Interim Measures Under Uncitral MDL Law - 2006 Amendmnt

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Interim Measures Under the UNCITRAL Model Law on
Publication International Commercial Arbitration: The Impact of the
Asian International 2006 Amendments
Arbitration Journal Tómas Kennedy-Grant
(*)
Bibliographic reference
A Introduction
Tómas Kennedy-Grant,
'Interim Measures Under At its 64th plenary meeting, on 4 December 2006, the General Assembly of the United
the UNCITRAL Model Law on Nations adopted the following resolution:
International Commercial
Arbitration: The Impact of The General Assembly,
the 2006 Amendments', Recognizing the value of arbitration as a method of settling disputes arising in the
Asian International context of international commercial relations,
Arbitration Journal,
(© Singapore International Recalling its resolution 40/72 of 11 December 1985 regarding the Model Law on
Arbitration Centre (in co- International Commercial Arbitration,
operation with Kluwer Law Recognizing the need for provisions in the Model Law to conform to current
International); Kluwer Law practices in international trade … with regard to … the granting of interim
International 2014, Volume measures, Believing that revised articles of the Model Law on … interim measures
10 Issue 1) pp. 17 - 46 reflecting those current practices will significantly enhance the operation of the
Model Law, Noting that the preparation of the revised articles of the Model Law on
… interim measures was the subject of due deliberation and extensive
consultations with Governments and interested circles and would contribute
significantly to the establishment of a harmonized legal framework for a fair and
efficient settlement of international commercial disputes, …
1 Expresses its appreciation to the United Nations Commission on International
Trade Law for formulating and adopting the revised articles of its Model Law on
P 17 International Commercial Arbitration on … interim measures … and recommends
P 18 that all States give favourable consideration to the enactment of the revised
articles of the Model Law, or the revised Model Law on International Commercial
Arbitration …, when they enact or revise their laws, in view of the desirability of
uniformity of the law of arbitral procedures and the specific needs of international
commercial arbitration practice;
… (1)
This paper summarises the changes effected by the revised articles (‘the Revised Articles’)
and the thinking behind them and then looks at the extent to which, and the manner in
which, the changes have been adopted internationally, before reviewing the case law (of
which there is very little) and reporting on the results of a survey of the author's New
Zealand and international colleagues. Because of difficulties in accessing materials from
some of the jurisdictions which have adopted the Revised Articles the paper does not
include any information as to the position in Peru, Rwanda, Slovenia, Georgia or Costa Rica.
The paper does not consider the situation regarding emergency arbitrators, as that role
does not form part of the Model Law, nor is it a survey of interim measures generally.
B The changes to the Model Law made by the Revised Articles

Prior to the adoption of the Revised Articles by the United Nations Commission on
International Commercial Arbitration (‘UNCITRAL’), the Model Law contained only two
relevant articles, one in respect of the powers of the court and one in respect of the powers
of the tribunal. Article 9 provided:
It 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.
Article 17 provided:
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of
a party, order any party to take such interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject matter of the dispute.
The arbitral tribunal may require any party to provide appropriate security in
connection with such measure.
As revised, the Model Law contains two articles in relation to the powers of the court to
1
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As revised, the Model Law contains two articles in relation to the powers of the court to
grant interim measures and ten articles in relation to the powers of the tribunal to do so.
P 18 So far as the powers of the court under the Revised Articles are concerned, article 9
P 19 remains unchanged but there is a new article, article 17J, which reads as follows:
A court shall have the same power of issuing an interim measure in relation to
arbitration proceedings, irrespective of whether their place is in the territory of
this State, as it has in relation to proceedings in courts. The court shall exercise
such power in accordance with its own procedures in consideration of the specific
features of international arbitration.
So far as the powers of an arbitral tribunal under the Revised Articles are concerned, the
Model Law:
(a) substitutes a new definition of the term ‘interim measure’; (2)
(b) prescribes the conditions that must be satisfied before a tribunal may grant an
interim measure; (3)
(c) provides for a party which requests an interim measure to apply at the same time for
‘a preliminary order directing a party not to frustrate the purpose of the interim
measure requested’, (4) prescribes the circumstances in which the tribunal to which
such an application is made may make a preliminary order (5) , and sets out the
procedure to be followed immediately after a tribunal has made a preliminary order;
(6)
(d) provides that a preliminary order :
… shall be binding on the parties but shall not be subject to enforcement by
court. Such a preliminary order does not constitute an award (7)
(e) makes provision for modification, suspension or termination of an interim measure or
preliminary order, (8) the provision of security by the party obtaining the measure or
order, (9) disclosure by that party, (10) and costs and damages; (11)
(f) provides for the recognition and enforcement of interim measures. (12)
See Appendix A for the full text of articles 17–17J.
C The thinking behind the changes

The genesis of the Revised Articles, together with other amendments to the Model Law
P 19 adopted by UNCITRAL at its 39th Session in mid-2006 and recommended for enactment by
P 20 member States at the General Assembly meeting on 4 December 2006, was in reports
presented to the special commemorative New York Convention day held on 10 June 1998 to
celebrate the 40th anniversary of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards. Following the commemorative conference, UNCITRAL decided to
discuss possible future work in the area of arbitration at its 32nd Session, in 1999, and
requested the Secretariat to prepare a note that would serve as a basis for UNCITRAL's
deliberations.
UNCITRAL's Report on its 33rd Session to the General Assembly of the United Nations in
December 2000 recorded that (13) :
At its thirty-second session, in 1999, the Commission had had before it the note it
had requested, entitled ‘Possible future work in the area of international
commercial arbitration’ … Welcoming the opportunity to discuss the desirability
and feasibility of the development of the law of international commercial
arbitration, the Commission had generally considered that the time had arrived to
assess the extensive and favourable experience with national enactments of the
UNCITRAL Model Law … as well as the use of the UNCITRAL Arbitration Rules and
the UNCITRAL Conciliation Rules, and to evaluate in the universal forum of the
Commission the acceptability of ideas and proposals for improvement of
arbitration laws, rules and practices.
UNCITRAL entrusted the work to one of its three working groups, which it named Working
Group on Arbitration (‘the Working Group’), and decided that the priority items for the
Working Group should include enforceability of interim measures. (14)
The work of UNCITRAL and the Working Group (known from its 41st Session in September
2004 as the Working Group on Arbitration and Conciliation) continued over a period of
seven years, culminating in the text adopted by UNCITRAL and recommended to member
States by the General Assembly. (15)
From the outset of the deliberations, the Working Group and UNCITRAL were concerned to
formulate, if possible, satisfactory provisions for the enforcement by courts of interim
measures of protection ordered by arbitral tribunals, defining the scope of the power of
P 20 arbitral tribunals to issue such measures and the procedures to be followed by tribunals
P 21 for issuing them, and establishing uniform provisions on court-ordered interim
measures of protection in support of arbitration. (16)
The importance of the first of these topics was reflected in the Working Group's Report on
its 32nd Session (17) , at paragraph 60:
2
its 32nd Session (17) , at paragraph 60:
There was general recognition in the Working Group of the fact that interim
measures of protection were increasingly being found in the practice of
international commercial arbitration and that the effectiveness of arbitration as a
method of settling commercial disputes depended on the possibility of enforcing
such interim measures. In some cases the very usefulness of the award for the
winning party depended upon whether the party had been able to enforce the
interim measure designed to facilitate the later enforcement of the award.
The Working Group throughout recognised the distinction between the enforceability by
courts of interim measures of protection and the power of arbitral tribunals to issue such
measures. At paragraph 66 of its Report on its 32nd Session (18) the Working Group stated:
At various stages of the discussion of enforceability of interim measures of
protection reference was made to the power of the arbitral tribunal to issue such
measures, the scope of that power and procedures for issuing interim measures.
