The tribunal, the court and interim measures

It should be emphasised that, during an arbitration, it is, of course, the role of the arbitral tribunal to manage the proceeding. However, there will sometimes be occasions when the support of the national court is required to ensure the process and to prevent any actions that might frustrate not just the arbitration itself, but also subsequent enforcement against assets after an award has been made.

We have already seen that the court is able to assist with the attendance of witnesses and the production of documents; we must now consider what is known as interim measures. In doing so, before turning to the court itself, it is appropriate to examine the powers of the tribunal in that regard and to also have in mind the nature of an award (particularly an interim award), the role of the emergency arbitrator, and the challenges generally that arise in enforcement of interim orders and awards.

Once a matter has been submitted to arbitration, the tribunal may be asked to make an order to preserve evidence, protect assets or maintain an aspect of the status quo until the final award has been made.

Interim measures are addressed in art 17–17J of the Model Law and in art 26 of the UNCITRAL Rules. Provisions as to interim measures are also to be found in most institutional rules and, for instance, in the ICC Rules (new edition as of January 2021) they are to be found at art 28 and are known as “interim or conservatory” measures. Meanwhile, similar specific provisions are to be found at r 30 of the Arbitration Rules of the Singapore International Arbitration Centre, SIAC Rules, 6th edition, 1 August 2016, r 8 of Malaysia’s Asian International Arbitration Centre Arbitration Rules (2018) and art 23 of the Hong Kong International Arbitration Centre’s Administered Arbitration Rules (2018).

The purposes of interim measures is to apply until the final award. The arbitral tribunal has the power to issue interim measures and, in doing so, a tribunal is exercising its discretion. It must, of course, therefore do so legally, rationally and reasonably. Institutional rules do not generally set out the test that a tribunal must apply when considering interim measures, but art 17A of the Model Law does assist. It sets out that the arbitral tribunal must be satisfied by the party requesting an interim measure that there is a risk of irreparable harm if the order is not granted, that the harm to the requesting party if the order is not granted will be greater than the harm to the other party if it is granted (what is sometimes referred to as the balance of convenience test) and that the requesting party has a reasonable prospect of success on the merits of the case.

Traditionally, an arbitral tribunal only had the power to issue an order for an interim measure when both parties had the opportunity to be heard. However, there will sometimes be occasion where one party takes the view that it is necessary to obtain an order ex parte. Some institutional rules do allow ex parte applications in exceptional circumstances, subject to the right of the other party to be heard thereafter. In order to address this difficulty, when the Model Law was revised in 2006, art 17B was inserted in order to provide for an avenue for a party to seek a “preliminary order”.

A preliminary order is an order that is able to be sought on an ex parte basis alongside an application for an interim measure. The preliminary relief, however, is subject to a 20-day time limit and, where such an order is granted, a similar time limit will apply to the grant of the interim measure. Therefore, during the 20-day period, the party seeking the order may obtain an interim measure adopting or modifying the preliminary order once the party against whom the order is directed has had notice and has been given an opportunity to present its case (see art 17C). The effect of arts 17B and 17C, then, is that a request for both an interim measure and a preliminary order is made without notice to the other party. The preliminary order will direct the other party not to frustrate the purpose of the interim measure requested. The arbitral tribunal (as provided by art 17B(2)) may only grant a preliminary order where it considers that the prior disclosure of the request for the interim measure to the party against whom the interim measure is directed, risks frustrating the purpose of the measure itself.