Date: Procedural Order 6, 2015

Origin of the parties: Europe

Place of arbitration: Country in Europe

The Arbitral Tribunal takes into consideration:

A. Claimant's Request for Interim Measures

1. In its Request for Interim Measures dated 17 September [Year Y], Claimant requests that Respondents be ordered to (i) block on an escrow account … (ii) not dispose of said account until the enforcement of the final award, and (iii) declare each of Respondents' patrimony and/or asset, including bank accounts and domiciliation.
2. The power of the Arbitral Tribunal to issue an order for interim/conservatory measures rests, in Claimant's submission, on Article 28 of the ICC Rules of Arbitration (ed. 2012).
3. Claimant refers to the notification of the ICC Secretariat to the Parties, according to which the ICC extended the time limit for rendering the final award until 30 November [Year Y], and it submits that this is ‘a new legal circumstance that increases the risk borne by the Claimant ta not be able to enforce any eventual award in its favor’.

B. Respondents' Response to Claimant's Request for Interim Measures

4. In their Response to Claimant's Request for Interim Measures dated 30 September [Year Y], Respondents request the Arbitral Tribunal to dismiss Claimant's request for interim relief.
5. Respondent submits that Claimant's request does not satisfy any of the requirements for interim relief. As Claimant's request is not supported by any new fact from its first request, Respondents rely on their arguments as presented to the Arbitral Tribunal in their submission dated 10 April [Year Y].

C. Reasons for the Arbitral Tribunal's Decision

6. As in the case of its previous request … the measure requested by Claimant must be classified as a security for payment and costs and thus as an interim and/or conservatory measure.¹
7. With respect to the reasoning, the Arbitral Tribunal therefore largely refers to its Procedural Order No. 4 … by which it dismissed Claimant's previous application for interim and conservatory measures. This applies in particular to the relevant criteria for an Arbitral Tribunal to order interim measures (which will not be repeated in any detail in the present order), namely, a prima facie case on the merits, the threat of an irreparable harm and no pre-judgment of the case.
8. In essence, Claimant relies on the arguments submitted in its previous request for interim relief dated 2 April [Year Y]. In fact, the only new development that Claimant points out in its submission is the notification of the ICC Secretariat about the extension of time to render the final award until 30 November [Year Y] (that allegedly ‘increases the risk borne by the Claimant to not be able to enforce any eventual award in its favor’).
9. Even though the Arbitral Tribunal is at an advanced stage of its deliberation and drafting of the final award it considers that, for present purposes, there is still no need to make a prima facie determination of the merits, as Claimant clearly failed to establish the further requirements that would justify an order of security for payment and costs.
10. Above all, and for the reasons explained in its Procedural Order No. 4, the Arbitral Tribunal finds that no sufficient evidence exist of an immediate danger for Claimant to be deprived of any potential payment and cost claim. The fact that the rendering of the final award is imminent does not change this analysis in any way.

Based on these considerations, and upon careful review and deliberation of the arguments submitted by Claimant, the Arbitral Tribunal issues the following:

Procedural Order

1. Claimant's Request for Interim and/or Conservatory Measures … is dismissed.
2. Any decision on costs is reserved for the Arbitral Tribunal's final award.

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