Noting that a model legislative provision dealing with that power was contained in
article 17 of the … Model Law …, it was recognised that the issue of enforceability
of interim measures of protection should be considered separately from the issue
of the power of the arbitral tribunal to order interim measures of protection and
related procedural questions…
Initially it was envisaged that the issue of the power of tribunals to make such orders
would be dealt with by way of:
… preparing a non-legislative text, such as guidelines or practice notes, which
would discuss issues such as the types of interim measures of protection that an
arbitral tribunal might order, discretion for ordering such measures, and
guidelines on how the discretion was to be exercised or the conditions under
which, or circumstances in which, such measures might be ordered… (19)
This initial approach was subsequently abandoned in favour of including among the
Revised Articles provisions regarding the scope of the power of arbitral tribunals to grant
interim measures and the procedure to be followed in respect of them. (20)
P 21
P 22
So far as the question of court-ordered interim measures of protection in support of
arbitration was concerned, at the same meeting the Working Group noted that:
… in a number of States there were no provisions dealing with the power of the
courts to issue interim measures of protection in favour of parties to arbitration
agreements; the result was that in some States courts were not willing to issue
such interim measures while in other States it was uncertain whether and under
what circumstances such court assistance was available. (21)
It also noted that:
… it was particularly important for parties to have effective access to such court
assistance before the arbitral tribunal was constituted, but that also after the
constitution of the arbitral tribunal a party might have good reason for requesting
court assistance… (22)
The possibility of including in the Revised Articles a provision for interim measures to be
granted by an arbitral tribunal on an ex parte basis was first considered by the Working
Group in its 34th Session, in May-June 2001. There was a division of opinion on the
appropriateness of providing for such orders. For instance, the Working Group's Report on
its 36th Session recorded:
Diverging views were expressed as to whether, as a matter of general policy, it
would be suitable for a revision of the … Model Law … to establish the possibility
for interim measures to be ordered ex parte by an arbitral tribunal. Under one
view, in line with existing arbitration laws in a number of countries, the possibility
of ordering an interim measure of protection on an ex parte basis should be
reserved only to courts of justice. It was stated that no exception should be made
to the principle that each party should have equal access to the arbitral tribunal
and a full opportunity of presenting its case, as expressed in article 18 of the
Model Law. Recognising the possibility that ex parte measures might be ordered
by the arbitral tribunal was said to open an avenue for dilatory and unfair
practices that should be avoided. It was also said that ex parte interim measures
could have a damaging effect on third parties. However, the contrary view was
widely expressed that the same principles that parties should be treated with
equality and be given a full opportunity of presenting their case generally applied
to courts of justice and in many countries were not regarded as sufficient grounds
for refusing the possibility of ordering ex parte measures in exceptional
circumstances. The prevailing view was that introducing a provision dealing with
such ex parte interim measures into the Model Law would constitute a useful
addition to the text and meet the needs of arbitration practice. (23)
3
P 22
P 23
This division of opinion continued; but, as is obvious from the text of articles 17–17J in
Appendix A, the disagreement was eventually resolved in favour of including provision for
ex parte orders (known in the Revised Articles as preliminary orders).
D The Extent to which, and Manner in which, the Changes have been Adopted
1 The Extent to which the Changes have been Adopted
The UNCITRAL website (24) records the Revised Articles or the revised Model Law as having
been adopted by 20 out of the 96 jurisdictions which have adopted the Model Law, as
follows:
2007 New Zealand
2008 Mauritius, Peru, Rwanda, Slovenia
2009 Brunei Darussalem, Georgia
2010 Commonwealth of Australia, New South Wales, the Hong Kong S.A.R., Ireland, and the
State of Florida
2011 The following Australian jurisdictions: Northern Territory, South Australia, Tasmania
and Victoria, and Costa Rica
2012 Western Australia
2013 Queensland and Belgium
2 The Manner in which the Changes have been Adopted

a The power of the court to grant interim measures
As noted above, the Revised Articles include two articles in relation to the power of the
court to grant interim measures in relation to an arbitration: articles 9 and 17J.
P 23 All the jurisdictions considered in this paper, with the exception of New Zealand, have
P 24 adopted the Model Law wording of article 9 of the Revised Articles unchanged (25) and
have either adopted article 17J of the Revised Articles unchanged (26) and/or made
supplementary or other provision to similar effect, ie emphasising that the courts retain
their ordinary powers when granting interim measures in relation to arbitral proceedings
(27) .
New Zealand, however, has departed from the wording of the Model Law by:
(a) deleting the words ‘of protection’ following the words ‘interim measure’ in article 9;
(28) and
P 24 (b) not adopting article 17J of the Revised Articles, but instead providing (29) that a court:
P 25
… has the same powers as an arbitral tribunal to grant an interim measure
under article 17A (30) for the purposes of proceedings before that court and
that article and article 17B (31) apply accordingly subject to all necessary
modifications.
b The powers of an arbitral tribunal – interim measures
The power of an arbitral tribunal to grant interim measures granted by Article 17(1) of the
Revised Articles has been adopted in all the jurisdictions considered in this paper. (32)
Article 17(2) of the Revised Articles defines the term ‘interim measure’ as:
… any temporary measure, whether in the form of an award or in another form,
by which, at any time prior to the issuance of the award by which the dispute is
finally settled, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending the 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 proceedings;
(c) Provide a means of preserving assets out of which a subsequent award may
be satisfied;
(d) Preserve evidence that may be relevant and material to the resolution of the
dispute.
This provision is purposive in its approach. (33) For guidance as to the types of order which
the Working Group and UNCITRAL had in mind as fulfilling those purposes, see the
Secretary General's Report to the 32nd Session of the Working Group in March 2000, (34) the
P 25 Working Group's Report on that Session, (35) the Secretariat's Report to the Working
P 26 Group's 36th Session in March 2002, (36) and the Working Group's Report on its 40th
Session in February 2004, (37) extracts from which are attached as Appendix B.
4
Brunei, (38) Hong Kong, (39) the Commonwealth of Australia (40) and Florida (41) have
effectively adopted the article as it stands in the Model Law (there are minor differences of
wording). The other jurisdictions considered in this paper, with the exception of Belgium,
have all extended the scope of the term ‘interim measure’:
(a) New Zealand, (42) Mauritius (43) and Ireland (44) have each added the power to order
the giving of security for a party's costs;
(b) the Australian States and the Northern Territory (45) have each included orders for
security for costs, discovery, giving of evidence by affidavit, inspection and similar
orders and ‘stop clock’ arbitration.
Belgium uses the description ‘an interim or conservatory measure’ rather than ‘an interim
measure of protection’ in the equivalent of article 17(1) of the Revised Articles, has not
adopted article 17(2) of the Revised Articles, and specifically excludes the power to order
attachment. (46)
A party requesting an interim measure under article 17(2)(a), (b) or (c) of the Revised
Articles is required to satisfy the tribunal that:
(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is likely
to result to the party against whom the measure is directed if the measure is granted;
and
P 26
P 27
(b) There is a reasonable possibility that the requesting party will succeed on the merits of
the claim. The determination on this possibility shall not affect the discretion of the
arbitral tribunal in making any subsequent determination. (47)
Where the request for an interim measure is related to the preservation of evidence, these
requirements apply ‘only to the extent that the arbitral tribunal considers appropriate’. (48)
The provisions of article 17A(1) and (2) of the Revised Articles prescribing the conditions
that must be satisfied before a tribunal may grant an interim measure have been
incorporated with minor changes of wording and order in all the jurisdictions considered in
this paper, except Belgium. (49)
Article 17H of the Revised Articles provides that an interim measure issued by an arbitral
tribunal:
… shall be recognized as binding and, unless otherwise provided by the arbitral
tribunal, enforced upon application to the competent court irrespective of the
country in which it is issued, subject to the provisions of article 17I.
Article 17I sets out the grounds for refusing recognition or enforcement of an interim
measure.
These provisions have been incorporated in the same or similar wording in all the
jurisdictions considered in this paper (50) except Brunei and Hong Kong.
P 27
P 28
Hong Kong has substituted a parallel provision for article 17H (51) and provided that article
17I shall not have effect. Brunei has made similar provision (52) .
c The powers of an arbitral tribunal – preliminary orders
The most significant change made in the Revised Articles in relation to the powers of an
arbitral tribunal to grant interim measures is the conferring on a tribunal, unless the
parties otherwise agree, of a power to make ‘a preliminary order directing a party not to
frustrate the purpose of [an] interim measure requested’ from the tribunal. (53) Such an
order may be made without notice to the party against whom it is sought, (54) provided the
tribunal:
… considers that prior disclosure of the request for the interim measure to the
party against whom it is directed risks frustrating the purpose of the measure. (55)
The conditions defined under Article 17A of the Revised Articles apply to any preliminary
order:
… provided that the harm to be assessed under article 17A(1)(a), is the harm likely
to result from the order being granted or not. (56)
The tribunal is obliged immediately after making a preliminary order to notify all parties:
… of the request for the interim measure, the application for the preliminary
order, the preliminary order, if any, and all other communications, including by
indicating the content of any oral communication, between any party and the
arbitral tribunal in relation thereto. (57)
P 28
P 29
The tribunal is also obliged to:
5
The tribunal is also obliged to:
(a) give any party against whom it has made a preliminary order an opportunity to
present its case against the preliminary order ‘at the earliest practicable time’; (58)
(b) decide promptly on any objection to the preliminary order. (59)
A preliminary order expires after twenty days from when it was issued by the tribunal; (60)
but the 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. (61)
A preliminary order is binding on the parties but is not subject to enforcement by the Court
and does not constitute an award. (62)
New Zealand, (63) Brunei, (64) Hong Kong, (65) Ireland, (66) and Florida (67) have adopted
the provisions in the Revised Articles in relation to preliminary orders in their legislation,
with minor changes of wording and order. Mauritius, the Commonwealth of Australia, the
various Australian States and the Northern Territory, and Belgium have not adopted them.
d Supporting procedural provisions
As already noted, the Revised Articles make further provision in relation to:
(a) interim measures and preliminary orders; (68)
P 29
P 30
(b) provision of security by the party obtaining an interim measure or preliminary order;
(69)
(c) disclosure by that party; (70)
(d) costs and damages. (71)
These provisions have been adopted in all the jurisdictions considered in this paper. (72)
e Enforcement by courts of arbitral tribunals' orders
Article 17H and 17I provide for the recognition and enforcement of interim measures issued
by an arbitral tribunal. Article 17H(1) provides:
An interim measure issued by an arbitral tribunal shall be recognized as binding
and, unless otherwise provided by the arbitral tribunal, enforced upon application
to the competent court … subject to the provisions of article 17I.
