I. Introduction

The meeting at which this paper was presented focused on the question how most effectively to mitigate the effect of the lapse of time between the occurrence of loss or damage and recovery of (hopefully) full compensation. The focus of this paper is a narrower issue. A party faced with the real prospect that its opponent in imminent or pending arbitration proceedings might (or, in certain circumstances, may have to) take steps that would result in the removal from that party's reach - or the disposal - of the subject matter of the dispute or of the means of meeting any eventual award made in the claimant party's favour will be concerned to know how best to protect its interests until an award is rendered and becomes susceptible to enforcement. The purpose of this paper is to consider what options might be open to that party in terms of interim relief and to which entity (or entities) it may be possible to apply in order to obtain it.

It has long been recognized that the "universally accepted" purpose of interim remedies is to prevent aggravation of the dispute or further injury to the party seeking orders as to interim measures. 1 In the context of international arbitration, the necessity for interim remedies2 is obvious. The constitution of a tribunal, much less the rendering of an award in a complex international dispute generally takes time. In addition, the effects of the simple passage of time may mean that, failing the grant of interim remedies, important evidence will be lost. Interim remedies are also important, therefore, to ensure that the parties to a dispute are given an equal opportunity to present their case using the best available evidence. 3[Page91:]

In summary, the purpose of interim remedies is to ensure that, insofar as possible, the "circumstances of the dispute remain effectively as if the court had entered immediate judgment". 4

Recognition of the importance of and the ability to apply for interim measures has been steadily growing. Traditionally the preserve of the courts (if they were available at all), interim remedies are now the subject of express provision in the rules of arbitration of many arbitral institutions as well as in the UNCITRAL Rules. They are, by definition, temporary in nature; they are limited in time by the length of the arbitration proceedings themselves and by the scope of the underlying dispute. 5

Interim measures include: 6

"Those that have to do with the discovery, preservation and production of evidence concerning the dispute;7

those that have to do with preserving the subject matter of the dispute and avoiding prejudice to the rights of the parties during the pendency of the proceedings; and

those that are destined to permit the effective execution of the award."

However, the categories of interim remedy should not be regarded as in any sense closed. 8

The question remains to whom to turn to obtain them: the arbitral tribunal, the courts or some other entity?

II. The jurisdiction and the powers of an arbitral tribunal to order interim remedies

Although an arbitral tribunal lacks the coercive powers vested in a national court, orders for interim measures made by an arbitral tribunal will generally carry real weight, nonetheless. 9 Most parties will think twice before failing to comply at an interlocutory stage with the orders or directions of the arbitral tribunal before which their case is to be heard. Arbitral tribunals also have some, albeit limited, means to encourage compliance, such as costs awards and, depending on the place of arbitration, peremptory orders. 10[Page92:]

Consideration is now given, first, to the nature of the relief sought by way of interim measures for which application might be made to an arbitral tribunal; second, to the basis of the arbitrator's jurisdiction to entertain such an application; and, finally, to the criteria to which, typically, an arbitral tribunal will have regard in considering whether and, if so, how to exercise its discretion to grant interim measures of relief.

III. The ambit of arbitrator-ordered interim measures

1. Preservation of the "status quo"

It has been observed that "[i]nterlocutory orders are usually intended to give all parties equal opportunity to present their cases to the tribunal, to preserve the status quo, or to permit other reasonable measures relating to performance under the contract pending final resolution of the dispute." 11 As will be seen below, the examples drawn from the various institutional rules to which reference is made in this paper do not attempt to set out exhaustively the types of interim remedies that may be granted by an arbitral tribunal. That said, some sets of rules give more guidance (or, perhaps, seek to be more prescriptive) than others. Although they have the overarching aim of ensuring that the parties' rights are preserved and that an effective award is duly rendered, the type of interim remedy that may be appropriate in a particular situation will very much depend on the circumstances of the case. For this reason, arbitral tribunals are given broad discretion as to the form and scope of any interim measure(s) that they grant. Such measures may be directed at seizing or controlling property, or a party may be required to do, or refrain from doing, a specified act. 12

Some types of interim remedy are more common and readily accepted as being within the scope of an arbitral tribunal's, as opposed to a state court's, powers than others. Among them are those remedies directed towards the preservation of property or evidence pending the hearing and determination of the dispute. A party may be required to store the property that forms the subject of the dispute or have it moved to a better-equipped facility for its preservation. If the goods are perishable, a party may be ordered to sell them and to hold the proceeds in an escrow account, pending the tribunal's final determination of the dispute. [Page93:]

Alternatively, where the goods are themselves material evidence and are perishable or may be destroyed or otherwise damaged, the tribunal may order that a sample be taken and, if necessary, tested so that the evidence is not lost.

Other interim remedies, the purpose of which is to maintain the status quo, go beyond the mere preservation of evidence and property. 13 In a contractual dispute, one party may claim that the contract has been rightfully terminated. However, pending a final award, the arbitral tribunal may order, as an interim remedy, the continued performance of the parties' respective obligations under the contract. 14

For instance, in one (unpublished) ICC case, the tribunal accepted that it had the authority to order the resumption of gas deliveries through a pipeline, the gas seller having suspended deliveries on the basis of an alleged failure to make payments of due invoices (pursuant to a take-or-pay clause). Ultimately, the tribunal denied the relief sought, given that (a) a decision to grant the interim relief orders sought would have required provisional findings on the factual and legal issues at the heart of the parties' claims; and (b) the proved risks were only of a monetary/ financial nature. The tribunal also concluded that such an outcome would be tantamount to granting final relief on a temporary basis.

The grant of such a remedy can be problematic. A tribunal will typically require the party requesting such an interim order to give a "crossundertaking in damages". In other words, the party in favour of which such an order is made must accept that, if it transpires that the contract had indeed been properly terminated and the party that was obliged to continue to perform it as a result of the interlocutory order has suffered loss or damage by having to forego the pursuit of other alternatives in the meantime, that party will be entitled to be compensated for the loss by the party that sought the interim order in the first place. Equally difficult is a situation in which a party to an arbitration may seek an interim remedy that the other party refrain from a particular action - such as licensing intellectual property to a third party - pending the resolution of the dispute. 15 Faced with such an application, a tribunal must consider whether it is, in fact, no more and no less than an attempt to close down a competitor or licensee, or whether it is the case that, unless an order is made, there is a real risk that the applicant will suffer irretrievable loss or damage.[Page94:]

2. Interim payments

In construction disputes, an overriding concern is the completion of the particular project. In many cases, the contract(s) at the heart of the dispute will include provisions requiring the parties not to cease work pending the resolution of their dispute. An arbitral tribunal will strive to facilitate the progress of the project in order to minimize disruption pending resolution of the dispute. Another remedy that may be appropriate, and which is frequently sought in construction disputes, is that of interim payments. Such payments may be needed to ensure the ongoing financial viability of the claimant party until the dispute is resolved. The tribunal may order a payment on an interim basis and then take this into consideration when the final award is issued.

3. Freezing orders

The extent to which an arbitral tribunal might order a freezing of assets, by making the equivalent of what are known in some jurisdictions as Mareva injunctions, is uncertain. Section 38(1) of the English Arbitration Act 1996 provides:

"the parties are free to agree on the powers exercisable by the arbitral tribunal for the purposes of and in relation to the proceedings."

There follows a default list of arbitrators' powers. It has been suggested that this default list does not exclude parties from conferring on arbitrators' powers that go beyond the default list, such as the power to grant a freezing injunction over a respondent party's assets as security for any future award. 16 However, it is submitted that the likelihood of any such express power being vested in an arbitral tribunal as a matter of specific agreement between the parties, least of all if a dispute is pending, is remote.

4. Security for costs

Security for costs applications are becoming more commonplace in international commercial arbitrations, despite the fact that tribunals will usually require a strong case to be made out before granting such requests. However, the ability to award security for the legal costs of an applicant party and the costs of the arbitration remains an area of contention. [Page95:]

The extent to which a tribunal is satisfied that such relief is acknowledged to be a matter within its power and discretion may depend on the formulation of the rules of the particular institution applicable to the arbitration (see discussion of the ICC Rules below). Some rules and arbitration statutes state specifically that security for costs is available from arbitral tribunals as an interim remedy.17

5. Anti-suit injunctions

Most controversial of all, perhaps, not least because of their use as a means to thwart or disrupt the arbitral process rather than their deployment in support of arbitrations, are anti-suit injunctions. In the intervening period between a dispute arising and the final award being issued, a party may attempt to take steps in other fora to have the claim heard in parallel proceedings notwithstanding its agreement to resolve the dispute by arbitration.

