Interim Measures in Arbitration: The Role of the Arbitral Tribunal

Shivendra Pratap Singh

Advocate

High Court Lucknow

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Introduction

Interim measures are temporary actions that an Arbitral Tribunal can take before issuing the final award in an arbitration proceeding. These measures are aimed at preserving assets, maintaining the status quo, or ensuring that the arbitration process itself is not frustrated. In this article, we will explore what interim measures are, why they are important, the types of interim measures, and the role of the Arbitral Tribunal in granting them.

What Are Interim Measures?

Interim measures are temporary orders granted by an Arbitral Tribunal to ensure that the rights of the parties are preserved pending the final resolution of the dispute. These measures can be requested by any of the disputing parties and can take various forms, such as orders to freeze assets, cease a particular action, or preserve evidence.

Importance of Interim Measures

  1. Preserving Assets: Ensures that assets under dispute are not dissipated before the final award.
  2. Evidence Protection: Prevents tampering or destruction of critical evidence.
  3. Status Quo: Helps maintain the existing relationship between parties during arbitration.
  4. Facilitating Arbitration: Ensures that the arbitration process itself is not undermined, for example, by preventing one party from causing unnecessary delays.

Types of Interim Measures

  1. Conservatory Measures: Designed to preserve a certain state of affairs or particular assets.
  2. Mandatory Injunctions: Require a party to take specific actions.
  3. Prohibitory Injunctions: Prohibit a party from taking specific actions.
  4. Anti-suit Injunctions: Prevent a party from pursuing litigation in another forum parallel to the arbitration.
  5. Security for Costs: Require one party to deposit a sum to cover the costs of the arbitration.

Role of the Arbitral Tribunal

Authority to Grant Interim Measures

The Arbitral Tribunal generally derives its authority to grant interim measures from either the arbitration agreement, institutional rules if the arbitration is institutional, or national arbitration laws.

Criteria for Granting Interim Measures

The Arbitral Tribunal often considers several factors before granting an interim measure, such as:

  1. Prima Facie Case: Whether the requesting party has a strong initial case that justifies the measure.
  2. Urgency: Whether immediate action is required to prevent irreparable harm.
  3. Proportionality: Whether the measure is proportional to the scale and complexity of the dispute.
  4. Balance of Convenience: Which party would suffer more if the measure is or isn’t granted.

Procedure for Requesting Interim Measures

  1. Written Request: The party seeking the measure typically has to submit a written request to the tribunal.
  2. Opposition and Reply: The other party usually has the opportunity to submit written opposition, followed by a reply from the requesting party.
  3. Oral Hearing: In some cases, an oral hearing may be conducted.
  4. Decision: The tribunal then issues an interim order or award, setting out the measures to be followed.

Enforcement

Interim measures may need to be enforced through national courts, particularly if they involve third parties or require state resources to implement.

Conclusion

Interim measures are an essential tool in arbitration, offering a mechanism for preserving the rights and interests of parties pending a final award. Understanding the role of the Arbitral Tribunal in this context is critical for parties involved in arbitration proceedings.

Disclaimer

This article is intended for informational purposes only and does not constitute legal advice. Consult a legal expert for advice tailored to your specific needs.