Article 17I prescribes the grounds for refusing recognition of enforcement. The article is
modelled on article 36(1) (although, for obvious reasons, it does not include all the grounds
set out in that article) and provides additional grounds relevant in the context of interim
measures as opposed to that of awards finally determining the dispute or an aspect of the
dispute.
New Zealand, Mauritius, the Commonwealth of Australia and its constituent States,
together with the Northern Territory, Ireland, Florida and Belgium have adopted the
wording of articles 17H and 17I of the Revised Articles unchanged or with minor changes
which are of no legal significance. (73)
P 30
P 31
Brunei and Hong Kong have not adopted the Revised Articles in relation to the recognition
and enforcement of interim measures. In Brunei's case, while provision is made for the
enforcement of awards, the Act expressly excludes orders or directions made under s 15
(including interim measures) from the meaning of the word ‘award’ as defined in the
interpretation section. (74) Hong Kong has chosen to provide that the orders and directions
of an arbitral tribunal are enforceable ‘in the same manner as an order or direction of the
Court that has the same effect, but only with the leave of the Court’. (75)
These provisions only apply to interim measures. Article 17C(5) of the Revised Articles
expressly provides:
A preliminary order shall be binding on the parties but shall not be subject to
enforcement by a court. Such a preliminary order does not constitute an award.
The jurisdictions which have adopted the preliminary order regime have all adopted this
article. (76)
E The Cases
1 Introduction
A review of the Legal Information Institute databases for the various jurisdictions referred
to in this paper and of the other sources available to the author reveals that there have
P 31 been very few judicial decisions turning on the application of the Revised Articles as
P 32 adopted in the various jurisdictions. (77) For ease of reference, the cases are considered
in the alphabetical order of the jurisdictions in which they have been decided, with the
6
in the alphabetical order of the jurisdictions in which they have been decided, with the
exception of the New Zealand cases, which are considered last because they are the most
numerous and the result of the different approach taken by New Zealand to the definition
of the power of the courts to grant interim measures.
2 Australia
There have been two decisions in which the Revised Articles as incorporated in the
Commonwealth's International Arbitration Act 1974 have been considered or referred to.
In ENRC Marketing AG v OJSC ‘Magnitogorsk Metallurgical Kombinat’ (78) ENRC applied to
the Federal Court of Australia ex parte for relief by way of a freezing order under article 17J
of the Revised Articles. The Court held that it had jurisdiction, by force of article 17J:
… to make orders so as to prevent parties to arbitration agreements putting
assets beyond the reach of any enforcement mechanism in the event that awards
are made against them, in the same way as they would be able to be enjoined in
domestic proceedings for a freezing order. (79)
ENRC offered the usual undertaking as to damages in support of its application for a
freezing order. The Court was concerned that the undertaking, unsupported as it was by a
party with assets or presence in the jurisdiction, was insufficient protection for those who
might be affected by the freezing order. (80) The Court held that it had an inherent or
implied power to require security for an undertaking as to damages as an incident of its
ability to condition the making of its own orders. (81) It summarised the position as follows:
In granting ex parte relief the Court must be mindful that its order could occasion
loss not merely to the party immediately enjoined or affected by that relief but
also to others as a result of that relief. Accordingly, in the absence of an
exceptional circumstance, the Court ought [to] require the party applying for relief
not merely to provide an undertaking as to damages but to be mindful that,
depending upon what the consequences of the order may be, the undertaking be a
real one that is able to answer in fact to any claim that may be made under it,
were the order later discharged … (82)
P 32
P 33
In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (83) the Court of Appeal
of Western Australia had to consider an appeal from a decision of the lower court refusing
to order that MCC pay an amount into escrow either as a condition of the stay of
proceedings which the lower court had granted pursuant to s 7(2) of the Act or as an interim
or supplementary order in exercise of the powers conferred upon the court by s 7(3). In an
obiter passage, Martin CJ, with whom Buss JA concurred, referred to article 17J of the
Revised Articles, as follows:
Although the application by the Cape Lambert parties for an order that MCC pay
funds into an escrow account was, for the purposes of the appeal, primarily based
upon the powers conferred upon the Court by s 7(3) of the Act, or alternatively the
power to impose conditions upon the grant of the stay of proceedings under s 7(2)
of the Act, during oral argument brief reference was made to Article 17J of the
UNCITRAL Model Law. However, there is no ground of appeal which asserts that
the primary judge erred by failing to exercise the powers conferred by that Article.
Further, any contention to that effect would face the insuperable obstacle that
there has been no appeal from the finding of the primary judge to the effect that
the evidence with respect to the financial position of MCC did not justify the grant
of urgent interim relief, or from the decision of the primary judge to refuse the
application for interlocutory injunctive relief. Relief of that character is precisely
the kind of relief contemplated by Article 17J and there has been no appeal from
its refusal. It is therefore unnecessary to give any further consideration to the
powers conferred by Article 17J in these reasons. (84)
McLure P, while concurring with the Chief Justice's decision that the appeal should be
dismissed, differed from him on the applicability of Article 17J, expressing the view that
Articles 9 and 17J of the Revised Articles:
… are in tension with the evident policy and purpose of s 7 of the Act. That tension
can be reconciled by the court exercising its Article 17J power sparingly and only if
there are compelling reasons to do so. (85)
As far as the author is aware, there have been no decisions yet on any of the domestic Acts.
3 Belgium
The new provisions only came into force in Belgium on 1 September 2013. As yet there have
been no decisions on them.
P 33
P 34
4 Brunei
7
As far as the author is aware, there have been no decisions on the Revised Articles in
Brunei.
5 Florida
As far as the author is aware, there have been no decisions on the Revised Articles in
Florida. (86)
6 Hong Kong
As far as the author is aware, there have been no decisions on the Revised Articles in Hong
Kong.
As already noted, Articles 17H–17J of the Revised Articles have not been adopted in Hong
Kong. (87)
7 Ireland
The only Irish case to date has been Osmond Ireland on Farm Business Ltd v McFarland (88)
in which the plaintiff alleged that the defendant was ‘canvassing, soliciting or endeavouring
to take away from the plaintiff customers or clients of the plaintiff …’ and sought an interim
or interlocutory injunction restraining the defendant from doing so. The Court considered
the questions of whether it could make such an order and, if so, on what basis it should
make it, at paragraphs 3.8–3.10 and 5.1–5.5 of the judgment:
3.8 … it is … the position of the plaintiff that, in any event, it is entitled to injunctive relief
under Article 9 of the Model Law. Article 9 provides: It 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.
P 34
P 35
Interim measures are dealt with in Article 17 of the Model Law. Article 17J provides:
A court shall have the same power of issuing an interim measure in relation to
arbitration proceedings, irrespective of whether their place is in the territory of this
State, as it has in relation to proceedings in courts. The court shall exercise such power
in accordance with its own procedures in consideration of the specific features of
international arbitration.
3.9 Section 9(1) of the Act of 2010 provides that the High Court is the relevant Court for the
purposes of Article 9 and the Court of competent jurisdiction for the purposes of, inter
alia, Article 17J …
3.10 Section 10 of the Act of 2010 provides that the High Court shall have the same powers in
relation to, inter alia, Article 9 as it has in any other action or matter before the Court
subject to subs.(2) which, as it deals with security for costs of the arbitration and
discovery of documents, is not relevant to the issues now before the Court.