For the purposes of this paper, no attempt will be made to develop the debate about anti-suit injunctions or to embark upon the detailed analysis that a proper study of the topic would require. It is enough, for present purposes, to note that some commentators have suggested that anti-suit injunctions are available under Article 23(1) of the ICC Rules. 18 In the revised text of Article 17(2)(b) of the UNCITRAL Model Law, the language "or prejudice to the arbitral process itself " was included in the interests of clarity so as expressly to confer the power to issue anti-suit injunctions on an arbitral tribunal. 19 One commentator has concluded that in circumstances in which an arbitrator may need to order an anti-suit injunction to protect the arbitral proceedings against undue disruption, "a showing of actual fraudulent conduct is not required". 20

6. The UNCITRAL list of interim remedies

In the absence of an exhaustive (and generally acknowledged) list of the interim remedies that an arbitral tribunal may grant, the UNCITRAL Working Group, in the context of its review of the Model Law, considered a variety of measures aimed at avoiding or minimizing loss or damage, for example, by preserving a certain state of affairs until a dispute is resolved by the rendering of a final award and avoiding prejudice, for instance, by preserving confidentiality: 21

"(i) orders that goods that are the subject matter of the dispute are to remain in a party's possession but be preserved, or be held by a custodian (in some legal systems referred to as sequestration);[Page96:]

(ii) orders that the respondent hand over property to the claimant on condition that the claimant post security for the value of the property and that the respondent may execute upon the security if the claim proves to be unfounded;

(iii) orders for inspection at an early stage where it is clear that a given situation may change before the arbitral tribunal addresses the issue relating to it. For example, if a dispute turned upon the berthing of vessels at a port, and it is known that the port is going to become a construction zone, the arbitral tribunal may make orders for inspection of the port at an early stage;

(iv) orders that one party provide to the other party certain information, such as a computer access code, that would enable, for example, certain work to be continued or completed;

(v) orders for the sale of perishable goods with the proceeds to be held by a third person;

(vi) appointment of an administrator to manage income-producing assets in dispute, the cost of which is to be borne as directed by the arbitral tribunal;

(vii) orders that the performance of the contract in dispute be continued;

(viii) orders to take appropriate action to avoid the loss of a right, such as by paying the fees needed to renew a trade mark or a payment to extend a licence of software;

(ix)orders directing certain information be kept confidential and measures to be taken to ensure that confidentiality."

The Working Group also listed certain types of interim remedy directed towards facilitating the later enforcement of an award: 22

"(i) orders which are intended to freeze assets pending determination of the dispute, as well as orders not to move assets or the subject matter of the dispute out of a jurisdiction and orders not to dispose of assets in the jurisdiction where enforcement of the award is sought;

(ii) orders concerning property belonging to a party to the arbitration which is under the control of a third party (e.g. to prevent a party's funds from being released by a bank);[Page97:]

(iii) security for the amount in dispute involving, for example, an order to pay a sum of money into a specified account, the provision of specified property, or the presentation of a guarantee by a third person such as a bank or surety; or

(iv) security for costs of an arbitration which might require, for example, depositing a sum of money with the arbitral tribunal or the provision of a bond or guarantee, usually to cover the respondent's costs if the claimant is unsuccessful."

IV. Jurisdiction to grant interim measures

Most dispute resolution provisions, often negotiated long before there is any question of a dispute arising, are broadly framed. The parties may agree little more than that they will arbitrate or go to the courts of a particular jurisdiction. If they opt for arbitration, they might express a clear wish for ad hoc or institutional arbitration (in the latter case, nominating the institution) and they may determine the number of arbitrators, the place and language of the arbitration and the governing law.

To the extent that the tribunal is conducting proceedings under the arbitral rules of one of the various international institutions, it is to those rules that the tribunal will turn in the first instance to determine whether or not it has the power to grant interim remedies. 23 If it does have that power, it will obviously have regard to whether or not there are any limitations on the exercise of that power (or indeed, additional powers conferred on it by the parties). It should be pointed out that the power to grant interim remedies is a matter within the discretion and authority of the tribunal upon an application of a party. It is not a matter of procedure. In other words, a tribunal may not of its own volition make an order for interim relief on the basis that it is empowered to determine the rules governing the proceedings, as might be the case under such rules as Article 15.1 of the ICC Rules. Even if the tribunal does not have the power to grant interim remedies of its own volition, however, it may still recommend such measures to the parties. 24[Page98:]

V. Institutional rules

On the basis of a comparative study of the provisions relating to interim measures to be found in the rules of a number of leading arbitral institutions (and in the UNCITRAL Rules), it can be seen that provisions allowing an arbitral tribunal to grant interim remedies have become "common currency". There is, however, some variation in the language used, which arguably means that the scope to grant interim measures is broader under some rules than others. Moreover, some sets of rules provide greater detail as to the types of interim measures that may be granted and the conditions for granting them.

1. ICC Rules

Article 23(1) states:

"Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate."

When the ICC Rules were updated in 1998, specific provision was made for the grant of interim remedies. Article 23(1) vests an express power to grant interim remedies in the arbitral tribunal, absent the parties' agreement to the contrary. A broad discretion is afforded to the arbitral tribunal to grant any interim or conservatory measure it deems appropriate.

However, the expression "interim or conservatory measures" is not defined with any degree of particularity. Accordingly, the arbitral tribunal is in a position to construe those words in a broad manner, depending on the circumstances of the case. 25 Nor is there any restriction upon the application of the interim measure sought (or ordered) to the "subject matter of the dispute", a phrase that appears most notably in the UNCITRAL Rules. Provided there is sufficient connection with the arbitration, the tribunal's authority may extend to other matters of an interim or conservatory nature. In common with many other arbitration rules, the ICC Rules anticipate that the grant of an interim measure may be conditioned on the provision of security by the applicant. [Page99:]

Although not specifically stated, the power to grant interim measures under the Rules is subject to any mandatory provisions of law to the contrary applicable to the arbitral proceedings.

It has been suggested that the arbitral tribunal has a duty to find an equitable and commercially practicable solution to prevent irreparable and unnecessary injury to any of the parties. 26 To satisfy such a duty, the tribunal might also adopt a remedy by agreement of the parties, without recourse to the making of reasoned procedural orders or interim awards provided for in Article 23. In this situation, the tribunal, generally through the chairman, after consultation between the co-arbitrators, will make the tribunal's provisional view of measures to be taken during the pendency of the arbitration known to the parties and allow for possible modification after comments from the parties. 27

While it is accepted that the making of an order for security for costs is possible under Article 23(1), it is less clear in what circumstances an ICC arbitral tribunal would make such an order. 28 A security for costs order conditions the right of a claimant (or occasionally a counterclaimant) to bring its claim (or counterclaim) on payment of an amount to guarantee, in the case of lack of success, payment of such of the arbitration and opposing party's legal costs as the arbitral tribunal may order the unsuccessful claimant or counterclaimant to pay in the final award. Security for costs is not expressed as a form of interim measure in the ICC Rules, as the draughtsmen did not wish to encourage the view that such orders were routine: it was intended as a measure to be adopted in exceptional circumstances, and there was therefore a concern not to encourage the proliferation of applications for security for costs. 29 That is especially so in ICC arbitrations, since, as often argued in this context, the Rules provide for the payment of advances on costs. However, those advances contain no element to reflect likely party legal costs attendant upon the prosecution of the arbitration. Recourse to Article 23, it was felt, would create an additional overlay that was unnecessary and contrary to the parties' agreement to agree to arbitration under the ICC Rules. [Page100:]

Craig, Park and Paulsson summarize the view as follows:

"This expression of the contractual intent of the parties should be given effect and it may be said arguably to exclude additional measures to secure a party from the possibility that its adversary would not be able to pay a costs order made against it in a final award. In order for a claimant to pursue its claim in arbitration it will have already had to advance a substantial amount fixed by the Secretariat or the ICC Court. It is not as if the claimant will not have been willing or required to make a substantial arbitration costs investment in the prosecution of its claim. The ICC practice of advances on costs offers a certain guarantee against abusive and extravagant claims." 30

However, as noted above, the counterargument is that the advance on costs is only a contract for the payment of the arbitral expenses, not the legal costs, which in the vast majority of cases constitute the lion's share of the costs of conducting an international arbitration.

The number of applications for security for costs in international arbitrations is increasing, but there remains a reticence on the part of ICC arbitral tribunals to award security for costs. 31 The advance on costs remains a relevant factor in the thinking of many ICC tribunals. It is suggested that two reasons that might be fundamental to the thinking of many ICC arbitrators are that (a) security for costs was long seen as a peculiarly English remedy; and (b) that peculiarity derived from the fact that the English courts (and those which accepted its procedures) routinely made orders for costs in favour of the prevailing party. That is not part of the court tradition in the United States or in civil law courts. More to the point, an arbitral tribunal is likely to take a dim view of a respondent's application for security for costs if the respondent is itself in default of its contractual obligation to pay any or all of its share of the advance on costs.

