 and any interim or
conservancy measure the emergency arbitrator deems
necessary in Article 37 sufficient to include the
provisional measures mentioned in Section 39,
notwithstanding that the word provisional does not appear
in any of Article 21, Article 37 or the Optional Rules?
Curiously, like the UNCITRAL Model Law, earlier drafts of the Act
allowed an arbitral tribunal to issue provisional measures without the
need for express party agreement. Section 39 of the Act was
subsequently added to prevent arbitrators from issuing freezing and
search and seizure orders, as the DAC concluded that such draconian
powers are best left to be applied by the courts.26 However, Section 39
prevents arbitral tribunals from not only exercising such draconian
powers, but also from granting any relief on a provisional basis, without
an express agreement of the parties enabling them to do so.

IX. Conclusion
The availability of interim measures in international arbitrations is
subject to several varying approaches under different national laws and
arbitration rules and is therefore uncertain. Recognizing this problem and
the need for more uniform solutions, the UNCITRAL Working Group
started from the positionand ultimately concluded - that it is desirable
25
26

See Secretariat Note, supra n. 10, 74.


DAC Report, supra n. 7, at 201-3.
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for parties to have access to both the arbitral tribunal and to the courts in
order to ensure the effective availability of interim measures. The
Working Groups extensive revisions to Article 17 of the Model Law
provide specific and, for some, controversial directions as to the type of
interim measures a tribunal should order and in what circumstances it
should order them.27 However, as the Channel Tunnel case illustrates, if
the division of powers between tribunal and courts is not clearly defined,
this approach can still lead to its own uncertainties.
In considering this division of powers, there is much to commend the
approach adopted in Section 44(5) of the English Arbitration Act 1996,
without adding the complications of Section 39 described above. Such an
approach would require parties to arbitration agreements to obtain their
interim measures from the arbitral tribunal, unless (1) the tribunal is not
in a position to grant them effectively, or (2) the parties have agreed to
obtain interim measures from the courts rather than from the tribunal.
This approach is consistent with principles of party autonomy and nonintervention by the courts except where necessary. It is also sufficiently
clear to be workable in practice. As far as draconian freezing or search
and seizure orders are concerned, these would in most cases remain the
prerogative of the courts, as it is difficult to see how an arbitral tribunal
would be in a position in such cases to grant these measures effectively.
As regards other types of interim measures, if the arbitral tribunal has the
ultimate responsibility to decide the merits of the dispute, is it not also in
the best position to order interim measures to ensure that its decision is
just and effective, assuming there are no practical impediments to its
doing so?
Currently, arbitral interim measures are part fact and part fiction.
However, if the powers of arbitral tribunals and courts to order interim
measures (including the division of those powers) can be further clarified
and harmonized, the availability of arbitral interim measures will be
substantially improved, to the overall benefit of the international
commercial arbitration process.
A. Arbital Authority to Issue Interim Relief
The tribunals authority to issue interim relief in an international
arbitration conducted under the International Rules of the American

27

See Report of the U. N. Secretary-General, supra n. 4 and Secretariat Note, supra


n. 10 at 82
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ARBITRAL INTERIM MEASURES: FACT OR FICTION

Arbitration Association resides in Article 21 of those rules. Article 21


provides:
(1) At the request of any party, the tribunal may take whatever interim
measures it deems necessary, including injunctive relief and
measures for the protection or conservation of property.
(2) Such interim measures may take the form of an interim award, and
the tribunal may require security for the costs of such measures.
(3) A request for interim measures addressed by a party to a judicial
authority shall not be deemed incompatible with the agreement to
arbitrate or a waiver of the right to arbitrate.
(4) The tribunal may in its discretion apportion costs associated with
applications for interim relief in any interim award or in the final
award.
B. When Emergency Relief is needed Right Away
What if a party to an international arbitration needs relief before the
arbitrators are appointed? Some arbitral institutions have promulgated
rules for this situation. Article 37 of the International Rules of the
American Arbitration Association, for example, offers rules for
emergency relief. The rules work like this:

The party seeking emergency relief must apply to the AAA and
give notice of the application to all parties.
The AAA will appoint a single emergency arbitrator from a
special panel, and within two business days of appointment, this
arbitrator will establish a schedule to consider the application.
The emergency arbitrator has the power to order or award any
interim or conservancy measure the emergency arbitrator deems
necessary, including injunctive relief and measures for the
protection or conservation of property.

When the tribunal is constituted, the emergency arbitrator no longer


has power to act unless named as a member of the tribunal.

103