…
5.1 Given that the Act of 2010 came into operation after the plaintiff 's application was
initiated and that I have held that the arbitration which the defendant proposes to
commence is governed by the provisions of the Act of 2010, the plaintiffs application
falls to be considered as an application for an interim measure of protection in
accordance with Article 9 and Article 17J of the Model Law. The order which the plaintiff
seeks is an order restraining the defendant from acting in breach of clause 18(a) which
at most, in the events which have happened, is an order to endure for one year from 11th
February 2010 or pending the making of an award in the arbitral proceedings, whichever
shall occur first. Such an order would be an interlocutory order. On the basis of the
jurisprudence of this Court and the corresponding provision of the Act of 1954, I am
satisfied that the Court has jurisdiction to make an interlocutory order.
In paragraphs 5.2–5.3 the Judge reviewed the law as it stood under the previous Act. She
then continued as follows:
5.4 On the same reasoning, the reference to “an interim measure” in Article 9 and Article 17J
of the Model Law must include an interlocutory injunction. In fact, another provision of
the Model Law establishes this beyond doubt. In Article 17 which deals with the power of
an arbitral tribunal to order interim measures, the expression “interim measure” is
defined in paragraph (2) as “any temporary measure” by which the arbitral tribunal
orders a party to, inter alia, maintain or restore the status quo pending determination
of the dispute.
5.5 Having regard to the provisions of the Model Law to which I have referred earlier and, in
particular, Article 9 and Article 17J, the plaintiff 's application for an interlocutory
injunction falls to be determined by the principles set out by the Supreme Court in
Campus Oil Ltd v Minister for Industry and Energy (No.2) [1983] I.R.88. In summary, in
order to establish an entitlement to an interlocutory injunction the plaintiff must show
that-
(a) there is a fair bona fide or serious question to be tried;
(b) damages would not be an adequate remedy for the plaintiff if it was refused
interlocutory relief but was successful at the trial of the action; and
P 35
8
P 35
P 36
(c) the balance of convenience favours the granting of the injunction.
…
8 Mauritius
The Supreme Court of Mauritius has considered the question of whether to grant an interim
measure on three occasions (twice in relation to the one matter) since the coming into
force of the International Arbitration Act 2008. (89)
In Commercial SA v Assuranceforeningen Skuld (Gjensidig) (90) the Judge in Chambers had
granted an application for a ‘saisie conservatoire’ (arrest) of a ship in Port Louis harbour.
The manager of the ship initially applied, unsuccessfully, for the discharge of the arrest
order on the ground that the Mauritian Court had no jurisdiction in the matter in view of
the arbitration clause in the agreement between the parties. When that application failed
the manager and owner of the ship applied for the discharge of the arrest order on the
merits. They were unsuccessful in this application also. In neither judgment was any
reference made to the Act.
In Barnwell Enterprises Ltd & Ors v ECP Africa FII Investments LLC (91) an interim order had
been made preventing the respondent from enforcing or exercising any rights or purported
rights under or derived from a share pledge agreement. The Court continued the order for a
short period to enable the applicants to make an application to the arbitral tribunal for a
similar order. In the course of the judgment the Court said:
With regard to matters governed by the International Arbitration Act 2008 (the
Act), this Court will intervene only in accordance with the provisions of the Act.
Pursuant to section 6 of the Act a party to an arbitration agreement may, either
before or during arbitral proceedings, request from the Supreme Court an interim
measure of protection in support of arbitration. The Supreme Court will determine
such a request in accordance with section 23, having regard to the specific
features of international arbitration [section 23 (1) (b)]. Therefore, unless the
parties agree otherwise, the Supreme Court will exercise its power to issue an
interim measure to the extent that section 23 permits, that is, in accordance with
subsections (2A) to (6). By virtue of subsection (2A) the Supreme Court, in
accordance with the power given to it under section 23(1)(a), will issue an interim
measure in relation to arbitration proceedings in such a manner as “to support,
and not to disrupt” existing or contemplated arbitration proceedings.
P 36
P 37
Where there is urgency, section 23(3) of the Act permits this Court, on an ex parte
application of a party or proposed party to the arbitral proceedings, to make such
order as it thinks necessary. Pursuant to section 23(4), where there is no urgency,
the Court will only act where the applicant, a party to the arbitral proceedings,
has given notice to the other parties and to the arbitral tribunal, and with the
permission of the arbitral tribunal or the written agreement of the other parties. In
the instant case, the applicants have based their application on the ground of
urgency. This Court will act only as provided by section 23(5), that is, only if or to
the extent that the arbitral tribunal has no power or is unable for the time being
to act effectively.
(page 2 of the judgment)
It is evident therefore that the arbitral tribunal is fully seized of the issues that
arise in the present application, and it must be emphasised that this Court can act
only if or to the extent that the arbitral tribunal has no power or is unable for the
time being to act effectively. We are not here faced with a situation where the
arbitral tribunal has not been constituted or for some reason or other is not able
to act effectively, or does not have the power of a Judge or Court to issue a certain
specific order.
We have considered the submissions of learned Counsel on each side. Without
going into all the grounds raised by the respondent, we take the view that there is
substance in the second ground on which the respondent relies to ask that the
Interim Order granted in this case on 28 June 2013 be discharged, namely that by
the applicants' own actions the arbitral tribunal is already seized with the issues
arising in the present application. However, we consider that there is also a new
event consisting of the Notice of Enforcement served by the respondent on the
applicants on 14 June 2013, which the applicants have not brought before the
arbitral tribunal to ask for the interim measure which they are asking before us.
In all the circumstances, this Court considers that having regard in particular to
the provisions of section 23(5) of the Act which entitles it to act only if or to the
extent that the arbitral tribunal has no power or is unable for the time being to
act effectively, the interim measure granted should be maintained only until such
time as necessary, in view of the new event of the service of the Enforcement
Notice, to allow the applicants, if they wish to do so, to go before the arbitral
tribunal itself to seek the interim measure they have requested before this Court.
9
tribunal itself to seek the interim measure they have requested before this Court.
It is, accordingly, ordered that the interim order be maintained until 02 August
2013 after which date it will automatically lapse.
(page 5 of the judgment)
9 New Zealand
In considering the New Zealand cases, it is necessary to bear in mind that, as already
noted, New Zealand has not followed the pattern of the Revised Articles in dealing with the
powers of the Court to grant interim measures. The Revised Articles retained Article 9
P 37 unchanged from its pre-2006 form and introduced a new Article, Article 17J. In contrast,
P 38 New Zealand did not adopt Article 17J and introduced into its legislation a provision
(Article 9(2)) which appears to assimilate the powers of the Court to grant interim measures
in support of arbitration to the powers of an arbitral tribunal or, on an alternative analysis,
to place both on the same footing so far as the scope of, and conditions for granting,
interim measures are concerned. (92)
Article 9, in its amended form, has been referred to in the following cases:
(a) Safe Kids in Daily Supervision Ltd v McNeill (93)
(b) Solid Energy New Zealand Ltd v HWE Mining Pty Ltd (94)
(c) Iakopo v Rutherford (95)
(d) Discovery Geo Corporation v STP Energy Pte Ltd (96)
(e) Manchester Securities Ltd v Body Corporate 172108 (97)
In Safe Kids in Daily Supervision Ltd v McNeill (98) the plaintiff and defendants were in
dispute. The plaintiff sought an interim injunction against the defendants. The plaintiff
accepted that there had to be a stay of its proceedings against the first and fourth
defendants, as parties to the relevant arbitration agreement. Both parties accepted that
the Court had jurisdiction to grant interim orders under the Arbitration Act 1996 in respect
of the first and fourth defendants and interlocutory injunction orders on the usual basis
against the other defendants. At paragraph [18] of the judgment the Court held:
Article 9 no longer gives the Court the powers it had to grant interlocutory
injunctions when it considers the grant of interim measures. It specifically restricts
the High Court's powers to grant interim measures, to the same powers as an
arbitral tribunal. The general High Court jurisdiction, summarised in Klisser's
Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, therefore, quite specifically no
longer applies. The Court will consider the granting of interim measures on the
basis that they should complement and facilitate the arbitration, and in [the]
same way and with the same limitations as an arbitral tribunal carrying out such
an exercise.
P 38 It was argued for the defendants that, the court's powers being assimilated to those of an
P 39 arbitral tribunal, a court could not grant interim relief in the absence of ‘a status quo
[which can] be identified and [is] fully restorable or maintainable’. The Court rejected this
argument, holding that:
The reference to the status quo [in the definition of “interim measures” in article
17] is not intended to require a court or arbitral tribunal to find some identifiable
and precisely definable situation that has existed or does exist, before making an
interim measure. It is not intended to create a restrictive threshold requirement.
Its purpose, rather, is to identify the holding and temporary nature of interim
orders. (99)
At paragraphs [28]–[31] the Court considered the issue:
[28] … of whether a Court or arbitral tribunal in considering whether interim measures
should be granted, must consider different issues under article 17 of Schedule 1 of the
Arbitration Act 1996 to those that would be considered in an interlocutory injunction
application
[29] Under article 17A the power is discretionary. The arbitral tribunal “may” grant the
interim measure. Then various matters that the applicant “must” establish are then set
out at 17B(1).