It is now well established that the arbitral tribunal may act as soon as the file is transmitted to it, i.e. prior to the finalization of the terms of reference. There was some conjecture prior to the 1998 revision of the ICC Rules that this was not the case. The grant of interim remedies may also be conditioned on the posting of security by the requesting party to remedy any damage if it is ultimately determined that the applicant is not entitled to relief. 32[Page101:]

As to the form in which the remedy is granted, the ICC Rules provide that it may be an order or an award. However, in practice, it is much more likely to be an order. This is both a reflection of the nature of the remedy generally sought and also of the institutional framework of the ICC. Any award rendered under the ICC Rules is first subject to scrutiny by the ICC International Court of Arbitration. This requirement inevitably entails some delay. An application for an interim remedy is made to avoid harm or prejudice to the applicant's interests in a situation of urgency. That object may be frustrated if the relief is contained in an award subject to the completion of the scrutiny process.

2. German International Arbitration Rules

"Section 20 - Interim measures of protection

20.1 Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any 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.

20.2 It is not incompatible with an arbitration agreement for a party to request an interim measure of protection in respect of the subject-matter of the dispute from a court before or during arbitral proceedings."

The German International Arbitration (DIS) Rules were amended in 1998, at the same time as the German Arbitration Law. The amendments to the arbitration law drew heavily on the UNCITRAL Model Law and introduced provisions on interim measures for the first time. Section 20 of the DIS Rules is identical to the arbitration law provisions and also introduced provisions on interim measures for the first time. The DIS Rules contain a potentially restrictive reference to the "subject matter of the dispute", which is discussed below in the context of the UNCITRAL Rules. The dual jurisdiction of the courts is also explicitly recognized. [Page102:]

3. International Centre for Dispute Resolution Rules (ICDR/AAA)

"Article 21 - Interim measures of protection

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. A tribunal may in its discretion apportion costs associated with applications for interim relief in any interim award or in the final award."

The ICDR/AAA International Rules draw heavily upon the UNCITRAL Rules, but they have a wider scope, since there is no reference to the "subject matter of the dispute". Tribunals constituted under the ICDR International Rules have the option to make an order in the form of an award and to make the grant of the remedy conditional on the posting of security by the requesting party. Article 21(4) also contains a statement dealing with the apportioning of the costs of such applications.

4. London Court of International Arbitration Rules (LCIA Rules)

"Article 25 - Interim and conservatory measures 25.1The Arbitral Tribunal shall have the power, unless otherwise agreed by the parties in writing, on the application of any party:

(a) to order any respondent party to a claim or counterclaim to provide security for all or part of the amount in dispute, by way of deposit or bank guarantee or in any other manner and upon such terms as the Arbitral Tribunal considers appropriate. Such terms may include the provision by the claiming or counterclaiming party of a cross-indemnity, itself secured in such manner as the Arbitral Tribunal considers appropriate, for any costs or losses incurred by such respondent in providing security. The amount of any costs and losses payable under such cross-indemnity may be determined by the Arbitral Tribunal in one or more awards; [Page103:]

(b) to order the preservation, storage, sale or other disposal of any property or thing under the control of any party and relating to the subject matter of the arbitration; and

(c) to order on a provisional basis, subject to final determination in an award, any relief which the Arbitral Tribunal would have power to grant in an award, including a provisional order for the payment of money or the disposition of property as between any parties.

25.2 The Arbitral Tribunal shall have the power, upon the application of a party, to order any claiming or counterclaiming party to provide security for the legal or other costs of any other party by way of deposit or bank guarantee or in any other manner and upon such terms as the Arbitral Tribunal considers appropriate. Such terms may include the provision by that other party of a cross-indemnity, itself secured in such manner as the Arbitral Tribunal considers appropriate, for any costs and losses incurred by such claimant or counterclaimant in providing security. The amount of any costs and losses payable under such cross-indemnity may be determined by the Arbitral Tribunal in one or more awards. In the event that a claiming or counterclaiming party does not comply with any order to provide security, the Arbitral Tribunal may stay that party's claims or counterclaims or dismiss them in an award.

25.3 The power of the Arbitral Tribunal under Article 25.1 shall not prejudice howsoever any party's right to apply to any state court or other judicial authority for interim or conservatory measures before the formation of the Arbitral Tribunal and, in exceptional cases, thereafter. Any application and any order for such measures after the formation of the Arbitral Tribunal shall be promptly communicated by the applicant to the Arbitral Tribunal and all other parties. However, by agreeing to arbitration under these Rules, the parties shall be taken to have agreed not to apply to any state court or other judicial authority for any order for security for its legal or other costs available from the Arbitral Tribunal under Article 25.2." [Page104:]

The LCIA Rules contain a list of specific interim measures which it is within an arbitral tribunal's power to order. These measures fall into three categories: security for the amount claimed or counterclaimed; measures dealing with property that forms the subject matter of the dispute; and any relief that the tribunal would have power to grant in an award. Article 25(1)(c) specifically provides the power to order interim financial relief - important where reliability of a regular cash flow is a significant factor in carrying on business in the industry in which the parties are involved. Any such relief granted will be subject to later review and readjustment in a later award.

Article 25(2) makes a specific provision relating to applications for security for costs. In the same way as the English Arbitration Act 1996 made clear that the power to order security for costs in arbitration proceedings had been removed from the English courts, the inclusion of this provision arose as a reaction to the Ken-Ren case with the objective of spelling out in unequivocal terms the tribunal's powers in this regard.

5. Singapore International Arbitration Centre Rules

"Rule 24 - Additional powers of the Tribunal In addition and not in derogation of the powers conferred by any applicable law of the arbitration, the Tribunal shall have the power to:

g. order the preservation, storage, sale or disposal of any property or item which is or forms part of the subject-matter of the dispute;

j. order an interim injunction or any other interim measure;

l. direct any party to ensure that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party;

m. order any party to provide security for legal or other costs in any manner the Tribunal thinks fit;

n. order any party to provide security for all or part of any amount in dispute in the arbitration. …[Page105:]

The SIAC Rules (third edition) were updated with effect from July 1, 2007. The intention of the revision was firmly to establish SIAC as a world-class arbitration institution in Asia. There is no specific provision in the new Rules that deals exclusively with interim remedies. Instead, the power to grant various forms of interim remedy is included among other powers of the tribunal adumbrated in Rule 24. Rule 24 (m) and (n) are new. They make clear that an arbitral tribunal has the power to order security for legal or other costs and to order any party to provide security for all or part of any amount in dispute in the arbitration.

Although presented in a different manner than in other rules examined here, the SIAC Rules confer a broad discretion on the arbitral tribunal to grant various forms of interim remedy. The broad ambit of Rule 24 (j) is a "catch-all". It ensures that a party cannot mount an argument that the measure sought did not fall within one of the specific powers set out in Rule 24. In contrast to the UNCITRAL Rules and to the other institutional rules considered in this paper, the SIAC Rules do not make it a prerequisite to a tribunal's exercise of these powers that it should first have received an application from one of the parties.

6. Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

"Article 32 - Interim measures

1. The Arbitral Tribunal may, at the request of a party, grant any interim measures it deems appropriate.

2. The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security in connection with the measure.

3. An interim measure may take the form of an order or an award.

4. A request for interim measures made by a party to a judicial authority is not incompatible with the arbitration agreement or with these Rules."[Page106:]

The Arbitration Institute of the SCC revised its arbitration rules in 2006. The new rules came into effect on January 7, 2007. Consideration was given to the extent to which the provisions on interim measures should be amended to take account of the revised UNCITRAL Model Law provisions. With the aim of enhancing the enforceability of an interim measure, it was decided to provide that interim measures may be granted in the form of an award. The new rules eschew setting out in detail the types of interim measure available to a tribunal, preferring to leave the arbitral tribunal's discretion unfettered.33

7. Swiss Rules of International Arbitration (Swiss Rules)

"Article 26 - Interim measures of protection

1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary or appropriate.

2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to order the provision of appropriate security.

3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

4. The arbitral tribunal shall have discretion to apportion the costs relating to a request for interim measures in the interim award or in the final award."

The Swiss Rules came into force in January 2006 and replaced the separate rules on international arbitration of the six Chambers of Commerce in Switzerland. 34 The Swiss Rules are based on the UNCITRAL Arbitration Rules with two main additions and changes, which were made to take account of modern practice and comparative law in the field of international arbitration and to reflect the application of these Rules to institutional arbitration. Consistent with a general trend in international arbitration to afford the arbitral tribunal a broad discretion to grant interim remedies tailored to the circumstances of the case, the listing of examples has been removed. In order to avoid the potential for tribunals to view language such as "subject matter of the dispute" as restricting their jurisdiction, these arbitration rules have, like others, deliberately adopted broad language. 35[Page107:]

The Swiss Rules also provide that a request for interim measures filed with a judicial authority is not deemed incompatible with, or a waiver of, the agreement to arbitrate. In a sense, this provision, which can be found in some other institutional rules, is less restrictive than the ICC Rules, which contain a presumption that, once constituted, the arbitral tribunal should be in charge of the determination of applications for interim remedies, absent "appropriate circumstances". 36

8. UNCITRAL Rules

"Article 26

1. At the request of either party, the arbitral tribunal may order any interim measure it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.37

2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.

3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement." 38

The UNCITRAL Rules stipulate that the interim measures must be "necessary" and "in respect of the subject matter of the dispute." The question of necessity is to be considered against the basic function of interim measures, which is to preserve the rights of the arbitrating parties. 39

The language "in respect of the subject matter of the dispute" has led some commentators to question whether or not it places a limitation on the types of interim remedies that may be granted. 40 However, the words that follow that phrase in the text have been accepted as illustrative only, as opposed to prescriptive limits on the arbitral tribunal's power to order any other measures "it deems necessary". 41 Interim remedies granted to avoid prejudicing the status quo have included an order that parallel proceedings initiated in another forum in breach of the agreement to arbitrate be terminated or stayed until further notice. 42 The rules also provide that a tribunal may "require security for the costs" caused by the interim remedy. [Page108:]

Following the completion of its work on the Model Law, the UNCITRAL Working Group has turned its attention to the UNCITRAL Rules. It has been suggested that the provisions dealing with interim remedies should be amended so as to make them consistent with the provisions of the Model Law. If that was done, it would also have the effect of removing the apparent limitation upon the scope of a tribunal's ability to act inherent in the words "the subject matter of the dispute", which have been a source of confusion. The consensus within the Working Group is that these words should be deleted. Insofar as the suggestion of making the rules consistent with the revised Model Law provisions is concerned, the Working Group has agreed that a number of the provisions contained in Chapter IV A of the Model Law should not be replicated, such as the provisions on enforcement. The view was also expressed that provisions that were contentious and had given rise to divergent views such as preliminary orders should not be included, in order not to prejudice the chances of the rules gaining wide acceptability. 43 This topic remains open for discussion. 44 Otherwise, the Working Group is currently considering a revised Article, which closely follows the revisions in the UNCITRAL Model Law, Chapter IV A. 45

VI. Consideration of the grant of interim measures: what factors should be taken into account?

Perhaps so as not to inhibit the discretion of arbitrators, little or no guidance is offered as to the various factors that an arbitral tribunal should take into account when determining whether or not it is appropriate to order an interim measure. 46 The inclination of some arbitral tribunals may be to apply the law of the place of the arbitration to the determination of an application for interim remedies or the applicable substantive law. The place where the interim remedy is to be enforced may also be relevant. Since the arbitration laws at the place of arbitration often offer little guidance, there may also be a tendency on the part of arbitral tribunals to import into their reasoning criteria used to determine applications for interlocutory relief before their own national courts. Inevitably that may of itself give rise to further difficulty, if the arbitrators themselves come from different jurisdictions. [Page109:]

Certainly, an internationally constituted tribunal is likely to have regard to criteria and circumstances that, from the standpoint of a domestic state court judge, might seem irrelevant or simply not susceptible to an order for such relief under a particular domestic law. Nevertheless, it is possible to discern a number of criteria and principles to which international arbitral tribunals typically have regard. 47

They include:

Prima facie jurisdiction - It is generally accepted that the applicant for interim measures must establish that the tribunal has prima facie jurisdiction48 to rule on the merits of the case. 49 In some Iran-US claims tribunal cases, 50 tribunals have stated that the applicant should be given the benefit of the doubt. In finding that it does have prima facie jurisdiction, a tribunal does not purport finally to determine the issue of its jurisdiction. A finding of prima facie jurisdiction is a prerequisite for the grant of an interim remedy, rather than a jurisdictional finding. The tribunal must ascertain that it is not manifestly lacking in jurisdiction. Were that the case, it should decline jurisdiction rather than consider the application for an interim remedy.

Assessment of the merits - If, on its provisional assessment of the strength of the applicant's case and the likelihood of success on the merits, it seems to the tribunal that there may be no arguable case, then it may conclude that the grant of an interim remedy will serve no useful objective. Since the tribunal has not had an opportunity to consider all of the evidence at so early a stage, this assessment is sometimes referred to as a prima facie assessment only. 51 There are obvious difficulties with such an approach. Unlike the situation that often obtains in court proceedings, where the judge determining the application for interim relief will in most cases not be the judge who ultimately hears the case on the merits, an arbitrator faced with an application for interim relief will also be determining the substance of the case. Any suggestion that a tribunal has prejudged the outcome of the case is antithetical to the need to ensure that both parties have been given a fair opportunity to present their case. For that reason, this criterion, which requires an element of analysis of the strength of the case at a very early stage in the proceedings, has received a mixed reception. 52[Page110:]

No pre-judgment of the merits - There is an interrelation between the arbitral tribunal's assessment of the strength of the case and this negative requirement, namely that a tribunal should not pre-judge the merits of the dispute. Arbitral tribunals may be asked to consider an application for interim measures at an early stage of the proceedings when little of the evidence has been presented.

The tribunal must be careful not to jeopardize due process and remain astute to ensure that both parties have a fair opportunity to present their case. It is a balancing act for the tribunal. An arbitral tribunal (or a court for that matter) should also refrain from considering an application for interim relief if, in effect, what it is being asked to do is to determine the substance of the arbitration. 53

In a procedural order on "interim measures" made in an ICC arbitration, the tribunal stated as follows:

"The Arbitral Tribunal emphasises that, at this stage of the proceedings, it may and can only conduct a prima facie examination of the Parties' respective claims. It may not rule on the substance of the dispute. In particular, the Arbitral Tribunal is not in a position to rule on the issue of the validity of the termination of the [(Contract)] or on the claim of nullity of the Contract or of the validity or the effectiveness of the orders rendered by the Court of the State of X."

The dispute concerned the lease of offshore drilling units. The principal question for determination was whether the lessee had failed to make payments due and whether the lessor was entitled to terminate the lease. The issue was compounded by the fact that some of the platforms were situated in the waters of a state (allegedly) favourable to one party, while other platforms had been moved (allegedly unlawfully) to the waters of a state (allegedly) friendlier to the other party. The lessee had obtained, before the municipal courts of the country (allegedly) favourable to it, an order by way of interim relief that the lessor should not move the rig in question. [Page111:]

The lessee was requesting that the platforms resume work. Otherwise, the lessee stood to lose a considerable amount of money (nonperformance of its drilling obligations towards third parties). Conversely, the owner of the rigs was requesting a provisional payment of the outstanding invoices and access to the platforms to perform repairs or even to move them to a more neutral place to perform such repairs.

The tribunal ruled that both parties had shown some likelihood of success on the merits, but it did not undertake a factual investigation. It heard the parties and decided that the applications had failed on two other grounds mentioned below, namely the threat of irreparable harm and urgency.

The threat of irreparable or substantial harm that cannot be compensated by damages - The absence of any such demonstrable risk is most likely going to militate against the grant of the measure sought, since the claiming party's claims will be compensable in damages or otherwise susceptible to effective remedy in the final award.

The preservation of the rights of the arbitrating parties "may be threatened by actions 'capable of prejudicing the execution of any decision, which may be given by the tribunal'", 54 or, in other words, the purpose of interim remedies is "to prevent irreparable prejudice or harm to the rights of a party". 55 It is worth noting, however, that Iran-US Tribunals have determined that an "injury that can be made whole by monetary relief does not constitute irreparable harm". 56 A reflection of that conclusion is to be found in Article 17A(1)(a) of the revised UNCITRAL Model Law. The tribunal in the offshore platform case referred to above adopted the same reasoning.

Interim relief may be ordered so as to avoid an aggravation of the dispute, but it is not available to protect against an increase of the amount in dispute. It is necessary to keep in mind this distinction between the aggravation of the dispute and any impact upon the amount in dispute such as to increase it. Other factors that are taken into account and perhaps subsumed within the question of irreparable and substantial harm are urgency57 and proportionality. 58[Page112:]

Security/cross-undertaking in damages - Many rules also provide for the posting of security against the possibility that it should later be found that the measure was unwarranted or that the decision on the merits is in favour of the party against whom the interim measure was granted. A tribunal is in a position to safeguard the interests of the party against which a measure is granted in the event that it is later found to be unjustified by dint of the provision of some form of satisfactory security at the same time as the interim order is made.