[30] To deal with the last of 17B(1) factors first, 17B(1)(c) requires a “reasonable possibility”
that the applicant will succeed on the merits of the claim. The requirement can be seen
as akin to the “serious question to be tried” requirement for an interlocutory injunction
…
[31] … a real possibility of success is a requirement in an interlocutory injunction
application. There are differences between the threshold test for an interlocutory
injunction and other tests arising in the High Court Rules, such as the requirement for a
“strong arguable case” for freezing orders or in relation to service out of the jurisdiction.
The adjective “strong” creates a higher threshold. However, I do not consider that such a
difference arises in relation to 17B(1)(c). There is no adjective such as “strong” and no
significant difference between the “reasonable possibility of success” test in article
17B(1) (c) and the usual interlocutory injunction test “serious question to be tried”. I will
approach matters on the basis that there is no difference.
10
approach matters on the basis that there is no difference.
The Court then considered whether it was limited to the matters listed in article 17B(1)(a)–
(c). Counsel for the defendant submitted that the Court should consider the range of issues
normally considered in an interlocutory injunction application while counsel for the
plaintiff s submitted that the Court should not go beyond the three criteria set out in
article 17B. (100) At paragraph [36] the Court held:
Given that the court's powers to grant interim relief are expressed to be identical
to those of an arbitral tribunal, it would be surprising if the full range of
considerations that apply to interim injunctions could be applied to a
consideration of whether an interim measure should be granted. For instance,
issues such as the public interest … and the consequences to innocent third parties
… do not seem to be matters that would naturally fall within the ambit of an
P 39 arbitral tribunal. An arbitral tribunal derives its jurisdiction from the contract
P 40 between the parties. The Arbitration Act gives it ancillary powers. In exercising
a discretion an arbitral tribunal will not usually regard itself as equipped to
consider wider public interest and third party interest considerations. Third parties
have no status before it. While an arbitral tribunal has the remedial powers of the
High Court under s 12, it does not follow that an arbitral tribunal has the inherent
jurisdiction of that Court. At the very least, a court or arbitral tribunal will exercise
considerable caution before going beyond the considerations specifically set out
in article 17 (B)(1) [sic]. An arbitral tribunal will hesitate to consider the “overall
justice” in such circumstances, and limit its considerations to those in article
17B(1).
In Solid Energy New Zealand Ltd v HWE Mining Pty Ltd (101) Solid Energy, which owned an
opencast coal mine, and HWE, a contractor engaged by Solid Energy to strip the
overburden and win the coal, were in dispute as to how mine operations were to be
planned, scheduled and directed. The contract between the parties contained dispute
resolution provisions providing for good faith negotiations, followed by mediation,
followed by arbitration. At the stage when the dispute resolution provisions had been
activated, Solid Energy applied for an urgent interim injunction requiring HWE to retain on
the site, or return to the site, certain equipment, to ensure that all plant on site was
manned by sufficient qualified and experienced staff , maintained, and used on site to
remove overburden and win coal, and to operate the mine in accordance with a direction
given by Solid Energy the previous year. HWE opposed the orders being made and applied
for a stay of the Court proceedings issued by Solid Energy, on the ground that the dispute
resolution provisions precluded court proceedings. The court noted that the parties had
referred it to the provisions of the Arbitration Act 1996 and, in particular, Schedule 1,
articles 9, 17, 17A and 17B. The court set out the relevant portions of those articles and then
recorded the submission, on behalf of Solid Energy:
… that there may not be a great deal of difference between the requirements as
set out in article 17B(1)(a) to (c) (102) and the ‘standard’ interim injunction
principles derived from Klissers Farmhouse Bakery Ltd v Harvest Bakeries Ltd …
a) Is there a serious question to be tried?
b) Where does the balance of convenience lie?
c) Are there any other factors which weigh in exercising the Court's discretion in
a particular way?
d) Standing back and taking a global view, does the justice of the case warrant
the granting of the injunction? (103)
At paragraphs [10] and [11] of the judgment, the Court said:
[10] For present purposes, I bear both formulations in mind. Mr Hodder urged that I exercise
P 40 the caution expressed (albeit in a different factual context) by Lord Mustill in Channel
P 41 Tunnel Group Ltd v Balfour Beatie Construction Ltd :
I … accept that it is possible for the Court at the pre-trial stage of a dispute arising
under a construction contract to order the defendant to continue with the
performance of the works. But the Court should approach the making of such an
order with the utmost caution, and should be prepared to act only when the
balance of advantage plainly favours the grant of relief.
[11] I have concluded that the policy expressed by Lord Mustill has been incorporated, to the
extent Parliament considered it appropriate, into article 17B.
The Court was satisfied that there was a serious question to be tried (104) and, at
paragraph [35] of the judgment considered the question of where the balance of
convenience lay, approaching it on the following basis:
This element is reflected in subparagraphs (a) and (b) of article 17B. The
requirement in subparagraph (b) that the harm to the applicant in not granting an
interim measure should “substantially outweigh” the harm likely to result to the
respondent if the measure is granted, may appear to set a higher standard than
that required under the Klisser's test. However, factors (c) (other factors that weigh
in exercising the discretion) and (d) (the need to ‘stand back and take a global
11
in exercising the discretion) and (d) (the need to ‘stand back and take a global
view’) of the Klisser's test can readily be seen as requiring an injunction to be
refused if the harm that would be caused to the respondent that would result from
the injunction would substantially outweigh the harm that would be caused to the
applicant if the injunction is refused.
In the event, the Court refused to grant the injunction sought.
In Iakopo v Rutherford (105) although referring to article 9, the Court decided the interim
injunction application in that case by reference to the High Court Rules and the principles
applicable to interim injunction applications outside the arbitral context, saying:
Whilst the parties' dispute might be covered by the arbitration clause in the
easement grant … cl 9(1) [sic] of the First Schedule of the Arbitration Act 1996 still
allows the Court to grant interim measures. So for present purposes, the
arbitration clause can be put to one side. (106)
In Discovery Geo Corporation v STP Energy Pte Ltd (107) the respondent had applied to the
Minister of Energy to consent to the transfer of a petroleum exploration permit. The
applicant sought an order requiring the respondent to withdraw its transfer application, or
request the Minister not to determine it, pending determination of an arbitration. The
application was heard as a matter of urgency. The respondent was represented but,
because of the urgency, the matter was treated as being an application made ex parte (ie
P 41 without notice). Counsel for the respondent submitted that the Court had no authority
P 42 under the Act to grant without notice orders under Article 9(2). The submission was
based on the view expressed by the editors of Dicey Morris and Collins, conflict of Laws.
(108) Counsel for the applicant argued to the contrary, on the basis of the view expressed
in Williams & Kawharu On Arbitration. (109) The Court agreed with Williams & Kawharu's
analysis, which it summarised as follows at paragraph [37] of the judgment:
First, s 12 (which provides that an arbitration agreement, unless otherwise agreed
by the parties, is deemed to provide that an arbitral tribunal “may award any
remedy or relief that could have been awarded by the High Court”) effectively
restores the pre-2007 position. Article 17A need not be relied on, or treated as
excluding that power. Secondly, Article 17C provides expressly for without notice
preliminary orders. It would, they say be surprising to conclude that a Court
cannot grant without notice interim measures. With that analysis I agree. The
construction suggested by Williams & Kawharu ensures that the Act remains
consistent with the UNCITRAL Model Law on which the Act is based. (110)
Having rejected the submission that it had no authority to consider the grant of interim
measures, the Court went on to consider whether it had jurisdiction in fact. It held that it
did not, because of deficiencies in service and because of a foreshadowed protest to
jurisdiction. (111) It then went on to rule that the relief sought lay beyond the scope of the
relief sought in the arbitration and was therefore ‘not essential to protect the integrity of
that process’. (112) In doing so, it expressed doubt as to whether the harm alleged was ‘not
adequately reparable by an award of damages’, as required by article 17B(1)(a) of the Act
(article 17A(1)(a) of the Revised Articles) and as to whether the harm alleged ‘substantially
outweighs the harm likely to result to [the respondent] if interim measures are granted’. (113)
In Manchester Securities Ltd v Body Corporate 172108, (114) the plaintiff was a unit title
owner in a block of apartments which had refused to pay levies imposed by the Body
Corporate. The Body Corporate served a statutory demand on Manchester. Manchester
applied to set aside the demand. The underlying dispute was one subject to arbitration.