The form of the security will be fashioned to the circumstances of the case. It may take the form of an undertaking backed by a guarantee or some form of payment into a specified account.

VII. Ex parte interim measures

In order for an interim measure to be effective, it may be necessary on some occasions to maintain an element of surprise in order to avoid a real risk of potential harm and to ensure that the remedy is effective. This will be the case where the requesting party has a valid basis for concern that the other party will take steps to dissipate its assets and so render any eventual award in the requesting party's favour nugatory. The topic of ex parte interim measures in international arbitration is a controversial one. It has been the subject of much debate during the UNCITRAL Working Group sessions dealing with the revisions of the Model Law provisions.

Redfern and Hunter summarize the current position as follows:

"The laws of the most popular arbitration seats and the rules of the leading institutions do not currently expressly envisage such a power for arbitrators and some commentators have suggested that it is incompatible with the consensual nature of arbitration and the respect for due process."59

One commentator has concluded that it is most unlikely that an arbitral tribunal operating under the ICC Rules would grant interim measures on an ex parte basis, suggesting that, in the view of most ICC arbitration practitioners, such an action would be inconsistent with the Rules, not least because granting an interim remedy on an ex parte basis could undermine the confidence of the other party in the neutrality of the arbitral tribunal. 60[Page1113:]

Part of the difficulty seems to stem from a difference in appreciation as to what ex parte means in the context of an application to a court or arbitral tribunal. If proper notice of an application may be shown to have been given and the respondent party fails to attend the hearing, a tribunal, faced with an urgent application that appears, prima facie, to be meritorious, might (and, the authors submit, should) pause before declining to make an order simply because the respondent party is not present, despite all reasonable efforts to contact it.

There may be scope for making an order with a very tight return date of, say, 48 hours for further review and argument. Such a situation of an application, which is, in effect, ex parte on notice, is very different from a truly ex parte application, which is made without any prior notice whatever to the opposing party. It was applications of this latter kind that gave rise to such controversy within the UNCITRAL Working Group.

As mentioned above, some commentators considered that allowing ex parte measures would be contrary to the underlying principles of international arbitration, including: (i) the duty to treat all parties with equality; (ii) the duty to afford each a fair hearing including the opportunity of putting its case and answering that of the other party; (iii) the principle that neither party is to have unilateral contact with the arbitrator; (iv) the requirement of impartiality and the arbitrators not having prejudged the issues; and (v) the consensual nature of the arbitral process. 61 For the reasons outlined above, that is not always the appropriate conclusion to draw.

The contrary view is that true ex parte interim remedies (that is to say, applications made without any prior notice) are also necessary in international arbitration for precisely the reason that the element of surprise is sometimes essential to make them effective. They do not violate due process per se, and in exceptional circumstances ex parte measures are necessary to achieve a fair resolution of the dispute. Provided that there are sufficient safeguards and that the parties are aware that either the institutional rules or the law of the place of arbitration allow them, ex parte interim remedies should be allowed. 62[Page114:]

The outcome of the debates within the UNCITRAL Working Group was a compromise. Articles 17 B. and 17 C. of the revised Model Law provide for a preliminary orders regime. It is made clear that the preliminary orders stand apart from other interim measures due to their temporary and extraordinary nature. An order may be granted if the tribunal considers that prior disclosure of the request for the interim measure to the party against which it is directed would risk frustrating the purpose of the interim measure. There are safeguards to protect the interests of the party against which the preliminary order is granted.

The order expires within 20 days from the date on which it was issued, and the tribunal must immediately notify all parties of the determination of an application for a preliminary order and afford the party against which the order is made the opportunity to present its case. It remains to be seen how many countries will amend their arbitration legislation to include this provision. 63

VIII. Form of the grant of an interim remedy

Many arbitral institutions leave it to the arbitral tribunal to decide whether to grant the interim measure in the form of an order or a partial award. 64 In most instances, interim measures will be granted in the form of an order, thereby allowing for ready amendment or variation of its terms should circumstances change. Unless there are compelling reasons that cause a tribunal to determine that its decision should be published in the form of an award, such as a perception that it will aid compliance with its terms, most ICC tribunals will avoid doing so.

Attention has already been drawn to the real prospect of delay attendant upon the formality of submitting an award in draft form for scrutiny by the ICC Court. A possible way around this problem is to grant the interim remedy as an order with the reasons to follow in a detailed award. An award is also subject to setting-aside procedures and enforcement procedures, which may result in side litigation with the further consequence that the arbitration will become more complex. [Page115:]

An interim remedy, by definition, is not intended finally to resolve any point in dispute. It is to the substance of the relief furnished, rather than the form of its presentation, that a court called upon to enforce an "award" granting an interim measure is likely to have regard. The absence of finality is inconsistent with the requirements of the New York Convention, which stipulate that an award must be "binding on the parties". 65 When it comes to the enforcement of such interim awards, that point has been taken up, for example, by the Australian courts. 66 In an attempt to overcome these difficulties in respect of enforcement, some states have sought to "label" interim remedies ordered by tribunals as awards, at least so far as their own legislation is concerned. 67

The recent revisions to the UNCITRAL Model Law contain extensive provisions on enforcement, which are beyond of the scope of this paper. Although the UNCITRAL Rules provide that orders granting interim remedies may be in the form of an interim award, some urgent matters may require that action be taken before the "final" interim remedy may be issued in the form of an interim award. The availability of tribunal members to deliberate and sign an award, or the time required for the award to be circulated between the tribunal members for signing, can result in a delay. The practice has developed of allowing the chairman to direct the party against which the interim measure is requested to refrain temporarily from any actions that might aggravate the situation, pending formal notification of the tribunal's decision. 68

IX. A note of caution

If the remedy sought is unusual or particularly sweeping, an arbitral tribunal will doubtless wish to proceed with particular care. Mindful of its concern to ensure, insofar as it is reasonably able to do so, that its award will be enforceable, an arbitral tribunal will have regard to the location where the remedy may be enforced, since the relevant national court, if called upon to enforce an order, may refuse to do so on the grounds that such a remedy is unknown (or unlawful) in its jurisdiction. Alternatively, a national court requested to enforce an unfamiliar interim remedy imposed by an arbitral tribunal seated outside its jurisdiction may recast it into a form acceptable in the enforcing jurisdiction, even to the extent of undermining the effectiveness of the order originally made. [Page116:]

X. Complementary remedies

1. The role of national courts

In certain circumstances, most notably that an arbitral tribunal is not yet in place or there is some doubt that it would have the necessary powers (and powers of coercion in any event), the option of making an application of the kind envisaged in the rules considered above simply does not arise, and a party may be well advised (or simply have no choice but) to go to a national court to seek interim measures.

Courts in a considerable number of jurisdictions would regard themselves, many with some justification, as being astute to exercise their powers in support of the arbitral process. That role is very significant, since courts have coercive powers to ensure compliance with interlocutory orders. Furthermore, those powers may be exercised against parties whose compliance may be required by an interim measure but who are not themselves parties to the arbitration. An arbitral tribunal may order that a party take an action with respect to property that is held by a third party, but the tribunal has no jurisdiction to order the third party itself to take an action or refrain from doing something. For example, a third-party order addressed to a bank holding deposits of a party would not be enforceable against the bank. 69

The extent and effectiveness of this interaction between state judges and arbitrators will depend on the relevant national arbitration law(s) and the scope of the agreement to arbitrate from which the tribunal derives its powers.

It will be a matter for national courts to determine the circumstances in which they will entertain an application for interim remedies once an arbitral tribunal has been formed. In those jurisdictions where there is a well-developed appreciation on the part of the judiciary of the role of international arbitration and arbitral tribunals and of the relationship between the courts and arbitration, the courts will uphold the parties' agreement to resolve their dispute by arbitration and will only intervene insofar as it is necessary to aid the arbitral process. [Page117:]

Certain arbitral rules contain a statement that applications for interim measures before a state court will not be deemed to be incompatible with the agreement to arbitrate. For example, Article 23(2) of the ICC Rules provides:

"Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof."

The AAA/IDRC Rules (Article 21(3)) and UNCITRAL Rules (Article 26(3)) state that a request to a judicial authority for interim measures shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The LCIA Rules (Article 25(3)) contain a similar provision. The ICC Rules, in common with the LCIA Rules, curtail the parties' ability to seek interim remedies from a judicial authority once the arbitral tribunal is constituted. In the case of the ICC Rules, it is restricted to "appropriate" circumstances and, in that of the LCIA Rules, to "exceptional circumstances".

Even if the arbitral tribunal has jurisdiction to grant interim measures under the applicable institutional rules or the agreement to arbitrate, a further consideration to be taken into account (not least for the tribunal in the exercise of its discretion) is the attitude of the courts at the place of arbitration to the granting of interim measures by an arbitral tribunal. The powers vested in an arbitral tribunal under the various arbitral rules are subject to any mandatory rules of law at the place of arbitration. [Page118:]

In Italy, for example, public policy requires that interim measures may only be granted by the courts. The Italian Code of Civil Procedure provides as follows:

"The arbitrator may not grant attachment or other interim measures of protection."70

The number of such jurisdictions in which such restrictions obtain is dwindling, as more and more countries, seeking to attract international arbitrations and to foster a reputation as an investor-friendly environment, enact modernized arbitration laws.

Most often, a neutral venue with an arbitration-friendly environment will be chosen as the place of arbitration. If that is the case, it is unlikely to be the jurisdiction where the assets of the parties are located or where the subject matter of the dispute arose. It is important, therefore, that the parties have the opportunity to access the courts in other jurisdictions, particularly insofar as enforcement is concerned.

In practical terms, parties faced with the prospect of arbitral proceedings will most likely need to consider their options, to the extent that it may be possible to obtain interim relief from a court, prior to the constitution of the tribunal. If measures backed by a threat of financial or penal sanction may be required and/or a third party is involved, the courts will again have an important role to play.

2. Within the arbitral process

In the absence of a validly constituted arbitral tribunal, there may be reason to question whether the courts from which a party might otherwise seek assistance in the form of measures of interim relief will be in a position (or willing) to provide it. Such relief may not be available at all or be of such limited scope as to be inadequate. In certain jurisdictions, interlocutory relief, which might be available in support of an arbitration pending in that jurisdiction is not available in the case of an arbitration pending in a foreign jurisdiction. One such jurisdiction, based on the current state of the law, is Singapore. 71 There may be little or no experience of such applications in the context of international arbitration among the judiciary in a particular country. There may be legitimate cause for concern that, in a dispute between a "foreign" entity and their "home" state, the courts in question will be reluctant to intervene at the expense of the "host" government. [Page119:]

A number of arbitral institutions have developed procedures intended to address the problem posed by the delay between the filing of a request for arbitration and the constitution of a tribunal seized of the substantive dispute(s) between the parties. By way of illustration, attention is drawn to ICC's own Rules for a Pre-Arbitral Referee Procedure (which date from January 1990), the ICDR's (AAA's) Emergency Relief procedures under Article 37 of the ICDR International Arbitration Rules (effective 1 May 2006) and the NAI's Article 42 Summary Arbitral Procedure, available since January 1988.

They have in common a recognition of the need to provide prompt access to a neutral third party competent to order provisional measures of relief of limited duration in circumstances in which interim relief is not available from a court or arbitral tribunal.

However, they differ in that the ICDR procedure is only available as an adjunct to pending ICDR arbitration proceedings: a party may not seek emergency relief before it has filed its Notice of Arbitration. In contrast, it is not a precondition to an application to a referee under the ICC procedure that arbitration - or court - proceedings be on foot or even imminent. The referee may, however, make the carrying out of his order subject to the condition that: "… a party shall commence proceedings before the Competent Authority [defined in Art. 1.1 as: "the arbitral tribunal or national court competent to deal with the case"] on the substance of the case within a specific period." 72 The NAI Summary Arbitral Procedure is a 'stand-alone' arbitral procedure in its own right, independent of the interlocutory relief that the parties may request from an arbitral tribunal seized of the substantive dispute. As Professor Albert Jan van den Berg has observed to the authors: "the Netherlands Arbitration Act is, to my knowledge, the only arbitration law to date [to contain] provisions for arbitral interim relief proceedings independent from the arbitration proceedings on the merits (Article 1051 of the Dutch Code of Civil Procedure)."

It must be remembered that when the ICC introduced its Pre-Arbitral Referee Procedure in 1990, it was breaking new ground: the concept of seeking emergency or temporary relief from an entity other than a court was then a novel one. To that extent, ICC procedure may seem rather formal by comparison with the more recent US and Dutch procedures, which have had the benefit of following the ICC's lead. [Page120:]

Recourse to the Pre-Arbitral Procedure must be the subject of an agreement in writing between the parties, who alone may bring their dispute to the referee. The referee may be designated in advance by the parties or else appointed by the Chairman of the ICC Court:

"… in the shortest time possible, taking account of his technical or professional qualifications, nationality, residence, other relationships with the countries in which the parties are established or with which they are otherwise connected, and any submissions of any party concerning the choice of a Referee."73

There is, however, no specific requirement that the referee be and remain independent of the parties. Once appointed, the referee is required to make and send his order within 30 days of transmission of the file to the referee. 74

The rules for the NAI Summary Arbitral Procedure contemplate the appointment of a sole arbitrator "as soon as possible" after the receipt of the request (in practice, the authors understand that appointments are generally made within 24 hours). 75 Once again, the parties may conclude a specific agreement on a method of appointment of a summary proceedings tribunal, but they may not simply carry over by implicit reference any agreement made between them insofar as the constitution of an arbitral tribunal seized of the merits of the dispute is concerned. Failing such an agreement, the appointment is made by the NAI administrator. An arbitrator appointed under these rules is required to be independent and impartial, but nationality alone is not a reason to preclude a person from appointment. Experience of these procedures in operation suggests that a decision will generally be forthcoming within one to three weeks of the appointment of the arbitrator.

Turning now to the ICDR procedure, it is incumbent upon the administrator to appoint within one business day of receipt of a notice a single emergency arbitrator from a special panel of emergency arbitrators designated to rule on emergency applications. 76 It is incumbent upon anyone approached to accept such an appointment that he or she disclose to the administrator any circumstances likely to give rise to justifiable doubts as to the arbitrator's impartiality or independence. Should any matter be raised, a challenge must be made within one business day of notice to the parties of the circumstances that have been disclosed. 77[Page121:]

Once appointed, the emergency arbitrator is required, within two business days of appointment, to establish a schedule for consideration of the application for emergency relief. 78 No time limit is fixed for the conclusion of the procedure, but it is generally expected that it will be completed within 7-14 days.

Competence to order provisional measures of relief of limited duration

The powers of the Pre-Arbitral Referee, which may be altered by express written agreement between the parties, are defined in Article 2 of the ICC Pre-Arbitral Referee Procedure Rules. They include a power to order any conservatory measures urgently necessary to prevent either immediate damage or irreparable loss; a power to order payments to be made; orders necessary to preserve or establish evidence; and orders requiring a party to take any step that ought to be taken according to the contract between the parties. Notwithstanding that remit, no order may be made by the referee other than an order requested by any party in accordance with the provisions of Article 3 of the Rules. Any order made by the referee must be reasoned. While it does not prejudge the substance of the case, nor bind any competent authority, the order is intended to remain in force unless and until the referee or the competent authority has decided otherwise. 79 Uniquely among the rules under consideration, the ICC procedure contemplates that a referee may retain the power to make an order within the time provided under the Rules, even if a competent authority has become seized of the case during the currency of the referee's tenure of office, unless the parties otherwise agree or the competent authority orders otherwise. 80

While a decision of a summary arbitral tribunal appointed under the NAI Rules is deemed a "provisional decision [which] shall in no way prejudice the final decision of the arbitral tribunal that decides on the merits of the case", 81 the decision in the summary arbitral proceedings is deemed to be an arbitral award for the purposes of Article 1051(3) of the Dutch Code of Civil Procedure. 82 As the authors understand it, it is often the case that, once the Summary Arbitral Tribunal's decision has been handed down, that ruling provides a sound basis for eventual settlement of the dispute between the parties, a point echoed in the introduction to the ICC Pre-Arbitral Referee Procedure Rules, which states:

"The order should therefore provide a temporary resolution of the dispute and may lay the foundations for its final settlement either by agreement or otherwise."[Page122:]

Against this background, Professor Pierre Tercier's description of measures ordered by pre-arbitral referees as being "definitively provisional" seems particularly apt.

In some respects, the powers of an ICDR emergency arbitrator are more circumscribed. The emergency arbitrator's decision, which may be in the form of an interim award or of an order, may include:

"Any interim or conservancy measure … [deemed] necessary, including injunctive relief and measures for the protection or conservation of property."

The rules expressly provide that the emergency arbitrator has no further power at all to act once the tribunal that is to be seized of the merits of the dispute has been constituted. Pending the constitution of that tribunal, the emergency arbitrator himself may modify or vacate the interim award or order for good cause shown, but thereafter the tribunal dealing with the merits alone may reconsider, modify or vacate the interim award or order. 83

While these measures are intended to fill what is rightly perceived to be a gap in the arbitral process, it must be acknowledged that the number of applications made under these various rules to date is very small. Insofar as the authors can ascertain, a mere handful of cases have been the subject of referrals to a pre-arbitral referee under the ICC Rules; 84 the ICDR, in the 18 months during which its emergency rules have been available, has received three notices of request, while the NAI now receives some 10-20 cases a year out of an overall annual case load of some 120-150 cases. It would seem, therefore, that pending the constitution of an arbitral tribunal, most parties will still look first and foremost to the courts in the relevant jurisdiction(s) for such interim relief as might be available to them.