One of the grounds on which Manchester sought to persuade the Court to set aside the
P 42 statutory demand was that it was entitled to interim relief under article 9. At paragraphs
P 43 [51], [52], [60] and [61], the Court said:
[51] Under article 9(2) the court can give the same interim relief as an arbitral tribunal can
give under article 17A. The interim relief includes a measure to “maintain or restore the
status quo pending the determination of the dispute”
[52] Article 17B(1) sets the test for the grant of interim relief:
(1) If an interim measure of a kind described in subparagraph (a), (b), or (c) of the
definition of that term in article 17 is requested, the applicant must satisfy the
arbitral tribunal that —
(a) harm not adequately reparable by an award of damages is likely to result if
the measure is not granted; and
(b) the harm substantially outweighs the harm that is likely to result to the
respondent if the measure is granted; and
(c) there is a reasonable possibility that the applicant will succeed on the merits
of the claim.
…
[60] Where there is a “pay now argue later” régime it may sometimes be appropriate to give
interim relief to the payer, as when it can prove that any interim payment may become
final because there is no hope of recovery. It has been recognised that the courts may
give interim relief against the “pay now argue later” provisions of the Construction
Contracts Act 2002.
12
Contracts Act 2002.
[61] By virtue of article 9(2) any claim by Manchester that it ought to have interim relief is
assessed under the test in article 17B(1) of the first schedule of the Arbitration Act. That
requires Manchester to show among other things that any harm that it is likely to suffer
from being required to pay the interim levy now is not adequately reparable by an
award of damages. In this situation, the potential risk is that the payment of an interim
levy may become final: even if Manchester establishes in the arbitration that the levy
ought never to have been raised, it will not be able to recover the payment from the
Body Corporate. The approach taken under the Construction Contracts Act 2002 on
applications for interim relief is that it is not sufficient simply for the payer to express
fear that the payee will not repay. In Chow Group Ltd v Walton, Rodney Hansen J said:
The applicant must show a real risk that the payee may not be able to repay.
The risk must be more than nominal. It is not enough for the payer to simply
express concern at the payee's ability to pay. There needs to be “a high
degree of likelihood that the payee will not be able to repay if a
determination … goes in the payer's favour.
The Court held that Manchester had not shown any basis for the order sought.
In South Pacific Industrial Ltd v United Telecoms Ltd (115) the High Court granted an interim
restraining order pending the finalisation of the terms of a freezing order without reference
to Article 9, notwithstanding that the dispute between the parties had been referred to
arbitration.
There have been no decisions to date in relation to the powers of arbitral tribunals to grant
interim measures or preliminary orders.
P 43
P 44
F The Survey
The survey, which was sent to just over 100 recipients (27 in New Zealand and 75 in other
countries), was intended to find out, to the extent possible, how the Revised Articles were
being applied by tribunals as opposed to courts. It sought answers to the following
questions:
(a) What types of interim orders have been granted under the ‘new’ provisions?
(b) Have any interim measures been granted under the ‘new’ provisions that would not or
might not have granted under the ‘old’ provisions?
(c) If so, what and why?
(d) Have any interim measures applied for been refused on the ground that they did not
come within the scope of the power to grant them?
(e) If so, what and why?
(f) Have any preliminary orders been granted?
(g) If so, what and why?
(h) Have any preliminary orders been refused? (i) If so, what and why?
Replies were received from approximately one third of the recipients (18 from New
Zealand and 19 from other jurisdictions).
Of the New Zealand respondents, only 5 had had experience of interim measures being
sought from arbitral tribunals under the Revised Articles and none of them had had
experience of preliminary orders being sought. Their responses reveal that the following
interim measures have been granted in arbitrations under the New Zealand version of the
Revised Articles:
(a) an order for the preservation of property, in the nature of a court's preservation order
or injunction;
(b) an order restraining the lessor of a farming property from selling livestock, plant,
farm vehicles and consumables and, in particular, livestock owned by the lessor
pending the substantive hearing of a claim by the lessee that it had an option under
the lease to purchase those assets;
(c) an order requiring the respondent to request its parent company (which was not a
party to the arbitration) to provide additional disclosure.
In addition:
(i) one of the respondents had been asked, in a rent review arbitration, to make an
order determining the interim rent claimed and the payment of default interest but
P 44 had declined to do so, on the ground that the relief sought did not fall within the
P 45 definition of ‘interim measure’ under article 17 of the New Zealand Act (article 17(2)
of the Revised Articles);
(ii) that respondent and two others had refused applications for orders in the nature of
interim injunctions on the merits.
None of the 19 respondents from other jurisdictions (including Australia, England, France,
Germany, Malaysia, Singapore, Switzerland, and the United States of America) had had any
13
experience of interim measures or preliminary orders in any of the jurisdictions which have
adopted the 2006 amendments.
G Conclusions
In drawing conclusions as to the effect of the 2006 amendments to the Model Law it is
necessary to distinguish between those parts of the Revised Articles which relate to
interim measures and those parts which relate to preliminary orders.
As already noted, 20 jurisdictions out of the 96 jurisdictions which have adopted the Model
Law as originally promulgated have adopted the provisions relating to interim measures
but only 5 have adopted the provisions relating to preliminary orders.
In the case of the provisions relating to interim measures, there have been significant
departures from the Revised Articles in four jurisdictions:
(a) so far as the court's powers to grant interim measures are concerned, New Zealand
has departed from the framework of the Revised Articles by assimilating the powers
of the court to grant interim measures to those of a tribunal and by not adopting
Article 17J of the Revised Articles;
(b) so far as a tribunal's powers to grant interim measures are concerned, Belgium has
not adopted articles 17(2), 17A(1) and 17A(2) of the Revised Articles;
(c) so far as recognition and enforcement of interim measures granted by a tribunal are
concerned, Brunei and Hong Kong have not adopted articles 17H and 17I but have
established their own regimes.
Nevertheless, when regard is had to the fact that the other 16 jurisdictions have adopted
the provisions of the Revised Articles in regard to interim measures in substantially the
terms of the Revised Articles and that all 20 jurisdictions have adopted the supporting
procedural provisions (articles 17D–17G of the Revised Articles), it is fair to say that the
work undertaken by UNCITRAL between 2000 and 2006 in relation to interim measures has
met with a significant degree of acceptance.
P 45
P 46
Given the strong opposition to the inclusion of provisions for preliminary orders in the
Revised Articles in the course of the debates in the Working Group, (116) it is not surprising
that the adoption of those provisions has been substantially less widespread. It is also
worth noting, when considering the relative lack of enthusiasm in relation to the provisions
for preliminary orders, that the Working Group, in its Report on its 39th Session in
November 2003, recorded that it had received advice:
… that experience gathered by one major international arbitral centre over many
years indicated that parties never requested ex parte interim measures”. (117)
So far as the practice of tribunals is concerned, it is not possible to say, on the limited
information received as a result of the survey referred to in the previous section of this
paper, whether there has been any change of practice on the part of tribunals in those
jurisdictions which have adopted the Revised Articles.
In a paper published in the Asian International Arbitration Journal in 2006 Sundaresh
Menon (118) and Elaine Chao (119) said, at page 3:
[UNCITRAL] thus considered that clarification of the arbitral tribunal's powers and
the establishment of uniform solutions and procedures for arbitral tribunals to
issue interim measures of protection would be a desirable contribution to the
practice of international commercial arbitration. The lack of harmonisation on
the scope of interim measures and the conditions for their issuance was seen as an
impediment to the effective and efficient functioning of international commercial
arbitration. More needed to be done to enhance the integrity and effectiveness of
the arbitral process.
and at pages 30–31:
Spearheading the reform of the Model Law provisions on interim measures of
protection, UNCITRAL has once again shown its relevance and importance to the
development of international arbitration laws. Of course, whether the changes to
the Model Law will result in any significant contribution to arbitration
internationally and in Asia will depend on the member States' willingness to
embrace the changes and implement the same in their jurisdiction … The march
toward harmonisation can be expected to be a long one of small steps.
Progress thus far bears out that forecast.
P 46
References
14
*) QC, MA(Oxon), Gray's Inn, FCIArb, FICA, FSIArb, FAMINZ(Arb/Med), Chartered Arbitrator,
Research Fellow, Faculty of Law, University of Auckland, New Zealand.
1) UN Doc A/RES/61/33.
2) Article 17(2)
3) Article 17A
4) Article 17B(1)
5) Article 17B(2) and (3)
6) Article 17C(1)–(4)
7) Article 17C(5)
8) Article 17D.
9) Article 17E.
10) Article 17F.
11) Article 17G.
12) Article 17H and 17I.
13) General Assembly Official Records 55th Session Supplement No 17 (UN Doc A/55/17),
paragraph 391.