A compromise utilized under the LCIA Rules is to allow for the possibility of the expedited formation of the tribunal. Article 9 of the LCIA Rules allows any party to apply to the LCIA "in exceptional urgency" for the expedited formation of the arbitral tribunal. A party must make an application to the LCIA setting out the specific grounds for the exceptional urgency in the formation of the arbitral tribunal. The LCIA Court then has the discretion to abridge or curtail any time limit under the Rules for the formation of the arbitral tribunal. [Page123:]

Even after an arbitral tribunal has been constituted, it may take time for an application for interim measures to be heard. It may be difficult to convene a meeting between the parties and the members of the arbitral tribunal within a sufficiently short timeframe. The likely fallback, contemplated in many institutional rules - and certainly those of ICC85 - is that the parties will apply to a court for measures intended to "hold the ring" until the tribunal itself is in a position to deal with the application.

XI. Conclusion

Interim remedies provide a very important mechanism intended to enhance the prospect that the outcome of the resolution of a dispute by arbitration will be effective. Important evidence may be preserved and made available to the tribunal; the subject matter of the dispute may be preserved; the status quo between the parties may be maintained; and assets out of which to satisfy the eventual award or pay the costs of the arbitration may be secured.

Most institutional rules and national arbitration legislation make provision for interim remedies. The absence of uniformity between these provisions (and the need to have regard to the effect of any particular agreement entered into by the parties insofar as interim measures are concerned) requires arbitral tribunals and practitioners to be alert to the potential limits on the grant of interim remedies.

While in many instances the courts remain a "first port of call" for a party seeking interim relief, particularly in the period prior to the constitution of an arbitral tribunal, there is ample evidence to support the proposition that arbitrators are increasingly called upon to exercise their jurisdiction to grant interim measures. To the extent that it is indicative of a willingness on the part of those involved in an international dispute to bring the dispute entirely within the arbitral process, that is encouraging. However, arbitrators (and the arbitral institutions) should be astute to ensure that resort to applications for interim relief as a tactical ploy intended to derail the arbitration through delaying tactics that increase the costs and apply pressure on the other party to settle the dispute is discouraged. It is submitted that, if such a development were to be allowed to go unchecked, it would be inimical to the arbitral process. [Page124:]

It would give rise to a potential source of real dissatisfaction with a means of dispute resolution that has demonstrated a remarkable degree of adaptability to all manner of international disputes and prejudice the prospects of reducing still further the extent of court intervention in the arbitral process. [Page125:]

1
Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), PCIJ, Series A/B, No. 79, 1939, at 199 (December 5, 1939).

2
It should be noted that a number of different terms, such as "interim measures of protection", "conservatory measures", "precautionary measures" and "recommendations", are used in the mass of relevant rules and legislation. While these variations of nomenclature may be of some significance in their respective immediate contexts, the term "interim remedies" is used in this paper to encompass all of these different terms.

3
See J. Lew, L. Mistelis and S. Kroll, Comparative International Commercial Arbitration (2003) p. 586.

4
D.F. Donovan, 'The Scope and Enforceability of Provisional Measures in International Commercial Arbitration: A Survey of Jurisdictions, the Work of UNCITRAL and Proposals for Moving Forward', ICCA Congress Series No. 11 (2003) p. 82. See also D.A. Redfern and J.M.H. Hunter, Law and Practice of International Commercial Arbitration, 4th edn. (2004) p. 332, where the purpose of interim remedies is described as "the preservation of evidence, the protection of assets, or in some other way the preserving of the status quo pending the outcome of the dispute." In a similar vein, see A. Yesilirmak, 'Interim and Conservatory Measures in ICC Arbitral Practice', 11(1) ICC International Court of Arbitration Bulletin (2000) at p. 31: "Interim and conservatory measures are designed to prevent or minimize any disadvantage which may be due to the duration of the arbitral proceedings until the final settlement of the dispute and the implementation of its result. Their purpose is therefore to uphold justice by protecting parties' interests until the award is recognized or enforced."

5
L. Craig, W. Park and J. Paulsson, International Chamber of Commerce Arbitration, 3rd edn. (2001) p. 460.

6
Ibid.

7
Those interim remedies aimed at procedural matters such as the production of documents are not pertinent to the topic of this paper and so are not discussed. The aim of such measures is to afford the parties an equal opportunity to present their case. Examples of measures that would fall within this category are inspection of goods, merchandise or equipment within the other party's control.

8
Redfern and Hunter, supra note 4, at p. 339.

9
Ibid., at p. 338, note that the orders of an arbitral tribunal are not "writ in water". Reference is made to Schwartz, Conservatory and Provisional Measures in International Arbitration, ICC Publication No. 519 (1993), which states: " Ultimately, of course, the arbitrators' greatest source of coercive power lies in their position as arbiters of the merits of the dispute between the parties. Parties seeking to appear before arbitrators as good citizens who have been wronged by their adversary would generally not wish to defy instructions given to them by those whom they wished to convince of the justice of their claims."

10
See D. Williams QC, 'Chapter 8 - Interim Measures', Asian Leading Arbitrators' Guide (2007) pp. 242-243. Some arbitrators may also use the threat of monetary penalties (astreintes). Whether they may order them is a matter of jurisdiction rather than procedure. Therefore, a tribunal requires either the legal entitlement or the parties' (implied at least) consent.

11
Craig, Park and Paulsson, supra note 5, at p. 462. Art. 17 of the recently revised UNCITRAL Model Law describes four categories of interim measures. They are: (a) maintain or restore the status quo pending determination of the dispute; (b) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm to the arbitral process itself; (c) provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) preserve evidence that may be relevant and material to the resolution of the dispute.

12
G. Marchac, 'Interim Measures in International Commercial Arbitration Under the ICC, AAA, LCIA and UNCITRAL Rules', 10 The American Review of International Arbitration (1999) p. 123.

13
Y. Derains and E. Schwartz, A Guide to the ICC Rules of Arbitration, 2nd edn., ICC Publication No. 961 (2005) pp. 296-297, opine that remedies granted in ICC arbitrations go beyond mere conservation or disposal of goods to injunctions of all kinds, the preservation of evidence, the protection of trade secrets, orders for provisional payment, the appointment of experts to report upon factual matters and the posting of guarantees.

14
See Craig, Park and Paulsson, supra note 5, at p. 463.

15
Williams, supra note 10, at p. 229.

16
R. Merkin, Arbitration Act 1996 (2005) p. 102. It has been suggested recently that there is as yet no clear precedent confirming the arbitrator's power to grant freezing orders as such. See P. Runeland and G. Blanke, 'On Provisional Measures in English Arbitrations: A Brief Overview', 73(2) Arbitration (2007) p. 189. See also Yesilirmak, supra note 4, at p. 33, pointing out that tribunals acting under the ICC Rules have rejected applications for a Mareva injunction or a post-award attachment as being beyond the competence of the tribunal by reason of its contractual nature.

17
Section 18(3) of the English Arbitration Act 1996 provides: "The tribunal may order a claimant to provide security for the costs of the arbitration", and Art. 25.2 of the LCIA Rules contains a provision vesting the arbitral tribunal with power to order any claiming or counterclaiming party to provide security for the legal or other costs of any other party. The United Kingdom is, however, something of a special case, since these very specific provisions arose as a reaction to the controversial English case of Coppee-Lavalin N.V. v. Ken-Ren Chemicals and Fertilizers Limited [1995] 1 A.C. 38, [1994] 2 All E.R. 499.

18
Derains and Schwartz, supra note 13, at pp. 109-110, note 169.

19
For a comprehensive discussion of anti-suit injunctions, see E. Gaillard (ed.), Anti-Suit Injunctions in International Arbitration (2005).

20
L. Lévy, 'Summary of Laurent Lévy's presentation on interim relief in oil and gas matters', ICC Paris, 29 October 2007, p. 8.

21
Note by the Secretariat, 30 January 2002, UN Doc. A/CN.9/WG.II/WP.119, p. 6.

22
Ibid., at p. 7.

23
Alternatively, the capacity to order interim remedies may be derived from the lex arbitri. For example, Art. 183 of the Swiss Private International Law Act provides: "Unless the Parties have agreed otherwise, the Arbitral Tribunal may, at the request of a Party, order provisional or protective measures." See also Art. 17(1) of the UNCITRAL Model Law.