14) General Assembly Official Records 55th Session Supplement No 17 (UN Doc A/55/17),
paragraph 393.
15) The Reports of the Working Group to UNCITRAL and UNCITRAL to the General Assembly
of the United Nations summarising their respective deliberations can be accessed on
the internet at
www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_trav
aux.html.
16) See generally paragraphs 60–87 of the Report of the Working Group on its 32nd
Session (UN Doc A/CN.9/468).
17) UN Doc A/CN.9/468.
18) UN Doc A/CN.9/468.
19) Report of the Working Group on its 32nd Session (UN Doc A/CN.9/468), paragraph 81.
20) See further the section of this paper headed ‘The manner in which the changes have
been adopted (ii) The powers of an arbitral tribunal – interim measures’.
23) UN Doc A/CN.9/508, paragraph 77. See also the Working Group's Report on its 34th
Session (UN Doc A/CN.9/487), paragraphs 69–75 and its Report on its 37th Session (UN
Doc A/CN.9/523), paragraphs 16–27.
24) www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_statu
s.html. It does not record the United States State of Georgia as having done so,
although a number of the provisions in s 38 of the State's International Commercial
Arbitration Code mirror provisions of the Revised Articles. (I am indebted to Mr James
Hosking of Chaffetz Lindsay in New York for the information as to the existence of this
legislation.)
25) Mauritius, International Arbitration Act 2008 s 6(1) (the Mauritian provision differs
slightly from the wording of article 9 in the Revised Articles because it also provides
for the granting of interim measures by a foreign court and adds the words ‘in support
of arbitration’); Brunei, International Arbitration Order 2009, First Schedule, art 9;
Commonwealth of Australia, International Arbitration Act 1974 Schedule 2, art 9; New
South Wales, Commercial Arbitration Act s 9 (and the equivalent provision in the
legislation of the other States and the Northern Territory); Hong Kong, Cap 609
Arbitration Ordinance s 21; Ireland, Arbitration Act 2010, Schedule 1, art 9; Florida,
Chapter 684 International Commercial Arbitration s 684.001; Belgium, Judicial Code,
arts 1683 and 1698 (the Belgian Judicial Code differs slightly from the wording of
articles 9 and 17J of the Revised Articles in that it refers to ‘an interim or conservatory
measure’ in arts 1683 and 1698 rather than to ‘an interim measure of protection’ and
adds the words ‘nor shall any such request imply a waiver of the arbitration agreement’
to the text of article 9 of the Revised Articles). I am indebted to Dr Herman Verbist
(Everest Law, Brussels) for referring me to the English translation of provisions of the
Belgian Judicial Code which is used in this paper. This can be accessed at
http://www.cepani.be/en/arbitration/belgian-judicial-code-provisions.
26) Commonwealth of Australia, International Arbitration Act 1974, Schedule 2, art 17J;
New South Wales, Commercial Arbitration Act 2010, s17J (and the equivalent
provisions in the legislation passed by the other States and the Northern Territory)
(the ‘domestic’ Acts substitute reference to ‘the specific features of domestic
commercial arbitration’ for the ‘the specif c features of international arbitration’ of the
MAL and the Commonwealth Act); Florida, Chapter 684 International Commercial
Arbitration s 684.0028.
27) Mauritius, International Arbitration Act 2008 as amended by International Arbitration
(Mscellaneous Provisions) Act 2013) ss 6(2) and 23; Brunei, International Arbitration
Order 2009, s 15(7); Hong Kong, Cap 609 Arbitration Ordinance s 21; Ireland, Arbitration
Act 2010, Schedule 1, art 17J as read with s10.
28) Arbitration Act 1996, Schedule 1, art 9(1).
29) Arbitration Act 1996, Schedule 1, art 9(2).
30) Because of the way in which New Zealand has re-ordered the provisions of the
Revised Articles (by introducing a definition article (article 17) at the commencement
of the new Chapter 4A of the revised Model Law), article 17 of the Revised Articles has
become article 17A.
15
become article 17A.
31) For the same reason as stated in the last footnote, article 17A of the Revised Articles
has become article 17B.
32) New Zealand, Arbitration Act 1996, Schedule 1, art 17A; Mauritius, International
Arbitration Act 2008, s 21(1); Brunei, International Arbitration Order 2009, s 15(1) (j);
Commonwealth of Australia, International Arbitration Act 1974, Schedule 2, art 17(1);
New South Wales, Commercial Arbitration Act 2010, s 17(1) and the equivalent
provision in the other domestic Acts; Hong Kong, Cap 609 Arbitration Ordinance s 17;
Ireland, Arbitration Act 2010, Schedule 1, article 17(1); Florida, Chapter 684
International Commercial Arbitration s 684.0028; Belgium, Judicial Code, art 1691 (the
article refers to ‘interim or conservatory measures [the tribunal] deems necessary’,
with the exception of attachment orders).
33) Working Group's Report on its 37th Session (UN Doc A/CN.9/523), paragraph 38.
34) UN Doc A/CN.9/WG II/WP 108.
35) UN Doc A/CN.9/468.
36) UN Doc A/CN.9/WG II/WP 119.
37) UN Doc A/CN.9/547.
38) Brunei, International Arbitration Order 2009, s 15(8).
39) Hong Kong, Cap 609 Arbitration Ordinance s 35. Section 35(2) of the Ordinance
provides that the term ‘is to be construed as including an injunction but not including
an order under section 56’ (s 56 provides for orders for security for costs, discovery, the
giving of evidence on affidavit, inspection and similar orders).
40) Commonwealth of Australia, International Arbitration Act 1974, Schedule 2, art 17(2).
41) Florida, Chapter 684 International Commercial Arbitration Act s 684.002.
42) New Zealand, Arbitration Act 1996, Schedule 1, art 17.
43) Mauritius, International Arbitration Act 2008, s 21(1).
44) Ireland, Arbitration Act 2010, s 19 (although the reference in that section to article 19
shows it is treating the power to order security for costs as a procedural power rather
than as an interim measure).
45) New South Wales Commercial Arbitration Act 2010, s 17(3) and the equivalent
provision in the other domestic Acts.
46) Judicial Code, art 1691.
47) Article 17A(1).
48) Article 17A(2).
49) New Zealand, Arbitration Act 1996, Schedule 1, arts 17B(1) and (2) (in the New Zealand
article 17B the second sentence of article 17A(1)(b) of the Revised Articles has been
moved to a separate paragraph (4) and a new paragraph (3) has been added in
relation to applications for orders as to security for costs); Mauritius, International
Arbitration Act 2008, s 21 (with similar changes to those in the New Zealand Act);
Brunei, International Arbitration Order 2009, s 16(1) and (2) (the Order appears to have
a mistaken section reference in s (2): it refers to ‘the requirements in ss 15(8)(a) and (b)’
whereas it should refer to ‘the requirements in subsection (1)(a) and (b)’);
Commonwealth of Australia, International Arbitration Act 1974, Schedule 2, art 17A;
New South Wales Commercial Arbitration Act 2010, s 17A (the second sentence of
article 17A(1)(b) of the Model Law has become subsection (2) and article 17A(2) has
become subsection (3)); and the equivalent provisions in the other domestic Acts;
Hong Kong, Cap 609 Arbitration Ordinance, s 36; Ireland, Arbitration Act 2010,
Schedule 1, art 17A; and Florida, Chapter 684 International Commercial Arbitration s
684.0019 (as originally worded the subsections of s 684.0019 each referred simply to
‘an interim measure under s 684.0018’, without differentiating between the types of
interim measure sought; this omission was remedied by an amending act with effect
from 1 July 2013).
50) New Zealand, Arbitration Act 1996, Schedule 1, arts 17L and 17M; Mauritius,
International Arbitration Act 2008, s 22; Commonwealth of Australia, International
Arbitration Act 1974, Schedule 2, arts 17H and 17I; New South Wales Commercial
Arbitration Act 2010, ss 17H and 17I and the equivalent provision in the other domestic
Acts; Ireland, Arbitration Act 2010, Schedule 1, arts 17H and 17I; Florida, Chapter 684
International Commercial Arbitration ss 684.0026 and 684.0027 (as originally worded
s 684.0026 (1) referred to s 684.0019 (1); this error was remedied by an amending act
with effect from 1 July 2013); Belgium, Judicial Code, arts 1696–1697.
51) Hong Kong, Cap 609 Arbitration Ordinance, ss 43 and 61. Section 61 provides that ‘an
order or direction … by an arbitral tribunal is enforceable in the same manner as an
order or direction of the Court that has the same effect, but only with the leave of the
Court’.
52) Brunei, International Arbitration Order 2009, s 15(6).
53) Article 17B(1).
54) Article 17B(1).
55) Article 17B(2).
56) Article 17B(3).
57) Article 17C(1).
58) Article 17C(2).
59) Article 17C(3).
60) Article 17C(4).
61) Article 17C(4).
62) Article 17C(5).
63) New Zealand, Arbitration Act 1996, Schedule 1, arts 17C–17G. The numbering of the
articles in the Schedule differs from that of the Revised Articles because the New
16
articles in the Schedule differs from that of the Revised Articles because the New
Zealand Act has a preliminary interpretation article (art 17), with the result that each
article in the Model Law is deferred by one: eg article 17(1) of the Revised Articles is
art 17A of the New Zealand Act. Also the provisions of articles 17B and 17C are spread
over five articles (arts 17C–17G) in Schedule 1 to the New Zealand Act, not two articles
as in the Revised Article.
64) Brunei, International Arbitration Order 2009, ss 17–18.
65) Hong Kong, Cap 609 Arbitration Ordinance ss 37–38.
66) Ireland, Arbitration Act 2010, Schedule 1, arts 17B–17C.
67) Florida, Chapter 684 International Commercial Arbitration Act ss 684.0002–684.0021.
68) Article 17D.
69) Article 17E.
70) Article 17F.
71) Article 17G.
72) New Zealand, Arbitration Act 1996, Schedule 1, arts 17H–17K; Mauritius, International
Arbitration Act 2008, s 21(5)–(8) (references to preliminary orders have been omitted
because Mauritius has not adopted the preliminary order regime); Brunei,
International Arbitration Order 2009, ss 19–22; Commonwealth of Australia,
International Arbitration Act 1974, Schedule 2, arts 17D–17G; New South Wales,
Commercial Arbitration Act 2010, ss 17D–17G and the equivalent provisions in the
other domestic Acts (the references to preliminary orders are omitted because the
Australian States and the Northern Territory have not adopted the preliminary orders
regime); Hong Kong Cap 609 Arbitration Ordinance, ss 39–42; Ireland, Arbitration Act
2010, Schedule 1, arts 17D–17G; Florida, Chapter 684 International Commercial
Arbitration, ss 684.0022–684.0025, Belgium, Judicial Code, arts 1692–1695.
73) New Zealand, Arbitration Act 1996, Schedule 1, arts 17L and 17M; Mauritius,
International Arbitration Act 2008, s 22; Commonwealth of Australia, International
Arbitration Act 1974, Schedule 2, arts 17H and 17I, the latter as read with s 19 of the Act;
New South Wales, Commercial Arbitration Act 2010, ss 17H and 17I and the equivalent
provisions in the other domestic Acts; Ireland, Arbitration Act 2010, Schedule 1, arts
17H and 17I; Florida, Chapter 684 International Commercial Arbitration, ss 684.0026
and 684.0027; Belgium, Judicial Code, arts 1696–1697.
74) Brunei, International Arbitration order 2009, ss 29 and 2.
75) Hong Kong, CAP 609 Arbitration Ordinance ss 43 and 61, together with ss 44.
76) New Zealand, Arbitration Act 1996, Schedule 1, art 17G; Brunei, International
Arbitration Order 2009, s 18(5); Hong Kong, Cap 609 Arbitration Ordinance s 38;
Ireland, Arbitration Act 2010, Schedule 1, art 17C(5); Florida, Chapter 684 International
Commercial Arbitration, s 684.0021(5).
77) Although not decided under any of the relevant statutes, reference may also usefully
be made to the following investment arbitrations in which reference has been made
to Article 17A of the Revised Articles: Sergei Paushok, CJSC Golden East Company, CJSC
Vostokneftegaz Company v The Government of Mongolia (an arbitration under the
UNCITRAL Arbitration Rules), Order on Interim Measures, 2 September 2008, at
paragraph 69; Burlington Resources Inc v Republic of Ecuador (ICSID Case No
ARB/08/5), Procedural Order No 1, 29 June 2009, at paragraphs 81–82; and Quiborax
SA, Non Metallic Minerals SA and Allan Fosk Kaplun v Plurinational State of Bolivia
(ICSID Case No ARB/06/2), Decision on Provisional Measures, 26 February 2010, at
paragraph 156. The orders can be accessed on the Investment Treaty Arbitration
website at www.italaw.com/cases/documents/817, 181 and 886 respectively. I am
indebted to Dr Robert Gaitskell, QC and Kevin Touhey of Keating Chambers for
drawing these authorities to my attention.
78) [2011] FCA 1371.
79) [2011] FCA 1371, at [2].
80) [2011] FCA 1371, at [8]–[10].
81) [2011] FCA 1371, at [11].
82) [2011] FCA 1371, at [13].
83) [2013] WASCA 66.
84) [2013] WASCA 66, at [49].
85) [2013] WASCA 66, at [128].
86) Section 684.0027 of Florida's International Commercial Arbitration Act was referred to
in Costa v Carnival Cruises, Inc 768 F Supp. 2d. 1237 (affirmed at 935 F. Supp. 2d. 1325)
but held to be irrelevant because the matter was governed by the provisions of the
Federal Arbitration Act.
87) Hong Kong, Cap 609 Arbitration Ordinance, ss 43–45. See Fresh Gain Ltd v China
Vocational Education Co Ltd & Ors [2011] HKCFI 1876 and Muginoho Co Ltd v Vimiu HK
Co Ltd [2012] HKFCI 414 for decisions on the substituted provisions of s 45. See also TGI
Friday's Inc v Perfect Wave Ltd [2013] HKCFI 540 (although there is no express reference
to s 45 in the judgment).
88) [2010] IEHC 295
89) Commercial SA v Assuranceforeningen Skuld (Gjensidig) 2011 SCJ 350, 14 October 2011
and 2011 SCJ 432, 21 December 2011 and Barnwell Enterprises Ltd & Ors v ECP Africa FII
Investments LLC 2013 SCJ 327, 26 July 2013. I am indebted to Mr Iqbal Rajahbalee
(Managing Partner, BLC Chambers, Port Louis) for drawing these authorities to my
attention.
90) 2011 SCJ 350, 14 October 2011 and 2011 SCJ 432, 21 December 2011.
91) 2013 SCJ 327, 26 July 2013.
17
92) For a paper critiquing the amendments to the New Zealand Act delivered shortly after
they came into force see Kennedy-Grant: ‘Promised Land of Fire Swamp? Interim
Measures - the New Zealand Revolution’, the full version of which can be downloaded
from the Recent Papers page of the author's website at www.kennedygrant.com. A
shortened version of the paper was published at [2008] NZLJ 83–88 and 92.
93) High Court, Auckland, CIV 2010-404-1696, 14/4/10, Asher J.
94) High Court, Hamilton, CIV 2010-419-904, 5 August 2010, Andrews J.
95) [2012] NZHC 1557.
96) [2012] NZHC 3549.
97) [2013] NZHC 177.
98) High Court, Auckland, CIV 2010-404-1696, 14/4/10, Asher J.
99) High Court, Auckland, CIV 2010-404-1696, 14/4/10, Asher J, at [27].
100) High Court, Auckland, CIV 2010-404-1696, 14/4/10, Asher J, at [32]-[37].
101) High Court, Hamilton, CIV 2010-419-904, 5 August 2010, Andrews J.
102) Article 17(2)(a)–(c) of the Model Law .
103) High Court, Hamilton, CIV 2010-419-904, 5 August 2010, Andrews J, at [8]–[9].
104) High Court, Hamilton, CIV 2010-419-904, 5 August 2010, Andrews J, at [33]–[34].
105) [2012] NZHC 1557.
106) [2012] NZHC 1557, at [12].
107) [2012] NZHC 3549.
108) Dicey Morris & Collins: conflict of Laws (14 ed, 4th Supplement, Sweet & Maxwell Ltd,
United Kingdom 2011), at 16.085
109) Williams & Kawharu On Arbitration (LexisNexis, Wellington 2011) at 9.5.1.
110) [2012] NZHC 3549, at [37].
111) [2012] NZHC 3549, at [38]–[43].
112) [2012] NZHC 3549, at [44]–[47].
113) [2012] NZHC 3549, at [48]–[53].
114) [2013] NZHC 177 .
115) [2012] NZHC 688.
116) Working Group's Report on its 34th Session (UN Doc A/CN 9/487), paragraphs 69–75;
Working Group's Report on its 36th Session (UN Doc A/CN 9/508), paragraphs 77–79;
and Working Group's Report on its 40th Session (UN Doc A/CN 9/547), paragraphs 109–
112.
117) UN Doc A/CN.9/545.
118) Mr Menon is now the Chief Justice of Singapore.
119) S Menon and E Chao, ‘Reforming the Model Law Provisions on Interim Measures and
Protection’ (2006) 2 AIAJ 1–31.
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