24
There are exceptions to this general rule. For example, Rule 24 of the new SIAC Rules would appear to empower an arbitral tribunal to order interim relief of its own accord.

25
Derains and Schwartz, supra note 13, at p. 296.

26
Craig, Park and Paulsson, supra note 5, at p. 462.

27
Ibid., at pp. 463-464.

28
Ibid., at p. 468.

29
Derains and Schwartz, supra note 13, at p. 297.

30
Craig, Park and Paulsson, supra note 5, at p. 469.

31
Ibid., at pp. 467-469.

32
Ibid., at p. 461.

33
K. Hober and W. McKechnie, 'New rules of the Arbitration Institute of the Stockholm Chamberof Commerce', 23 Arbitration International (2007) pp. 261-291.

34
These rules constitute a unified set of rules for the Swiss Chambers of Commerce.

35
W. Peter, 'Some Observations on the New Swiss Rules of International Arbitration', in A.J. van den Berg (ed.), YB Com. Arb., Vol. XXIX (2004) pp. 440-447: " By departing from the formulation of the UNCITRAL Arbitration Rules which appeared too restrictive and indeed outdated in view of prevailing international arbitration practice, the drafters of the Swiss Rules wanted to stress the considerable freedom and discretion given to Arbitral Tribunals in respect of the object as well as the nature of interim measures that may be ordered."

36
See L. Burger, 'The New Swiss Rules of International Arbitration: A Comparative Analysis', 19(6) Mealey's International Arbitration Report (2004) p. 21.

37
G. Marchac, supra note 12, at p. 128. However, Redfern and Hunter, supra note 4, at p. 341 consider that they show a similar narrow concern for goods and property.

38
Runeland and Blanke, supra note 16, at pp. 197-198.

39
Ibid., at p. 536.

40
See Redfern and Hunter, supra note 4, at p. 341: " The references to 'subject-matter' of the dispute and to 'measures for the conservation of goods forming the subject-matter of the dispute' suggest that the measures contemplated relate to preserving or selling of goods rather than, for instance, preventing the flight of assets. In this sense, they fall short of the interim measures that are needed in the modern world of international commerce."

41
D. Caron, L. Caplan and M. Pellonpää, The UNCITRAL Arbitration Rules, A Commentary (OUP, 2006) p. 539; and Donovan, supra note 4, at p. 102.

42
Caron, Caplan and Pellonpää, supra note 41, at p. 539.

43
Report of the Working Group I (Arbitration and Conciliation) on the work of its forty-fifth session, Vienna, September 11-15, 2006, UN Doc. A/CN.9/614.

44
Report of the Working Group II (Arbitration and Conciliation) on the work of its forty-seventh session, Vienna, September 10-14, 2007, UN Doc. A/CN.9/641.

45
See UN Doc. A/CN.9/WG.II/WP.145/Add.1.

46
The recent revisions to the Model Law do provide a set of conditions for granting interim measures in Art. 17 A. The party requesting an interim measure 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 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. (b)There is a reasonable possibility that the requesting party will succeed on the merits of the claim, provided that any determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination."

47
See, for example, Redfern and Hunter, supra note 4, at p. 343.

48
See Lévy, supra note 20, at p. 4, concerning the necessity to characterize this as a prima facie assessment only.

49
Several institutional rules provide that an arbitral tribunal may grant an interim remedy as soon as it has been constituted (e.g. Art. 23(1) ICC Rules). At such an early stage of the proceedings, an arbitral tribunal will not yet have determined its jurisdiction, which may be disputed.

50
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, ICJ Reports 1984, cited in Caron, Caplan and Pellonpää, supra note 41, at p. 536.

51
See Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, August 17, 2007, p. 29, paras. 63-64, where it is stated that the claimants: "need only to show that they alleged to the claims that - if ultimately proven - would entitle Claimants to substantial relief…At this stage, the Tribunal reiterates that the right to be preserved only has to be asserted asa theoretically existing right, as opposed to proven to exist in fact."

52
Lew, Mistelis and Kroll, supra note 3, at p. 604.

53
See Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] A.C. 334, 367-368. A further example is the Iran-US Claims Tribunal case of Behring International, Inc. v. Iranian Air Force, 8 Iran-US CTR 44, in which the Tribunal refused the relief sought as it would have achieved the result sought by the respondent in its counterclaim.

54
Caron, Caplan and Pellonpää, supra note 41, at p. 536.

55
Ibid. Caron, Caplan and Pellonpää express the view that "grave" or "substantive" would be a more appropriate characterization of the required harm than "irreparable". This is part of a discussion on Art. 26 of the UNCITRAL Rules under which an arbitral tribunal may take any interim measures it deems "necessary".

56
Ibid, at p. 538, citing Iran and the United States of America (A/15 and A/24), Award No. ITL 33-A-4/A-15(III)-2, February 1, 1984, 21, 5 Iran-US CTR 131 (1984-I).

57
See Lévy, supra note 20, at p. 6.

58
The requirement of proportionality is encompassed in the revised Model Law provisions, where Art. 17 A.(1)(a) provides as a condition for granting interim measures that the arbitral tribunal shall be satisfied that "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."

59
Redfern and Hunter, supra note 4, at p. 335.

60
Derains and Schwartz, supra note 13, at p. 299.

61
H. van Houtte, 'Ten Reasons Against a Proposal for Ex Parte Interim Measures of Protection in Arbitration', 20 Arbitration (2004).

62
K. Hober, 'The Trailblazers v. the Conservative Crusaders, Or Why Arbitrators Should Have the Power to Order Ex Parte Interim Relief ', ICCA Congress Series No. 12 (2005) pp. 272-277.

63
Redfern and Hunter, supra note 4, at p. 336, consider that any change to national arbitration laws may take some time, since most leading arbitral venues have recently renewed their laws without including such a power. One jurisdiction that has already taken steps to amend its laws - in part, due to fortuitous timing - is New Zealand. The New Zealand Parliament at the same time as approving some other minor amendments to the Arbitration Act 1996 has recently approved the adoption of all of the revised Model Law provisions on interim measures.

64
In court proceedings, state courts have shown a willingness to look beyond the title of a decision of an arbitral tribunal. For instance, in True North v. Publicis, a US Federal Court granted the enforcement of interim relief, finding that, rather than a provisional order, the arbitrators had actually handed down an award. Conversely, the Cour d'Appel de Paris quashed a provisional order on the basis that the arbitrators had actually made an award and had not abided by the ICC Rules (scrutiny of the ICC Court): Brasoil v. Libya, Rev. Arb. 1999, 834.

65
Art. V(1)(e) of the New York Convention. As Redfern and Hunter, supra note 4, have observed at p. 335, "the interim measures ordered by an arbitral tribunal do not, by definition, finally resolve any point in dispute. Such an order is therefore unlikely to satisfy the requirement of finality imposed by the New York Convention for an award."

66
See the case of Re Resort Condominiums International Inc. [1995] 1 Q.D.R. 406.

67
Redfern and Hunter, supra note 4, at p. 335.

68
Caron, Caplan and Pellonpää, supra note 41, at pp. 541-542.

69
Redfern and Hunter, supra note 4, at pp. 334-335.

70
See also Arts. 28 and 45 of the Arbitration Law of the People's Republic of China. Italian law does now provide an exception in the field of company law whereby the arbitral tribunal is granted the power to grant an interim remedy staying the effect of the resolutions of a company meeting where the dispute concerns such resolutions.

71
See Swift-Fortune Ltd v. Magnifica Marine S.A. [2006] S.G.C.A. 42. For a more detailed commentary, see also Chang Leng Sun, 'Injunctions in Aid of Foreign Arbitration: the Singapore Experience', 3(2) Asia International Arbitration Journal (2007).

72
Art. 6.4 of the Rules for a Pre-Arbitral Referee Procedure.

73
Ibid., Art. 4.2.

74
Ibid., Art. 6.2. It is important to note that any extension of that time limit lies within the sole discretion of the Chairman of the ICC Court.

75
Art. 42(f) of the Rules for Summary Arbitral Proceedings.

76
Art. 37(3) of the ICDR Emergency Measures of Protection.

77
Ibid.

78
Ibid., Art. 37(4).

79
Art. 6.3 of the ICC Rules for a Pre-Arbitral Referee Procedure.

80
Ibid., Art. 2.4.

81
Art. 42(m) of the NAI Rules.

82
Ibid., Art. 42(l).

83
Arts. 37(e) and 37(f).

84
The Statistical Reports of the ICC for 2000-2006 published in the Bulletin of the International Court of Arbitration reveal that for this period there were five applications for a pre-arbitral referee procedure.

85
Art. 23(2) of the ICC Rules of Arbitration.